ADRMOP,REFDIS,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17-cv-05211-WHA

Regents of University of California et al v. United States Department of Homeland Security et al Assigned to: Hon. William Alsup Referred to: Magistrate Judge Sallie Kim Relate Case Cases: 3:17-cv-05235-WHA
3:17-cv-05380-WHA 3:17-cv-05813-WHA 3:17-cv-05329-WHA Case in other court: Supreme Court of the United States, 18-00587 USCA 9th Circuit, 18-80004 Cause: 05:551 Administrative Procedure Act

Date Filed: 09/08/2017 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff UC Regents

represented by Jeffrey Michael Davidson Covington & Burling LLP Salesforce Tower 415 Mission Street, Suite 5400 San Francisco, CA 94105 (415) 591-6000 Fax: (415) 591-6091 Email: jdavidson@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Douglas Bersin Covington & Burling LLP One Front Street, 35th Floor San Francisco, CA 94111-5356 (415) 591-6000 Fax: (415) 591-6091 Email: abersin@cov.com ATTORNEY TO BE NOTICED

Alexander Berengaut Covington and Burling LLP One CityCenter

850 Tenth Street, NW Washington, DC 20001 202-662-5367 Email: aberengaut@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ashley Ciara Anguas Nyquist Covington and Burling LLP 850 10th Street NW Washington, DC 20001 202-662-6000 Email: anyquist@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Furlonge Robinson , University of California 1111 Franklin Street, 8th Floor Oakland, Ca 94607-5200 510-987-9800 Fax: Email: charles.robinson@ucop.edu ATTORNEY TO BE NOTICED
Erika M. Douglas Covington and Burling LLP 333 Twin Dolphin Drive Suite 700 Redwood Shores, CA 94061-1418 (650) 632-4700 Fax: (650) 632-4800 Email: edouglas@cov.com ATTORNEY TO BE NOTICED
Harpreet Kaur Chahal , University of California Office of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94608-5200 (510) 987-9800 Fax: Email: harpreet.chahal@ucop.edu ATTORNEY TO BE NOTICED
Ivano Michael Ventresca

Covington and Burling, LLP 850 Tenth Street NW Washington, DC 20001 202-662-5203 Email: iventresca@cov.com TERMINATED: 09/04/2020 PRO HAC VICE
Jonathan Yakov Mincer Covington and Burling LLP 850 Tenth Street, NW Washington, DC 20001-4956 202-662-6000 Email: jmincer@cov.com TERMINATED: 01/10/2019 ATTORNEY TO BE NOTICED
Julia M.C. Friedlander University of California Office of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 (510) 987-9800 Fax: (510) 987-9757 ATTORNEY TO BE NOTICED
Lanny A Breuer Covington and Burling LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001 202-662-6000 Email: lbreuer@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Margaret Louisa Wu UC Office of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94607 (510) 987-9747 Fax: (510) 987-9757 Email: margaret.wu@ucop.edu ATTORNEY TO BE NOTICED
Mark H Lynch

Covington and Burling LLP 850 10th St. NW Washington, DC 20001 202-662-5544 Email: mlynch@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Megan A Crowley U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 202-305-0754 Email: mcrowley@cov.com ATTORNEY TO BE NOTICED
Megan Louise Rodgers Covington and Burling LLP 3000 El Camino Real 5 Palo Alto Square, 10th Floor Palo Alto, CA 94306 650-632-4700 Fax: 650-632-4800 Email: mrodgers@cov.com ATTORNEY TO BE NOTICED
Michael A. Troncoso University of California Office of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94607 (510) 987-9800 Fax: (510) 987-9757 ATTORNEY TO BE NOTICED
Monica Ramirez Almadani Covington & Burling LLP 1999 Avenue of the Stars Los Angeles, CA 90067 424-332-4800 Fax: 424-332-4749 Email: mralmadani@cov.com TERMINATED: 05/10/2019 ATTORNEY TO BE NOTICED

Plaintiff
Janet Napolitano In her official capacity as President of the University of California TERMINATED: 11/02/2020

Norman J. Hamill University of California Office of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 (510) 987-9800 Fax: (510) 987-9757 ATTORNEY TO BE NOTICED
Sonya Una Sanchez University of California Office of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 510-987-9800 Fax: 510-987-9757 Email: Sonya.Sanchez@ucop.edu ATTORNEY TO BE NOTICED
represented by Jeffrey Michael Davidson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Douglas Bersin (See above for address) ATTORNEY TO BE NOTICED
Alexander Berengaut (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ashley Ciara Anguas Nyquist (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Furlonge Robinson , (See above for address) ATTORNEY TO BE NOTICED
Erika M. Douglas (See above for address)

ATTORNEY TO BE NOTICED
Harpreet Kaur Chahal , (See above for address) ATTORNEY TO BE NOTICED
Ivano Michael Ventresca (See above for address) TERMINATED: 09/04/2020 PRO HAC VICE
Jonathan Yakov Mincer (See above for address) TERMINATED: 01/10/2019 ATTORNEY TO BE NOTICED
Julia M.C. Friedlander (See above for address) ATTORNEY TO BE NOTICED
Lanny A Breuer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Margaret Louisa Wu (See above for address) ATTORNEY TO BE NOTICED
Mark H Lynch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Megan A Crowley (See above for address) ATTORNEY TO BE NOTICED
Megan Louise Rodgers (See above for address) ATTORNEY TO BE NOTICED
Michael A. Troncoso (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
United States Department of Homeland Security

Monica Ramirez Almadani (See above for address) TERMINATED: 05/10/2019 ATTORNEY TO BE NOTICED
Norman J. Hamill (See above for address) ATTORNEY TO BE NOTICED
Sonya Una Sanchez (See above for address) ATTORNEY TO BE NOTICED
represented by Brad Prescott Rosenberg U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 202-514-3374 Fax: 202-616-8460 Email: brad.rosenberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate United States Department of Justice Civil Division 950 Pennsylvania Ave., NW Washington, DC 20530 202-514-2331 Email: brett.a.shumate@usdoj.gov TERMINATED: 04/11/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Thorp U.S. Department of Justice Civil Division 1100 L Street NW Washington, DC 20530 (202)514-4781

Defendant
Kirstjen Nielson In her official capacity as Acting Secretary of the Department of Homeland Security TERMINATED: 11/02/2020

Email: galen.thorp@usdoj.gov ATTORNEY TO BE NOTICED
Jeffrey S. Robins U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, DC 20044 202-616-1246 Fax: 202-233-0397 Email: jeffrey.robins@usdoj.gov ATTORNEY TO BE NOTICED
Kate Talmor US Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave NW Rm 6139 Washington, DC 20001 202-514-9239 Email: kate.bailey@usdoj.gov TERMINATED: 10/11/2019 ATTORNEY TO BE NOTICED
Stephen M. Pezzi U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 202-305-8576 Email: stephen.pezzi@usdoj.gov ATTORNEY TO BE NOTICED
represented by Brad Prescott Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019 LEAD ATTORNEY

Defendant
Chad Wolf in his official capacity as purported Acting Secretary of the Department of Homeland Security

ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) ATTORNEY TO BE NOTICED
Kate Talmor (See above for address) TERMINATED: 10/11/2019 ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) ATTORNEY TO BE NOTICED
represented by Brad Prescott Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Thorp (See above for address) ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) ATTORNEY TO BE NOTICED

V. Movant State of California

represented by James F. Zahradka , II California Department of Justice Bureau of Children's Justice 1515 Clay Street, Suite 2000 Oakland, CA 94612 (510) 622-2239 Fax: (510) 622-2121 Email: james.zahradka@doj.ca.gov LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Alan Douglas Bersin (See above for address) ATTORNEY TO BE NOTICED
Eric Prince Brown Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415-421-7151 Fax: 415-362-8064 Email: ebrown@altber.com ATTORNEY TO BE NOTICED
Jeffrey Michael Davidson (See above for address) ATTORNEY TO BE NOTICED
Nancy L. Fineman Cotchett, Pitre & McCarthy LLP 840 Malcolm Road Suite 200 Burlingame, CA 94010 650-697-6000 Email: nfineman@cpmlegal.com ATTORNEY TO BE NOTICED
Ronald Hak King Lee Department of Justice Office of the Attorney General 1515 Clay Street 21st Floor P.O. Box 70550 Oakland, CA 94612-0550 (510) 879-1983 Fax: (510) 622-2270 Email: Ronald.Lee@doj.ca.gov TERMINATED: 04/19/2019 ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. Gibson, Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 (213) 229-7804

Movant State of Maine
Movant State of Maryland

Fax: (213) 229-7520 Email: tboutrous@gibsondunn.com ATTORNEY TO BE NOTICED
represented by James F. Zahradka , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Douglas Bersin (See above for address) ATTORNEY TO BE NOTICED
Eric Prince Brown (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Michael Davidson (See above for address) ATTORNEY TO BE NOTICED
Nancy L. Fineman (See above for address) ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by James F. Zahradka , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Douglas Bersin (See above for address) ATTORNEY TO BE NOTICED
Eric Prince Brown (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Michael Davidson

Movant State of Minnesota
Movant City Of San Jose

(See above for address) ATTORNEY TO BE NOTICED
Nancy L. Fineman (See above for address) ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by James F. Zahradka , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Douglas Bersin (See above for address) ATTORNEY TO BE NOTICED
Eric Prince Brown (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Michael Davidson (See above for address) ATTORNEY TO BE NOTICED
Nancy L. Fineman (See above for address) ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Justin Theodore Berger Cotchett, Pitre & McCarthy, LLP 840 Malcolm Road Burlingame, CA 94010 (650) 697-6000 Fax: (650) 697-0577 Email: jberger@cpmlegal.com

Movant Dulce Garcia
Movant Viridiana Chabolla Mendoza
Movant Miriam Gonzalez Avila
Movant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Fineman (See above for address) TERMINATED: 11/30/2017
represented by Theodore J. Boutrous , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan D. Dettmer Gibson, Dunn & Crutcher LLP 555 Mission Street Suite 3000 San Francisco, CA 94105 415-393-8200 Fax: 415-986-5309 Email: edettmer@gibsondunn.com ATTORNEY TO BE NOTICED
represented by Theodore J. Boutrous , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan D. Dettmer (See above for address) ATTORNEY TO BE NOTICED
represented by Theodore J. Boutrous , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan D. Dettmer (See above for address) ATTORNEY TO BE NOTICED

Norma Ramirez
Movant Saul Jimenez Suarez
Movant Jirayut Latthivongskorn
Movant County of Santa Clara Movant SEIU Local 521 Movant City of los Angeles

represented by Theodore J. Boutrous , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan D. Dettmer (See above for address) ATTORNEY TO BE NOTICED
represented by Theodore J. Boutrous , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan D. Dettmer (See above for address) ATTORNEY TO BE NOTICED
represented by Theodore J. Boutrous , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan D. Dettmer (See above for address) ATTORNEY TO BE NOTICED
represented by Eric Prince Brown (See above for address) ATTORNEY TO BE NOTICED
represented by Eric Prince Brown (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas Office of the Los Angeles City Attorney 200 N. Main Street

Movant City of Boston
Movant City of Cambridge
Movant City of Chelsea

City Hall East, Suite 800 Los Angeles, CA 90012 213-978-8100 Fax: 213-978-8211 Email: mike.dundas@lacity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer Los Angeles City Attorney's Office 200 N. Main Street City Hall East, Suite 800 Los Angeles, CA 90012 213-978-8100 Fax: 213-978-8312 Email: mike.feuer@lacity.org ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer

Movant City of Chicago
Movant Cook County
Movant City and County of Denver
Movant District of Columbia
Movant

(See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED

City and County of Honolulu
Movant City of Houston
Movant King County
Movant City of Minneapolis
Movant City of New York

represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant City of Oakland
Movant City of Philadelphia
Movant City of Portland
Movant City of Providence

Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED

Movant City of Rochester
Movant City of Sacramento
Movant City and County of San Francisco
Movant City of Santa Monica
Movant City of Seattle

represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY

Movant City of Somerville
Movant City of Tucson
Movant City of West Hollywood
Movant U.S. Conference of Mayors

ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer

Movant City of Austin Amicus Brown University
Amicus California Institute of Technology

(See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071-2899 (213) 430-6082 Fax: (213) 430-6707 Email: achopra@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray O'Melveny and Myers LLP 7 Times Square New York, NY 10036 212-326-2000 Email: dgray@omm.com TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler O'Melveny and Myers LLP 7 Times Square New York, NY 10036 212-326-2000 Email: jsokoler@omm.com TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address)

Amicus University of Chicago
Amicus Columbia University

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED

Amicus Cornell University
Amicus Dartmouth College
Amicus Duke University

represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address)

Amicus Emory University
Amicus Georgetown University
Amicus Harvard University

TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED

Amicus Massachusetts Institute of Technology
Amicus Northwestern University
Amicus University of Pennsylvania

Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray

Amicus Princeton University
Amicus Stanford University
Amicus Yale University

(See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY

Amicus Vanderbilt University
Amicus Immigration Reform Law Institute
Amicus National Education Association Of The United States National Education Association

ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by Julie Beth Axelrod Center for Immigration Studies 1629 K Street Suite 600 Washington, DC, DC 20006 202-466-8185 Email: jba@cis.org ATTORNEY TO BE NOTICED
represented by Emma Leheny National Education Association 1201 16th Street N.W. Washington, DC 20036 (202) 822-7060 Fax: (202) 822-7033

Amicus Berkeley Unified School District Berkeley Unified School District
Amicus Moreno Valley Unified School District Moreno Valley Unified School District Amicus Association of California School Administrators
Amicus San Diego Unified School District
Amicus West Contra Costa Unified School District
Amicus California Faculty Association
Amicus California School Boards Association California School Boards Association Amicus

Email: eleheny@nea.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED

California Teachers Association
Amicus Los Angeles County Superintendent of Schools
Amicus Los Angeles County Board of Education Los Angeles County Board of Education
Amicus Los Angeles Unified School District
Amicus Oakland Unified School District
Amicus Sacramento City Unified School District Sacramento City Unified School District
Amicus Current and Former Law Enforcement Leaders

represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew J. Piers Hughes, Socol, Piers, Resnick & Dym, Ltd. Three First National Plaza 70 West Madison Street, Suite 4000 Chicago, IL 60602 (312) 580-0100 Fax: (312) 580-1994 Email: mpiers@hsplegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Canal Alliance
Amicus Centro Legal de la Raza Amicus

represented by Joan Renxin Li Covington & Burling LLP Safesforce Tower 415 Mission Street, Suite 5400 San Francisco, CA 94105-2533 415-591-6000 Fax: 415-591-6091 Email: jli@cov.com ATTORNEY TO BE NOTICED
Kara Corinne Wilson Cooley LLP 1114 Avenue of the Americas New York, NY 10036-7798 212-479-6545 Fax: 212-479-6275 Email: kwilson@cooley.com ATTORNEY TO BE NOTICED
Maureen P. Alger Cooley LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306-2155 650-843-5000 Fax: 650-849-7400 Email: malger@cooley.com ATTORNEY TO BE NOTICED
represented by Joan Renxin Li (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED

Community Legal Services in East Palo Alto
Amicus Dolores Street Community Services
Amicus East Bay Sanctuary Covenant
Amicus Heartland Alliance's National Immigrant Justice Center

represented by Joan Renxin Li (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Joan Renxin Li (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Joan Renxin Li (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Joan Renxin Li (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address)

Amicus Immigrant Legal Resource Center
Amicus Legal Aid Society of San Mateo County
Amicus Legal Services for Children

ATTORNEY TO BE NOTICED
Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Joan Renxin Li (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Joan Renxin Li (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Joan Renxin Li (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED

Amicus OneJustice
Amicus Services, Immigrant Rights, and Education Network
Amicus Asian Law Alliance
Amicus LatinoJustice PRLDEF

represented by Joan Renxin Li (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Joan Renxin Li (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Joan Renxin Li (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Blythe Golay Kochsiek Baker Hostetler LLP 11601 Wilshire Blvd., 14th Floor Los Angeles, CA 90025

Amicus 108 Companies

310.820.8800 Fax: 310.820.8859 Email: bgolay@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fernando A Bohorquez Baker & Hosteler 45 Rockfeller Plaza 14th Floor New York, NY 10111 212-589-4200 Email: fbohorquez@bakerlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jose Luis Perez Latino Justice PRLDEF 99 Hudson Street 14th Floor New York, NY 10013 213-219-3360 Email: jperez@latinojustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew John Pincus Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 (202) 263-3220 Fax: (202) 263-3300 Email: apincus@mayerbrown.com ATTORNEY TO BE NOTICED
John Nadolenco Mayer Brown LLP 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 (213) 229-5173 Email: jnadolenco@mayerbrown.com ATTORNEY TO BE NOTICED

Amicus Amherst College

Karen Lin Mayer Brown 1221 Avenue of the Americas New York, NY 10020 212-506-2538 Email: klin@mayerbrown.com TERMINATED: 02/27/2020 ATTORNEY TO BE NOTICED
Lauren R Goldman Mayer Brown Llp 1221 Avenue Of The Americas New York, NY 10020 (212) 506-2647 Email: lrgoldman@mayerbrown.com ATTORNEY TO BE NOTICED
represented by Brian Hauck Jenner and Block LLP 633 W. 5th St. Suite 3500 Los Angeles, CA 90071 213-239-5100 Email: bhauck@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha Jenner and Block LLP 1099 New York Ave NW Suite 900 Washington, DC 20001 202-637-6327 Email: ibhabha@jenner.com ATTORNEY TO BE NOTICED
Lindsay C Harrison Jenner and Block LLP 1099 New York Ave., NW Suite 900 Washington, DC 20001 202-639-6865 Email: LHarrison@jenner.com

Amicus Asnuntuck Community College
Amicus Barnard College

ATTORNEY TO BE NOTICED
Thomas J Perrelli Jenner and Block LLP 1099 New York Ave., NW Suite 900 Washington, DC 20001 202-639-6004 Email: TPerrelli@jenner.com ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED

Amicus Board of Governors of the California Community Colleges
Amicus Boston University
Amicus Bowdoin College

Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address)

Amicus Brandeis University
Amicus Bucknell University

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED

Amicus Capital Community College
Amicus Carnegie Mellon University

Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli

Amicus Case Western Reserve University
Amicus Central Connecticut State University
Amicus Charter Oak State College

(See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY

Amicus Colby College
Amicus Colgate University

PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED

Amicus University of Connecticut
Amicus Eastern Connecticut State University

Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED

Amicus Emerson College
Amicus Gateway Community College
Amicus Hampshire College

represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Housatonic Community College
Amicus Lawrence University

Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED

Amicus Los Angeles Community College District
Amicus Los Rios Community College District
Amicus

Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED

Manchester Community College
Amicus University of Maryland
Amicus University of Michigan

represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha

Amicus Middlebury College
Amicus Middlesex Community College

(See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED

Amicus Mount Holyoke College
Amicus Naugatuck Valley Community College
Amicus Northeastern University

Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address)

Amicus Northwestern Community College
Amicus Norwalk Community College

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED

Amicus Pace University
Amicus Quinebaug Valley Community College

Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli

Amicus Rice University
Amicus Riverside Community College District
Amicus San Francisco Community College District

(See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY

Amicus San Mateo Community College District
Amicus Smith College

PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED

Amicus Southern Connecticut State University
Amicus State Center Community College District

Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED

Amicus Three Rivers Community College
Amicus Tufts University
Amicus Tunxis Community College

represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Vassar College
Amicus Wellesley College

Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED

Amicus Western Connecticut State University
Amicus Williams College
Amicus

Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hauck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha (See above for address) ATTORNEY TO BE NOTICED
Lindsay C Harrison (See above for address) ATTORNEY TO BE NOTICED
Thomas J Perrelli (See above for address) ATTORNEY TO BE NOTICED

Airbnb, Inc.
Amicus Square, Inc.

represented by Ari Holtzblatt Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue N.W. Washington, DC 20006 (202) 663-6964 Email: ari.holtzblatt@wilmerhale.com ATTORNEY TO BE NOTICED
Janine Marie Lopez 195 Commonwealth Avenue, Apt. 6 Boston, MA 02116 United Sta (305) 323-9527 Email: janinemarielopez@gmail.com TERMINATED: 03/30/2018
Patrick J. Carome Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue, N.W. Washington, DC 20006 (202) 663-6000 Fax: (202) 663-6363 Email: patrick.carome@wilmerhale.com ATTORNEY TO BE NOTICED
Seth P. Waxman Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 202-663-6800 Email: seth.waxman@wilmerhale.com ATTORNEY TO BE NOTICED
represented by Ari Holtzblatt (See above for address) ATTORNEY TO BE NOTICED
Janine Marie Lopez

Amicus Twitter, Inc.
Amicus Yelp Inc.

(See above for address) TERMINATED: 03/30/2018
Patrick J. Carome (See above for address) ATTORNEY TO BE NOTICED
Seth P. Waxman (See above for address) ATTORNEY TO BE NOTICED
represented by Ari Holtzblatt (See above for address) ATTORNEY TO BE NOTICED
Janine Marie Lopez (See above for address) TERMINATED: 03/30/2018
Patrick J. Carome (See above for address) ATTORNEY TO BE NOTICED
Seth P. Waxman (See above for address) ATTORNEY TO BE NOTICED
represented by Ari Holtzblatt (See above for address) ATTORNEY TO BE NOTICED
Janine Marie Lopez (See above for address) TERMINATED: 03/30/2018
Patrick J. Carome (See above for address) ATTORNEY TO BE NOTICED
Seth P. Waxman (See above for address) ATTORNEY TO BE NOTICED

Amicus County of Los Angeles
Amicus George Washington University
Amicus

represented by Margaret Louise Carter O'Melveny and Myers LLP 400 S. Hope Street Los Angeles, CA 90071-2899 (213) 430-7592 Fax: (213) 430-6407 Email: mcarter@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel R. Suvor O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071 (213) 430-7669 Fax: (213) 430-6407 Email: dsuvor@omm.com ATTORNEY TO BE NOTICED
James Wesley Crooks O'Melveny and Myers 1625 Eye Street NW Washington, DC 20006 202-383-5178 Email: jcrooks@omm.com ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED

Washington University in St. Louis
Amicus The Bar Association of San Francisco

represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
represented by John-Paul Singh Deol Dhillon Law Group Inc. 177 Post Street, Suite 700 San Francisco, CA 94108 (415) 433-1700 Fax: (415) 520-6593 Email: jpdeol@dhillonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neil A. Friedman Popovic Sheppard Mullin Richter & Hampton LLP A Limited Liability Partnership, Including Professional Corp Four Embarcadero Center Seventeenth Floor San Francisco, CA 94111-4109 (415) 434-9100 Fax: (415)-434-3947 Email: NPopovic@sheppardmullin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Landon McGinnis Sheppard Mullin Richter & Hampton LLP Four Embarcadero Center 17th Floor

Amicus
Former Federal Immigration and Homeland Security Officials

San Francisco, CA 94111 415-434-9100 Fax: 415-434-3947 Email: jmcginnis@sheppardmullin.com ATTORNEY TO BE NOTICED
represented by Albert Quoc Giang King & Spalding LLP 633 West Fifth Street Suite 1600 Los Angeles, CA 90071 United Sta 213-218-4001 Fax: 213-443-4310 Email: agiang@kslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Wells Harrell Boies Schiller Flexner LLP 1401 New York Ave. NW Washington, DC 20005 202-237-2727 Email: wharrell@bsfllp.com ATTORNEY TO BE NOTICED

Date Filed 09/08/2017
09/08/2017

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against Elaine Duke, United States Department of Homeland Security ( Filing fee $ 400, receipt number 0971-11699295). Filed by Regents of University of California, Janet Napolitano. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Civil Cover Sheet)(Davidson, Jeffrey) (Filed on 9/8/2017) Modified on 9/11/2017 (slhS, COURT STAFF). (Entered: 09/08/2017)
2 Certificate of Interested Entities by Janet Napolitano, Regents of University of California -- Federal Rule of Civil Procedure 7.1 Disclosure Statement and Local Rule 3-15 Certification of Interested Entities or Persons (Davidson, Jeffrey) (Filed on 9/8/2017) (Entered: 09/08/2017)

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3 Proposed Summons. (Davidson, Jeffrey) (Filed on 9/8/2017) (Entered: 09/08/2017)
4 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11700312.) filed by Janet Napolitano, Regents of University of California. (Anguas Nyquist, Ashley) (Filed on 9/8/2017) (Entered: 09/08/2017)
5 Case assigned to Magistrate Judge Jacqueline Scott Corley.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 9/22/2017. (jmlS, COURT STAFF) (Filed on 9/8/2017) (Entered: 09/08/2017)
6 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11701332.) filed by Janet Napolitano, Regents of University of California. (Ventresca, Ivano) (Filed on 9/8/2017) (Entered: 09/08/2017)
7 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11701680.) filed by Janet Napolitano, Regents of University of California. (Breuer, Lanny) (Filed on 9/8/2017) (Entered: 09/08/2017)
8 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11701891.) filed by Janet Napolitano, Regents of University of California. (Berengaut, Alexander) (Filed on 9/8/2017) (Entered: 09/08/2017)
9 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11701967.) filed by Janet Napolitano, Regents of University of California. (Lynch, Mark) (Filed on 9/8/2017) (Entered: 09/08/2017)
10 NOTICE of Appearance by Monica Marie-Ramirez Almadani on behalf of Plaintiffs (Almadani, Monica) (Filed on 9/8/2017) (Entered: 09/08/2017)

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11 ORDER by Magistrate Judge Jacqueline Scott Corley granting 4 Motion for Pro Hac Vice as to Ashley Nyquist. (ahm, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/11/2017)
12 ORDER by Magistrate Judge Jacqueline Scott Corley granting 6 Motion for Pro Hac Vice as to Ivano Ventresca.(ahm, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/11/2017)
13 ORDER by Magistrate Judge Jacqueline Scott Corley granting 7 Motion for Pro Hac Vice as to Lanny Breuer. (ahm, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/11/2017)
14 ORDER by Magistrate Judge Jacqueline Scott Corley granting 8 Motion for Pro Hac Vice as to Alexander Berengaut (ahm, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/11/2017)
15 ORDER by Magistrate Judge Jacqueline Scott Corley granting 9 Motion for Pro Hac Vice as to Mark Lynch. (ahm, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/11/2017)
16 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Janet Napolitano, Regents of University of California.. (Davidson, Jeffrey) (Filed on 9/11/2017) (Entered: 09/11/2017)
17 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 11/30/2017. Initial Case Management Conference set for 12/7/2017 01:30 PM in Courtroom F, 15th Floor, San Francisco. (slhS, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/11/2017)
18 Summons Issued as to Elaine Duke, United States Department of Homeland Security. (slhS, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/11/2017)
19 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.
ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD

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BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (ahm, COURT STAFF) (Filed on 9/12/2017) (Entered: 09/12/2017)
20 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. William Alsup for all further proceedings. Magistrate Judge Jacqueline Scott Corley no longer assigned to the case. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras. Signed by the Executive Committee on 9/12/17. (Attachments: # 1 Notice of Eligibility for Video Recording)(srnS, COURT STAFF) (Filed on 9/12/2017) (Entered: 09/12/2017)
21 NOTICE of Appearance by Alan Douglas Bersin on behalf of Plaintiffs (Bersin, Alan) (Filed on 9/12/2017) (Entered: 09/12/2017)
22 ORDER SETTING CASE MANAGEMENT CONFERENCE Initial Case Management Conference set for 9/21/2017 10:30 AM in Courtroom 8, 19th Floor, San Francisco. Signed by Judge Alsup on 9/12/2017. (whalc1, COURT STAFF) (Filed on 9/12/2017) (Entered: 09/12/2017)
23 SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE re 22 Order, Set Hearings. Signed by Judge William Alsup on 8/1/17. (dl, COURT STAFF) (Filed on 9/13/2017) (Entered: 09/13/2017)
24 MOTION for leave to appear in Pro Hac Vice on behalf of Plaintiffs ( Filing fee $ 310, receipt number 0971-11711574.) filed by Janet Napolitano, Regents of University of California. (Crowley, Megan) (Filed on 9/13/2017) (Entered: 09/13/2017)
25 Clerk's Notice of Video Recording Request. Video Camera hearing set for 9/21/2017 10:30 AM. Objections to Video Recording due 9/20/2017. (dl, COURT STAFF) (Filed on 9/13/2017) Modified on 9/13/2017 (dl, COURT STAFF). (Entered: 09/13/2017)
Set/Reset Hearing Video Camera hearing set for 9/21/2017 10:30 AM. (dl, COURT STAFF) (Filed on 9/13/2017) (Entered: 09/13/2017)
26 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY MEGAN CROWLEY PRO HAC VICE by Hon.

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William Alsup granting 24 Motion for Pro Hac Vice.(whalc1, COURT STAFF) (Filed on 9/13/2017) (Entered: 09/13/2017)
27 CERTIFICATE OF SERVICE by Janet Napolitano, Regents of University of California re 2 Certificate of Interested Entities, 22 Order, Set Hearings, 23 SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE, 21 Notice of Appearance, 17 Initial Case Management Scheduling Order with ADR Deadlines, 10 Notice of Appearance, 14 Order on Motion for Pro Hac Vice, 15 Order on Motion for Pro Hac Vice, 1 Complaint, 18 Summons Issued, 16 Consent/Declination to Proceed Before a US Magistrate Judge, 20 Order Reassigning Case,, Case Assigned/Reassigned, 25 Clerk's Notice of Video Recording Request, 12 Order on Motion for Pro Hac Vice, 11 Order on Motion for Pro Hac Vice, 13 Order on Motion for Pro Hac Vice (Ventresca, Ivano) (Filed on 9/14/2017) (Entered: 09/14/2017)
28 NOTICE of Appearance by Stephen M. Pezzi (Pezzi, Stephen) (Filed on 9/14/2017) (Entered: 09/14/2017)
29 STIPULATION WITH PROPOSED ORDER filed by Elaine Duke, United States Department of Homeland Security. (Pezzi, Stephen) (Filed on 9/14/2017) (Entered: 09/14/2017)
30 ORDER RE CASE MANAGEMENT CONFERENCE by Hon. William Alsup finding as moot 29 Stipulation.(whalc1, COURT STAFF) (Filed on 9/14/2017) (Entered: 09/14/2017)
31 NOTICE of Appearance by Brad Prescott Rosenberg (Rosenberg, Brad) (Filed on 9/15/2017) (Entered: 09/15/2017)
Electronic filing error. Re: 27 Certificate of Service filed by Regents of University of California, Janet Napolitano. Please re-file in its entirety; Page 5 appears to be "corrupted". (sxbS, COURT STAFF) (Filed on 9/15/2017) (Entered: 09/15/2017)
32 CERTIFICATE OF SERVICE by Janet Napolitano, Regents of University of California re 1 Complaint, (Ventresca, Ivano) (Filed on 9/15/2017) (Entered: 09/15/2017)
33 MOTION to Relate Case filed by State of California, State of Maine, State of Maryland, State of Minnesota. (Zahradka, James) (Filed on 9/15/2017) (Entered: 09/15/2017)
34 STIPULATION WITH PROPOSED ORDER re 33 MOTION to Relate Case filed by State of California, State of Maine, State of Maryland,

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State of Minnesota. (Zahradka, James) (Filed on 9/15/2017) (Entered: 09/15/2017)
35 Declaration of James F. Zahradka II in Support of 33 MOTION to Relate Case filed byState of California, State of Maine, State of Maryland, State of Minnesota. (Attachments: # 1 Exhibit Exhibit A)(Related document(s) 33 ) (Zahradka, James) (Filed on 9/15/2017) (Entered: 09/15/2017)
36 ORDER RELATING CASES by Judge Alsup granting 33 Motion to Relate Case; granting 34 Stipulation (whalc1, COURT STAFF) (Filed on 9/18/2017) (Entered: 09/18/2017)
37 NOTICE RE SEPTEMBER 21 CASE MANAGEMENT CONFERENCE Signed by Judge Alsup on 9/18/2017. (whalc1, COURT STAFF) (Filed on 9/18/2017) (Entered: 09/18/2017)
38 MOTION to Relate Case filed by City Of San Jose. (Attachments: # 1 Declaration of Nancy L. Fineman in support of Administrative Motion of City of San Jose to Consider Whether Cases Should be Related, # 2 Exhibit 1 to Declaration of Nancy L. Fineman in support of Administrative Motion of City of San Jose to Consider Whether Cases Should be Related, # 3 Exhibit 2 to Declaration of Nancy L. Fineman in support of Administrative Motion of City of San Jose to Consider Whether Cases Should be Related, # 4 Exhibit 3 to Declaration of Nancy L. Fineman in support of Administrative Motion of City of San Jose to Consider Whether Cases Should be Related, # 5 Proposed Order Granting Administrative Motion of City of San Jose to Consider Whether Cases should be Related)(Fineman, Nancy) (Filed on 9/18/2017) (Entered: 09/18/2017)
39 MOTION to Relate Case and Stipulation and [Proposed] Order filed by Dulce Garcia, Viridiana Chabolla Mendoza, Miriam Gonzalez Avila, Norma Ramirez, Saul Jimenez Suarez, Jirayut Latthivongskorn. (Attachments: # 1 Declaration of Ethan D. Dettmer, # 2 Exhibit A to Declaration of Ethan D. Dettmer, # 3 Stipulation and [Proposed] Order, # 4 Certificate/Proof of Service)(Boutrous, Theodore) (Filed on 9/19/2017) (Entered: 09/19/2017)
40 NOTICE of Appearance by Brett A. Shumate (Shumate, Brett) (Filed on 9/20/2017) (Entered: 09/20/2017)
41 ORDER RELATING CASES by Hon. William Alsup granting (39) Motion to Relate Case in case 3:17-cv-05211-WHA.Associated Cases: 3:17-cv-05211-WHA, 3:17-cv-05235-WHA(whalc1, COURT STAFF) (Filed on 9/20/2017) (Entered: 09/20/2017)

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42 STIPULATION WITH PROPOSED ORDER re 38 MOTION to Relate Case filed by City Of San Jose. (Fineman, Nancy) (Filed on 9/20/2017) (Entered: 09/20/2017)
43 ORDER RELATING CASES by Judge Alsup granting (38) Motion to Relate Case; granting (42) Stipulation in case 3:17-cv-05211WHA (whalc1, COURT STAFF) (Filed on 9/20/2017) (Entered: 09/20/2017)
44 Clerk's Notice CONSENTING TO Video Recording re: 25 Clerk's Notice of Video Recording Request. (Related documents(s) 25 ) (tlS, COURT STAFF) (Filed on 9/21/2017) (tlS, COURT STAFF). Modified on 9/22/2017 (tlS, COURT STAFF). (Entered: 09/21/2017)
45 TRANSCRIPT ORDER for proceedings held on 09/21/2017 before Hon. William Alsup by Elaine Duke, United States Department of Homeland Security, for Court Reporter Jo Ann Bryce. (Rosenberg, Brad) (Filed on 9/21/2017) (Entered: 09/21/2017)
46 TRANSCRIPT ORDER for proceedings held on September 21, 2017 before Hon. William Alsup by City Of San Jose, for Court Reporter Jo Ann Bryce. (Fineman, Nancy) (Filed on 9/21/2017) (Entered: 09/21/2017)
47 TRANSCRIPT ORDER for proceedings held on 09/21/2017 before Hon. William Alsup by UC Regents, for Court Reporter Jo Ann Bryce. (Ventresca, Ivano) (Filed on 9/21/2017) (Entered: 09/21/2017)
48 NOTICE of Appearance by Erika M. Douglas on behalf of plaintiffs (Douglas, Erika) (Filed on 9/21/2017) (Entered: 09/21/2017)
49 CASE MANAGEMENT SCHEDULING ORDER FOR ALL DACA ACTIONS IN THIS DISTRICT: Bench Trial set for 2/5/2018 07:30 AM before Hon. William Alsup. Motion Hearing set for 12/20/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Pretrial Conference set for 1/24/2018 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup.. Signed by Judge Alsup on 9/22/2017. (whalc1, COURT STAFF) (Filed on 9/22/2017) (Entered: 09/22/2017)
50 CERTIFICATE OF SERVICE by Viridiana Chabolla Mendoza, Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Jirayut Latthivongskorn, Norma Ramirez re 49 Case Management Scheduling Order, (Boutrous, Theodore) (Filed on 9/22/2017) (Entered: 09/22/2017)

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Set/Reset Hearing Tutorial Hearing set for 10/3/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco. (whasec, COURT STAFF) (Filed on 9/22/2017) (Entered: 09/22/2017)
51 Letter from STATE OF CALIFORNIA, OFFICE OF THE ATTORNEY GENERAL RE EQUITABLE ESTOPPEL. (Zahradka, James) (Filed on 9/22/2017) (Entered: 09/22/2017)
52 Transcript of Proceedings held on 9/21/17, before Judge William H. Alsup. Court Reporter Jo Ann Bryce, telephone number 510-910-5888, joann_bryce@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction after 90 days. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (45 in 3:17-cv-05211-WHA) Transcript Order ) Release of Transcript Restriction set for 12/21/2017. (jabS, COURTSTAFF) (Filed on 9/22/2017) (Entered: 09/22/2017)
53 FURTHER NOTICE RE TUTORIAL re (12 in 3:17-cv-05380WHA) Case Management Scheduling Order, Signed by Judge Alsup on 9/25/2017. (whalc1, COURT STAFF) (Filed on 9/25/2017) (Entered: 09/25/2017)
54 NOTICE OF REFERRAL FOR DISCOVERY. Signed by Magistrate Judge Sallie Kim on 9/25/2017. (Attachments: # 1 Magistrate Judge Kim's Standing Order)(mklS, COURT STAFF) (Filed on 9/25/2017) (Entered: 09/25/2017)
55 Minute Entry for proceedings held before William Alsup: Initial Case Management Conference held on 9/21/2017. Motion(s) hearing set for 12/20/2017 at 8:00 AM. Tutorial set for 10/3/2017 at 8:00 AM. Final Pretrial Conference set for 1/24/2018 at 2:00 PM. Bench Trial set for 2/5/2018 at 7:30 AM. Case referred to Magistrate Sallie Kim for Discovery.Total Time in Court: 1:22. Court Reporter: Jo Ann Bryce. Plaintiff Attorney: Jeffrey Davidson; Alexander Berengaut; Alex Covington; Mark Lynch; James Zahradka; Nancy Fineman; Mark Rosenbaum; Ethan Dettmer. Defendant Attorney: Brad Rosenberg; Sara Winslow; Brett Shumate. Attachment: Civil Minutes. (tlS, COURT STAFF) (Date Filed: 9/25/2017) (Entered: 09/25/2017)
CASE REFERRED to Magistrate Judge Sallie Kim for Discovery (ahm, COURT STAFF) (Filed on 9/26/2017) (Entered: 09/26/2017)

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56 NOTICE of Appearance by Jonathan Yakov Mincer on behalf of Plaintiffs (Mincer, Jonathan) (Filed on 9/27/2017) (Entered: 09/27/2017)
57 STIPULATION WITH PROPOSED ORDER re 49 Case Management Scheduling Order, filed by Elaine Duke, United States Department of Homeland Security. (Rosenberg, Brad) (Filed on 9/29/2017) (Entered: 09/29/2017)
58 ORDER GRANTING STIPULATION REGARDING CASE MANAGEMENT ORDER by Judge William Alsup granting (57) Stipulation in case 3:17-cv-05211-WHA.Associated Cases: 3:17-cv05211-WHA, 3:17-cv-05235-WHA, 3:17-cv-05329-WHA, 3:17-cv05380-WHA(whalc1, COURT STAFF) (Filed on 9/29/2017) (Entered: 09/29/2017)
59 NOTICE of Appearance by Jeffrey S. Robins (Robins, Jeffrey) (Filed on 10/2/2017) (Entered: 10/02/2017)
60 Minute Entry for proceedings held before Judge William Alsup: Tutorial Hearing held on 10/3/2017.
Total Time in Court: 2 Hours, 15 Minutes. Court Reporter: Belle Ball.
Plaintiffs' Attorneys: Regents: Jeffrey Davidson, Mark Lynch, Monica Almadani; Garcia: Mark Rosenbaum, Kelsey Helland, Ethan Dettmer, Luis Romero; City of San Jose: Nancy Fineman; State of CA: James Zahradka, Ronald Lee. Defendant's Attorneys: Brad Rosenberg, Jeffrey Robins. Also Present via Videoconference: District Judge Nicholas Garaufis
(This is a text-only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Date Filed: 10/3/2017) (Entered: 10/03/2017)
61 NOTICE of Appearance by Kate Bailey (Bailey, Kate) (Filed on 10/4/2017) (Entered: 10/04/2017)
62 TRANSCRIPT ORDER for proceedings held on 10/3/2017 before Judge William Alsup by Janet Napolitano, UC Regents, for Court Reporter Belle Ball. (Davidson, Jeffrey) (Filed on 10/4/2017) (Entered: 10/04/2017)
63 Transcript of Proceedings held on October 3, 2017, before Judge William H. Alsup. Court Reporter Belle Ball, CSR, CRR, RDR, telephone number (415)373-2529, belle_ball@cand.uscourts.gov. Per

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General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (62 in 3:17cv-05211-WHA) Transcript Order, (24 in 3:17-cv-05329-WHA) Transcript Order ) Release of Transcript Restriction set for 1/3/2018. (ballbb15S, COURT STAFF) (Filed on 10/5/2017) (Entered: 10/05/2017)
64 NOTICE by Elaine Duke, United States Department of Homeland Security of Filing of Administrative Record (Attachments: # 1 Ex. 1 Administrative Record)(Pezzi, Stephen) (Filed on 10/6/2017) (Entered: 10/06/2017)
65 MOTION for an Order Directing Defendants to Complete the Administrative Record filed by Janet Napolitano, UC Regents. Motion Hearing set for 10/12/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup. Responses due by 10/10/2017. Replies due by 10/11/2017. (Attachments: # 1 Declaration of Jeffrey M. Davidson, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Proposed Order)(Davidson, Jeffrey) (Filed on 10/9/2017) (Entered: 10/09/2017)
66 Emergency MOTION to Shorten Time filed by Janet Napolitano, UC Regents. (Attachments: # 1 Declaration of Jeffrey M. Davidson, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Proposed Order)(Davidson, Jeffrey) (Filed on 10/9/2017) (Entered: 10/09/2017)
67 ORDER SHORTENING TIME FOR BRIEFING ON MOTION TO COMPLETE ADMINISTRATIVE RECORD by Judge William Alsup re 66 Motion to Shorten Time in case 3:17-cv-05211WHA. Motion Hearing set for 10/16/2017 11:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup.Associated Cases: 3:17-cv-05211-WHA, 3:17-cv-05235WHA, 3:17-cv-05329-WHA, 3:17-cv-05380-WHA(whalc1, COURT STAFF) (Filed on 10/10/2017) Modified on 10/10/2017 (afmS, COURT STAFF). (Entered: 10/10/2017)
68 CLERK'S NOTICE RESCHEDULING MOTION HEARING: 65 MOTION for an Order Directing Defendants to Complete the Administrative Record rescheduled to 10/16/2017 at 11:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup. (This is a text-only entry generated by the court. There is no document associated with this entry.). (afmS, COURT STAFF) (Filed on 10/10/2017) (Entered: 10/10/2017)

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69 MOTION to Relate Case filed by County of Santa Clara, SEIU Local 521. (Attachments: # 1 Declaration of Eric P. Brown, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Brown, Eric) (Filed on 10/10/2017) (Entered: 10/10/2017)
70 Clerk's Notice of Video Recording Request. Video Camera hearing set for 10/16/2017 11:00 AM. Objections to Video Recording due 10/13/2017. (afmS, COURT STAFF) (Filed on 10/11/2017) (Entered: 10/11/2017)
71 OPPOSITION/RESPONSE (re 65 MOTION for an Order Directing Defendants to Complete the Administrative Record ) filed byElaine Duke, United States Department of Homeland Security. (Attachments: # 1 Declaration, # 2 Privilege Log, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration)(Bailey, Kate) (Filed on 10/12/2017) (Entered: 10/12/2017)
72 REPLY (re 65 MOTION for an Order Directing Defendants to Complete the Administrative Record ) filed byJanet Napolitano, UC Regents. (Davidson, Jeffrey) (Filed on 10/13/2017) (Entered: 10/13/2017)
73 Clerk's Notice CONSENTING TO Video Recording re: 70 Clerk's Notice of Video Recording Request. (Related documents(s) 70 )(afmS, COURT STAFF) (Filed on 10/16/2017) (Entered: 10/16/2017)
74 TRANSCRIPT ORDER for proceedings held on 10/16/2017 before Judge William Alsup by Elaine Duke, United States Department of Homeland Security, for Court Reporter Pam Batalo. (Rosenberg, Brad) (Filed on 10/16/2017) (Entered: 10/16/2017)
75 Minute Entry for proceedings held before Judge William Alsup:
Motion Hearing held on 10/16/2017 re (65 in 3:17-cv-05211-WHA) MOTION for an Order Directing Defendants to Complete the Administrative Record filed by UC Regents, Janet Napolitano. Written Order to issue.
Total Time in Court: 1:15. Court Reporter: Pamela Batalo.
Plaintiff Attorney: Jeffery Davidson (Regents)Plaintiff Attorney: James Zahradka (State of CA)Plaintiff Attorney: Nancy Fineman (City of San Jose)Plaintiff Attorney: Kevin Yea (Garcia) Defendant Attorney: Brad Rosenberg (all defendants).
(This is a text-only entry generated by the court. There is no

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document associated with this entry.) (afmS, COURT STAFF) (Date Filed: 10/16/2017) (Entered: 10/16/2017)
76 ORDER RELATING CASE by Judge William Alsup granting (69) Motion to Relate Case in case 3:17-cv-05211-WHA.Associated Cases: 3:17-cv-05211-WHA, 3:17-cv-05235-WHA, 3:17-cv-05329WHA, 3:17-cv-05380-WHA(whalc1, COURT STAFF) (Filed on 10/16/2017) (Entered: 10/16/2017)
77 TRANSCRIPT ORDER for proceedings held on 10/16/2017 before Judge William Alsup by Janet Napolitano, UC Regents, for Court Reporter Pam Batalo. (Davidson, Jeffrey) (Filed on 10/16/2017) (Entered: 10/16/2017)
78 Transcript of Proceedings held on 10/16/17, before Judge Alsup. Court Reporter Pamela A. Batalo, telephone number pamela_batalo@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (74 in 3:17-cv-05211-WHA) Transcript Order ) Redaction Request due 11/7/2017. Redacted Transcript Deadline set for 11/17/2017. Release of Transcript Restriction set for 1/16/2018. (Batalo, Pam) (Filed on 10/17/2017) (Entered: 10/17/2017)
79 ORDER RE MOTION TO COMPLETE ADMINISTRATIVE RECORD by Judge William Alsup granting in part and denying in part (65) Motion Complete Administrative Record in case 3:17-cv05211-WHA.Associated Cases: 3:17-cv-05211-WHA, 3:17-cv05235-WHA, 3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv05813-WHA(whalc1, COURT STAFF) (Filed on 10/17/2017) (Entered: 10/17/2017)
80 ORDER TO COMPILE SUPPLEMENT FORTHWITH re (12 in 3:17-cv-05813-WHA) Order on Motion for Miscellaneous Relief, Signed by Judge Alsup on 10/18/2017. (whalc1, COURT STAFF) (Filed on 10/18/2017) (Entered: 10/18/2017)
81 MOTION to Stay re 79 Order on Motion for Miscellaneous Relief, Stay All Proceedings Pending Resolution of Petition for Writ of Mandamus filed by Elaine Duke, United States Department of Homeland Security. Motion Hearing set for 10/20/2017 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup.

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10/19/2017 10/19/2017 10/19/2017 10/20/2017 10/20/2017 10/20/2017

Responses due by 10/19/2017. (Attachments: # 1 Proposed Order)(Rosenberg, Brad) (Filed on 10/18/2017) (Entered: 10/18/2017)
82 STIPULATION WITH PROPOSED ORDER re 81 MOTION to Stay re 79 Order on Motion for Miscellaneous Relief, Stay All Proceedings Pending Resolution of Petition for Writ of Mandamus re: Shortened Briefing Schedule filed by Elaine Duke, United States Department of Homeland Security. (Rosenberg, Brad) (Filed on 10/18/2017) (Entered: 10/18/2017)
83 ORDER ADOPTING STIPULATED BRIEFING SCHEDULE FOR DEFENDANTS' MOTION TO STAY ALL PROCEEDINGS by Judge William Alsup granting (82) Stipulation in case 3:17-cv05211-WHA.Associated Cases: 3:17-cv-05211-WHA, 3:17-cv05235-WHA, 3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv05813-WHA(whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
Terminate Hearing re (15 in 3:17-cv-05813-WHA) Order on Stipulation, (whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
84 OPPOSITION/RESPONSE (re 81 MOTION to Stay re 79 Order on Motion for Miscellaneous Relief, Stay All Proceedings Pending Resolution of Petition for Writ of Mandamus ) filed byJanet Napolitano, UC Regents. (Attachments: # 1 Declaration of Jesse S. Gabriel, # 2 Exhibit A)(Davidson, Jeffrey) (Filed on 10/19/2017) (Entered: 10/19/2017)
85 ORDER RE MOTION TO STAY PROCEEDINGS by Judge William Alsup denying (81) Motion to Stay in case 3:17-cv-05211WHA.Associated Cases: 3:17-cv-05211-WHA, 3:17-cv-05235WHA, 3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv-05813WHA(whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
86 NOTICE by Elaine Duke, United States Department of Homeland Security of Filing of Petition for Writ of Mandamus (Attachments: # 1 Petition for Writ of Mandamus)(Rosenberg, Brad) (Filed on 10/20/2017) (Entered: 10/20/2017)
95 USCA Case Number 17-72917 USCA 9th Circuit re Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 10/20/2017) (Entered: 10/24/2017)
96 ORDER of USCA re Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 10/20/2017) (Entered: 10/24/2017)

10/23/2017 10/23/2017 10/23/2017 10/23/2017 10/23/2017
10/24/2017 10/24/2017

87 ANSWER BY DISTRICT COURT TO PETITION FOR WRIT OF MANDAMUS Signed by Judge Alsup on 10/23/2017. (whalc1, COURT STAFF) (Filed on 10/23/2017) (Entered: 10/23/2017)
88 Discovery Letter BriefJOINT LETTER BRIEF REGARDING DEPOSITION OF ACTING SECRETARY OF HOMELAND SECURITY DUKE filed by State of California, State of Maine, State of Maryland, State of Minnesota. (Zahradka, James) (Filed on 10/23/2017) (Entered: 10/23/2017)
89 EXHIBITS re 88 Discovery Letter BriefJOINT LETTER BRIEF REGARDING DEPOSITION OF ACTING SECRETARY OF HOMELAND SECURITY DUKE EXHIBIT A filed byState of California, State of Maine, State of Maryland, State of Minnesota. (Attachments: # 1 Exhibit A)(Related document(s) 88 ) (Zahradka, James) (Filed on 10/23/2017) (Entered: 10/23/2017)
90 EXHIBITS re 88 Discovery Letter BriefJOINT LETTER BRIEF REGARDING DEPOSITION OF ACTING SECRETARY OF HOMELAND SECURITY DUKE filed byState of California, State of Maine, State of Maryland, State of Minnesota. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 88 ) (Zahradka, James) (Filed on 10/23/2017) (Entered: 10/23/2017)
91 MOTION for Leave to File Excess Pages NOTICE OF UNOPPOSED ADMINISTRATIVE MOTION AND MOTION FOR ADDITIONAL PAGES FOR JOINT LETTER RE DISCOVERY DISPUTE filed by State of California, State of Maine, State of Maryland, State of Minnesota. (Attachments: # 1 Proposed Order, # 2 Exhibit Proposed Joint Letter, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E)(Zahradka, James) (Filed on 10/23/2017) (Entered: 10/23/2017)
92 ORDER by Magistrate Judge Sallie Kim granting (91) Unopposed Administrative Motion for Additional Pages for Joint Discovery Letter Brief in case 3:17-cv-05211-WHA. (mklS, COURT STAFF) (Filed on 10/24/2017) (Entered: 10/24/2017)
93 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Telephonic Discovery Hearing held on 10/24/2017. The Court and counsel discussed the issue regarding the deposition of Michael Dougherty. The Court rejected Plaintiffs' position. Telephonic Discovery Hearing set for 10/25/2017 at 10:00 AM (Pacific)/1:00 PM (Eastern) before Magistrate Judge Sallie Kim. (Total Time in Court: 20 minutes.) (Not reported.)
Attorney for Plaintiffs: Megan Crowley.

Attorney for Defendants: Brad Rosenberg.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 10/24/2017) (Entered: 10/24/2017)

10/24/2017

94 ORDER RE: DEPOSITION OF ACTING SECRETARY OF HOMELAND SECURITY DUKE by Magistrate Judge Sallie Kim (Re: (88) Discovery Letter Brief in case 3:17-cv-05211-WHA). (mklS, COURT STAFF) (Filed on 10/24/2017) (Entered: 10/24/2017)

10/24/2017

97 Discovery Letter BriefJOINT LETTER BRIEF REGARDING APPLICATION OF THE ATTORNEY-CLIENT, DELIBERATIVE PROCESS AND EXECUTIVE PRIVILEGES TO DEPOSITION TESTIMONY filed by State of California, State of Maine, State of Maryland, State of Minnesota. (Zahradka, James) (Filed on 10/24/2017) (Entered: 10/24/2017)

10/24/2017

98 EXHIBITS re 97 Discovery Letter BriefJOINT LETTER BRIEF REGARDING APPLICATION OF THE ATTORNEY-CLIENT, DELIBERATIVE PROCESS AND EXECUTIVE PRIVILEGES TO DEPOSITION TESTIMONY EXHIBITS TO JOINT LETTER BRIEF REGARDING APPLICATION OF THE ATTORNEY-CLIENT, DELIBERATIVE PROCESS AND EXECUTIVE PRIVILEGES TO DEPOSITION TESTIMONY filed byState of California, State of Maine, State of Maryland, State of Minnesota. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 97 ) (Zahradka, James) (Filed on 10/24/2017) (Entered: 10/24/2017)

10/25/2017

99 CLERK'S NOTICE: The Telephonic Discovery Hearing set for 10/25/2017 at 10:00 AM before Magistrate Judge Sallie Kim is vacated. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 10/25/2017) (Entered: 10/25/2017)

10/25/2017

100 FURTHER CASE MANAGEMENT ORDER RE MOTION SCHEDULE Signed by Judge Alsup on 10/25/2017. (whalc1, COURT STAFF) (Filed on 10/25/2017) (Entered: 10/25/2017)

10/25/2017 101 STIPULATION WITH PROPOSED ORDER REGARDING AMICUS BRIEFING filed by City Of San Jose. (Fineman, Nancy) (Filed on 10/25/2017) (Entered: 10/25/2017)

10/25/2017 102 ORDER GRANTING STIPULATION REGARDING AMICUS BRIEFING AS MODIFIED by Judge William Alsup granting as

modified (101) Stipulation in case 3:17-cv-05211-WHA.Associated Cases: 3:17-cv-05211-WHA, 3:17-cv-05235-WHA, 3:17-cv-05329WHA, 3:17-cv-05380-WHA, 3:17-cv-05813-WHA(whalc1, COURT STAFF) (Filed on 10/25/2017) (Entered: 10/25/2017)

10/26/2017

168 ORDER of USCA regarding oral arguments and amicus briefs as to (21 in 3:17-cv-05813-WHA, 38 in 3:17-cv-05329-WHA, 95 in 317-cv05211-WHA, 47 in 3:17-cv-05235-WHA, 34 in 3:17-cv-05380-WHA) (sxbS, COURT STAFF) (Filed on 10/26/2017) (Entered: 11/03/2017)

10/27/2017

103 ADMINISTRATIVE MOTION Amend Page Limits in Connection with Forthcoming Motion for Provisional Relief re 49 Case Management Scheduling Order, 52 Transcript,,, filed by Janet Napolitano, UC Regents. Responses due by 10/31/2017. (Attachments: # 1 Proposed Order)(Davidson, Jeffrey) (Filed on 10/27/2017) (Entered: 10/27/2017)

10/27/2017

104 ORDER GRANTING PLAINTIFFS' UNOPPOSED ADMINISTRATIVE MOTION TO AMEND PAGE LIMITS IN CONNECTION WITH MOTION FOR PROVISIONAL RELIEF by Judge William Alsup granting (103) Administrative Motion to alter page limits in case 3:17-cv-05211-WHA.Associated Cases: 3:17-cv-05211-WHA, 3:17-cv-05235-WHA, 3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv-05813-WHA(whalc1, COURT STAFF) (Filed on 10/27/2017) (Entered: 10/27/2017)

10/30/2017

105 NOTICE of Appearance by Apalla U. Chopra for Brown University, California Institute of Technology, University of Chicago, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, University of Pennsylvania, Princeton University, Stanford University, Vanderbilt University, and Yale University (Chopra, Apalla) (Filed on 10/30/2017) (Entered: 10/30/2017)

10/31/2017

106 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11838814.) filed by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Yale University. (Attachments: # 1 Attachment, # 2 Certificate of Good Standing)(Gray, Danielle) (Filed on 10/31/2017) (Entered: 10/31/2017)

10/31/2017

107 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11838853.) filed by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Yale University. (Attachments: # 1 Attachment, # 2 Certificate of Good Standing)(Sokoler, Jennifer) (Filed on 10/31/2017) (Entered: 10/31/2017)

10/31/2017

108 ORDER GRANTING APPLICATION FOR ADMISSION PRO HAC VICE OF ATTORNEY DANIELLE GRAY by Judge William Alsup granting 106 Motion for Pro Hac Vice.(whalc1, COURT STAFF) (Filed on 10/31/2017) (Entered: 10/31/2017)

10/31/2017

109 ORDER GRANTING APPLICATION FOR ADMISSION PRO HAC VICE OF ATTORNEY JENNIFER SOKOLER by Judge William Alsup granting 107 Motion for Pro Hac Vice.(whalc1, COURT STAFF) (Filed on 10/31/2017) (Entered: 10/31/2017)

10/31/2017

169 ORDER of USCA regarding amicus briefs as to (21 in 3:17-cv-05813WHA, 38 in 3:17-cv-05329-WHA, 95 in 3:17-cv-05211-WHA, 47 in 3:17-cv-05235-WHA, 34 in 3:17-cv-05380-WHA) (sxbS, COURT STAFF) (Filed on 10/31/2017) (Entered: 11/03/2017)

11/01/2017

110 ADMINISTRATIVE MOTION Leave to file Amicus Brief filed by Immigration Reform Law Institute. Responses due by 11/22/2017. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Axelrod, Julie) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

111 MOTION for Preliminary Injunction -- Plaintiffs' Motion for Provisional Relie filed by Janet Napolitano, UC Regents. Motion Hearing set for 12/20/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup. Responses due by 11/22/2017. Replies due by 12/8/2017. (Attachments: # 1 Addendum A -- History of Deferred Action, # 2 Request for Judicial Notice in Support of Plaintiffs' Motion for Provisional Relief, # 3 Proposed Order)(Davidson, Jeffrey) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

112 ADMINISTRATIVE MOTION Leave to File Amicus Brief filed by National Education Association Of The United States, Association of California School Administrators, Berkeley Unified School District, Moreno Valley Unified School District, Association of California School Administrators, San Diego Unified School District, San Diego Unified School District, West Contra Costa Unified School District, California Faculty Association, California School Boards Association,

California Teachers Association, Los Angeles County Superintendent of Schools, Los Angeles County Board of Education, Los Angeles Unified School District, Oakland Unified School District, Sacramento City Unified School District. Responses due by 11/6/2017. (Attachments: # 1 Exhibit Amicus Curiae Brief)(Leheny, Emma) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

113 Appendix re 111 MOTION for Preliminary Injunction -- Plaintiffs' Motion for Provisional Relie filed byJanet Napolitano, UC Regents. (Attachments: # 1 Appendix Part 1 -- Exhibits 1-14, # 2 Appendix Part 1 -- Exhibit 15, # 3 Appendix Part 1 -- Exhibits 16-24)(Related document(s) 111 ) (Davidson, Jeffrey) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

114 MOTION to Dismiss All N.D. Cal. DACA Cases and Memorandum in Support filed by Elaine Duke, United States Department of Homeland Security. Motion Hearing set for 12/20/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup. Responses due by 11/22/2017. Replies due by 12/8/2017. (Attachments: # 1 Proposed Order)(Rosenberg, Brad) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

115 MOTION for Protective Order (Unopposed) filed by Viridiana Chabolla Mendoza, Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Jirayut Latthivongskorn, Norma Ramirez. Motion Hearing set for 12/20/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup. Responses due by 11/15/2017. Replies due by 11/22/2017. (Attachments: # 1 Proposed Order)(Dettmer, Ethan) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

116 ADMINISTRATIVE MOTION Leave to File Brief Amici Curiae filed by Current and Former Law Enforcement Leaders. Responses due by 11/6/2017. (Attachments: # 1 Exhibit Brief Amici Curiae, # 2 Proposed Order)(Piers, Matthew) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

117 Appendix Part 2 in Support of Plaintiffs' Motion for Provisional Relief filed byJanet Napolitano, UC Regents. (Attachments: # 1 Appendix Part 2 -- Exhibit 25 part 2, # 2 Appendix Part 2 -- Exhibit 25 part 3)(Davidson, Jeffrey) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

118 Appendix Part 3 in support of Plaintiffs' Motion for Provisional Relief filed byJanet Napolitano, UC Regents. (Attachments: # 1 Appendix Part 3 -- Exhibits 44-59)(Davidson, Jeffrey) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

119 Appendix Part 4 in Support of Plaintiffs' Motion for Provisional Relief filed byJanet Napolitano, UC Regents. (Attachments: # 1 Appendix Part 4 -- Exhibits 79-98, # 2 Appendix Part 4 -- Exhibits 99-108)(Davidson, Jeffrey) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

120 MOTION to File Amicus Curiae Brief in Support of Plaintiffs' Motion for Provisional Relief filed by Canal Alliance, Centro Legal de la Raza, Community Legal Services in East Palo Alto, Dolores Street Community Services, East Bay Sanctuary Covenant, Heartland Alliance's National Immigrant Justice Center, Immigrant Legal Resource Center, Legal Aid Society of San Mateo County, Legal Services for Children, OneJustice, Services, Immigrant Rights, and Education Network, Asian Law Alliance. Motion Hearing set for 12/20/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup. Responses due by 11/15/2017. Replies due by 11/22/2017. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Alger, Maureen) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

121 Appendix Part 5 in Support of Plaintiffs' Motion for Provisional Relief -- Attachment -- Declaration of Jesse Gabriel -- filed byJanet Napolitano, UC Regents. (Attachments: # 1 Appendix Part 5 -- Gabriel Declaration Exs. A-Z, # 2 Appendix Part 5 -- Gabriel Declaration Exhibits AA-JJ)(Davidson, Jeffrey) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

122 MOTION for Leave to File Brief of Amicus Curiae LatinoJustice PRLDEF, et al. filed by LatinoJustice PRLDEF. (Attachments: # 1 Exhibit 1 of Motion for Leave to File Amicus Curiae, # 2 Exhibit 2 of Motion for Leave to File Amicus Curiae)(Golay, Blythe) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

123 Certificate of Interested Entities by LatinoJustice PRLDEF re 122 MOTION for Leave to File Brief of Amicus Curiae LatinoJustice PRLDEF, et al. (Golay, Blythe) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

124 Appendix Part 6 in Support of Plaintiffs' Motion for Provisional Relief filed byJanet Napolitano, UC Regents. (Attachments: # 1 Appendix Part 6 -- Exhibits VV-EEE, # 2 Topical Index to Appendix)(Davidson, Jeffrey) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

125 ADMINISTRATIVE MOTION to maintain the anonymity of Declarant Doe 1, filed by Janet Napolitano, UC Regents. Responses due by 11/6/2017. (Attachments: # 1 Declaration of Jeffrey M. Davidson, # 2 Proposed Order)(Davidson, Jeffrey) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

126 Administrative Motion to File Under Seal filed by Janet Napolitano, UC Regents. (Attachments: # 1 Declaration of Jeffrey M. Davidson in Support of Plaintiffs' Motion to File Under Seal, # 2 Exhibit SEALED Declaration of Doe 1, # 3 Exhibit REDACTED Declaration of Doe 1, # 4 Proposed Order)(Davidson, Jeffrey) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

127 MOTION for leave to appear in Pro Hac Vice for Fernando A. Bohorquez, Jr. ( Filing fee $ 310, receipt number 0971-11843981.) filed by LatinoJustice PRLDEF. (Attachments: # 1 Certificate of Good Standing)(Golay, Blythe) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017 128 NOTICE of Appearance by Michael Joseph Dundas (Dundas, Michael) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

129 PROTECTIVE ORDER by Judge William Alsup granting (115) Motion for Protective Order in case 3:17-cv-05211WHA.Associated Cases: 3:17-cv-05211-WHA, 3:17-cv-05235WHA, 3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv-05813WHA(whalc1, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

130 ORDER GRANTING MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANTS by Judge William Alsup granting (110) Administrative Motion leave to file amicus curiae brief in case 3:17-cv-05211-WHA.Associated Cases: 3:17-cv-05211-WHA, 3:17-cv-05235-WHA, 3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv-05813-WHA(whalc1, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

131 ADMINISTRATIVE MOTION filed by City and County of Denver, City and County of Honolulu, City and County of San Francisco, City of Boston, City of Cambridge, City of Chelsea, City of Chicago, City of Houston, City of Minneapolis, City of New York, City of Oakland, City of Philadelphia, City of Portland, City of Providence, City of Rochester, City of Sacramento, City of Santa Monica, City of Seattle, City of Somerville, City of Tucson, City of West Hollywood, City of los Angeles, Cook County, District of Columbia, King County, U.S. Conference of Mayors, City of Austin. Responses due by 12/20/2017. (Attachments: # 1 BRIEF OF AMICI CURAE THE CITY OF LOS ANGELES, 25 ADDITIONAL CITIES AND COUNTIES AND THE UNITED STATES CONFERENCE OF MAYORS IN SUPPORT OF PLAINTIFFS' JOINT MOTION FOR PROVISIONAL RELIEF IN ALL RELATED DACA PROCEEDINGS, # 2 Proposed Order)(Dundas, Michael) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

132 MOTION for leave to appear in Pro Hac Vice for Jose Luis Perez ( Filing fee $ 310, receipt number 0971-11844259.) filed by LatinoJustice PRLDEF. (Attachments: # 1 Certificate of Good Standing)(Golay, Blythe) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017 133 NOTICE of Appearance by Michael Nelson Feuer (Feuer, Michael) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

134 ORDER GRANTING APPLICATION FOR ADMISSION PRO HAC VICE OF ATTORNEY JOSE LUIS PEREZ by Judge William Alsup granting 132 Motion for Pro Hac Vice.(whalc1, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

135 ORDER GRANTING LEGAL SERVICES ORGANIZATIONS MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF by Judge William Alsup granting 120 Motion to File Amicus Curiae Brief.(whalc1, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

136 ORDER GRANTING LEAVE TO FILE AMICUS CURIAE BRIEF by Judge William Alsup granting 112 Administrative Motion leave to file amicus curiae brief.(whalc1, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

137 ADMINISTRATIVE MOTION for Leave to File an Amicus Brief in Support of Plaintiffs' Motion for Provisional Relief filed by 108 Companies. Responses due by 11/6/2017. (Attachments: # 1 Declaration of Andrew Pincus in Support, # 2 Proposed Order, # 3 Amicus Brief of 108 Companies)(Nadolenco, John) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017 138 NOTICE of Appearance by John Nadolenco (Nadolenco, John) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

139 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11844543.) filed by 108 Companies. (Attachments: # 1 Attachment, # 2 Certificate of Good Standing)(Pincus, Andrew) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

140 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11844589.) filed by 108 Companies. (Attachments: # 1 Attachment, # 2 Certificate of Good Standing)(Goldman, Lauren) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017 141 ADMINISTRATIVE MOTION for Leave to File Brief Amici Curiae of Institutions of Higher Education in Support of Plaintiffs' Motion for Preliminary Relief filed by Amherst College, Asnuntuck Community

College, Barnard College, Board of Governors of the California Community Colleges, Boston University, Bowdoin College, Brandeis University, Bucknell University, Capital Community College, Carnegie Mellon University, Case Western Reserve University, Central Connecticut State University, Charter Oak State College, Colby College, Colgate University, University of Connecticut, Eastern Connecticut State University, Emerson College, Gateway Community College, Hampshire College, Housatonic Community College, Lawrence University, Los Angeles Community College District, Los Rios Community College District, Manchester Community College, University of Maryland, University of Michigan, Middlebury College, Middlesex Community College, Mount Holyoke College, Naugatuck Valley Community College, Northeastern University, Northwestern Community College, Norwalk Community College, Pace University, Quinebaug Valley Community College, Rice University, Riverside Community College District, San Francisco Community College District, San Mateo Community College District, Smith College, Southern Connecticut State University, State Center Community College District, Three Rivers Community College, Tufts University, Tunxis Community College, Vassar College, Wellesley College, Western Connecticut State University, Williams College. Responses due by 11/6/2017. (Attachments: # 1 Brief Amici Curiae of Institutions of Higher Education in Support of Plaintiffs' Motion for Preliminary Relief, # 2 Proposed Order)(Hauck, Brian) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

142 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11844608.) filed by 108 Companies. (Attachments: # 1 Attachment, # 2 Certificate of Good Standing)(Lin, Karen) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

143 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11844703.) filed by Amherst College, Asnuntuck Community College, Barnard College, Board of Governors of the California Community Colleges, Boston University, Bowdoin College, Brandeis University, Bucknell University, Capital Community College, Carnegie Mellon University, Case Western Reserve University, Central Connecticut State University, Charter Oak State College, Colby College, Colgate University, Eastern Connecticut State University, Emerson College, Gateway Community College, Hampshire College, Housatonic Community College, Lawrence University, Los Angeles Community College District, Los Rios Community College District, Manchester Community College, Middlebury College, Middlesex Community College, Mount Holyoke College, Naugatuck Valley Community College, Northeastern University, Northwestern Community College, Norwalk Community College, Pace University,

Quinebaug Valley Community College, Rice University, Riverside Community College District, San Francisco Community College District, San Mateo Community College District, Smith College, Southern Connecticut State University, State Center Community College District, Three Rivers Community College, Tufts University, Tunxis Community College, University of Connecticut, University of Maryland, University of Michigan, Vassar College, Wellesley College, Western Connecticut State University, Williams College. (Attachments: # 1 Attachment, # 2 Certificate of Good Standing)(Perrelli, Thomas) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

144 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11844811.) filed by Amherst College, Asnuntuck Community College, Barnard College, Board of Governors of the California Community Colleges, Boston University, Bowdoin College, Brandeis University, Bucknell University, Capital Community College, Carnegie Mellon University, Case Western Reserve University, Central Connecticut State University, Charter Oak State College, Colby College, Colgate University, Eastern Connecticut State University, Emerson College, Gateway Community College, Hampshire College, Housatonic Community College, Lawrence University, Los Angeles Community College District, Los Rios Community College District, Manchester Community College, Middlebury College, Middlesex Community College, Mount Holyoke College, Naugatuck Valley Community College, Northeastern University, Northwestern Community College, Norwalk Community College, Pace University, Quinebaug Valley Community College, Rice University, Riverside Community College District, San Francisco Community College District, San Mateo Community College District, Smith College, Southern Connecticut State University, State Center Community College District, Three Rivers Community College, Tufts University, Tunxis Community College, University of Connecticut, University of Maryland, University of Michigan, Vassar College, Wellesley College, Western Connecticut State University, Williams College. (Attachments: # 1 Attachment, # 2 Certificate of Good Standing)(Harrison, Lindsay) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

145 Proposed Order re 122 MOTION for Leave to File Brief of Amicus Curiae LatinoJustice PRLDEF, et al. in Support of Plaintiffs' Motion for Injunctive and Declaratory Relief by LatinoJustice PRLDEF. (Kochsiek, Blythe) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017 146 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11844801.) filed by Airbnb, Inc., Square, Inc., Twitter, Inc., Yelp Inc.. (Attachments: # 1 Attachment (Parties), # 2 Certificate

of Good Standing)(Waxman, Seth) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

147 NOTICE of Appearance by Margaret Louise Carter on behalf of Amicus Curiae County of Los Angeles (Carter, Margaret) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017 148 NOTICE of Appearance by James Wesley Crooks on behalf of Amicus Curiae County of Los Angeles (Crooks, James) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

149 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11844870.) filed by Amherst College, Asnuntuck Community College, Barnard College, Board of Governors of the California Community Colleges, Boston University, Bowdoin College, Brandeis University, Bucknell University, Capital Community College, Carnegie Mellon University, Case Western Reserve University, Central Connecticut State University, Charter Oak State College, Colby College, Colgate University, Eastern Connecticut State University, Emerson College, Gateway Community College, Hampshire College, Housatonic Community College, Lawrence University, Los Angeles Community College District, Los Rios Community College District, Manchester Community College, Middlebury College, Middlesex Community College, Mount Holyoke College, Naugatuck Valley Community College, Northeastern University, Northwestern Community College, Norwalk Community College, Pace University, Quinebaug Valley Community College, Rice University, Riverside Community College District, San Francisco Community College District, San Mateo Community College District, Smith College, Southern Connecticut State University, State Center Community College District, Three Rivers Community College, Tufts University, Tunxis Community College, University of Connecticut, University of Maryland, University of Michigan, Vassar College, Wellesley College, Western Connecticut State University, Williams College. (Attachments: # 1 Attachment, # 2 Certificate of Good Standing)(Bhabha, Ishan) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

150 NOTICE of Appearance by Daniel R. Suvor on behalf of Amicus Curiae County of Los Angeles (Suvor, Daniel) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

151 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11845024.) filed by Airbnb, Inc., Square, Inc., Twitter, Inc., Yelp Inc.. (Attachments: # 1 Attachment (Parties), # 2 District of Columbia: Certificate of Good Standing)(Carome, Patrick) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017 152 NOTICE of Appearance by Apalla U. Chopra on behalf of Amici Curiae George Washington University and Washington University in St. Louis (Chopra, Apalla) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017 153 NOTICE of Appearance by Danielle C Gray on behalf of Amici Curiae George Washington University and Washington University in St. Louis (Gray, Danielle) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

154 NOTICE of Appearance by Jennifer B Sokoler on behalf of Amici Curiae George Washington University and Washington University in St. Louis (Sokoler, Jennifer) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

155 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11845105.) filed by Airbnb, Inc., Square, Inc., Twitter, Inc., Yelp Inc.. (Attachments: # 1 Attachment (Parties), # 2 DC Court of Appeals - Certificate of Good Standing)(Holtzblatt, Ari) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

156 ADMINISTRATIVE MOTION For Leave to File Amicus Brief Of Nineteen Universities In Support Of Plaintiffs' Motion For Provisional Relief filed by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. Responses due by 11/6/2017. (Attachments: # 1 Brief of Amici Curiae, # 2 Proposed Order)(Gray, Danielle) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

157 ADMINISTRATIVE MOTION For Leave to File Amicus Brief Of 9 Counties And Ramsey County Attorney In Support Of Plaintiffs' Motion For Provisional Relief filed by County of Los Angeles. Responses due by 11/6/2017. (Attachments: # 1 Brief of Amici Curiae, # 2 Proposed Order)(Carter, Margaret) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

158 ADMINISTRATIVE MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS MOTION FOR PROVISIONAL RELIEF filed by The Bar Association of San Francisco. Responses due by 11/6/2017. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Deol, John-Paul) (Filed on 11/1/2017) (Entered: 11/01/2017)

11/01/2017

159 Administrative MOTION for leave to File Amicus Curiae Brief ISO Plaintiffs' Motion for Provisional Relief filed by Former Federal Immigration and Homeland Security Officials. Motion Hearing set for 12/20/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup. Responses due by 11/15/2017. Replies due by 11/22/2017. (Attachments: # 1 Exhibit Brief of Former Federal Immigration and Homeland Security Officials as Amici Curiae ISO Plaintiffs' Motion for Provisional Relief, # 2 Proposed Order)(Giang, Albert) (Filed on 11/1/2017) Modified on 11/2/2017 (wv, COURT STAFF). Modified on 11/2/2017 (wv, COURT STAFF (Entered: 11/01/2017)

11/02/2017 160 NOTICE of Appearance by Maureen P. Alger (lead counsel) (Alger, Maureen) (Filed on 11/2/2017) (Entered: 11/02/2017)

11/02/2017 161 NOTICE of Appearance by Joan Renxin Li (Li, Joan) (Filed on 11/2/2017) (Entered: 11/02/2017)

11/02/2017 162 NOTICE of Appearance by Kara Corinne Wilson (Wilson, Kara) (Filed on 11/2/2017) (Entered: 11/02/2017)

11/03/2017

163 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11849350.) filed by Airbnb, Inc., Square, Inc., Twitter, Inc., Yelp Inc.. (Attachments: # 1 Attachment (Parties), # 2 Massachusetts - Certificate of Good Standing)(Lopez, Janine) (Filed on 11/3/2017) (Entered: 11/03/2017)

11/03/2017 164 NOTICE of Appearance by Neil A. Friedman Popovic (Popovic, Neil) (Filed on 11/3/2017) (Entered: 11/03/2017)

11/03/2017 165 NOTICE of Appearance by James Landon McGinnis (McGinnis, James) (Filed on 11/3/2017) (Entered: 11/03/2017)

11/03/2017

166 ORDER GRANTING 140 APPLICATION FOR ADMISSION PRO HAC VICE OF ATTORNEY LAUREN GOLDMAN by Judge William Alsup.(afmS, COURT STAFF) (Filed on 11/3/2017) (Entered: 11/03/2017)

11/03/2017

167 ORDER GRANTING 142 APPLICATION FOR ADMISSION PRO HAC VICE OF ATTORNEY KAREN LINN by Judge William Alsup.(afmS, COURT STAFF) (Filed on 11/3/2017) (Entered: 11/03/2017)

11/06/2017 170 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY FERNANDO BOHORQUEZ, JR. PRO HAC VICE by Judge William Alsup granting 127 Motion for Pro Hac

Vice.(whalc1, COURT STAFF) (Filed on 11/6/2017) (Entered: 11/06/2017)

11/06/2017

171 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY ANDREW PINCUS PRO HAC VICE by Judge William Alsup granting 139 Motion for Pro Hac Vice.(whalc1, COURT STAFF) (Filed on 11/6/2017) (Entered: 11/06/2017)

11/06/2017

172 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY SETH WAXMAN PRO HAC VICE by Judge William Alsup granting 146 Motion for Pro Hac Vice.(whalc1, COURT STAFF) (Filed on 11/6/2017) (Entered: 11/06/2017)

11/06/2017

173 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY ISHAN BHABHA PRO HAC VICE by Judge William Alsup granting 149 Motion for Pro Hac Vice.(whalc1, COURT STAFF) (Filed on 11/6/2017) (Entered: 11/06/2017)

11/06/2017

174 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY THOMAS PERRELLI PRO HAC VICE by Judge William Alsup granting 143 Motion for Pro Hac Vice.(whalc1, COURT STAFF) (Filed on 11/6/2017) (Entered: 11/06/2017)

11/07/2017

175 ORDER GRANTING 144 APPLICATION FOR ADMISSION PRO HAC VICE OF ATTORNEY LINDSAY C. HARRISON. Signed by Judge William Alsup on 11/7/2017. (afmS, COURT STAFF) (Filed on 11/7/2017) (Entered: 11/07/2017)

11/07/2017

176 ORDER GRANTING 151 APPLICATION FOR ADMISSION PRO HAC VICE OF ATTORNEY PATRICK J. CAROME. Signed by Judge William Alsup on 11/7/2017. (afmS, COURT STAFF) (Filed on 11/7/2017) (Entered: 11/07/2017)

11/07/2017

177 ORDER GRANTING 155 APPLICATION FOR ADMISSION PRO HAC VICE FOR ATTORNEY ARI BENJAMIN ASHER HOLTZBLATT. Signed by Judge William Alsup on 11/7/2017.(afmS, COURT STAFF) (Filed on 11/7/2017) (Entered: 11/07/2017)

11/07/2017

178 ORDER GRANTING 163 APPLICATION FOR ADMISSION PRO HAC VICE FOR ATTORNEY JANINE M. LOPEZ. Signed by Judge William Alsup on 11/7/2017.(afmS, COURT STAFF) (Filed on 11/7/2017) (Entered: 11/07/2017)

11/07/2017 179 NOTICE of Appearance by Albert Quoc Giang (Giang, Albert) (Filed on 11/7/2017) (Entered: 11/07/2017)

11/07/2017

180 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11860146.) filed by Former Federal Immigration and Homeland Security Officials. (Attachments: # 1 Exhibit Attachment (Parties), # 2 Exhibit District of Columbia- Certificate of Good Standing)(Harrell, James) (Filed on 11/7/2017) (Entered: 11/07/2017)

11/08/2017

181 ORDER RE MOTION TO MAINTAIN ANONYMITY by Judge Alsup granting in part and denying in part (125) Administrative Motion maintain anonymity; granting in part and denying in part (126) Administrative Motion to File Under Seal in case 3:17-cv05211-WHA. (whalc1, COURT STAFF) (Filed on 11/8/2017) (Entered: 11/08/2017)

11/08/2017

182 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY JAMES HARRELL PRO HAC VICE by Judge William Alsup granting 180 Motion for Pro Hac Vice.(whalc1, COURT STAFF) (Filed on 11/8/2017) (Entered: 11/08/2017)

11/08/2017

183 ORDER GRANTING LEAVE TO FILE AMICUS CURIAE BRIEF by Judge William Alsup granting 122 Motion for Leave to File.(whalc1, COURT STAFF) (Filed on 11/8/2017) (Entered: 11/08/2017)

11/08/2017

184 ORDER GRANTING ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE by Judge William Alsup granting 131 Administrative Motion leave to file amicus curiae brief.(whalc1, COURT STAFF) (Filed on 11/8/2017) (Entered: 11/08/2017)

11/08/2017

185 ORDER GRANTING ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE by Judge William Alsup granting 137 Administrative Motion leave to file amicus curiae brief.(whalc1, COURT STAFF) (Filed on 11/8/2017) (Entered: 11/08/2017)

11/08/2017

186 ORDER GRANTING 141 LEAVE TO FILE AMICUS CURIAE BRIEF. SIGNED BY JUDGE WILLIAM ALSUP ON 11/8/2017.(afmS, COURT STAFF) (Filed on 11/8/2017) (Entered: 11/08/2017)

11/14/2017

187 NOTICE by Janet Napolitano, UC Regents -- Plaintiffs' Notice of Withdrawal of Doe 1's Declaration (Davidson, Jeffrey) (Filed on 11/14/2017) (Entered: 11/14/2017)

11/16/2017 188 ORDER TO FILE COMPLETED ADMINISTRATIVE RECORD AND PROPOSE SCHEDULE Signed by Judge Alsup on

11/16/2017. (whalc1, COURT STAFF) (Filed on 11/16/2017) (Entered: 11/16/2017)

11/17/2017

189 CLERK'S NOTICE: Telephonic Discovery Hearing Re: 97 Discovery Letter Brief set for 11/21/2017 10:30 AM in Chambers-SF before Magistrate Judge Sallie Kim. The Court will circulate dial-in information to counsel by separate email. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 11/17/2017) (Entered: 11/17/2017)

11/19/2017

190 MOTION to Stay re 79 Order on Motion for Miscellaneous Relief, 188 Order filed by Janet Napolitano, UC Regents. Motion Hearing set for 12/28/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup. Responses due by 12/4/2017. Replies due by 12/11/2017. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Rodgers, Megan) (Filed on 11/19/2017) (Entered: 11/19/2017)

11/19/2017

191 Emergency MOTION to Stay re 80 Order, 79 Order on Motion for Miscellaneous Relief, 49 Case Management Scheduling Order, 188 Order (Shortened Schedule) filed by Elaine Duke, United States Department of Homeland Security. Motion Hearing set for 11/30/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup. Responses due by 11/20/2017. (Attachments: # 1 Exhibit A: 9th Cir. Stay Motion, # 2 Exhibit B: 9th Cir. Order, # 3 Proposed Order)(Rosenberg, Brad) (Filed on 11/19/2017) (Entered: 11/19/2017)

11/19/2017

192 STIPULATION WITH PROPOSED ORDER re 190 MOTION to Stay re 79 Order on Motion for Miscellaneous Relief, 188 Order , 191 Emergency MOTION to Stay re 80 Order, 79 Order on Motion for Miscellaneous Relief, 49 Case Management Scheduling Order, 188 Order (Shortened Schedule) to Shorten Briefing Schedule filed by Elaine Duke, United States Department of Homeland Security. (Rosenberg, Brad) (Filed on 11/19/2017) (Entered: 11/19/2017)

11/20/2017

193 TENTATIVE ORDER RE MOTIONS TO STAY DISCOVERY AND COMPLETION OF THE ADMINISTRATIVE RECORD Signed by Judge Alsup on 11/20/2017. (Attachments: # 1 Tentative Order)(whalc1, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017 194 NOTICE of Appearance by Justin Theodore Berger (Berger, Justin) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017

195 OPPOSITION/RESPONSE (re 190 MOTION to Stay re 79 Order on Motion for Miscellaneous Relief, 188 Order ) and Regarding Court's Tentative Order (ECF No. 193) filed byElaine Duke, United States Department of Homeland Security. (Rosenberg, Brad) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017 196 RESPONSE to re 193 Order -- Plaintiffs' Response to Tentative Order by Janet Napolitano, UC Regents. (Davidson, Jeffrey) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017

197 ONE-MONTH CONTINUANCE OF DUE DATE FOR AUGMENTED ADMINISTRATIVE RECORD AND TEMPORARY STAY OF DISCOVERY by Judge Alsup re (190) Motion to Stay; re (191) Motion to Stay; re (192) Stipulation in case 3:17-cv-05211-WHA. (whalc1, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017

198 CLERK'S NOTICE: The Telephonic Discovery Hearing Re: 97 Discovery Letter Brief set for 11/21/2017 10:30 AM before Magistrate Judge Sallie Kim is vacated. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/21/2017 199 ORDER of USCA denying petition (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)

11/21/2017 200 ORDER of USCA Dismissing Motion for Stay filed by government. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)

11/21/2017 201 ORDER of USCA regarding Motion for Stay. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)

11/21/2017 202 Memorandum of USCA regarding Administrative Record. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)

11/22/2017

203 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11898021.) filed by Current and Former Law Enforcement Leaders. (Attachments: # 1 Supplement Attachment to Application for Admission of Attorney Pro Hac Vice, # 2 Supplement Certificate of Admission To the Bar of Illinois)(Piers, Matthew) (Filed on 11/22/2017) (Entered: 11/22/2017)

11/22/2017 204 OPPOSITION/RESPONSE (re 111 MOTION for Preliminary Injunction -- Plaintiffs' Motion for Provisional Relie ) filed byElaine Duke, United States Department of Homeland Security. (Attachments:

# 1 Proposed Order)(Bailey, Kate) (Filed on 11/22/2017) (Entered: 11/22/2017)

11/22/2017

205 OPPOSITION/RESPONSE (re 114 MOTION to Dismiss All N.D. Cal. DACA Cases and Memorandum in Support ) filed byJanet Napolitano, UC Regents. (Davidson, Jeffrey) (Filed on 11/22/2017) (Entered: 11/22/2017)

11/22/2017

206 Order by Judge William Alsup granting 116 Administrative Motion Leave to File Amicus Brief.(afmS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)

11/22/2017 207 Order by Judge William Alsup granting 156 Administrative Motion Leave to File Amicus Brief.(afmS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)

11/22/2017

208 Order by Judge William Alsup granting 157 Administrative Motion Leave to File Brief Amicus Brief.(afmS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)

11/22/2017 209 Order by Judge William Alsup granting 158 Administrative Motion Leave to File Amicus Brief.(afmS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)

11/22/2017 210 Order by Judge William Alsup granting 159 Administrative Motion Leave to File Amicus Brief.(afmS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)

11/22/2017 211 ORDER of USCA denying Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)

11/29/2017 212 NOTICE by City Of San Jose of Withdrawal of Counsel (Berger, Justin) (Filed on 11/29/2017) (Entered: 11/29/2017)

11/30/2017

213 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY MATTHEW PIERS PRO HAC VICE by Judge William Alsup granting 203 Motion for Pro Hac Vice.(whalc1, COURT STAFF) (Filed on 11/30/2017) (Entered: 11/30/2017)

12/01/2017

214 NOTICE by Elaine Duke, United States Department of Homeland Security of Filing of Petition for Writ of Mandamus and Application for a Stay in the United States Supreme Court (Attachments: # 1 Petition for a Writ of Mandamus, # 2 Application for a Stay)(Rosenberg, Brad) (Filed on 12/1/2017) (Entered: 12/01/2017)

12/04/2017 215 REQUEST TO COUNSEL re 214 Notice (Other), filed by Elaine Duke, United States Department of Homeland Security Signed by

Judge Alsup on 12/4/2017. (whalc1, COURT STAFF) (Filed on 12/4/2017) (Entered: 12/04/2017)

12/05/2017

216 RESPONSE to the Court's Request to Counsel by Janet Napolitano, UC Regents. (Davidson, Jeffrey) (Filed on 12/5/2017) (Entered: 12/05/2017)

12/06/2017

217 NOTICE OF FILING OF STATEMENT OF DISTRICT COURT IN RESPONSE TO APPLICATION FOR A STAY Signed by Judge Alsup on 12/6/2017. (whalc1, COURT STAFF) (Filed on 12/6/2017) (Entered: 12/06/2017)

12/08/2017

218 REPLY (re 114 MOTION to Dismiss All N.D. Cal. DACA Cases and Memorandum in Support ) filed byElaine Duke, United States Department of Homeland Security. (Rosenberg, Brad) (Filed on 12/8/2017) (Entered: 12/08/2017)

12/08/2017

219 REPLY (re 111 MOTION for Preliminary Injunction -- Plaintiffs' Motion for Provisional Relie ) filed byJanet Napolitano, UC Regents. (Davidson, Jeffrey) (Filed on 12/8/2017) Modified on 12/8/2017 (sxbS, COURT STAFF). (Entered: 12/08/2017)

12/20/2017

220 TRANSCRIPT ORDER for proceedings held on 12/20/2017 before Judge William Alsup by Elaine Duke, United States Department of Homeland Security, for Court Reporter Lydia Zinn. (Rosenberg, Brad) (Filed on 12/20/2017) (Entered: 12/20/2017)

12/20/2017 221 Minute Entry for proceedings held before Judge William Alsup:

Motion Hearing held on 12/20/2017 re 114 MOTION to Dismiss All N.D. Cal. DACA Cases and Memorandum in Support filed by Elaine Duke, United States Department of Homeland Security; 111 MOTION for Preliminary Injunction -- Plaintiffs' Motion for Provisional Relie filed by UC Regents, Janet Napolitano. Motions are submitted.

Total Time in Court: 3 Hours; 40 Minutes. Court Reporter: Lydia Zinn.

Plaintiff Attorneys: Jeffrey Davidson, Megan Crowley, Alexander Berengaut, Mark Lynch, Lanny Breuer, James Zahradka, Brian Danitz, Mark Rosenbaum, Ethan Dettmer, Eric Brown. Defendant Attorneys: Brad Rosenberg, Kate Bailey, Brett Shumate.

(This is a text-only entry generated by the court. There is no

document associated with this entry.) (afmS, COURT STAFF) (Date Filed: 12/20/2017) (Entered: 12/20/2017)

12/20/2017

222 TRANSCRIPT ORDER for proceedings held on 12/20/2017 before Judge William Alsup by Janet Napolitano, UC Regents, for Court Reporter Lydia Zinn. (Davidson, Jeffrey) (Filed on 12/20/2017) (Entered: 12/20/2017)

12/21/2017

223 Transcript of Proceedings held on 12/20/2017, before Judge William Alsup. Court Reporter/Transcriber Lydia Zinn, telephone number (415) 531-6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (222 in 3:17-cv-05211-WHA) Transcript Order, (220 in 3:17-cv-05211-WHA) Transcript Order ) Redacted Transcript Deadline set for 1/22/2018. Release of Transcript Restriction set for 3/21/2018. (Zinn, Lydia) (Filed on 12/21/2017) (Entered: 12/21/2017)

12/21/2017 224 PER CURIAM of Supreme Court of the United States on Petition for Writ of Mandamus vacating judgment of USCA and remanding case. (sxbS, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)

12/21/2017 225 STAY OF NOVEMBER 20 ORDER 197 . Signed by Judge Alsup on 12/21/2017. (whalc1, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)

12/27/2017 226 ORDER of USCA regarding Government's threshold arguments and certification for appeal (sxbS, COURT STAFF) (Filed on 12/27/2017) (Entered: 12/27/2017)

01/02/2018

227 Request for Judicial Notice re 205 Opposition/Response to Motion, 111 MOTION for Preliminary Injunction -- Plaintiffs' Motion for Provisional Relie filed byJanet Napolitano, UC Regents. (Attachments: # 1 Declaration of Jeffrey M. Davidson, # 2 Exhibit A to Davidson Declaration, # 3 Proposed Order)(Related document(s) 205 , 111 ) (Davidson, Jeffrey) (Filed on 1/2/2018) (Entered: 01/02/2018)

01/03/2018 228 REQUEST FOR GOVERNMENT TO RESPOND TO MOTION TO SUPPLEMENT. Signed by Judge Alsup on 1/3/2018. (whalc1, COURT STAFF) (Filed on 1/3/2018) (Entered: 01/03/2018)

01/03/2018 229 REQUEST FOR SUPPLEMENTAL BRIEFING. Signed by Judge Alsup on 1/3/2018. (whalc1, COURT STAFF) (Filed on 1/3/2018) (Entered: 01/03/2018)

01/05/2018

230 RESPONSE to re 227 Request for Judicial Notice, 228 Order by Kirstjen Nielson, United States Department of Homeland Security. (Attachments: # 1 Declaration of Brad P. Rosenberg (attaching exhibit), # 2 Proposed Order)(Rosenberg, Brad) (Filed on 1/5/2018) (Entered: 01/05/2018)

01/08/2018

231 DISREGARD PER FILER RQST. Supplemental Brief Re Hawaii v. Trump filed byState of California, State of Maine, State of Maryland, State of Minnesota. (Zahradka, James) (Filed on 1/8/2018) Modified on 1/8/2018 (sxbS, COURT STAFF). (Entered: 01/08/2018)

01/08/2018

232 Supplemental Brief re 229 Order Regarding the Ninth Circuit's Decision in Hawaii v. Trump filed byKirstjen Nielson, United States Department of Homeland Security. (Related document(s) 229 ) (Rosenberg, Brad) (Filed on 1/8/2018) (Entered: 01/08/2018)

01/08/2018

233 Supplemental Brief Re Hawaii v. Trump filed byState of California, State of Maine, State of Maryland, State of Minnesota. (Zahradka, James) (Filed on 1/8/2018) (Entered: 01/08/2018)

01/09/2018

234 ORDER DENYING 114 FRCP 12(b)(1) DISMISSAL AND GRANTING 111 PROVISIONAL RELIEF (granting 227 ) by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 1/9/2018) (Entered: 01/09/2018)

01/10/2018

235 CLERK'S NOTICE: Discovery Hearing set for 1/10/2018 10:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. Personal appearances are preferred, but given the short notice counsel may appear by telephone. Only one attorney per party to speak if appearing by telephone, although other attorneys for the same party may listen to the hearing. Attorneys wishing to participate by telephone shall contact the Court by email to SKCRD@cand.uscourts.gov to request the dial-in information. In the email, counsel shall identify which party they represent and the name(s) of the attorney(s) that will be appearing. The Court will issue a follow up order with specific topics to be addressed during the hearing. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/10/2018) (Entered: 01/10/2018)

01/10/2018

236 CLERK'S NOTICE Correcting Date/Time of Discovery Hearing: Discovery Hearing set for 1/11/2018 10:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. (This is a

text-only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/10/2018) Modified on 1/10/2018 (mklS, COURT STAFF). (Entered: 01/10/2018)

01/10/2018 237 ORDER REGARDING DISCOVERY HEARING ON 1/11/2018. Signed by Magistrate Judge Sallie Kim on 1/10/2018. (mklS, COURT STAFF) (Filed on 1/10/2018) (Entered: 01/10/2018)

01/11/2018

238 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Discovery Hearing held on 1/11/2018. The Court and parties discuss the status of discovery. Further Discovery Hearing set for 1/30/2018 09:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. Defense counsel may appear by telephone. (FTR Time: 10:32-10:41.)

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

(This is a text-only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 1/11/2018) (Entered: 01/11/2018)

01/12/2018

239 ORDER GRANTING IN PART 114 DEFENDANTS' MOTION TO DISMISS UNDER FRCP 12(b)(6) by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 1/12/2018) (Entered: 01/12/2018)

01/12/2018

240 FOLLOW-UP REQUEST RE COMPLETION OF ADMINISTRATIVE RECORD AND DISCOVERY, AND VACATING CERTAIN DATES. Signed by Judge Alsup on 1/12/2018. (whalc1, COURT STAFF) (Filed on 1/12/2018) (Entered: 01/12/2018)

01/16/2018

241 NOTICE OF APPEAL to the 9th Circuit Court of Appeals (case# 1815068 ) filed by Kirstjen Nielson, United States Department of Homeland Security. Appeal of Order on Motion for Preliminary Injunction 234 , Order on Motion to Dismiss 239 (Appeal fee FEE WAIVED.) (Rosenberg, Brad) (Filed on 1/16/2018) Modified on 1/26/2018 (sxbS, COURT STAFF). (Entered: 01/16/2018)

01/19/2018

242 RESPONSE to re 240 Order -- Plaintiffs' Memorandum in Response to Follow-Up Request re Completion of Administrative Record and Discovery, by Janet Napolitano, UC Regents. (Davidson, Jeffrey) (Filed on 1/19/2018) (Entered: 01/19/2018)

01/19/2018

243 RESPONSE to re 240 Order (Foloow-Up Request re Completion of the Administrative Record and Discovery) by Kirstjen Nielson, United States Department of Homeland Security. (Rosenberg, Brad) (Filed on 1/19/2018) (Entered: 01/19/2018)

01/22/2018 244 ORDER RE SCOPE OF ADMINISTRATIVE RECORD AND DISCOVERY STAY. Signed by Judge Alsup on 1/22/2018. (whalc1, COURT STAFF) (Filed on 1/22/2018) (Entered: 01/22/2018)

01/22/2018

245 CLERK'S NOTICE: The Discovery Hearing currently set for 1/30/2018 at 9:30 AM before Magistrate Judge Sallie Kim is vacated. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/22/2018) (Entered: 01/22/2018)

01/23/2018

246 STIPULATION WITH PROPOSED ORDER re 234 Order on Motion for Preliminary Injunction, 239 Order on Motion to Dismiss RE EXTENSION OF TIME TO RESPOND TO COMPLAINTS AND TO SEEK LEAVE TO FILE AMENDED COMPLAINTS filed by State of California, State of Maine, State of Maryland, State of Minnesota. (Zahradka, James) (Filed on 1/23/2018) (Entered: 01/23/2018)

01/23/2018

247 ORDER GRANTING (246) STIPULATION RE EXTENSION OF TIME TO RESPOND TO COMPLAINTS AND TO SEEK LEAVE TO FILE AMENDED COMPLAINTS by Judge William Alsup.(whalc1, COURT STAFF) (Filed on 1/23/2018) (Entered: 01/23/2018)

01/25/2018

248 Notice of Appeal FEE PAID (Filing fee$505,receipt number 097112056328). (Ventresca, Ivano) (Filed on 1/25/2018) (Entered: 01/25/2018)

01/26/2018

249 STATUS REPORT JOINT REPORT RE DISCUSSIONS RE SCOPE OF ADMINISTRATIVE RECORD by State of California, State of Maine, State of Maryland, State of Minnesota. (Zahradka, James) (Filed on 1/26/2018) (Entered: 01/26/2018)

01/26/2018

250 USCA Case Number 18-15068 USCA 9th Circuit for 241 Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security. (sxbS, COURT STAFF) (Filed on 1/26/2018) (Entered: 01/26/2018)

01/26/2018

251 USCA Acknowledgment of Receipt of Permission to Appeal 18-80004 USCA 9th Circuit for (89 in 3:17-cv-05235-WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17-cv-05211-WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department

of Homeland Security, (72 in 3:17-cv-05329-WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17-cv-05380-WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17-cv-05813-WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump. (sxbS, COURT STAFF) (Filed on 1/26/2018) (Entered: 01/26/2018)

01/31/2018 252 Judgment of Supreme Court of United States Washington DC re Writ of Mandamus (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)

01/31/2018

253 USCA Case Number 18-80007 USCA 9th Circuit for Acknowledgment of Receipt for Permission to Appeal. (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)

01/31/2018 254 USCA Case Number 18-80008 USCA 9th Circuit acknowledgment receipt of Petition for Permission to Appeal. (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)

02/01/2018

255 ORDER of USCA granting petition for permission to appeal as to (92 in 3:17-cv-05235-WHA, 251 in 3:17-cv-05211-WHA, 75 in 3:17-cv05329-WHA, 69 in 3:17-cv-05380-WHA, 57 in 3:17-cv-05813-WHA) USCA Case Number 18-80004 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)

02/01/2018

256 ORDER of USCA granting petition for permission to appeal as to (253 in 3:17-cv-05211-WHA, 73 in 3:17-cv-05380-WHA, 60 in 3:17-cv05813-WHA, 95 in 3:17-cv-05235-WHA, 78 in 3:17-cv-05329-WHA) USCA Case Number 18-80007 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)

02/01/2018

257 ORDER of USCA granting petition for permission to appeal as to (79 in 3:17-cv-05329-WHA, 96 in 3:17-cv-05235-WHA, 61 in 3:17-cv05813-WHA, 74 in 3:17-cv-05380-WHA, 254 in 3:17-cv-05211-WHA) USCA Case Number 18-80008 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)

02/01/2018

258 USCA Case Number 18-15128 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)

02/01/2018 259 USCA Case Number 18-15133 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)

02/01/2018 260 USCA Case Number 18-15134 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)

02/01/2018

261 ORDER of Supreme Court of U.S. Washington DC re filing of petition for writ of certiorari as to (92 in 3:17-cv-05235-WHA, 251 in 3:17-cv05211-WHA, 75 in 3:17-cv-05329-WHA, 69 in 3:17-cv-05380-WHA, 57 in 3:17-cv-05813-WHA) USCA Case Number,,, (62 in 3:17-cv05813-WHA, 97 in 3:17-cv-05235-WHA, 75 in 3:17-cv-05380-WHA, 255 in 3:17-cv-05211-WHA, 80 in 3:17-cv-05329-WHA) USCA Order, (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)

02/22/2018 262 U.S. Supreme Court Receipt acknowledging Petition for Writ of Certiorari filed on 1/18/18 as No. 17-1003. (sxbS, COURT STAFF) (Filed on 2/22/2018) (Entered: 02/22/2018)

02/26/2018

263 Transcript Designation Form for proceedings held on 9/21/2017; 10/03/2017; 10/16/2017; 12/20/2017 before Judge Hon. William H. Alsup, re 256 USCA Order, 255 USCA Order, 257 USCA Order, 241 Notice of Appeal, Transcript due by 3/26/2018. (Boutrous, Theodore) (Filed on 2/26/2018) (Entered: 02/26/2018)

02/28/2018

264 ORDER of US SUPREME COURT The petition for a writ of certiorari before judgment is denied without prejudice. It is assumed that the Court of Appeals will proceed expeditiously to decide this case; as to 241 Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security (aaaS, COURT STAFF) (Filed on 2/28/2018) (Entered: 02/28/2018)

02/28/2018 265 US Supreme Court Order denying petition for a writ of certiorari re appeal no. 18-15068 (sxbS, COURT STAFF) (Filed on 2/28/2018) (Entered: 02/28/2018)

03/08/2018

266 RENEWED ORDER TO COMPLETE THE ADMINISTRATIVE RECORD. Signed by Judge Alsup on 3/8/2018. (whalc1, COURT STAFF) (Filed on 3/8/2018) (Entered: 03/08/2018)

03/08/2018

267 ORDER RE DEADLINE FOR PLAINTIFFS TO MOVE FOR LEAVE TO FILE AMENDED COMPLAINTS. Signed by Judge Alsup on 3/8/2018. (whalc1, COURT STAFF) (Filed on 3/8/2018) (Entered: 03/08/2018)

03/19/2018 268 ORDER of USCA re motion and panel of Ninth Circuit Judges. (sxbS, COURT STAFF) (Filed on 3/19/2018) (Entered: 03/19/2018)

03/19/2018 269 NOTICE of Change In Counsel by Danielle C Gray (Gray, Danielle) (Filed on 3/19/2018) (Entered: 03/19/2018)

03/22/2018 270 USCA Acknowledgment of Receipt for Permission to Appeal: Case Number 18-80037 USCA 9th Circuit (sxbS, COURT STAFF) (Filed on 3/22/2018) (Entered: 03/22/2018)

03/30/2018 271 NOTICE of Change In Counsel by Janine Marie Lopez (Notice of Withdrawal of Counsel) (Attachments: # 1 Proposed Order)(Lopez, Janine) (Filed on 3/30/2018) (Entered: 03/30/2018)

04/02/2018

272 NOTICE by Kirstjen Nielson, United States Department of Homeland Security re 234 Order on Motion for Preliminary Injunction - Filing of Quarterly Summary Reports (Attachments: # 1 Exhibit A: Quarterly Report, # 2 Exhibit B: Demographics Report)(Rosenberg, Brad) (Filed on 4/2/2018) (Entered: 04/02/2018)

04/04/2018

273 ORDER OF RECUSAL. Signed by Magistrate Judge Sallie Kim on 4/4/2018. (mklS, COURT STAFF) (Filed on 4/4/2018) (Entered: 04/04/2018)

04/07/2018

274 NOTICE by Kirstjen Nielson, United States Department of Homeland Security re 234 Order on Motion for Preliminary Injunction, 272 Notice (Other), - Filing of Corrected Quarterly Report (Attachments: # 1 Exhibit A: Corrected Quarterly Report)(Rosenberg, Brad) (Filed on 4/7/2018) (Entered: 04/07/2018)

05/29/2018

275 NOTICE by Kirstjen Nielson, United States Department of Homeland Security (Attachments: # 1 Exhibit 1: Feb. 26, 2018 PI in Inland Empire, # 2 Exhibit 2: March 20, 2018 Modified Order in Inland Empire)(Rosenberg, Brad) (Filed on 5/29/2018) (Entered: 05/29/2018)

06/26/2018

276 ORDER REFERRING CASE TO MAGISTRATE JUDGE SALLIE KIM FOR DISCOVERY PURPOSES. Signed by Judge Alsup on 6/26/2018. (whalc1, COURT STAFF) (Filed on 6/26/2018) (Entered: 06/26/2018)

07/02/2018

277 NOTICE by Kirstjen Nielson, United States Department of Homeland Security - Filing of Quarterly Summary Reports (Attachments: # 1 Exhibit A: Quarterly Report, # 2 Exhibit B: Demographics Report)(Rosenberg, Brad) (Filed on 7/2/2018) (Entered: 07/02/2018)

09/24/2018 278 ORDER RE 97 PENDING DISCOVERY LETTER BRIEF by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 9/24/2018) (Entered: 09/24/2018)

10/01/2018

279 NOTICE by Kirstjen Nielson, United States Department of Homeland Security of Filing of Quarterly Summary Reports (Attachments: # 1 Exhibit A: Quarterly Report, # 2 Exhibit B: Demographics Report)(Rosenberg, Brad) (Filed on 10/1/2018) (Entered: 10/01/2018)

11/08/2018

280 USCA JUDGMENT as to (89 in 3:17-cv-05235-WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17-cv-05211WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17-cv-05329-WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17-cv-05380-WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17-cv-05813-WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump (ddkS, COURT STAFF) (Filed on 11/8/2018) (Entered: 11/21/2018)

01/02/2019

281 NOTICE by Kirstjen Nielson, United States Department of Homeland Security of Filing of Quarterly Summary Reports (Attachments: # 1 Exhibit A: Quarterly Report, # 2 Exhibit B: Demographics Report)(Rosenberg, Brad) (Filed on 1/2/2019) (Entered: 01/02/2019)

01/10/2019 282 NOTICE by Janet Napolitano, UC Regents -- Notice of Withdrawal of Counsel (Mincer, Jonathan) (Filed on 1/10/2019) (Entered: 01/10/2019)

01/16/2019 283 Appeal Remark Letter from US Supreme Court (amgS, COURT STAFF) (Filed on 1/16/2019) (Entered: 01/22/2019)

02/25/2019

284 MANDATE of USCA as to (89 in 3:17-cv-05235-WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17-cv-05211WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17-cv-05329-WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17-cv-05380-WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17-cv-05813-WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump (amgS, COURT STAFF) (Filed on 2/25/2019) (Entered: 02/27/2019)

04/01/2019

285 NOTICE by Kirstjen Nielson, United States Department of Homeland Security of Filing of Quarterly Summary Reports (Attachments: # 1 Exhibit A: Quarterly Report, # 2 Exhibit B: Demographics Report)(Rosenberg, Brad) (Filed on 4/1/2019) (Entered: 04/01/2019)

04/11/2019

286 MOTION to Withdraw as Attorney Brett A. Shumate filed by United States Department of Homeland Security. Responses due by 4/25/2019. Replies due by 5/2/2019. (Attachments: # 1 Proposed Order)(Shumate, Brett) (Filed on 4/11/2019) (Entered: 04/11/2019)

04/19/2019 287 NOTICE of Change In Counsel by Ronald Hak King Lee FOR PLAINTIFF STATE OF CALIFORNIA (Lee, Ronald) (Filed on 4/19/2019) (Entered: 04/19/2019)

04/24/2019 288 NOTICE of Change of Address by Jeffrey Michael Davidson (Davidson, Jeffrey) (Filed on 4/24/2019) (Entered: 04/24/2019)

05/10/2019

289 NOTICE by Janet Napolitano, UC Regents of Withdrawal of Counsel Monica Ramirez Almadani (Almadani, Monica) (Filed on 5/10/2019) (Entered: 05/10/2019)

07/01/2019

290 NOTICE by Kirstjen Nielson, United States Department of Homeland Security (Attachments: # 1 Ex. A: Quarterly Report, # 2 Ex. B: Demographics Report)(Pezzi, Stephen) (Filed on 7/1/2019) (Entered: 07/01/2019)

07/03/2019 291 Supreme Court of the United States Case Number 18587 re 283 Appeal Remark. (wsnS, COURT STAFF) (Filed on 7/3/2019) (Entered: 07/08/2019)

10/01/2019

292 NOTICE by Kirstjen Nielson, United States Department of Homeland Security of Filing of Quarterly Summary Reports (Attachments: # 1 Ex. A - Quarterly Report, # 2 Ex. B - Demographics Report)(Pezzi, Stephen) (Filed on 10/1/2019) (Entered: 10/01/2019)

10/11/2019 293 NOTICE of Substitution of Counsel by Kate Bailey (Bailey, Kate) (Filed on 10/11/2019) (Entered: 10/11/2019)

01/02/2020

294 NOTICE by Kirstjen Nielson, United States Department of Homeland Security of Filing of Quarterly Summary Reports (Attachments: # 1 Ex. A - Quarterly Report, # 2 Ex. B - Demographics Report)(Pezzi, Stephen) (Filed on 1/2/2020) (Entered: 01/02/2020)

02/27/2020 295 NOTICE of Change In Counsel by Karen Lin (Lin, Karen) (Filed on 2/27/2020) (Entered: 02/27/2020)

02/28/2020

296 NOTICE by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University (Notice of Withdrawal of Certain Counsel re: Jennifer B. Sokoler) (Chopra, Apalla) (Filed on 2/28/2020) (Entered: 02/28/2020)

04/01/2020

297 NOTICE by Kirstjen Nielson, United States Department of Homeland Security of Filing of Quarterly Summary Reports (Attachments: # 1 Ex. A - Quarterly Report, # 2 Ex. B - Demographics Report)(Pezzi, Stephen) (Filed on 4/1/2020) (Entered: 04/01/2020)

06/29/2020 298 ORDER of U.S. Supreme Court (USCA case no. 18-80008). (mclS, COURT STAFF) (Filed on 6/29/2020) (Entered: 06/29/2020)

07/01/2020

299 NOTICE by Kirstjen Nielson, United States Department of Homeland Security of Filing of Quarterly Summary Reports (Attachments: # 1 Ex. A - Quarterly Report, # 2 Ex. B - Demographics Report)(Pezzi, Stephen) (Filed on 7/1/2020) (Entered: 07/01/2020)

07/22/2020

300 U.S. Supreme Court JUDGMENT as to (89 in 3:17-cv-05235-WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17-cv05211-WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17-cv-05329-WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17-cv-05380-WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17-cv-05813-WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump. (mclS, COURT STAFF) (Filed on 7/22/2020) (Entered: 07/22/2020)

07/28/2020

301 NOTICE by Kirstjen Nielson, United States Department of Homeland Security (Attachments: # 1 Ex. 1 - Wolf Memorandum)(Pezzi, Stephen) (Filed on 7/28/2020) (Entered: 07/28/2020)

08/04/2020 302 ORDER of USCA re 18-15065 in 17-cv-05211-WHA; 18-15069 in 17cv-05235-WHA; 18-15070 in 17-cv-05329-WHA; 18-15071 in 17-cv05380-WHA; 18-15072 in 17-cv-05813-WHA.

In light of the Supreme Court's decision in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020), we remand these cases to the district court for further proceedings consistent with the Supreme Courts opinion, which held that the Department of Homeland Securitys rescission of the Deferred Action for Childhood Arrivals program "was arbitrary and capricious in violation of the [Administrative Procedure Act]," id. at 1915.

(wsnS, COURT STAFF) (Filed on 8/4/2020) (Entered: 08/04/2020)

08/04/2020 303 MANDATE of USCA. Nos. 18-15068, 15-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134.

The judgment of this Court, entered August 04, 2020, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure.

(wsnS, COURT STAFF) (Filed on 8/4/2020) (Entered: 08/04/2020)

08/18/2020 304 Letter from State of California Request for Status Conference. (Zahradka, James) (Filed on 8/18/2020) (Entered: 08/18/2020)

09/01/2020

305 CLERK'S NOTICE SETTING TELEPHONIC CASE MANAGEMENT CONFERENCE. Further Case Management Conference set for 10/15/2020 at 11:00 AM before Judge William Alsup. Joint Case Management Statement due by 10/8/2020 at 12:00 PM.

This proceeding will be held by AT&T Conference Line. The court circulates the following conference number to allow the equivalent of a public hearing by telephone.

For conference line information, see: https://apps.cand.uscourts.gov/telhrg/

All counsel, members of the public and press please use the following dial-in information below to access the conference line:

Dial In: 888-684-8852

Access Code: 3707514

The Court may be in session with proceedings in progress when you connect to the conference line. Therefore, mute your phone if possible and wait for the Court to address you before speaking on the line. For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all possible, parties shall use landlines.

PLEASE NOTE: Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited. See General Order 58 at Paragraph III.

(This is a text-only entry generated by the court. There is no document associated with this entry.)11(amd2S, COURT STAFF) (Filed on 9/1/2020) Modified on 9/1/2020 (amd2S, COURT STAFF). Modified on 9/1/2020 (amd2S, COURT STAFF). (Entered: 09/01/2020)

09/04/2020 306 NOTICE of Change In Counsel by Ivano Michael Ventresca (Ventresca, Ivano) (Filed on 9/4/2020) (Entered: 09/04/2020)

09/11/2020

307 ORDER of USCA No. 18-80037. Petitioners' unopposed motion to withdraw this petition is granted. The petition is withdrawn. (wsnS, COURT STAFF) (Filed on 9/11/2020) (Entered: 09/11/2020)

09/23/2020

308 CLERK'S NOTICE. The Further Case Management Conference set for 10/15/2020 is continued to 10/22/2020 at 11:00 AM before Judge William Alsup. Case Management Statement due by 10/15/2020. (This is a text-only entry generated by the court. There is no document associated with this entry.) (amd2S, COURT STAFF) (Filed on 9/23/2020) (Entered: 09/23/2020)

10/15/2020

309 CASE MANAGEMENT STATEMENT filed by State of California, State of Maine, State of Maryland, State of Minnesota. (Attachments: # 1 [Proposed] Case Management Order)(Zahradka, James) (Filed on 10/15/2020) Modified on 10/16/2020 (mclS, COURT STAFF). (Entered: 10/15/2020)

10/22/2020

310 Minute Entry for proceedings held before Judge William Alsup: Further Case Management Conference held on 10/22/2020 via AT&T Conference line. There were no objections to the Case Management Statement submitted by the parties on a joint basis. The Court will issue a Scheduling Order based on the Case Management Statement.

Total Time in Court: 5 minutes. Court Reporter: Debra Pas.

Attorney for Plaintiffs UC Regents and Janet Napolitano: Jeffrey Davidson. Attorney for Plaintiffs/Movant States: James Zahradka. Attorney for Plaintiff/Movant City of San Jose: Justin Berger. Attorneys for Plaintiffs/Movant Individuals: Ethan Dettmer / Mark Rosenbaum. Attorney for Plaintiff/Movant County of Santa Clara: Stacey Leyton. Attorneys for Defendants Dept. of Homeland Security, Kirstjen Nielson, United States of America, Donald Trump, Jefferson Sessions: Brad Rosenberg / Stephen Pezzi.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (amd2S, COURT STAFF) (Date Filed: 10/22/2020) (Entered: 10/23/2020)

11/02/2020

311 AMENDED COMPLAINT -- First Amended Complaint for Declaratory and Injunctive Relief against United States Department of Homeland Security, Chad Wolf. Filed byUC Regents. (Davidson, Jeffrey) (Filed on 11/2/2020) (Entered: 11/02/2020)

11/09/2020

312 NOTICE by United States Department of Homeland Security, Chad Wolf of Filing of Administrative Record (Attachments: # 1 Certification of Administrative Record, # 2 Record Nos. 1-8, # 3 Record Nos. 9-10, # 4 Record Nos. 11-22, # 5 Record No. 23 (part 1), # 6 Record No. 23 (part 2), # 7 Record No. 23 (part 3), # 8 Record No. 24, # 9 Record Nos. 25-49, # 10 Record Nos. 50-100)(Thorp, Galen) (Filed on 11/9/2020) (Entered: 11/09/2020)

11/18/2020

313 ADMINISTRATIVE MOTION for Modification of Briefing Schedule re 309 Case Management Statement, Unopposed filed by State of California, State of Maine, State of Maryland, State of Minnesota. Responses due by 11/23/2020. (Attachments: # 1 Proposed Order)(Zahradka, James) (Filed on 11/18/2020) Modified on 11/18/2020 (mclS, COURT STAFF). (Entered: 11/18/2020)

11/24/2020

314 ORDER RE 313 MOTION FOR MODIFICATION OF BRIEFING SCHEDULE. (whalc1, COURT STAFF) (Filed on 11/24/2020) (Entered: 11/24/2020)

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 Case 3:17-cv-05211 Document 1 Filed 09/08/17 Page 1 of 19

1 Jeffrey M. Davidson (Bar No. 248620)

Charles F. Robinson (Bar No. 113197)

Alan Bersin (Bar No. 63874) 2 COVINGTON & BURLING LLP

Margaret Wu (Bar No. 184167) Julia Friedlander (Bar No. 165767)

One Front Street, 35th Floor 3 San Francisco, CA 94111-5356

Sonya Sanchez (Bar No. 247541) Norman Hamill (Bar No. 154272)

Telephone: + 1 (415) 591-6000 4 Facsimile: + 1 (415) 591-6091

Harpreet Chahal (Bar No. 233268) Michael Troncoso (Bar No. 221180)

Email: jdavidson@cov.com, 5 abersin@cov.com

University of California Office of the General Counsel

6 Lanny A. Breuer

1111 Franklin Street, 8th Floor Oakland, CA 94607-5200

Mark H. Lynch 7 Alexander A. Berengaut

Telephone: + 1 (510) 987-9800 Facsimile: + 1 (510) 987-9757

Megan A. Crowley 8 Ashley Anguas Nyquist

Email: charles.robinson@ucop.edu

Ivano M. Ventresca 9 (pro hac vice applications forthcoming)

COVINGTON & BURLING LLP 10 One CityCenter

850 Tenth Street, NW 11 Washington, DC 20001-4956

Telephone: + 1 (202) 662-6000 12 Facsimile: +1 (202) 662-6291

E-mail: lbreuer@cov.com, mlynch@cov.com, 13 aberengaut@cov.com, mcrowley@cov.com,

anyquist@cov.com, iventresca@cov.com 14

Attorneys for Plaintiffs 15 THE REGENTS OF THE UNIVERSITY

OF CALIFORNIA and JANET NAPOLITANO, 16 in her official capacity as President of the

University of California 17

[Additional Counsel Listed on Next Page] 18

19

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

20

21

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA and JANET NAPOLITANO,

22

in her official capacity as President of the University of California,

23

Plaintiffs,

24

v.

25 U.S. DEPARTMENT OF HOMELAND

26

SECURITY and ELAINE DUKE, in her official capacity as Acting Secretary of the

27 Department of Homeland Security,

Civil Case No.:
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

28

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-05211 Document 1 Filed 09/08/17 Page 2 of 19

1

ADDITIONAL COUNSEL OF RECORD

2 Mónica Ramírez Almadani (Bar No. 234893)

3

COVINGTON & BURLING LLP 1999 Avenue of the Stars

4

Los Angeles, CA 90067-4643 Telephone: + 1 (424) 332-4800

5

Facsimile: + (424) 332-4749 Email: mralmadani@cov.com

6 Erika Douglas (Bar No. 314531)

7

COVINGTON & BURLING LLP 333 Twin Dolphin Drive, Suite 700

8

Redwood Shores, CA 94061-1418 Telephone: + 1 (650) 632-4700

9

Facsimile: + 1 (650) 632-4800 Email: edouglas@cov.com

10

11

Attorneys for Plaintiffs THE REGENTS OF THE UNIVERSITY OF CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the University of California

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1

Plaintiffs The Regents of the University of California (“UC” or “the University”), on its own

2 behalf and on behalf of all students currently enrolled at the University, and Janet Napolitano, in her

3 official capacity as President of the University of California (together “Plaintiffs”), bring this action for

4 declaratory and injunctive relief against the Department of Homeland Security (“DHS”) and Acting

5 Secretary of Homeland Security, Elaine Duke (together, “Defendants”), and allege as follows:

6

INTRODUCTION

7

1. This lawsuit, brought under the Due Process Clause of the Fifth Amendment to the

8 United States Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, challenges

9 Defendants’ unlawful decision to rescind the Deferred Action for Childhood Arrivals (“DACA”)

10 program, which protected from deportation nearly 800,000 individuals brought to this country as

11 children, known as Dreamers. Under DACA, the Dreamers, who came to the United States through no

12 choice of their own, who have clean records, and who have lived continuously in the United States since

13 2007, were permitted to live, work, and study in this country without fear of deportation. The United

14 States, and the University, have benefited enormously from the presence of the Dreamers, accomplished

15 young men and women who are our students, and colleagues, and neighbors. They are Americans, a

16 fact that Defendants’ precipitous decision cannot change.

17

2. As a result of Defendants’ actions, the Dreamers face expulsion from the only country

18 that they call home, based on nothing more than unreasoned executive whim. The University faces the

19 loss of vital members of its community, students and employees. It is hard to imagine a decision less

20 reasoned, more damaging, or undertaken with less care. As explained below, Defendants’ capricious

21 rescission of the DACA program violates both the procedural and substantive requirements of the APA,

22 as well as the Due Process Clause of the Fifth Amendment. Accordingly, Defendants’ unconstitutional,

23 unjust, and unlawful action must be set aside.

24

3. On June 15, 2012, former Secretary of Homeland Security Janet Napolitano announced

25 that individuals who arrived in the United States as children and met certain criteria, and who otherwise

26 satisfied DHS’s exercise of discretion, could apply for deferred action for two-year periods, subject to

27 renewal. See Memorandum from Janet Napolitano, Sec’y of Homeland Security, to Alejandro

28 Mayorkas, Director, U.S. Citizenship and Immigration Servs. et al., Exercising Prosecutorial Discretion

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1 With Respect to Individuals Who Came to the United States as Children (June 15, 2012) (“DACA

2 Memorandum”). DACA allowed these individuals to live, study, and work in the United States without

3 fear that they could be arrested and deported at any time. Because of the program, DACA recipients

4 were able to pursue opportunities in higher education, to more readily obtain driver’s licenses and access

5 lines of credit, to obtain jobs and access to certain Social Security and Medicare benefits, and to

6 contribute to their communities and American society in countless ways.

7

4. The University directly benefited from the DACA program, in its capacities as educator

8 and employer. UC has approximately 4,000 undocumented students, a substantial number of whom are

9 DACA recipients. Many of its staff members are also DACA recipients. These individuals make

10 important contributions to University life, expanding the intellectual vitality of the school, filling crucial

11 roles as medical residents, research assistants, and student government leaders, and increasing the

12 diversity of the community.

13

5. Over the past five years, DACA recipients have structured their lives—and the University

14 has made significant investments—on the government’s express assurances that if they self-identified,

15 registered with federal law enforcement agencies, and passed an extensive background investigation,

16 they would be shielded from deportation and allowed to work in the United States for renewable two-

17 year periods. Yet despite the substantial and well-founded reliance that these individuals and the

18 University placed in the continuation of the DACA program, on September 5, 2017, Defendants

19 suddenly and unilaterally rescinded it. See Ex. A, Memorandum on Rescission Of Deferred Action For

20 Childhood Arrivals (Sept. 5, 2017) (hereinafter the “Rescission”).

21

6. The Rescission, which renders DACA recipients once more subject to deportation, has

22 profound consequences for the University and its students. As a result of Defendants’ actions, DACA

23 recipients face the loss of their livelihood, education, and country. The University and all of its students

24 will lose the contributions of valued colleagues and employees. The University also will lose

25 intellectual capital and productivity, as DACA recipients are deprived of the work authorizations needed

26 to serve in the professional roles in which both they and the University have so heavily invested.

27

7. In the Rescission, Defendants offered no reasoned basis for their cancellation of DACA,

28 instead merely pointing to the purported illegality of another program known as Deferred Action for

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1 Parents of Americans and Lawful Permanent Residents (“DAPA”), and stating that in light of the Fifth

2 Circuit’s conclusion that DAPA is unlawful, “it is clear that [DACA] should be terminated.” As

3 explained below, rescinding DACA on this specious basis was procedurally and substantively invalid

4 under the APA and violated the Due Process Clause of the Fifth Amendment.

5

8. Agency action is invalid under the APA if it is “arbitrary, capricious, an abuse of

6 discretion, or otherwise not in accordance with law,” or if it is taken “without observance of procedure

7 required by law.” 5 U.S.C. § 706(2). To survive judicial review under the APA, an agency must

8 “articulate a satisfactory explanation for its action including a ‘rational connection between the facts

9 found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins.

10 Co., 463 U.S. 29, 43 (1983). In determining whether an agency has complied with this requirement, a

11 court must conduct a “thorough, probing, in-depth review” of the agency’s reasoning and a “searching

12 and careful” inquiry into the factual underpinnings of the agency’s decision. Citizens to Preserve

13 Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16 (1971). Here, in multiple respects, Defendants failed

14 to “articulate a satisfactory explanation” for their action that would enable a court to conclude that the

15 decision was “the product of reasoned decisionmaking.” State Farm, 463 U.S. at 52.

16

9. As an initial matter, Defendants’ reliance on the purported illegality of DAPA is an

17 entirely insufficient basis on which to terminate DACA. DAPA is a separate program from DACA.

18 The two programs were governed by different sets of rules, applied to different individuals, and

19 conferred different benefits. Therefore, the alleged illegality of DAPA does not justify the rescission of

20 DACA, and Defendants’ failure to recognize the many differences between the programs renders their

21 decision unreasonable.

22

10. Because the Rescission is based on an incorrect legal premise—the purported illegality of

23 DACA—it cannot survive judicial review under the APA. See, e.g., Massachusetts v. EPA, 549 U.S.

24 497, 532 (2007) (holding that action was unlawful under the APA because agency based its decision on

25 incorrect legal conclusion); Safe Air For Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007)

26 (“Because that flawed premise is fundamental to EPA’s determination . . . EPA’s outcome on those

27 statutory interpretation questions is arbitrary, capricious, or otherwise not in accordance with law.”).

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1

11. Despite Defendants’ conclusory assertion that DACA “has the same legal and

2 constitutional defects” as DAPA, no court has held that DACA is unlawful. Instead, DHS has

3 previously concluded that programs like DACA are a lawful exercise of the Executive Branch’s broad

4 statutory authority to administer and enforce the Immigration and Nationality Act, 8 U.S.C. § 1101, et

5 seq. See Brief for Petitioners, United States v. Texas, 2016 WL 836758 (2016) (No. 15-674). Similarly,

6 the Department of Justice’s Office of Legal Counsel (“OLC”)—whose legal advice is binding on the

7 Executive Branch—provided a thoughtful and nuanced analysis of DAPA in 2014, concluding that

8 DAPA, as well as DACA, was a lawful exercise of the Executive Branch’s prosecutorial discretion.

9 Dep’t of Homeland Sec.’s Auth. to Prioritize Removal of Certain Aliens Unlawfully Present in the

10 United States & to Defer Removal of Others, 2014 WL 10788677 (O.L.C. Nov. 19, 2014).

11

12. The Rescission fails to acknowledge—let alone explain—the government’s departure

12 from its own prior interpretations of the law. Indeed, DHS vigorously defended the legality of DAPA in

13 the Supreme Court less than two years ago. See Brief for Petitioners, supra. Yet in making the

14 unfounded assertion that DACA is illegal for the same reasons that DAPA is illegal, Defendants neither

15 addressed the compelling arguments set forth in DHS’s own brief before the Supreme Court and in

16 OLC’s 2014 Opinion, nor offered a reasonable explanation for why their current view of the law is

17 superior to the view they and OLC previously espoused. Those failures, standing alone, are enough to

18 render their decision unlawful under the APA.

19

13. Defendants compound the irrationality of their decision by failing to acknowledge the

20 profound reliance interests implicated by DACA and the hundreds of thousands of individuals,

21 employers, and universities who will be substantially harmed by the termination of the program. The

22 Supreme Court has emphasized that the presence of serious reliance interests requires an agency to

23 proffer a “more substantial justification” than otherwise would be required when the agency changes

24 course. See Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015); FCC v. Fox Television

25 Stations, 556 U.S. 502, 515 (2009). Here, Defendants entirely failed to comply with that directive.

26

14. Defendants did not analyze the actual costs and benefits of allowing DACA recipients to

27 live and work in this country, nor did they acknowledge the manifold benefits that have resulted from

28 the program or the harm that institutions like the University—as well as its students—would suffer as a

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1 result of the Rescission. By failing to consider these factors and the interests at stake, Defendants have

2 failed to satisfy the APA’s requirement of reasoned decision-making.

3

15. The Rescission also should be set aside because it is procedurally invalid. By prohibiting

4 DHS from granting advance parole or renewing recipients’ DACA status after October 5, 2017, the

5 Rescission circumscribes DHS’s discretion and therefore constitutes a substantive rule. See W.C. v.

6 Bowen, 807 F.2d 1502, 1505 (9th Cir. 1987), opinion amended on denial of reh’g, 819 F.2d 237 (9th

7 Cir. 1987) (“Rules which substantially limit an agency’s discretion are generally substantive rules.”).

8 Additionally, in contrast to the case-by-case assessment of individual applicants provided under DACA,

9 the Rescission is a categorical rule, which applies to all DACA recipients. This too underscores the

10 substantive nature of the Rescission, which is subject to the full range of the APA’s rulemaking

11 requirements, including the notice-and-comment requirement of 5 U.S.C. § 553. See Paulsen v.

12 Daniels, 413 F.3d 999, 1003-04 (9th Cir. 2005) (holding that Bureau of Prisons “plainly violated the

13 APA” by promulgating a rule that barred category of prisoners from relief without notice). Defendants’

14 failure to abide by these mandatory procedural requirements renders their action unlawful.

15

16. Finally, in rescinding DACA, Defendants violated the Due Process Clause of the United

16 States Constitution by failing to provide the University with any process before depriving it of the value

17 of the public resources it invested in DACA recipients, and the benefits flowing from DACA recipients’

18 contributions to the University. More fundamentally, they failed to provide DACA recipients with any

19 process before depriving them of their work authorizations and DACA status, and the benefits that flow

20 from that status.

21

THE PARTIES

22

17. Plaintiff The Regents of the University of California is a California public corporation,

23 authorized and empowered to administer a public trust known as the University of California, pursuant

24 to Article IX, Section 9, subdivisions (a) and (f) of the California Constitution. Its principal place of

25 business is in Oakland, Alameda County, California. The University brings this complaint on behalf of

26 itself and on behalf of all students currently enrolled at the University. Approximately 4,000

27 undocumented students are enrolled at the University, a substantial number of whom are DACA

28 recipients. Some of these recipients are also employed by the University.

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1

18. Plaintiff Janet Napolitano is a resident of California. She brings this complaint in her

2 official capacity as President of the University of California.

3

19. Defendant DHS is a federal cabinet agency responsible for implementing and enforcing

4 the Immigration and Nationality Act (“INA”). DHS is a Department of the Executive Branch of the

5 United States Government and an agency within the meaning of 5 U.S.C. § 551(1). DHS, as well as its

6 component agencies U.S. Citizenship and Immigration Services (“USCIS”), U.S. Customs and Border

7 Protection (“CBP”), and U.S. Immigration and Customs Enforcement (“ICE”), have responsibility for,

8 among other things, administering and enforcing the nation’s immigration laws and policies, including

9 the DACA program.

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20. Defendant Elaine Duke is the Acting Secretary of DHS and, in the absence of a

11 Secretary, is the senior official of DHS. She is sued in her official capacity. Acting Secretary Duke

12 issued the Rescission on September 5, 2017.

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JURISDICTION

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21. This action arises under the Due Process Clause of the Fifth Amendment, U.S. Const.

15 amend. V; and the APA, 5 U.S.C. § 550 et seq. This Court has jurisdiction pursuant to 28

16 U.S.C. §§ 1331, 1361, and 2201–2202.

17

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

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

19

VENUE

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23. Venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1391(e),

21 because this is a civil action in which Defendants are an agency, or officers of an agency, of the United

22 States, because a substantial part of the events or omissions giving rise to this action occurred in the

23 District, and, further, because Plaintiffs reside in this District and no real property is involved in the

24 action.

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INTRADISTRICT ASSIGNMENT

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24. Pursuant to Local Rule 3-2(c), intradistrict assignment is proper in San Francisco or

27 Oakland because a substantial part of the events or omissions which give rise to the claim occurred in

28 the County of Alameda.

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1

BACKGROUND

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A. The DACA Program

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25. On June 15, 2012, the Secretary of Homeland Security Janet Napolitano announced that

4 individuals who arrived in the United States as children and met certain criteria could apply for deferred

5 action for two-year periods, subject to renewal. See DACA Memorandum. In establishing the program,

6 the Secretary elected to extend deferred action to “certain young people who were brought to this

7 country as children and know only this country as home.” Id. The Secretary emphasized that federal

8 immigration laws are “not designed . . . to remove productive young people to countries where they may

9 not have lived or even speak the language. Indeed, many of these young people have already

10 contributed to our country in significant ways.” Id. This program is known as Deferred Action for

11 Childhood Arrivals (“DACA”).

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26. Individuals were eligible for the program if they (1) came to the United States when they

13 were under the age of sixteen; (2) continuously resided in the United States since June 15, 2007, and

14 were present in the United States on June 15, 2012, and on the date they requested DACA; (3) were

15 currently in school, had graduated from high school, had obtained a general education development

16 certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the United

17 States; (4) had not been convicted of a felony, a significant misdemeanor, or three or more other

18 misdemeanors, and otherwise did not pose a threat to national security or public safety; (5) did not have

19 lawful immigration status on June 15, 2012; and (6) were under the age of 31 as of June 15, 2012. See

20 id.; see also Ex. B, U.S. Citizenship & Immigration Servs.: Consideration of Deferred Action for

21 Childhood Arrivals Process (Aug. 26, 2017) (hereinafter “USCIS FAQs”). Individuals who met these

22 criteria were then eligible for an exercise of prosecutorial discretion, following an individualized review

23 of their applications. See DACA Memorandum.

24

27. When they applied for admission to the program, DACA recipients were required to

25 disclose sensitive, personal information to Defendants, including their lack of lawful immigration status

26 as of June 15, 2012, their date of initial entry into the United States, their country of birth, their current

27 and previous mailing addresses, and other contact information. See USCIS Form I-821D; USCIS Form

28 I-821D Instructions.

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28. Continuing their longstanding practice with respect to deferred-action applications,

2 Defendants repeatedly promised DACA applicants that the information they submitted as part of their

3 applications would not be used for civil immigration enforcement purposes against DACA applicants or

4 their families. See USCIS FAQs; Form I-821D Instructions. Because only individuals who might be

5 subject to removal proceedings would apply for DACA, this promise was necessary for individuals to

6 submit applications without fear that the Executive Branch was using DACA as a way to find and

7 remove undocumented immigrants.

8

29. Individuals who received deferred action under DACA were not subject to removal for a

9 period of two years, subject to renewal. See DACA Memorandum.

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30. DACA recipients also were eligible for work authorizations that allowed them to work

11 legally in the United States, pursuant to a long-standing federal regulation. See id.; 8 C.F.R. §

12 274a.12(c)(14) (providing that “an alien who has been granted deferred action” may obtain work

13 authorization upon demonstrating economic necessity); USCIS FAQs (“Under existing regulations, an

14 individual whose case has been deferred is eligible to receive employment authorization for the period

15 of deferred action, provided he or she can demonstrate ‘an economic necessity for employment.’”). An

16 individual’s work authorization expires at the same time as his or her DACA status and could be

17 renewed upon a renewal of DACA status.

18

31. Individuals with DACA status were “not considered to be unlawfully present during the

19 period in which deferred action [was] in effect.” USCIS FAQs.

20

32. Since the program was first introduced in 2012, nearly 800,000 individuals received

21 DACA status. This includes an estimated 242,339 residents of the State of California. See Number of I-

22 821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake,

23 Biometrics and Case Status: 2012-2017 (Mar. 31, 2017); Carolyn Jones, California Colleges Undaunted

24 by Trump’s Decision to Phase out DACA, EDSOURCE (Sept. 1, 2017),

25 https://edsource.org/2017/california-colleges-undaunted-by-trumps-threat-to-end-daca/586746.

26

B. The Many Benefits of DACA

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33. As noted above, DACA recipients have contributed in innumerable ways to the

28 intellectual and social fabric of the University.

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34. As an institution whose core mission is serving the interests of the State of California, the

2 University seeks “to achieve diversity among its student bodies and among its employees.” See

3 Academic Senate of the Univ. of Cal., Regents Policy 4400: Policy of University of California Diversity

4 Statement, UNIV. OF CAL.: BOARD OF REGENTS, http://regents.universityofcalifornia.edu/

5 governance/policies/4400.html. The University recognizes the importance of diversity to its academic

6 mission, as it allows “students and faculty [to] learn to interact effectively with each other, preparing

7 them to participate in an increasingly complex and pluralistic society.” Id. The educational experience

8 of all University students is fuller and more enriching when ideas are “born and nurtured in a diverse

9 community.” Id. DACA students at the University are an integral part of that community. Their talent,

10 perspectives, and experiences are invaluable contributions to University life.

11

35. DACA recipients also make significant contributions to University life in their role as

12 employees. They work at UC campuses and in UC medical centers as teaching assistants, research

13 assistants, post-docs, and health care providers. DACA recipients often possess valuable foreign

14 language skills. By allowing DACA recipients to work lawfully, DACA moved recipients out of the

15 informal economy, increasing the pool of talent from which UC could fill positions at the University.

16

36. Additional DACA recipients who are enrolled as students support themselves and cover a

17 portion of their tuition through their part-time work for the University. For many of these students,

18 DACA work authorization plays a significant role in their ability to attend UC and continue each year

19 with their chosen program of study.

20

37. The University has invested considerable resources in recruiting and retaining these

21 individuals—as students and employees. It has made scarce enrollment space available to these students

22 on the basis of their individual achievements. It also has invested substantial time, financial aid,

23 research dollars, housing benefits, and other resources in them on the expectation that these students will

24 complete their course of study and become productive members of the communities in which the

25 University operates, and other communities throughout the nation. The University has significant

26 interests in retaining this wealth of talent and in continuing to enjoy the many benefits of their

27 participation in University life.

28

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1

38. Furthermore, by allowing recipients to receive deferred action and obtain work

2 authorization, DACA opened myriad opportunities to them. As noted above, DACA recipients became

3 eligible for federal work authorization, which significantly improved their opportunities for employment

4 and higher paying jobs. Under the program, DACA recipients received social security numbers and

5 therefore were able to access credit more easily. DACA also enabled recipients to obtain driver’s

6 licenses in a number of states where they otherwise could not. It also protected these individuals’ right

7 to travel freely by making them eligible to receive “advance parole,” which allowed them to travel

8 abroad temporarily for humanitarian, educational, or employment purposes, and to return to the United

9 States lawfully. See 8 C.F.R. § 212.5(f); USCIS FAQs.

10

C. Defendants Unlawfully Rescind DACA

11

39. As recently as February 20, 2017, Defendants had reaffirmed the administration’s

12 commitment to DACA, see Memorandum from John Kelly, Sec’y of Homeland Security, Enforcement

13 of the Immigration Laws to Serve the National Interest, at 2 (Feb. 20 2017), and up until September 5,

14 2017, Defendants had continued to approve DACA requests and renewals. Despite President Trump’s

15 claim that DACA recipients “shouldn’t be very worried” and that the Administration would treat DACA

16 recipients “with great heart,” on September 5, 2017, Defendants announced that they were rescinding

17 the program. See Transcript: ABC News anchor David Muir interviews President Trump, ABC NEWS

18 (Jan. 25, 2017) http://abcnews.go.com/Politics/transcript-abc-news-anchor-david-muir-interviews-

19 president/story?id=45047602; see also Madeline Conway, Trump Tells Dreamers To “Rest Easy,”

20 Politico.com (Apr. 21, 2017), http://www.politico.com/story/2017/04/21/trump-dreamers-rest-easy-

21 immigration-237463.

22

40. Defendants announced their decision on the same day as a “deadline” imposed by ten

23 states that threatened to sue the Trump administration if DACA were not rescinded. See Letter from

24 Gov. Abbott to U.S. Att’y General Sessions (June 29, 2017). The Rescission expressly states that this

25 threat—rather than any reasoned evaluation of the legality and merits of the program—provoked the

26 decision to terminate DACA.

27

41. Prior to DHS’s issuance of the Rescission, Attorney General Jeff Sessions held a press

28 conference in which he asserted that “[o]ur collective wisdom is that the policy is vulnerable to the same

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1 legal and constitutional challenges that the courts recognized with respect to the DAPA program.” See

2 Ex. C, Attorney General Sessions Delivers Remarks On DACA (Sept. 5, 2017),

3 https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-daca (“Press

4 Conference”). Similarly, a September 4, 2017 letter from the Attorney General to Acting Secretary of

5 DHS Duke reiterated that DACA “was effectuated . . . without proper statutory authority” and “was an

6 unconstitutional exercise of authority by the Executive Branch.” See Ex. D, Letter from Att’y General

7 Sessions to Acting Sec’y of DHS Duke (Sept. 4, 2017). The Attorney General also noted the potential

8 of litigation from several states and that DACA was “likely” to be enjoined in that yet-to-be-filed

9 litigation.

10

42. In addition, in his press conference Attorney General Sessions alleged, without offering

11 any evidence, that DACA had “denied jobs to hundreds of thousands of Americans by allowing those

12 same jobs to go to illegal aliens.” He also made the specious claim that DACA “contributed to a surge

13 of unaccompanied minors on the southern border that yielded terrible humanitarian consequences.” See

14 Press Conference. That claim is facially false. DACA by its terms applies only to individuals resident

15 in the United States since June 15, 2007—five years before the program began.

16

43. After the press conference, Acting Secretary of Homeland Security Duke, purporting to

17 act “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,”

18 formally rescinded the DACA Memorandum. The Rescission states that “it is clear” that DACA

19 “should be terminated” in light of the Fifth Circuit’s ruling in Texas v. United States, 809 F.3d 134 (5th

20 Cir. 2015), regarding DAPA, the Supreme Court’s non-precedential affirmance of that ruling by an

21 equally divided court, and the Attorney General’s September 4 letter.

22

44. The President, however, does not appear to share the views of DHS or his Attorney

23 General regarding the legality of DACA. In direct contradiction to Defendants’ and Attorney General

24 Sessions’ position that the prior administration had exceeded the authority of the Executive Branch in

25 establishing DACA, see Ex. A and Press Conference, the President tweeted on the night of the

26 Rescission, “Congress now has 6 months to legalize DACA (something the Obama Administration was

27 unable to do). If they can’t, I will revisit this issue!” See Donald J. Trump (@realDonaldTrump),

28 Twitter (Sep. 5, 2017, 8:38 PM), https://twitter.com/realDonaldTrump/status/905228667336499200.

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1

45. Although the Rescission concludes that DACA is unlawful, it does not immediately

2 revoke any individual’s DACA status or work authorization. Instead, it instructs that “the Department

3 will provide a limited window in which it will adjudicate certain requests for DACA and associated

4 applications.” Specifically, the Rescission explains that DHS will adjudicate pending DACA requests

5 and associated work authorization applications that already had been accepted by the agency as of

6 September 5, 2017, but will reject new requests and applications filed after September 5, 2017. It

7 further states that DHS will adjudicate pending renewal requests and applications from current DACA

8 recipients, as well as renewal requests and applications from current DACA recipients for grants of

9 deferred action that expire between September 5, 2017, and March 5, 2018, and that are accepted by the

10 agency as of October 5, 2017. Any renewal requests filed after October 5, 2017, or any renewal requests

11 for benefits that expire after March 5, 2018, will be rejected. DHS will not terminate the current grants

12 of deferred action to DACA recipients, but instead will allow individuals’ DACA status to expire. DHS

13 will not approve any new applications for advance parole and will administratively close all pending

14 applications for advance parole. See Ex. A at 4-5.

15

46. Defendants’ decision to rescind the program will have immense and devastating effects

16 on the University and all of its students. As a result of the termination of the program, the University

17 and its students will lose the vital contributions that DACA recipients have made as students and

18 employees. See Washington v. Trump, 847 F.3d 1151, 1160 (9th Cir. 2017) (“[S]chools have been

19 permitted to assert the rights of their students.”). The civic life of the school will be diminished, the

20 exchange of ideas will be reduced, teaching and research will be impaired, and diversity will be more

21 difficult to achieve. The University and its students benefit from cohesive family units, robust civic

22 participation, and the strength of social and educational communities. The Rescission damages each of

23 these interests, in California and nationwide.

24

47. Moreover, UC students and employees have friends or family members who are DACA

25 recipients, and the University will have to expend resources to address the detrimental effects that the

26 rescission of DACA will have on these individuals’ lives. The University also will lose the resources it

27 has spent educating students who ultimately do not graduate.

28

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48. As a result of the Rescission, DACA students will be unable to plan for the future, apply

2 for and obtain internships and certain financial aid and scholarships, study abroad, or work to pay their

3 tuition and other expenses. Students subject to these hardships may choose to withdraw from UC

4 altogether.

5

49. DACA recipients also will be at risk of removal. Indeed, in a set of “Talking Points”

6 released the same day of the Rescission, DHS “urge[d] DACA recipients to use the time remaining on

7 their work authorizations to prepare for and arrange their departure from the United States.” See

8 Talking Points—DACA Rescission. Removal will self-evidently result in the loss of employment,

9 education, and relationships with others in the United States.

10

FIRST CLAIM FOR RELIEF

Agency Action That Is Arbitrary and Capricious,

11

An Abuse of Discretion, and Otherwise Not In Accordance with Law

in Violation of 5 U.S.C. § 706(2)(A) 12

50. The above paragraphs are incorporated herein by reference.

13

51. DHS is an agency subject to the requirements of the APA. 5 U.S.C. § 701(b)(1).

14

52. Under 5 U.S.C. § 706(2), courts shall hold unlawful and set aside agency action that is

15

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to

16

constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or

17

limitations; or without observance of procedure required by law.

18

53. The Rescission constitutes final agency action that is reviewable by this Court.

19

54. The Rescission and actions taken by Defendants to rescind DACA are arbitrary and

20

capricious, an abuse of discretion, and not in accordance with law because, among other things,

21

Defendants failed to articulate a reasonable explanation for their actions. In assessing Defendants’

22

actions under the arbitrary-and-capricious standard, a court “must consider whether the decision was

23

based on a consideration of the relevant factors and whether there has been a clear error of judgment.”

24

San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (citation omitted).

25

Here, Defendants have not considered the relevant factors in deciding to revoke DACA. They also have

26

failed to consider important aspects of the issue, including the arguments previously set forth by OLC

27

and DHS as to why DACA is lawful.

28

13
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-05211 Document 1 Filed 09/08/17 Page 16 of 19

1

55. Defendants also disregarded the serious reliance interests engendered by the DACA

2 program. Where, as here, significant reliance interests are at stake, Defendants must, in addition to

3 demonstrating that “there are good reasons” for the new policy, offer “a reasoned explanation . . . for

4 disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox, 556

5 U.S. at 515. Defendants here have utterly failed in these obligations.

6

56. The Rescission and actions taken by Defendants to rescind DACA are arbitrary and

7 capricious, an abuse of discretion, and not in accordance with law because, among other things, they are

8 based on the legally incorrect premise that DACA is unlawful.

9

57. The Rescission and actions taken by Defendants to rescind DACA are arbitrary and

10 capricious, an abuse of discretion, and not in accordance with law because, among other things, they are

11 contrary to the constitutional protections of the Fifth Amendment.

12

58. The University and its students were harmed and continue to be harmed by these

13 unlawful acts.

14

SECOND CLAIM FOR RELIEF

Agency Action Without Observance of Procedure Required by Law

15

in Violation of 5 U.S.C. § 706(2)(D)

16

59. The above paragraphs are incorporated herein by reference.

17

60. The APA requires administrative agencies to follow notice-and-comment rulemaking

18 procedures to promulgate substantive rules. See 5 U.S.C. § 553. The APA defines “rule” broadly to

19 include:

20

the whole or part of an agency statement of general or particular applicability and

future effect designed to implement, interpret, or prescribe law or policy or

21

describing the organization, procedure, or practice requirements of an agency and

includes the approval or prescription for the future of rates, wages . . . . 22

23 5 U.S.C. § 551(4).

24

61. The Rescission constitutes a substantive rule subject to APA’s notice-and-comment

25 requirements.

26

62. The Rescission constitutes a substantive rule because it affirmatively circumscribes

27 DHS’s statutory authority in providing deferred action and prohibits DHS from renewing recipients’

28 DACA status after October 5, 2017.

14
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-05211 Document 1 Filed 09/08/17 Page 17 of 19

1

63. The Rescission constitutes a substantive rule because it includes a ban on current DACA

2 recipients with work authorizations travelling on advance parole.

3

64. The Rescission constitutes a substantive rule because it is a categorical rule, which

4 applies to all DACA recipients.

5

65. In issuing the Rescission and rescinding DACA, Defendants impermissibly announced a

6 new rule without undertaking notice-and-comment rulemaking.

7

66. The University and its students were harmed and continue to be harmed by these

8 unlawful acts.

9

THIRD CLAIM FOR RELIEF

Violation of Procedural Due Process

10

Under the Fifth Amendment

11

67. The above paragraphs are incorporated herein by reference.

12

68. Under the Fifth Amendment to the Constitution, no person may be deprived of life,

13 liberty, or property without due process of law.

14

69. The University has constitutionally-protected interests in the multiple educational

15 benefits that flow from a diverse student body. Thousands of DACA students have earned prized places

16 as undergraduate and graduate students at the University of California through their record of high—

17 even extraordinary—personal achievement in high school and college. In reliance on DACA, the

18 University has chosen to make scarce enrollment space available to these students and to invest in them

19 substantial time, financial aid, research dollars, housing benefits, and other resources, on the expectation

20 that these students will complete their course of study and become productive members of the

21 communities in which the University operates, and other communities throughout the nation. If these

22 students leave the University before completing their education, UC will lose the benefits it derives from

23 their contributions, as well as the value of the time and money it invested in these students with the

24 expectation that they would be allowed to graduate and apply their talents in the United States job

25 market.

26

70. UC students who are DACA recipients also have constitutionally-protected interests in

27 their DACA status and the benefits that come from that status, including the ability to work, to pursue

28

15
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-05211 Document 1 Filed 09/08/17 Page 18 of 19

1 opportunities in higher education, to more readily obtain driver’s licenses and access lines of credit, to

2 obtain jobs, and to access certain Social Security and Medicare benefits.

3

71. The Rescission and actions taken by Defendants to rescind DACA unlawfully deprive the

4 University and its students of these and other constitutionally-protected interests without due process of

5 law. Such deprivation occurred with no notice or opportunity to be heard.

6

72. Defendants therefore have violated the Fifth Amendment to the United States

7 Constitution.

8

73. The University and its students were harmed and continue to be harmed by these

9 unlawful acts.

10

RELIEF REQUESTED

11

WHEREFORE, Plaintiffs respectfully request that this Court:

12

A. Vacate and set aside the Rescission and any other action taken by Defendants to

13

rescind DACA;

14

B. Declare that the Rescission and actions taken by Defendants to rescind DACA are

15

void and without legal force or effect;

16

C. Declare that the Rescission and actions taken by Defendants to rescind DACA are

17

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

18

observance of procedure required by law in violation of 5 U.S.C. §§ 702-706;

19

D. Declare that the Rescission and actions taken by Defendants to rescind DACA are

20

in violation of the Constitution and contrary to the laws of the United States;

21

E. Preliminarily and permanently enjoin and restrain Defendants, their agents,

22

servants, employees, attorneys, and all persons in active concert or participation with any of

23

them, from implementing or enforcing the Rescission and from taking any other action to rescind

24

DACA that is not in compliance with applicable law;

25

F. Grant such further relief as this Court deems just and proper.

26

27

28

16
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-05211 Document 1 Filed 09/08/17 Page 19 of 19

Case 3:17-cv-05211 Document 1-1 Filed 09/08/17 Page 1 of 7
EXHIBIT A

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Case 3:17-cv-05211 Document 1-2 Filed 09/08/17 Page 1 of 21
EXHIBIT B

8/26/2017

Case 3:17-cv-05211 DocFruemqueenntlyt A1s-k2ed QFueilsetiodns0|9U/S0C8IS/17 Page 2 of 21

Frequently Asked Questions
FAQs updated April 25, 2017
General Information for All Requestors What is Deferred Action for Childhood Arrivals? DACA Process Background Checks A er USCIS Makes a Decision
Initial Requests for DACA Renewal of DACA Travel Criminal Convictions Miscellaneous
I. General Information for All Requestors
A. What is Deferred Action for Childhood Arrivals?
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 two years, subject to renewal for a period of two years, and may be eligible for employment authorization. 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;

https://w6w.wA.ursecisc.ugorvr/ehunmtalynitianriasnc/choonsoidle,rhataiovne-degferarreddu-aacttieond-cohirldohobotda-airnriveadls-aprocceerstsi/ffriecqauteentloy-facskoemd-qpuleesttioionsn from high school,

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Case 3:17-cv-05211 DocFruemqueenntlyt A1s-k2ed QFueilsetiodns0|9U/S0C8IS/17 Page 3 of 21

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 self-help 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. Q1: What is deferred action? A1: 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. Q2: What is DACA? A2: 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 two 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. Q3: Is there any diﬀerence between “deferred action” and DACA under this process? A3: 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. Q4: If my removal is deferred under the consideration of DACA, am I eligible for employment authorization? A4: 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. Q5: If my case is deferred, am I in lawful status for the period of deferral? A5: 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 U.S. httpsA://pwawwrt.ufsrcoism.govt/hhuemiamnimtariiagnr/caotnisoidnerlaatiwons-d,e“felarrewd-faucltiopnr-echsilednhocoed,-”ar“rilvaalws-pfurolcesstsa/ftreuqsu”enatlny-dasskeimd-qiulaesrtitoensrms are used in various 2/20

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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.

Q6: Can I renew my period of deferred action and employment authorization under DACA? A6: 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 two years, and if you demonstrate an economic necessity for employment, you may receive employment authorization throughout that period.

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B. DACA Process

Q7: How do I request consideration of DACA? A7: 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 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 (PDF, 235 KB), 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, please see the Form I-821D page for more information), 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 form. A er 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 website at www.ice.gov/daca. Q8: Can I obtain a fee waiver or fee exemption for this process? A8: 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 httpsa://dwjwuwd.uisccaist.geodv/hbuemfaonritearaiann/cionndsiidveirdatuioan-ldfeifleerrsedh-aisct/iohne-crhrildehqouode-asrtrivfoalsr-cproocnessisd/freerqauetinotlyn-aoskfeDd-AquCeAstiwonisthout a fee. In order to 3/20

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adjudicated before an individual files his/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:

You are under 18 years of age, have an income that is less than 150 percent of the U.S. poverty 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 statement, 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).

Q9: 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? A9: 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 1-855-448-6903 (staﬀed 24 hours a day, 7 days a week).

Q10: Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order? A10: 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).

Q11: 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? A11: 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.

Q12: Can I request consideration of DACA from USCIS if I am in immigration detention under the custody of ICE? A12: 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

httpsd://ewpwwo.rutsacitsi.ogonv/houﬀmiacneitraroiarn/JcoanislidLeiraaitisoon-nde.fYeroreud-mactaioyn-achlsildohocoodn-atrraivcatlst-phroeceICssE/frFeqieueldntlyO-aﬀsikceed-qDuierseticontsor. For more

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deportation oﬀicer or Jail Liaison. You may also contact the ICE Field Oﬀice Director. For more

information, visit ICE’s website at www.ice.gov/daca.

Q13: 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? A13: 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 1-855-448-6903 (staﬀed 24 hours a day, 7 days a week).

Q14: 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? A14: If you meet the guidelines and have been served a detainer, you should immediately contact the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staﬀed 24 hours a day, 7 days a week).

Q15: 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? A15: 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.

Q16: 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? A16: 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.

Q17: If my case was reviewed as part of the case-by-case review process but I was not oﬀered administrative closure, can I be considered for deferred action under this process? A17: Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of DACA even if you were not oﬀered administrative closure following review of your case as part of the caseby-case review process.

Q18: 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)? A18: 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.

Q19: Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes? A19: 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.

Q20: 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? A20: 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

httpsr:/e/wfwewrr.uesdcist.ogoIvC/hEumfoanritapruiarnp/coonsseidseroatfioinm-dmefeirgrerda-atciotionn-echnilfdohorocde-marreivanlst-pargocaeisnss/frtefqauemntilyly-asmkeedm-qubeestriosnsor guardians. However, 5/20

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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.

Q21: Will USCIS verify documents or statements that I provide in support of a request for DACA?

A21: 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.

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C. Background Checks

Q22: Will USCIS conduct a background check when reviewing my request for consideration of DACA? A22: Yes. You must undergo biographic and biometric background checks before USCIS will consider your DACA request. Q23: What do background checks involve? A23: 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. Q24: What steps will USCIS and ICE take if I engage in fraud through the new process? A24: 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 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.
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D. A er USCIS Makes a Decision

Q25: Can I appeal USCIS’ determination? A25: 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’ National Customer Service Center at 1-800-375-5283 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 because USCIS:
Denied the request based on abandonment, when you actually responded to a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) within the prescribed time; Mailed the RFE or NOID to the wrong address although you had changed your address online at www.uscis.gov or with a customer service representative on the phone and submitted a Form AR-11, Change of Address, before USCIS issued the RFE or NOID.
To ensure the address is updated on a pending case as quickly as possible, we recommend that customers submit a change of address request at www.uscis.gov/addresschange. Please note that only an online change of address or a Form AR-11 submission will satisfy the legal requirements for notifying the agency of an address change. Therefore, if you called a customer

https://www.uscis.sgeovr/vhiucmeanreitapriraen/sceonnstidaetriavtieont-doefcehrreadn-agcetioyn-ochuilrdhaododd-raerrisvsa,lsp-plreocaesses/fbreequseuntrlye-aysokeud-hquaevsteionaslso submitted your

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service representative to change your address, please be sure you have also submitted your address change online or with a Form AR-11.

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 under the age of 31 as of June 15, 2012;

Denied the request on the grounds that you had lawful status on June 15, 2012, but the evidence 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;

Denied the request due to your failure to appear at a USCIS Application Support Center (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 1-800-375-5283 or 1-800-767-1833 (TDD for the hearing impaired). Customer service oﬀicers are available Monday – Friday from 8 a.m. – 6 p.m. in each U.S. time zone.

Q26: If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings? A26: 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 Notices 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 a er 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.

Q27: Can my deferred action under the DACA process be terminated before it expires?

A27: 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.

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II. Initial Requests for DACA

Q28: What guidelines must I meet to be considered for deferred action for childhood arrivals (DACA)? A28: 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; https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions

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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;

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. Q29: How old must I be in order to be considered for deferred action under this process? A29:
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 must have been under the age of 31 as of June 15, 2012, to be considered for DACA. Q30: 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 le 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? A30: 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. Q31: 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? A31: To meet the continuous residence guideline, you must submit documentation that shows you have been living 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.
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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 five-year continuous residence requirement.

Q32: Does “currently in school” refer to the date on which the request for consideration of deferred action is filed? A32: 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.

Q33: Who is considered to be “currently in school” under the guidelines? A33: 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 that meets 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.

Such 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 non-profit organizations. Programs funded by other sources may qualify if they are programs of demonstrated eﬀectiveness.

In assessing whether such programs not funded in whole or in part by federal, state, county or municipal grants or administered by non-profit 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 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.

Q34: How do I establish that I am currently in school? A34: 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 that meets state requirements; or evidence that you are enrolled in an education, literacy, or career training program (including vocational training) that:
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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

is funded, in whole or in part, by federal, state, county or municipal grants or is administered by non-profit organizations, or if funded by other sources, is a program 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 state-authorized 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 is administered by non-profit 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.

Q35: What documentation may be suﬀicient to demonstrate that I have graduated from high school? A35: 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, a certificate of completion, a certificate of attendance, or an 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. Q36: 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)? A36: 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. Q37: If I am enrolled in a literacy or career training program, can I meet the guidelines? A37: 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 administered by non-profit organizations, or if funded by other sources, are programs of demonstrated eﬀectiveness. Q38: If I am enrolled in an English as a Second Language (ESL) program, can I meet the guidelines? A38: 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 non-profit 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 non-profit organization, or of demonstrated eﬀectiveness. Q39: Will USCIS consider evidence other than that listed in Chart #1 to show that I have met the education guidelines? A39: No. Evidence not listed in Chart #1 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.
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Q40: Will USCIS consider evidence other than that listed in Chart #1 to show that I have met certain

initial guidelines?

A40: 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; You satisfy the continuous residence requirement, as long as you present direct evidence of 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.

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 guideline. You may do so by submitting credible documentary evidence that you were present in the United States shortly before and shortly a er 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.

Chart #1 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 I821D, Consideration of Deferred Action for Childhood Arrivals, for additional details of acceptable documentation.

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

https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions

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Chart #1 Examples of Documents to Submit to Demonstrate You Meet the Guidelines

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 Proof you continuously resided in U.S. since June 15, 2007

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) 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 U.S. Dated bank transactions Automobile license receipts or registration Deeds, mortgages, rental agreement contracts Tax receipts, insurance policies

School records (transcripts, report cards, etc.) from the school that

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Proof of your education status atCthhaerti#m1eEoxfamples of requesting consideration of

you are currently attending in the United States showing the Docuncmuaermrneetns(stt)oeodSfuutchbaemtisoictnhtaooloDol(resgm)raaondndestplreeavrteieol dYos uofMsecehtotohl eatGteuniddealninceesand

the

DACA

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

Q41: May I file aﬀidavits as proof that I meet the initial guidelines for consideration of DACA? A41: 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 five 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 state-authorized 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 Your criminal history, if applicable.

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.

Q42: 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? https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions

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15, 2012?

A42: 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.

Q43: 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? A43: No, unless the Executive Oﬀice for Immigration Review terminated your status by issuing a final order of removal against you before June 15, 2012.

Q44: 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?

A44: 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.

Q45: 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?

A45: 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.

Q46: 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?

A46: 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 six 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 six 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.

Q47: 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?

A47: 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 I94 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.

Q48: Do I accrue unlawful presence if I have a pending initial request for consideration of DACA? A48: 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 httpst:/u/wrwnw1.u8scwis.hgoivle/huymoaunritarreiaqn/ucoensstidiesraptioenn-ddeifenrgredw-aictthionU-cShiCldIhSo.odIf-aarrcivtailos-nproocnesys/ofreuqruecnatlsy-easiksedd-equfeesrtrioends, you will not accrue 14/20

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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.

Return to top.

III. Renewal of DACA

Q49: When should I file my renewal request with U.S. Citizenship and Immigration Services (USCIS)?
A49: USCIS strongly encourages you to submit your Deferred Action for Childhood Arrivals (DACA) renewal request between 150 days and 120 days before the expiration date located on your current Form I-797 DACA approval notice and Employment Authorization Document (EAD). Filing during this window will minimize the possibility that your current period of DACA will expire before you receive a decision on your renewal request.
USCIS’ current goal is to process DACA renewal requests within 120 days. You may submit an inquiry about the status of your renewal request a er it has been pending more than 105 days. To submit an inquiry online, please visit egov.uscis.gov/e-request.
Please Note: Factors that may aﬀect the timely processing of your DACA renewal request include, but are not limited to:
Failure to appear at an Application Support Center (ASC) for a scheduled biometrics appointment to obtain fingerprints and photographs. No-shows or rescheduling appointments will require additional processing time. Issues of national security, criminality or public safety discovered during the background check process that require further vetting. Issues of travel abroad that need additional evidence/clarification. Name/date of birth discrepancies that may require additional evidence/clarification. The renewal submission was incomplete or contained evidence that suggests a requestor may not satisfy the DACA renewal guidelines and USCIS must send a request for additional evidence or explanation Q50: Can I file a renewal request outside the recommended filing period of 150 days to 120 days before my current DACA expires? A50: USCIS strongly encourages you to file your renewal request within the recommended 150-120 day filing period to minimize the possibility that your current period of DACA will expire before you receive a decision on your renewal request. Requests received earlier than 150 days in advance will be accepted; however, this could result in an overlap between your current DACA and your renewal. This means your renewal period may extend for less than a full two years from the date that your current DACA period expires..
If you file a er the recommended filing period (meaning less than 120 days before your current period of DACA expires), there is an increased possibility that your current period of DACA and employment authorization will expire before you receive a decision on your renewal request. If you file a er your most recent DACA period expired, but within one year of its expiration, you may submit a request to renew your DACA. If you are filing beyond one year a er your most recent period of DACA expired, you may still request DACA by submitting a new initial request. Q51: How will USCIS evaluate my request for renewal of DACA: A51: You may be considered for renewal of DACA if you met the guidelines for consideration of Initial DACA (see above) AND you:
Did not depart the United States on or a er Aug. 15, 2012, without advance parole;

https://wwwH.uascvise.gcoov/nhutminanuitoaruiasnl/ycornesisdiedraetidoni-ndetfehrreedU-anctiitoen-dchSildthaotoeds-asrriivnaclse-pyrooceusss/ufrebqmuenittltye-adskyeod-uquremstioonsst recent request for 15/20

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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

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.

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.

Q52 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?

A52: 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.

Q53. Do I need to provide additional documents when I request renewal of deferred action under DACA?

A53. 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 five 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.

Q54. If I am no longer in school, can I still request to renew my DACA? A54. Yes. Neither Form I-821D nor the instructions ask renewal requestors for information about continued school enrollment or graduation. The instructions for renewal requests specify that you may be considered for DACA renewal if you met the guidelines for consideration of initial DACA, including the educational guidelines and:

1. Did not depart the United States on or a er August 15, 2012, without advance parole; 2. Have continuously resided in the United States, up to the present time, since you submitted your
most recent request for DACA that was approved; and 3. Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and
are not a threat to national security or public safety.

Q55. If I initially received DACA and was under the age of 31 on June 15, 2012, but have since become 31 or older, can I still request a DACA renewal? A55. Yes. You may request consideration for a renewal of DACA as long as you were under the age of 31 as of June 15, 2012.

IV. Travel

Q56: 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)? https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions

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Department of Homeland Security (DHS)?

A56: Any unauthorized travel outside of the United States on or a er 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 a er 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.)

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.

Q57: If my case is deferred under DACA, will I be able to travel outside of the United States? A57: 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 ($575). 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 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; educational purposes, such as semester-abroad programs and academic research, or; employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

Travel for vacation is not a valid basis for advance parole.

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.

If USCIS has deferred action in your case under the DACA process a er you have been ordered deported or removed, you may still request advance parole if you meet the guidelines for advance parole described above.

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 a er you have asked EOIR to reopen your case, you should not leave the United States until a er EOIR has granted your request. If you depart a er 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 a er Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.

Q58: Do brief departures from the United States interrupt the continuous residence requirement? A58: 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 a er 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;

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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 a er Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA. Travel Guidelines (Chart #2)

Travel Dates Type of Travel

Does It Aﬀect Continuous Residence

On or a er Brief, casual No

June 15, 2007, and innocent

but before

Aug. 15, 2012

For an

Yes

extended time

Because of an order of exclusion, deportation, voluntary departure, or removal

To participate in criminal activity

On or a er Any Aug. 15, 2012, and before you have requested deferred action

Yes. You cannot apply for advance parole unless and until DHS has determined whether to defer action in your case and you cannot travel until you receive advance parole. 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.

https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions

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Travel Dates Type of Travel

Does It Aﬀect Continuous Residence

On or a er Any Aug. 15, 2012, and a er you have requested deferred action

On or a er Any Aug. 15, 2012 and a er receiving DACA

It depends. If you travel a er receiving advance parole, the travel will not interrupt your continuous residence. However, if you travel without receiving advance parole, the travel will interrupt your continuous residence.

Q59: May I file a request for advance parole concurrently with my DACA package? A59: 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.
Return to top.
V. Criminal Convictions
Q60: 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? A60: 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. Q61: What oﬀenses qualify as a felony? A61: A felony is a federal, state, or local criminal oﬀense punishable by imprisonment for a term exceeding one year. Q62: What oﬀenses constitute a significant misdemeanor? A62: For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal httpsl:a//wwww(s.upsceisc.igfoivc/ahullmya,noitanreianf/ocornwsidheircathiont-hdeefemrreadx-aicmtioun-mchitldehromod-oarfrivimalsp-prrioscoesns/mfreequnetnatlyu-atshkoedr-iqzueedstioisnsone year or less but 19/20

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law (specifically, one for which the maximum term of imprisonment authorized is one year or less but

greater than five 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 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. Q63: What oﬀenses constitute a non-significant misdemeanor? A63: 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 one year or less but greater than five 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
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.

Q64: 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? A64: A minor traﬀic oﬀense will not be considered a misdemeanor for purposes of this process. However, your 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.

Q65: What qualifies as a national security or public safety threat? A65: 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.

httpsQ://w6w6w:.uWsciilsl.goovﬀ/heunmsaenistarciarni/mconinsidaelriaztieond-daefserfreedl-oacntioien-schoildrhmoodis-adrreivmalse-paronceosrss/frebqyuesnttlay-taeskiemd-qmueisgtiornastion laws be

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Case 3:17-cv-05211 Document 1-3 Filed 09/08/17 Page 1 of 4
EXHIBIT C

9/8/2017

Case 3:1A7tto-rcnevy-0Ge5n2er1a1l SesDsiooncs uDemliveernstR1em-3arksFonileDAdC0A9| O/0P8A /|1D7eparPtmaengteof 2Jusotifce4

JUSTICE NEWS

Attorney General Sessions Delivers Remarks on DACA Washington, DC ~ Tuesday, September 5, 2017

Remarks as prepared for delivery

Good morning. I am here today to announce that the program known as DACA that was effectuated under the Obama Administration is being rescinded.
The DACA program was implemented in 2012 and essentially provided a legal status for recipients for a renewable twoyear term, work authorization and other benefits, including participation in the social security program, to 800,000 mostly-adult illegal aliens.
This policy was implemented unilaterally to great controversy and legal concern after Congress rejected legislative proposals to extend similar benefits on numerous occasions to this same group of illegal aliens.
In other words, the executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.
The effect of this unilateral executive amnesty, among other things, contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences. It also denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.
We inherited from our Founders—and have advanced—an unsurpassed legal heritage, which is the foundation of our freedom, safety, and prosperity.
As the Attorney General, it is my duty to ensure that the laws of the United States are enforced and that the Constitutional order is upheld.
No greater good can be done for the overall health and well-being of our Republic, than preserving and strengthening the impartial rule of law. Societies where the rule of law is treasured are societies that tend to flourish and succeed.
Societies where the rule of law is subject to political whims and personal biases tend to become societies afflicted by corruption, poverty, and human suffering.
To have a lawful system of immigration that serves the national interest, we cannot admit everyone who would like to come here. That is an open border policy and the American people have rightly rejected it.
Therefore, the nation must set and enforce a limit on how many immigrants we admit each year and that means all can not be accepted.
This does not mean they are bad people or that our nation disrespects or demeans them in any way. It means we are properly enforcing our laws as Congress has passed them.
It is with these principles and duties in mind, and in light of imminent litigation, that we reviewed the Obama Administration’s DACA policy.
Our collective wisdom is that the policy is vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the DAPA program, which was enjoined on a nationwide basis in a decision affirmed by the

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Fifth Circuit.

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The Fifth Circuit specifically concluded that DACA had not been implemented in a fashion that allowed sufficient discretion, and that DAPA was “foreclosed by Congress’s careful plan.”

In other words, it was inconsistent with the Constitution’s separation of powers. That decision was affirmed by the Supreme Court by an equally divided vote.

If we were to keep the Obama Administration’s executive amnesty policy, the likeliest outcome is that it would be enjoined just as was DAPA. The Department of Justice has advised the President and the Department of Homeland Security that DHS should begin an orderly, lawful wind down, including the cancellation of the memo that authorized this program.

Acting Secretary Duke has chosen, appropriately, to initiate a wind down process. This will enable DHS to conduct an orderly change and fulfill the desire of this administration to create a time period for Congress to act—should it so choose. We firmly believe this is the responsible path.

Simply put, if we are to further our goal of strengthening the constitutional order and the rule of law in America, the Department of Justice cannot defend this type of overreach.

George Washington University Law School Professor Jonathan Turley in testimony before the House Judiciary Committee was clear about the enormous constitutional infirmities raised by these policies.

He said: “In ordering this blanket exception, President Obama was nullifying part of a law that he simply disagreed with. ….If a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense…The circumvention of the legislative process not only undermines the authority of this branch but destabilizes the tripartite system as a whole.”

Ending the previous Administration’s disrespect for the legislative process is an important first step. All immigration policies should serve the interests of the people of the United States—lawful immigrant and native born alike.

Congress should carefully and thoughtfully pursue the types of reforms that are right for the American people. Our nation is comprised of good and decent people who want their government’s leaders to fulfill their promises and advance an immigration policy that serves the national interest.

We are a people of compassion and we are a people of law. But there is nothing compassionate about the failure to enforce immigration laws.

Enforcing the law saves lives, protects communities and taxpayers, and prevents human suffering. Failure to enforce the laws in the past has put our nation at risk of crime, violence and even terrorism.

The compassionate thing is to end the lawlessness, enforce our laws, and, if Congress chooses to make changes to those laws, to do so through the process set forth by our Founders in a way that advances the interest of the nation.

That is what the President has promised to do and has delivered to the American people.

Under President Trump’s leadership, this administration has made great progress in the last few months toward establishing a lawful and constitutional immigration system. This makes us safer and more secure.

It will further economically the lives of millions who are struggling. And it will enable our country to more effectively teach new immigrants about our system of government and assimilate them to the cultural understandings that support it.

The substantial progress in reducing illegal immigration at our border seen in recent months is almost entirely the product of the leadership of President Trump and his inspired federal immigration officers. But the problem is not solved. And without more action, we could see illegality rise again rather than be eliminated.

As a candidate, and now in office, President Trump has offered specific ideas and legislative solutions that will protect American workers, increase wages and salaries, defend our national security, ensure the public safety, and increase

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the general well-being of the American people.

He has worked closely with many members of Congress, including in the introduction of the RAISE Act, which would produce enormous benefits for our country. This is how our democratic process works.

There are many powerful interest groups in this country and every one of them has a constitutional right to advocate their views and represent whomever they choose.

But the Department of Justice does not represent any narrow interest or any subset of the American people. We represent all of the American people and protect the integrity of our Constitution. That is our charge.

We at Department of Justice are proud and honored to work to advance this vision for America and to do our best each day to ensure the safety and security of the American people.

Thank you.

Speaker: Attorney General Jeff Sessions
Attachment(s): Download ag_letter_re_daca.pdf
Topic(s): Immigration
Component(s): Office of the Attorney General

Updated September 5, 2017

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

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Case 3:17-cv-05211 Document 1-4 Filed 09/08/17 Page 1 of 2
EXHIBIT D

Case 3:17-cv-05211 Document 1-4 Filed 09/08/17 Page 2 of 2
(@ffice of tqe 1\ttornel! enernl
lln1tqingtnn. ll. QI. 205:30
Dear Acting Secretary Duke,
I write to advise that the Department of Homeland Security (DHS) should rescind the June 15, 2012, DHS Memorandum entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children," as well as any related memoranda or guidance. This policy, known as "Deferred Action for Childhood Arrivals" (DACA), allows certain individuals who are without lawful status in the United States to request and receive a renewable, two-year presumptive reprieve from removal, and other benefits such as work authorization and participation in the Social Security program.
DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch. The related Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) policy was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of multiple legal grounds and then by the Supreme Court by an equally divided vote. See Texas v. United States, 86 F. Supp. 3d 591, 669-70 (S.D. Tex.), aff'd, 809 F.3d 134, 171-86 (5th Cir. 2015), aff'd by equally divided Court, 136 S. Ct. 2271 (2016). Then­ Secretary of Homeland Security John Kelly rescinded the DAPA policy in June. Because the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.
In light of the costs and burdens that will be imposed on DHS associated with rescinding this policy, DHS should consider an orderly and efficient wind-down process.
As Attorney General of the United States, I have a duty to defend the Constitution and to faithfully execute the laws passed by Congress. Proper enforcement of our immigration laws is, as President Trump consistently said, critical to the national interest and to the restoration of the rule of law in our country. The Department of Justice stands ready to assist and to continue to support DHS in these important efforts.

 
 Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 1 of 51

1 Jeffrey M. Davidson (SBN 248620) Alan Bersin (SBN 63874)
2 COVINGTON & BURLING LLP One Front Street, 35th Floor

XAVIER BECERRA Attorney General of California MICHAEL L. NEWMAN Supervising Deputy Attorney General

3 San Francisco, CA 94111-5356

JAMES F. ZAHRADKA II (SBN 196822)

Telephone: (415) 591-6000 4 Facsimile: (415) 591-6091

Deputy Attorney General 1515 Clay Street, 20th Floor

Email: jdavidson@cov.com, 5 abersin@cov.com

Oakland, CA 94612-0550 Telephone: (510) 879-1247

Attorneys for Plaintiffs The Regents of the University E-mail: James.Zahradka@doj.ca.gov

6 of California and Janet Napolitano, in her official

Attorneys for Plaintiff State of California

capacity as President of the University of California

7

Joseph W. Cotchett (SBN 36324)

Theodore J. Boutrous, Jr. (SBN 132099)

Nancy L. Fineman (SBN 124870)

8 Ethan D. Dettmer (SBN 196046)

COTCHETT, PITRE & McCARTHY, LLP

Jesse S. Gabriel (SBN 263137)

840 Malcolm Road, Suite 200

9 GIBSON, DUNN & CRUTCHER LLP

Burlingame, CA 94010

333 South Grand Avenue 10 Los Angeles, CA 90071-3197

Telephone: (650) 697-6000 Facsimile: (650) 697-0577

Telephone: (213) 229-7000

Email: nfineman@cpmlegal.com

11 Facsimile: (213) 229-7520 Email: tboutrous@gibsondunn.com,

Attorneys for Plaintiff City of San Jose

12 edettmer@gibsondunn.com,

Jonathan Weissglass (SBN 185008)

jgabriel@gibsondunn.com 13 Attorneys for Plaintiffs Dulce Garcia, Miriam
Gonzalez Avila, Saul Jimenez Suarez, Viridiana 14 Chabolla Mendoza, Norma Ramirez, and Jirayut
Latthivongskorn 15

Stacey M. Leyton (SBN 203827) Eric P. Brown (SBN 284245) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151

Facsimile: (415) 362-8064

16

Email: jweissglass@altber.com

Attorneys for Plaintiffs County of Santa Clara

17

and Service Employees International Union

Local 521 18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

20

21 REGENTS OF UNIVERSITY OF CALIFORNIA and JANET NAPOLITANO, in her official capacity as
22 President of the University of California,

23

Plaintiffs,

CASE NO. 17-CV-05211-WHA
PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF

24

v.

MEMORANDUM IN SUPPORT

25

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE DUKE, in her official capacity Judge: Honorable William Alsup

26

as Acting Secretary of the Department of Homeland Security,

Hearing: December 20, 2017, 8:00 a.m. Courtroom: 8, 19th Floor

27

Defendants.

28

PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF; MEMORANDUM IN SUPPORT All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 2 of 51

1 STATE OF CALIFORNIA, STATE OF MAINE, 2 STATE OF MARYLAND, STATE OF MINNESOTA,

3

Plaintiffs,

4

v.

5

U.S. DEPARTMENT OF HOMELAND SECURITY, ELAINE DUKE, in her official capacity as Acting

6

Secretary of the Department of Homeland Security, and the UNITED STATES OF AMERICA,

7

Defendants.

8 CITY OF SAN JOSE, a municipal corporation,

9

Plaintiff,

10

v.

11

DONALD J. TRUMP, President of the United States, in his official capacity, ELAINE C. DUKE, in her official

12 capacity, and the UNITED STATES OF AMERICA,

13

Defendants.

14

DULCE GARCIA, MIRIAM GONZALEZ AVILA, SAUL JIMENEZ SUAREZ, VIRIDIANA CHABOLLA

15

MENDOZA, NORMA RAMIREZ, and JIRAYUT LATTHIVONGSKORN,

16

Plaintiffs,

17

v.

18

UNITED STATES OF AMERICA, DONALD J. TRUMP, in his official capacity as President of the

19

United States, U.S. DEPARTMENT OF HOMELAND SECURITY, and ELAINE DUKE, in her official

20

capacity as Acting Secretary of Homeland Security, Defendants.

21 County of Santa Clara and Service Employees 22 International Union Local 521,

23

Plaintiffs, v.

24 DONALD J. TRUMP, in his official capacity as

25

President of the United States, JEFFERSON BEAUREGARD SESSIONS, in his official capacity as

26

Attorney General of the United States; ELAINE DUKE, in her official capacity as Acting Secretary of the

27

Department of Homeland Security; and U.S. DEPARTMENT OF HOMELAND SECURITY,

28

Defendants.

CASE NO. 17-CV-05235-WHA CASE NO. 17-CV-05329-WHA CASE NO. 17-CV-05380-WHA CASE NO. 17-CV-05813-WHA

PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF; MEMORANDUM IN SUPPORT All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 3 of 51

1

TABLE OF CONTENTS

2 Notice of Motion and Motion for Provisional Relief...................................................................... 1

3 Memorandum in Support of Motion for Provisional Relief ........................................................... 2

4 Introduction..................................................................................................................................... 2

5 Background ..................................................................................................................................... 4

6

A. History of Deferred Action ..................................................................................... 4

7

B. The Creation of DACA ........................................................................................... 6

8

C. Benefits of DACA................................................................................................... 7

9 D. The Rescission of DACA........................................................................................ 8
10 E. Harm from the Rescission..................................................................................... 10
11 12 Standard of Review....................................................................................................................... 15

13 Argument ...................................................................................................................................... 15

14 PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS .................................................................. 15

15 I.

Defendants’ Rescission of DACA Is Arbitrary and Capricious. ...................................... 15

16

A. Defendants Failed to Explain the Basis for the Rescission................................... 16

17 18 19 20 21 22
II. 23

B. Defendants Failed to Consider All Relevant Factors and Articulate a Rational Connection Between the Facts Found and the Choice Made. .............................. 18
C. Defendants Failed to Offer a Reasoned Explanation for Their Reversal of Policy. ............................................................................................................................... 20
D. The Rescission Appears to Rely on a False Legal Premise. ................................. 22
E. The Announced Reason for the Rescission Was Pretextual ................................. 29
The Rescission Should Be Vacated Because It Is a Substantive Rule That Did Not Comply with the APA’s Notice and Comment Requirements ......................................... 31

24 PLAINTIFFS SATISFY THE REMAINING REQUIREMENTS FOR INJUNCTIVE RELIEF............................ 34

25 I.

Plaintiffs Face Irreparable Harm....................................................................................... 34

26 II. 27

The Balance Of Equities and the Public Interest Weigh Heavily in Favor of Provisional Relief.............................................................................................................. 35

28 CONCLUSION............................................................................................................................. 37

i
PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF; MEMORANDUM IN SUPPORT All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 4 of 51

1

TABLE OF AUTHORITIES

2 Cases

3 Alaska v. U.S. Dep’t of Transp.,

4

868 F.2d 441 (D.C. Cir. 1989) .............................................................................................................33

5 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .............................................................................................................16

6

Amerijet Int’l, Inc. v. Pistole,

7

753 F.3d 1343 (D.C. Cir. 2014) ...........................................................................................................18

8 Ariz. Dream Act Coal. v. Brewer,

9

757 F.3d 1053 (9th Cir. 2014) ...............................................................................................................7

10

Ariz. Dream Act Coal. v. Brewer, 81 F. Supp. 3d 795 (D. Ariz. 2015) .......................................................................................................8

11

Ariz. Dream Act Coal. v. Brewer,

12

855 F.3d 957 (9th Cir. 2017) .............................................................................................21, 26, 35, 36

13 Arizona v. United States,

14

567 U.S. 387 (2012).............................................................................................................................23

15

Bair v. Cal. State Dep’t of Transp., 867 F. Supp. 2d 1058 (N.D. Cal. 2012) ...............................................................................................18

16 Batalla Vidal v. Duke,

17

No. 16 cv. 41196 (E.D.N.Y. Oct. 27, 2017) ................................................................................ passim

18 Burlington Truck Lines, Inc. v. United States,

19

371 U.S. 156 (1962).............................................................................................................................20

20

Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936 (9th Cir. 2010) ...............................................................................................................16

21 Chalk v. U.S. Dist. Court Cent. Dist. of Cal.,

22

840 F.2d 701 (9th Cir. 1988) ...............................................................................................................35

23 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).......................................................................................................................16, 31
24

25

Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987) .............................................................................................................32

26 Colwell v. Dep’t of Health & Human Servs.,

27

558 F.3d 1112 (9th Cir. 2009) .......................................................................................................32, 33

28
ii
PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF; MEMORANDUM IN SUPPORT All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 5 of 51

1 Consumer Energy Council of Am. v. FERC,

2

673 F.2d 425 (D.C. Cir. 1982) .............................................................................................................34

3

Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015) ...................................................................................................21, 22, 26

4 Crickon v. Thomas,

5

579 F.3d 978 (9th Cir. 2009) ...............................................................................................................20

6 Crowley Caribbean Transp., Inc. v. Peña,

7

37 F.3d 671 (D.C. Cir. 1994) ...............................................................................................................24

8

Edison Elec. Inst. v. EPA, 996 F.2d 326 (D.C. Cir. 1993) .......................................................................................................24, 25

9 Encino Motorcars, LLC v. Navarro,

10

136 S. Ct. 2117 (2016) ...................................................................................................................21, 22

11 Enyart v. Nat’l Conference of Bar Examiners, Inc.,

630 F.3d 1153 (9th Cir. 2011) .............................................................................................................36 12

13

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).........................................................................................................................3, 21

14 Franklin v. Massachusetts,

15

505 U.S. 788 (1992).............................................................................................................................16

16 Gant ex rel. Gant v. E.E.O.C. v. Ethan Allen, Inc.,

44 F.3d 116 (2d Cir. 1994)...................................................................................................................31

17

18

Greene v. McElroy, 360 U.S. 474 (1959).............................................................................................................................20

19 Hernandez v. Hughes Missile Sys. Co.,

20

362 F.3d 564 (9th Cir. 2004) ...............................................................................................................30

21 Humane Soc’y of U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) .......................................................................................................18, 23

22

Int’l Chem. Workers Union Council of the United Food & Commercial Workers Int’l v.

23

NLRB, 467 F.3d 742 (9th Cir. 2006)....................................................................................................25

24 Int’l Longshoremen’s & Warehousemen’s Union v. Meese,

25

891 F.2d 1374 (9th Cir. 1989) .............................................................................................................25

26

Int’l Union, United Mine Workers of Am. v. U.S. Dep’t of Labor, 358 F.3d 40 (D.C. Cir. 2004) ...............................................................................................................28

27

Jicarilla Apache Nation v. U.S. Dep’t of the Interior,

28

613 F.3d 1112 (D.C. Cir. 2010) ...........................................................................................................20

iii
PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF; MEMORANDUM IN SUPPORT All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 6 of 51

1 Kenney v. Glickman,

2

96 F.3d 1118 (8th Cir. 1996) ...............................................................................................................24

3

League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755 (9th Cir. 2014) ...............................................................................................................36

4 Lester v. Parker,

5

235 F.2d 787 (9th Cir. 1956) ...............................................................................................................20

6 Lincoln v. Vigil,

7

508 U.S. 182 (1993).............................................................................................................................33

8

California ex rel. Lockyer v. U.S. Dep’t of Agric., 459 F. Supp. 2d 874 (N.D. Cal. 2006) .................................................................................................28

9 Mada-Luna v. Fitzpatrick,

10

813 F.2d 1006 (9th Cir. 1987) .............................................................................................................34

11 Massachusetts v. EPA,

549 U.S. 497 (2007).............................................................................................................................23 12

13

Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544 (D.C. Cir. 2015) .............................................................................................................29

14 Michigan v. EPA,

15

135 S. Ct. 2699 (2015) .........................................................................................................................19

16 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983).........................................................................................................................17, 19

17

18

Municipality of Anchorage v. United States, 980 F.2d 1320 (9th Cir. 1992) .......................................................................................................32, 33

19 N.E. Coal. on Nuclear Pollution v. Nuclear Regulatory Comm’n,

20

727 F.2d 1127 (D.C. Cir. 1984) .....................................................................................................17, 31

21 Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835 (9th Cir. 2003) ...............................................................................................................18

22

Neil v. Biggers,

23

409 U.S. 188 (1972).......................................................................................................................18, 26

24 Noel v. Chapman,

25

508 F.2d 1023 (2d Cir. 1975)...............................................................................................................34

26

Norsworthy v. Beard, 87 F. Supp. 3d 1164 (N.D. Cal. 2015) .................................................................................................35

27

Nw. Envtl. Def. Ctr. v. Bonneville Power Admin.,

28

477 F.3d 668 (9th Cir. 2007) ...............................................................................................................18

iv
PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF; MEMORANDUM IN SUPPORT All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 7 of 51

1 Organized Vill. of Kake v. U.S. Dep’t of Agric.,

2

795 F.3d 956 (9th Cir. 2015) ...............................................................................................................28

3

United States ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977) ................................................................................................4, 6, 34

4 Paulsen v. Daniels,

5

413 F.3d 999 (9th Cir. 2005) ...............................................................................................................33

6 Perez v. Mortg. Bankers Ass’n,

7

135 S. Ct. 1199 (2015) ...............................................................................................................3, 16, 22

8

Phillips Petroleum Co. v. FERC, 792 F.2d 1165 (D.C. Cir. 1986) ...........................................................................................................23

9 Pinho v. Gonzales,

10

432 F.3d 193 (3d Cir. 2005).................................................................................................................25

11 Pub. Citizen v. Heckler,

653 F. Supp. 1229 (D.D.C. 1986) ..................................................................................................17, 31 12

13

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).............................................................................................................................20

14 Reno v. Am.-Arab Anti-Discrimination Comm.,

15

525 U.S. 471 (1999).............................................................................................................................23

16 Rodriguez v. Robbins,

715 F.3d 1127 (9th Cir. 2013) .............................................................................................................36

17

18

Sacora v. Thomas, 628 F.3d 1059 (9th Cir. 2010) .............................................................................................................16

19 Safe Air for Everyone v. EPA,

20

488 F.3d 1088 (9th Cir. 2007) .............................................................................................................23

21 San Diego Air Sports Ctr., Inc. v. F.A.A., 887 F.2d 966 (9th Cir. 1989) ...............................................................................................................32

22

SEC v. Chenery Corp.,

23

318 U.S. 80 (1943) (Chenery I) .................................................................................................2, 17, 23

24 SEC v. Chenery Corp.,

25

332 U.S. 194 (1947) (Chenery II) ..................................................................................................17, 28

26

Sierra Club v. Jackson, 833 F. Supp. 2d 11 (D.D.C. 2012) .......................................................................................................29

27

Squaw Transit Co. v. United States,

28

574 F.2d 492 (10th Cir. 1978) .......................................................................................................17, 31

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1 Texas v. United States,

2

787 F.3d 733 (5th Cir. 2015) (Texas I) ..........................................................................................26, 27

3

Texas v. United States (Texas II), 809 F.3d 134 (5th Cir. 2015) ...................................................................................................25, 26, 27

4 United States v. Texas,

5

136 S. Ct. 2271 (2016) ................................................................................................................. passim

6 Statutes and Regulations

7 8 C.F.R. § 212.5(f) .......................................................................................................................................8
8 8 C.F.R. § 214.11(k)(1), (k)(4), (m)(2) ........................................................................................................5
9 8 C.F.R. § 214.14(d)(2)................................................................................................................................5 10 8 C.F.R. § 274a.12(c)(14) ............................................................................................................................7 11 5 U.S.C. § 551(5) .................................................................................................................................32, 34 12
5 U.S.C. § 553..................................................................................................................................3, 30, 33 13
5 U.S.C. § 604(a) ...................................................................................................................................3, 33 14 15 5 U.S.C. § 706(2)(A)..............................................................................................................................2, 16 16 6 U.S.C. § 202(5) .........................................................................................................................................4 17 8 U.S.C. § 1103(a)(3).................................................................................................................................23
18 8 U.S.C. § 1182(a)(9)(B)–(C) ................................................................................................................7, 11

19 8 U.S.C. §§ 1611(b)(2)–(3), 1621(d) ...........................................................................................................8

20 Act of July 25, 1958, Pub. L. No. 85-559, § 2, 72 Stat. 419, 419-20 ....................................................4, 14

21 Act of Sept. 11, 1957, Pub. L. No. 85-316, § 4(d), 71 Stat. 639, 640..........................................................4

22 Cal. Unemp. Ins. Code § 1264(a)(2)............................................................................................................8
23 Cal. Veh. Code § 12801(a)-(b) ....................................................................................................................8
24 Cal. Veh. Code § 12801.5 ............................................................................................................................8 25 Cal. Veh. Code § 1208.9 ..............................................................................................................................8 26
Cuban Adjustment Act, Pub. L. No. 89-732, §1, 80 Stat. 1161 (1966) .......................................................5 27
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 .................................................................5 28
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1 Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. 3359 (1986)....................................5 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1

NOTICE OF MOTION AND MOTION FOR PROVISIONAL RELIEF

2

Please take notice that on December 20, 2017, 8:00 a.m., at 450 Golden Gate Avenue, San

3 Francisco, California, Courtroom 8, plaintiffs in the above-captioned actions will, and hereby do, move

4 for provisional relief enjoining defendants from implementing the September 5, 2017 memorandum

5 rescinding the Deferred Action for Childhood Arrivals program (“the Rescission”). Plaintiffs will

6 demonstrate that (1) they are likely to succeed on the merits of their claims under the Administrative

7 Procedure Act (“APA”), (2) the Rescission is causing irreparable harm, and (3) the balance of equities

8 and the public interest weigh heavily in favor of provisional relief in the form of returning to the status

9 quo existing prior to the Rescission.

10

As the Court held in its Order Re Motion to Complete Administrative Record (Dkt. No. 79), the

11 administrative record filed by defendants (Dkt. No. 64) is incomplete and must be expanded.

12 Defendants’ compliance with that ruling has been stayed by the court of appeals. Nonetheless, as

13 provided in the Court’s scheduling order and because of the urgency caused by defendants’ arbitrary

14 selection of March 5, 2018 as the termination date for DACA, plaintiffs now move on the basis of the

15 current incomplete administrative record, the discovery they obtained prior to the court of appeals’ stay,

16 and the declarations and exhibits submitted in connection with this motion and the accompanying

17 request for judicial notice. Plaintiffs will supplement their motion if the court of appeals permits

18 expansion of the administrative record or if discovery reveals additional relevant information. As

19 demonstrated below, however, the current record establishes that plaintiffs are likely to succeed on the

20 merits of their claim that the rescission of DACA was arbitrary, capricious, and not in accordance with

21 law. Plaintiffs seek injunctive relief at this time only as to their APA claims, but maintain their other

22 constitutional, statutory, and equitable claims for a later stage of this case.

23

24

25

26

27

28

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1

MEMORANDUM IN SUPPORT OF MOTION FOR PROVISIONAL RELIEF

2

INTRODUCTION

3

Since 2012, the Deferred Action for Childhood Arrivals (“DACA”) program has enabled nearly

4 800,000 young people who were brought into the United States as children to live and work in this

5 country without fear of deportation.1 Since the program was established, DACA recipients have relied

6 on its protections to become medical residents and teachers, serve in the U.S. military, open businesses

7 and earn degrees, start families, and purchase homes. Yet on September 5, 2017, defendants rescinded

8 DACA, telling its beneficiaries that “DACA was fundamentally a lie,” Appendix (“App.”) at 1869-70

9 (Duke Statement), and that they should “prepare for and arrange their departure from the United States,”

10 id. at 2199–2200 (Talking Points). The Rescission already is causing catastrophic and irreparable harm

11 to DACA recipients, as the threat of deportation—to countries where they have not lived since they were

12 children—forces them to make wrenching choices whether to leave their schools, jobs, and even their

13 U.S. citizen children and other family members. The harm also extends to their loved ones, employers,

14 schools, and communities. The Rescission is unjust and unlawful, and it violates the fundamental

15 prohibition on arbitrary agency action imposed by the Administrative Procedure Act (“APA”).

16

The APA requires courts to set aside agency action that is “arbitrary, capricious, or otherwise not

17 in accordance with law.” 5 U.S.C. § 706(2)(A). This standard requires agency action to be both

18 reasonable and reasonably explained. The Rescission is neither. The Rescission contains only a single

19 vague sentence of justification: “Taking into consideration the Supreme Court’s and the Fifth Circuit’s

20 rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear

21 that the June 15, 2012 DACA program should be terminated.” AR 255. This conclusory assertion fails

22 the requirement that the basis for agency action “be clearly disclosed and adequately sustained,” SEC v.

23 Chenery Corp., 318 U.S. 80, 94 (1943) (Chenery I), especially for an action threatening the expulsion of

24 nearly 700,000 current DACA recipients from their country.

25

26

27

1

Although 800,000 young people have received DACA at various times, this motion focuses on

the irreparable harm to the 700,000 current DACA recipients if defendants are permitted to implement

28 the Rescission.

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1

The government’s empty explanation of the Rescission echoes its failure to consider the

2 Rescission’s consequences. The government’s decision fails to acknowledge the human and economic

3 havoc that it will inflict on DACA recipients, their families, schools, employers, employees, clients, and

4 communities. The record further reveals that the Department of Homeland Security (“DHS”) never

5 evaluated the benefits of DACA when rescinding the program. The absence of reasonable consideration

6 or explanation is particularly appalling where, as here, an agency is reversing a “prior policy [that] has

7 engendered serious reliance interests.” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015).

8 Reasonable decision-making in these circumstances demands a “more detailed justification than what

9 would suffice for a new policy created on a blank slate.” FCC v. Fox Television Stations, Inc., 556 U.S.

10 502, 515 (2009). The government’s one-sentence justification for rescinding DACA fails to meet this

11 standard, contradicting its own statements to the Ninth Circuit and the Supreme Court asserting that

12 DACA is both lawful and sound policy, as well as its decision eight months ago to leave DACA intact.

13

The government’s failure to consider relevant factors or plausibly explain the basis for the

14 Rescission suggests that its proffered justifications are pretextual. Inconsistent and shifting explanations

15 for the Rescission reinforce this conclusion. For example, although the government has sought to

16 defend the Rescission as a response to purported “litigation risk,” the author of the Rescission

17 memorandum testified that responding to “litigation risk” would be “the craziest policy you could ever

18 have as a department.” App. at 1928-26 (Hamilton Dep. 207:20-208:11). Agency action that is based

19 on pretext is arbitrary by definition and must be set aside.

20

Finally, the Rescission was accomplished without the procedural steps required by law. The

21 Rescission constitutes a substantive rule subject to the APA’s notice and comment requirements, 5

22 U.S.C. § 553, which are designed to ensure that agency action proceeds on the basis of relevant factors.

23 See also 5 U.S.C. § 604(a) (requiring consideration of effects on small entities). Had the government

24 considered such factors—including the Rescission’s devastating impact on DACA recipients and their

25 families, and its broader consequences for local governments, employers, educators, and the economy—

26 the Rescission could not reasonably have been adopted.

27

This Court should grant provisional relief enjoining defendants’ illegal action and preserving the

28 status quo pending a final judgment in this action.
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1

BACKGROUND

2

A. History of Deferred Action

3

DACA is consistent with a series of deferred action programs dating back half a century. The

4 government has long recognized that “there simply are not enough resources to enforce all of the rules

5 and regulations presently on the books” and that “[i]n some situations, application of the literal letter of

6 the law would simply be unconscionable and would serve no useful purpose.” App. at 1594 (Bernsen

7 Memo). Accordingly, consistent with their authority to “[e]stablish[] national immigration enforcement

8 policies and priorities,” 6 U.S.C. § 202(5), DHS and previously the INS have frequently exercised

9 discretion not to remove otherwise removable immigrants. App. at 1822-23 (Johnson Letter).

10

Consistency and administrative convenience have often led the government to exercise its

11 discretion programmatically. Since at least 1956, the government has implemented numerous forms of

12 “discretionary relief,” including parole, temporary protected status, deferred enforced departure,

13 extended voluntary departure, and deferred action. Administrative Record (“AR”) (Dkt. No. 64-1) 15.

14

• In 1956, President Eisenhower “paroled” into the United States roughly 1000 foreign-born

orphans who had been adopted by American citizens overseas but were precluded from entering

15

the United States because of statutory quotas, App. at 1602 (Eisenhower Letter ─ Orphans), as

well as tens of thousands of Hungarian refugees after the unsuccessful Hungarian revolution,

16

App. at 1603 (Eisenhower Letter ─ Hungarians). In both cases, Congress eventually passed laws

17

enabling the paroled individuals to become lawful permanent residents. See Act of Sept. 11, 1957, Pub. L. No. 85-316, § 4(d), 71 Stat. 639, 640 (orphans); Act of July 25, 1958, Pub. L. No.

85-559, § 2, 72 Stat. 419, 419-20 (Hungarian refugees). 18

19

• That same year, the Eisenhower Administration granted “extended voluntary departure” to nonimmigrants present in the United States who had sought, but not received, “Third Preference”

visas based on exceptional ability in the arts and sciences. When the INS rescinded this policy

20

sixteen years later with a perfunctory explanation that the program was “having an increasingly

unfavorable effect on the domestic job market,” a federal court held that the rescission was

21

ineffective because it did not comply with the APA’s notice-and-comment procedures, even

22

though the original policy had not been published in the Federal Register. United States ex rel. Parco v. Morris, 426 F. Supp. 976, 980 n.8, 983, 984, 986 (E.D. Pa. 1977).

23

• The Eisenhower, Kennedy, Johnson, and Nixon Administrations paroled more than 600,000

Cubans in the United States through a series of discretionary programs. For example, in 1961,

24

the Kennedy Administration established the Cuban Refugee Program, which directed the routine

25

admission of Cubans under the Attorney General’s parole authority. See App. at 1604 (Kennedy Letter). This program ended through an agreement between the United States and Cuba,

followed by legislation providing lawful permanent residence for the individuals who had been

26

paroled under the program. Cuban Adjustment Act, Pub. L. No. 89-732, §1, 80 Stat. 1161

(1966). 27

28

• In 1962, in response to famine in China, President Kennedy established the Hong Kong Parole Program to provide extended voluntary departure to 15,000 Chinese refugees. App. at 1605

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1

(USCIS Refugee Timeline). This program ended in 1966 with passage of the Immigration and

Nationality Act of 1965, which for the first time provided for the regular admission of refugees.

2

• In 1987, President Reagan instituted the Family Fairness Program, which provided extended

3

voluntary departure to children whose parents were in the process of legalizing their immigration

status under the Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. 3359

4

(1986). App. at 1607 (1987 INS Analysis). In 1990, President George H. W. Bush expanded the

program to spouses of such immigrants. Id. at 1612-13 (1990 INS Analysis). Collectively, the

5

Family Fairness Program extended relief to approximately 1.5 million people, estimated to be 40

percent of the undocumented population at the time. Id. at 1613. The Family Fairness Program

6

ended with the passage of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978,

providing a path to permanent residence for the beneficiaries of the program.

7

• In 1997, the Clinton Administration established a deferred action program for individuals self-

8

petitioning for relief under the Violence Against Women Act of 1994. App. at 1640-46. The

George W. Bush Administration similarly provided deferred action to certain applicants for T

9

visas (victims of human trafficking) and U visas (victims of crimes such as domestic violence) in

2002 and 2003, respectively. Id. at 1650-51. These programs are still in place, see id. at 1651,

10

and the deferred action programs for T visa and U visa applicants have been codified, see 8

C.F.R. § 214.11(k)(1), (k)(4), (m)(2) (T visa applicants); 8 C.F.R. § 214.14(d)(2) (U visa

11

applicants).

12

• The George W. Bush Administration also established a deferred action program in 2005

temporarily granting relief to thousands of foreign students affected by Hurricane Katrina who,

13

because of the hurricane, could not satisfy the requirements of their student visas. App. at 1661-

62. Because this program was initiated in response to a specific event, USCIS made clear from

14

the outset that all benefits would expire on February 1, 2006. Id.

15

• In 2009, the Obama Administration established a deferred action program providing relief to

widowed spouses who had been married to U.S. citizens for less than two years and therefore

16

could not obtain permanent residence through their spouses. Id. at 1664-71. Several months

later, Congress eliminated the statutory requirement that had prompted the establishment of the

17

program and USCIS accordingly withdrew the program as “obsolete.” Id. at 1672-82 (Neufeld

Memo).

18

A chart summarizing the 17 prior deferred action programs is attached as Addendum A.

19 This history underscores three important points. First, programmatic grants of deferred action

20 have been common for half a century, across many presidential administrations. Second, the

21 programmatic use of deferred action has gone largely unchallenged. Until the Texas DAPA litigation in

22 2014, there had been no judicial challenge to the creation of any prior deferred action program. See Br.

23 of Former Federal Immigration and Homeland Security Officials as Amici Curiae in Support of the

24 United States at 3, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674), 2016 WL 922865

25 (“While [deferred action] policies have at times generated political controversy, until recently their legal

26 underpinnings did not.”).

27

28
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1

Third, the Rescission is the first time the government has terminated a deferred action program

2 and subjected its existing beneficiaries to deportation. Virtually all of the prior programs ended either

3 because a statute or regulation was enacted to protect the recipients, or because the program was

4 designed from the outset to address a temporary disruption (e.g., the Hurricane Katrina program). In the

5 single instance where the executive branch attempted to terminate a deferred action program without

6 providing an opportunity for notice and comment, a court found a violation of the APA. See Parco, 426

7 F. Supp. at 985.

8

B. The Creation of DACA

9

On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum

10 establishing DACA (the “2012 DACA Memorandum”). See AR 1–3. Under DACA, individuals who

11 were brought to the United States as children and met certain criteria could apply for deferred action for

12 renewable two-year terms. Id. The 2012 DACA Memorandum explained that DACA covers “certain

13 young people who were brought to this country as children and know only this country as home” and

14 that our immigration laws are not “designed to remove productive young people to countries where they

15 may not have lived or even speak the language.” Id. at 1–2.

16

Eligibility for DACA was limited to individuals who (1) came to the United States under the age

17 of sixteen; (2) had continuously resided in the United States since June 15, 2007, and were present in the

18 United States both on June 15, 2012 and on the date they requested DACA; (3) were in school, had

19 graduated from high school, had obtained a GED, or had been honorably discharged from the United

20 States military or Coast Guard; (4) had clean criminal records and were not a threat to national security

21 or public safety; (5) were under the age of 31 as of June 15, 2012; and (6) did not have lawful

22 immigration status. See AR 1. To apply for DACA, eligible individuals were required to provide the

23 government with sensitive personal information, such as their home addresses and fingerprints, submit

24 to a rigorous DHS background check, and pay a considerable fee. App. at 1744-45, 47 (USCIS FAQs).

25 Applicants then were evaluated on a case-by-case basis. See AR 2.

26

A DACA determination results in an initial two-year deferral, which DHS stated from the outset

27 would be “subject to renewal, in order to prevent low priority individuals from being placed into

28 removal proceedings or removed from the United States.” AR 3. DHS established a straightforward
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1 renewal process and “strongly encourage[d]” DACA recipients to submit renewal requests in advance of

2 the relevant expiration date. App. at 1756-57 (USCIS FAQs).2

3

Understanding that eligible individuals might be reluctant to step forward and voluntarily

4 disclose information which, absent DACA, could facilitate their removal from the United States, the

5 government launched an extensive outreach campaign to promote applications and renewals. App. at

6 1742-61, 1762-64, 1785, 1799 (USCIS DACA Outreach). The government repeatedly promised that

7 information provided in connection with the program would not be used for immigration enforcement

8 purposes absent special circumstances. Id. at 1763-64, 1747, 1772 (DACA Toolkit).

9

C. Benefits of DACA

10

DACA has conferred important benefits on recipients. Most directly, DACA recipients are

11 permitted to reside in the United States and are protected from arrest or detention. Ariz. Dream Act

12 Coal. v. Brewer, 757 F.3d 1053, 1058–59 (9th Cir. 2014); see also AR 2. During the period of deferred

13 action, DACA recipients do not accrue time for “unlawful presence” for purposes of the immigration

14 law’s bars on re-entry. See 8 U.S.C. § 1182(a)(9)(B)–(C).

15

Under longstanding regulations, immigrants benefiting from deferred action may seek social

16 security numbers and employment authorization. App. at 1742-45 (USCIS FAQs); AR 3; see also

17 8 C.F.R. § 274a.12(c)(14). DACA recipients also became eligible for “advance parole,” allowing them

18 to apply to travel abroad and return lawfully to the United States. See App. at 1787-88 (USCIS Toolkit);

19 1758-59 (USCIS FAQ); see also 8 C.F.R. § 212.5(f). Advance parole has permitted DACA recipients to

20

21

22

23

24

25

2

To qualify for renewal, DACA recipients were required to meet just three basic criteria: (1) they

must not have left the United States without advance parole; (2) they must have continuously resided in

26

the United States after submitting their DACA applications; and (3) they must not have been convicted of serious or repeated crimes, or otherwise pose a threat to national security or public safety. App. at

27 1742, 1757 (USCIS FAQs).

28
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1 visit ailing family members, attend births and funerals, and participate in educational, cultural, and

2 employment-related conferences. App. at 2202, Topic 3.3

3

DACA recipients also became eligible to receive certain public, private, and practical benefits.

4 For example, the individual plaintiffs have obtained driver’s licenses, medical insurance, research

5 funding and tuition benefits. App. at 2203–04, Topic 6; see also 8 U.S.C. §§ 1611(b)(2)–(3), 1621(d);

6 Ariz. Dream Act Coal. v. Brewer, 81 F. Supp. 3d 795, 811 (D. Ariz. 2015).4 DACA also has enabled

7 recipients to open bank accounts, obtain credit cards, and purchase homes and vehicles. App. at 2201,

8 Topic 2.

9

DACA has been transformative for beneficiaries and their families and communities. See, e.g.,

10 App. at 1373-74 (Suárez-Orozco Decl. ¶¶ 7-8); App. at 0363-68 (Gonzales Decl. ¶¶ 18-32). As the

11 government has recognized, DACA has enabled hundreds of thousands of young people “to enroll in

12 colleges and universities, complete their education, start businesses that help improve our economy, and

13 give back to our communities as teachers, medical professionals, engineers, and entrepreneurs—all on

14 the books.” App. at 1822-23 (Johnson Letter); App. at 2201, 2203, Topics 1, 5. Even more

15 fundamentally, DACA has provided recipients with a sense of dignity and security that carries

16 demonstrable benefits to their mental and physical health, family well-being, and ability to make life

17 plans. App. at 2202-03, Topic 4.

18

D. The Rescission of DACA

19

In December 2016, Secretary of Homeland Security Jeh Johnson publically stated that

20 “representations made by the U.S. government, upon which DACA applicants most assuredly relied,

21 must continue to be honored.” App. at 1822-23 (Johnson Letter). And initially, even after the change in

22

23

24

3

Where multiple declarations provide support for the facts stated herein, the citation provided is to

the Topical Index to Plaintiff and Third-Party Declarations within the Appendix, see App. at 2201-2210,

25 which identifies and provides a specific citation to each supporting declaration.

26

4

DACA permits otherwise ineligible individuals in California to obtain regular driver’s licenses.

See Cal. Veh. Code §§ 12801(a)-(b), 12801.5, 12801.6(a)-(b). California also provides “AB 60” driver’s

27

licenses to undocumented immigrants without DACA, see Cal. Veh. Code § 12801.9, but such licenses are “not acceptable for official federal purposes.” Id. § 12801.9(d)(2). DACA recipients also can obtain

28 unemployment insurance benefits, see Cal. Unemp. Ins. Code § 1264(a)(2).

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1 administrations, Secretary of Homeland Security John Kelly in February 2017 specifically exempted

2 DACA from the administration’s broad repeal of other immigration directives, AR 230, and

3 characterized “DACA status” as a “commitment . . . by the government towards the DACA person,”

4 App. at 1841. President Trump himself emphasized that “dreamers should rest easy” and agreed that the

5 “policy of [his] administration [is] to allow the dreamers to stay.” Id. at 1853.

6

No court has ever held DACA to be unlawful. Yet, in June 2017, government officials,

7 including Attorney General Sessions, began communicating with attorneys general from several states

8 that had previously challenged another deferred action program, Deferred Action for Parents of

9 Americans and Lawful Permanent Residents (“DAPA”). App. at 2033-34 (Batalla Vidal Interrogatory

10 Response). Those discussions culminated in a June 29, 2017 letter from nine state attorneys general to

11 Attorney General Sessions, threatening to challenge DACA in court unless the federal government

12 rescinded the program by September 5, 2017. AR 238-40.5 A group of 20 other attorneys general sent a

13 competing letter to President Trump urging him to maintain DACA, asserting that the arguments against

14 the program were “wrong as a matter of law and policy.” App. at 2089 (Becerra Letter).

15

On September 4, 2017, Mr. Sessions sent a one-page letter to Acting Secretary of Homeland

16 Security Elaine Duke asserting that DACA “was effectuated . . . without proper statutory authority” and

17 “was an unconstitutional exercise of authority by the Executive Branch.” AR 251. He noted that DAPA

18 had been “enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of

19 multiple legal grounds and then by the Supreme Court by an equally divided vote,” and suggested that

20 DACA might encounter the same result. Id.

21

The next day, the Attorney General held a press conference where he “announce[d] that the

22 program known as DACA . . . is being rescinded.” App. at 1866 (Sessions Press Conf.). As in his letter

23 to the Acting Secretary, the Attorney General asserted that DACA was an unconstitutional exercise of

24 authority by the executive branch and “vulnerable to the same legal and constitutional challenges that

25 the courts recognized with respect to the DAPA program.” AR 251. He also claimed that DACA had

26

27

5

On September 1, 2017, Tennessee Attorney General Herbert H. Slatery III reversed course and

decided Tennessee would not join the threatened expansion of the suit, citing “a human element to this

28 [issue]” that “should not be ignored.” App. at 1859-60 (Slatery Letter).

9
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1 “contributed to a surge of unaccompanied minors on the southern border that yielded terrible

2 humanitarian consequences.” Id. This was nonsensical; DACA eligibility was restricted to a fixed

3 group of individuals who had lived continuously in the United States for at least five years since June

4 15, 2007 and were present in the United States on June 15, 2012; DACA could not have led to any

5 changes at the border in 2017.

6

Minutes after the Attorney General’s press conference, Acting Secretary of Homeland Security

7 Duke issued a memorandum formally rescinding the DACA program. See AR 252–56. The Rescission

8 instructed DHS to immediately stop accepting DACA applications or approving new applications for

9 advance parole; to accept renewal applications only from individuals whose current deferred action

10 would expire on or before March 5, 2018, and to accept such renewals only through October 5, 2017;

11 and to allow individuals’ DACA to expire beginning March 5, 2018. AR at 255.

12

Secretary Duke issued an accompanying statement asserting that the government had decided to

13 end DACA rather than “allow the judiciary to potentially shut the program down completely and

14 immediately.” App. at 1869-70 (Duke Statement). Secretary Duke also expressed “sympath[y]” and

15 “frustrat[ion]” on “behalf” of DACA recipients and asserted that “DACA was fundamentally a lie.” Id.

16

E. Harm from the Rescission

17

The Rescission is causing irreparable injuries right now that will only worsen with time.

18 Because the Rescission threatens nearly 700,000 deeply-rooted immigrants with deportation from the

19 United States, its consequences are enormous and multi-faceted. The accompanying Appendix presents

20 extensive evidence of the severe harm that is being and will be inflicted by the government’s action.

21 The discussion below can only begin to describe the Rescission’s damaging effects.

22

1. Direct Legal Consequences

23

As a result of the Rescission, eligible individuals were prevented from applying for DACA, and

24 others were unable to gather sufficient funds in time to pay the renewal fee by the abrupt October 5,

25 2017 cutoff. App. at 2209, Topics 19, 21. As a result, eligible individuals already have been denied the

26 benefits of the program. Id. DACA recipients have already lost the ability to seek advance parole and 27 are therefore precluded from traveling outside the United States. App. at 2210, Topic 23. Each day

28
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1 beginning March 5, 2018, an average of more than one thousand individuals will lose DACA and

2 immediately become vulnerable to arrest, detention, and removal. App. at 2097 (CAP Study). If they

3 are removed, most of these individuals will become subject to a 10-year bar on re-entry because they

4 accrued more than one year of “unlawful presence” prior to the creation of DACA. In some cases,

5 DACA recipients will be subject to a permanent bar if, in addition to one year of “unlawful presence,”

6 they were previously ordered removed or granted voluntary departure and then later re-entered. See 8

7 U.S.C. § 1182(a)(9)(B)–(C).

8

2. Injuries to Individual DACA Recipients

9

The Rescission has already inflicted severe harm on DACA recipients and their families. DACA

10 recipients are experiencing anxiety, depression, and fear because of the Rescission. App. at 2205, Topic

11 13.6 This is taking an immediate toll on DACA recipients’ well-being and affecting their studies, work,

12 and families. App. at 2206-07, Topics 12-13. The University of California has observed an increase in

13 demand for mental health services, which it cannot fully meet. App. at 2202, Topic 8; see also id., 14 Topic 7 (allocation of scarce resources). And understandably so: because of the program’s age

15 restrictions, DACA recipients are mostly young adults, now making decisions whether to get married,

16 start families, take mortgages, attend college or graduate school, start businesses, or change careers.

17 App. at 2204-06, Topics 9-10. Of course, hundreds of thousands of DACA recipients already have

18 made such life-changing decisions in reliance on DACA, and now face devastating personal,

19 professional, and economic losses as a result of the government’s precipitous reversal.

20

The Rescission carries immediate economic and professional consequences. DACA recipients

21 have invested enormous effort and financial resources into building their lives and careers in this

22 country, which they now stand to lose. App. at 2205-06, Topics 9-10. They face the loss of educational

23 and employment opportunities, and even those early in their two-year DACA grants face immediate

24 losses from the unavailability of advance parole. App. at 2204-05, 2208, Topics 9-10, 23. The

25 Rescission has already prevented more than 70 recipients who have pending advance parole applications

26

27

6

As one researcher found, the physical and emotional manifestations of stress can include chronic

headaches, ulcers, sleep loss and eating disorders, and thoughts of suicide. App. at 362 (Gonzales Decl.

28 ¶ 13).

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1 from studying abroad and presenting research. App. at 1479 (Vazquez-Ramos Decl. ¶¶ 6-7). For

2 example, Joel Sati—described as a “once-in-a-decade” doctoral candidate and academic prospect in

3 jurisprudence and social policy who had a pending advance parole application at the time of the

4 Rescission—has already been deprived of important opportunities to present his research abroad. See

5 App. at 656-57 (Kutz Decl. ¶ 13); App. at 875 (Morrill Decl. ¶ 21); App. at 1322-23 (Sati Decl. ¶¶ 39-

6 41).

7

DACA recipients are being forced—right now—to make momentous and irreversible decisions

8 about their educational and professional paths. For example, plaintiff and first-year UC Irvine law

9 student Viri Chabolla Mendoza is struggling to decide whether to continue making the personal and

10 financial investments required to attend law school, because without a work authorization, the

11 Rescission will limit or eliminate her ability to work as an attorney, App. at 113 (Chabolla Decl. ¶ 69),

12 as it will for other DACA recipient law students, who have been incurring significant debt to finance

13 their legal education. App. at 448-49 (Gorjian Decl. ¶¶ 15-16). Medical and doctoral students—

14 including plaintiffs New Latthivongskorn and Norma Ramirez—are wrestling with similar decisions.

15 App. at 670–71 (Latthivongskorn Decl. ¶¶ 47–49); App. at 1161 (Ramirez Decl. ¶ 52). Medical students

16 at UC are facing the choice of self-selecting out of their only real opportunity to obtain a medical

17 residency position after years of medical training, lest they be rendered unable to care for their patients

18 when their work authorization expires. App. at 65-67 (Braddock Decl. ¶¶ 4-5, 8); App. at 723-24

19 (Lucey Decl. ¶¶ 13-18); App. at 1357-59 (Stobo Decl. ¶¶ 6, 10, 12); App. at 0519-20 (Huang Decl. ¶

20 16). And plaintiff Saul Jimenez already has been forced to abandon plans to pursue a master’s degree.

21 App. at 0557 (Jimenez Decl. ¶ 45). Many other DACA recipients are being forced to make choices now

22 that may adversely impact their ability to pursue their education and career objectives. App. at 2203-04,

23 Topics 9-10.

24

Beyond its immediate career consequences, the Rescission is imposing economic and financial

25 harms on DACA recipients, many of whom are already looking to minimize or unwind the long-term

26 financial commitments—including student loans and mortgages, office leases, and employee hires—

27 they made in reliance on the program. App. at 2205-06, 2209, Topics 10, 20. The Rescission, by

28
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1 canceling work authorizations, will deprive DACA recipients of the ability to work legally, and in many

2 cases render them unable to continue their education. App. at 2203-04, Topics 9-10.

3

The Rescission is also causing irreparable harm to the parents, children, and siblings of DACA

4 recipients. See, e.g., App. at 2206, Topic 11. Approximately 26 percent of DACA recipients have U.S.-

5 citizen children, while approximately 17 percent have a U.S.-citizen spouse, and nearly 60 percent have

6 a U.S.-citizen sibling. App. at 1510 (Wong Decl. ¶ 31). DHS’s decision that DACA recipients should

7 “prepare for and arrange their departure from the United States,” App. at 2199–2200 (Talking Points);

8 App. at 1510-12 (Wong Decl. ¶ 32), therefore presents DACA recipients with the agonizing decision

9 whether to uproot their loved ones from their country of citizenship or leave them behind. As a result of

10 the Rescission, almost two hundred thousand U.S.-citizen children face the terrifying prospect that their

11 parents may soon be deported. The Rescission has caused some DACA recipients not to begin families

12 at all. For example, as a result of the Rescission, plaintiff Dulce Garcia has put on hold her dream of

13 adopting a child and becoming a mother. App. at 267–68 (Garcia Decl. ¶¶ 64, 700).

14

3. Injuries to State and Local Governments and Educational Institutions

15

The Rescission is also harming DACA recipients’ schools and employers, and the cities,

16 counties, and states where they reside and work. App. at 2206–10, Topics 14, 17, 18, 22. For example, 17 some DACA recipients have decided to cancel their enrollment at the University of California because 18 the Rescission forecloses their ability to work during and after their education. App. at 0512 (Holmes19 Sullivan Decl. ¶ 18). The University of California and other educational institutions such as the 20 California State University and the California Community Colleges, thus face the loss of their

21 investments in time, financial aid, research dollars, housing benefits, and other support, and the loss of

22 DACA students and employees is diminishing the research expertise, exchange of ideas, and cultural 23 vitality that are central to their academic missions. App. at 2205, Topic 14; see also id. at 2206, Topic 24 12. And public school districts are also struggling to effectively educate their student populations given 25 decreased attendance and the fear and stress caused by the Rescission. App. at 353–54 (L. Gonzales 26 Decl. ¶¶ 4-5, 10); id. at 784–85 (Maxwell Decl. ¶¶ 9, 11). 27

28
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1

The interests of the plaintiff States, County of Santa Clara, and City of San Jose are also being

2 irreparably harmed by the Rescission. The DACA program has improved the economic welfare of

3 recipients by providing access to higher-skilled jobs, better job mobility, higher wages, and greater

4 purchasing power. App. at 1500 (Wong Decl. ¶ 12); see also App. at 2201-02, 2203, Topics 2, 5.

5 Recent data show that 91 percent of DACA recipients are currently employed (93 percent for those 25

6 years and older), and hourly wages of DACA recipients have increased by 69 percent (81 percent for

7 those 25 years and older since the program began). App. at 1500, 1503 (Wong Decl. ¶¶ 13, 18).

8

As DACA employees leave the workforce, the economy as a whole will continue to suffer

9 enormous losses. DACA has greatly benefited state and local economies, including plaintiff States,

10 plaintiff County of Santa Clara, and plaintiff City of San Jose, by increasing DACA recipients’ earnings

11 and growing the tax base. App. at 2206–07, Topic 17. As entrepreneurs and employees, DACA

12 recipients are achieving financial independence and purchasing cars and homes, thereby generating

13 additional economic activity, along with tax revenue for state and local governments. App. at 2199-

14 2200, 2206–07, Topics 2, 17. Over a ten-year period, it is estimated that the Rescission will cost the

15 federal government $60 billion in lost revenue and $215 billion in lost GDP. App. at 0073 (Brannon

16 Decl. ¶ 11). The comparable figures for California alone are $19 billion and $71 billion. App. at 0073

17 (Brannon Decl. ¶¶ 11, 14). State and local governments, including plaintiffs States, County of Santa

18 Clara, and City of San Jose, also employ DACA recipients to provide important public services. App. at

19 2209, Topic 18.

20

As DACA recipients continue to lose employment authorization, many will lose their health

21 insurance. App. at 716 (Lorenz Decl. ¶ 7); App. at 1310 (Santos Toledo Decl. ¶ 26); App. at 1324 (Sati

22 Decl. ¶ 48); App. at 1448 (Tabares Decl. ¶ 14). The resulting increase in the uninsured population will

23 place an increased burden on emergency healthcare services in plaintiff States, plaintiff County of Santa

24 Clara, and plaintiff City of San Jose, and will reduce overall public health as fewer people will seek

25 medical care because they lack insurance or because they fear being reported to immigration authorities.

26 App. at 2206, Topic 15.

27

The separation of families caused by the Rescission will likely bring more children into

28 government child welfare services programs, further increasing government costs. App. at 0779
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1 (Márquez Decl. ¶ 18). Uncertainty about parental immigration status contributes to heightened levels of

2 stress and anxiety in children. For example, one study found that mothers’ eligibility for DACA led to

3 significant improvements in their children’s mental health—improvements that will be lost because of

4 the Rescission. App. at 0814–16 (Mendoza Decl. ¶¶ 4, 6–8); App. at 0464–67 (Hainmueller Decl. ¶¶ 4–

5 11).

6

Public safety will also suffer. Effective local law enforcement depends on a trusting relationship

7 between police and the communities they serve. App. 2206, Topic 16. DACA recipients face particular

8 vulnerabilities once their DACA grants end, given the information they have already turned over to

9 federal immigration authorities. See App. at 2210, Topic 24. If DACA recipients lose their protection,

10 and fear that interactions with police could end with their deportation, they will be less likely to call the

11 police if they are victimized or if they witness crimes. App. at 2206, Topic 16. By forcing these

12 particularly vulnerable individuals back into undocumented status, the Rescission damages the public

13 safety mission of law enforcement agencies. Id.

14

STANDARD OF REVIEW

15

A preliminary injunction is warranted where the plaintiffs establish that (1) they are “likely to

16 succeed on the merits,” (2) they are “likely to suffer irreparable harm in the absence of preliminary

17 relief,” (3) “that the balance of equities” tips in their favor, and (4) that an “injunction is in the public

18 interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting Winter v.

19 Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)).

20

ARGUMENT

21

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS

22

Agency action cannot stand if it is arbitrary, capricious, or contrary to law, or if it is done

23 without appropriate process. The unexplained rescission of DACA cannot withstand the slightest

24 scrutiny, and therefore plaintiffs are likely to succeed on the merits.

25 I. Defendants’ Rescission of DACA Is Arbitrary and Capricious.

26

The Administrative Procedure Act “sets forth the procedures by which federal agencies are

27 accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts,

28 505 U.S. 788, 796 (1992). To ensure that agency actions are reasonable and lawful, a court must
15
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1 conduct a “thorough, probing, in-depth review” of the agency’s reasoning and a “searching and careful”

2 inquiry into the factual underpinnings of the agency’s decision. Citizens to Preserve Overton Park, Inc.

3 v. Volpe, 401 U.S. 402, 415–16 (1971). After undertaking that review, a court “shall” set aside agency

4 action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

5 U.S.C. § 706(2)(A); see also Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 945 (9th

6 Cir. 2010).7 As with formal rulemaking, final agency action achieved through an informal process is

7 subject to review under § 706 of the APA. See, e.g., Perez, 135 S. Ct. at 1209 (arbitrary and capricious

8 review is available for agency rules that do not proceed through notice and comment); Sacora v.

9 Thomas, 628 F.3d 1059, 1068–69 (9th Cir. 2010) (same).

10

Agency action should be set aside as arbitrary and capricious if the agency fails to explain the

11 basis of its decision, fails to consider all relevant factors and articulate a “rational connection between

12 the facts found and the choice made,” or fails to offer a “reasoned explanation” for departures from

13 preexisting policies. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

14 (1983). In cases where the purported rationale for agency action is pretextual, it must be set aside

15 without further inquiry. See, e.g., N.E. Coal. on Nuclear Pollution v. Nuclear Regulatory Comm’n, 727

16 F.2d 1127, 1130–31 (D.C. Cir. 1984); Squaw Transit Co. v. United States, 574 F.2d 492, 496 (10th Cir.

17 1978); Pub. Citizen v. Heckler, 653 F. Supp. 1229, 1237 (D.D.C. 1986). Here, defendants violated the

18 APA on each of these grounds.

19

A. Defendants Failed to Explain the Basis for the Rescission.

20

It is a “simple but fundamental rule of administrative law” that “a reviewing court . . . must judge

21 the propriety of [agency] action solely by the grounds invoked by the agency,” and not post hoc grounds

22 articulated during litigation. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (Chenery II). Meaningful

23 judicial review cannot proceed unless “the grounds upon which the administrative agency acted [are]

24

25

26

7

An action under the APA requires final agency action that is ripe for review. In the motion to

dismiss filed in Batalla Vidal v. Duke, No. 16-cv-41196 (E.D.N.Y. Oct. 27, 2017), ECF No. 95-1,

27

defendants did not challenge finality or ripeness. If defendants take a contrary position in this case, plaintiffs will respond either in their opposition to defendants’ motion to dismiss or in their reply

28 supporting the instant motion.

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1 clearly disclosed and adequately sustained.” Chenery I, 318 U.S. at 94. Accordingly, an agency action

2 must be set aside unless its basis is “set forth with such clarity as to be understandable.” Chenery II, 332

3 U.S. at 196.

4

The four-page Rescission memorandum flunks this basic test, inflicting grievous harm on

5 millions of people without providing any clear explanation why. The bulk of the document is a two-

6 and-a-half page “Background” section that provides a generic discussion of the history of the DACA

7 and DAPA programs, including a brief discussion of the DAPA litigation in the Fifth Circuit. It

8 summarizes the Attorney General’s one-page September 4, 2017 letter, and quotes his assertions that

9 DACA was “effectuated without statutory authority,” and was “an unconstitutional exercise of authority

10 by the Executive Branch.” DHS’s entire purported reasoning for rescinding DACA is then set forth in a

11 66-word paragraph, which states in full:

12

Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the

13

ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my

14

authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.

15 AR 255.

16

This cryptic statement does not remotely meet the APA’s requirement that an agency provide a

17 reasoned basis for its actions. See Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014)

18 (“[C]onclusory statements will not do; an agency’s statement must be one of reasoning.” (internal

19 citations omitted)). Indeed, the memorandum barely states any rationale for the decision at all. The

20 reference to the Attorney General’s one-page letter is not reasoning—the Attorney General’s letter

21 contains only a conclusory assertion that DACA is illegal. AR 251. Just as perplexing is the reference

22 to the Supreme Court’s purported “ruling” in the “ongoing litigation”—presumably referring to the four-

23 four affirmance in the Texas DAPA case. This even split was no “ruling” at all, let alone a ruling

24 regarding DACA. See Neil v. Biggers, 409 U.S. 188, 192 (1972) (“Nor is an affirmance by an equally

25 divided Court entitled to precedential weight.”).

26

Because DHS failed to provide any comprehensible rationale for its decision, the Rescission

27 must be set aside. See Chenery II, 332 U.S. at 196–97 (“It will not do for a court to be compelled to

28 guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must
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1 be precise from what the agency has left vague and indecisive.”); Nat’l Ass’n of Home Builders v.

2 Norton, 340 F.3d 835, 849 (9th Cir. 2003) (same).

3

B. Defendants Failed to Consider All Relevant Factors and Articulate a Rational

4

Connection Between the Facts Found and the Choice Made.

To survive review under the arbitrary-and-capricious standard, an agency must “demonstrate a

5

rational connection between the facts it found and the choice it made.” Nw. Envtl. Def. Ctr. v.

6

Bonneville Power Admin., 477 F.3d 668, 687 n.15 (9th Cir. 2007); Humane Soc’y of U.S. v. Locke, 626

7

F.3d 1040, 1051 (9th Cir. 2010) (same). Although courts “defer to agency expertise on questions of

8

methodology, they do not ignore an agency’s failure to address factors pertinent to an informed

9

decision.” Bair v. Cal. State Dep’t of Transp., 867 F. Supp. 2d 1058, 1065 (N.D. Cal. 2012) (Alsup, J.).

10

The Rescission addresses none of the considerations appropriate to an action of this magnitude, nor does

11

it articulate a rational connection between the facts found and the action undertaken.

12

Defendants failed to consider any of DACA’s numerous benefits before issuing the Rescission.

13

See App. at 2199-2202, Topics 1-6; App. at 1935-36 (Nealon Dep. 151:21-152:13). Defendants ignored

14

DHS’s own finding, when creating DACA, that “many of [the] young people [eligible for DACA] have

15

already contributed to our country in significant ways.” AR 2. Defendants likewise failed to evaluate

16

the enormous economic benefits of DACA. See App. at 73-74 (Brannon Decl. ¶¶ 10-16); App. at 2205-

17

08, Topics 14, 15, 17, 18, 22; App. at 1873-75 (McCament Dep. 12:14-14:7); App. at 1936-37, 1938

18

(Nealon Dep. 152:15-153:2, 154:9-22) (acknowledging benefits).

19

Defendants also failed to assess—at all—the devastating impact that the Rescission will have on

20

DACA recipients, their families and friends, their employers, employees, clients, or universities, or the

21

public at large. See State Farm, 463 U.S. at 52 (“reasoned decisionmaking” requires agencies to “look

22

at the costs as well as the benefits” of their actions). The fundamental consequence of the Rescission—

23

that nearly 700,000 young people will be vulnerable to deportation to countries that many cannot

24

remember—is not even mentioned. The collateral consequences—the loss of work, the loss of the

25

26

27

28
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1 ability to travel, the damage to DACA recipients’ mental and physical health, the destruction of human

2 capital and potential—are not addressed either.8

3

Defendants also ignored the economic and social costs associated with the Rescission.

4 Rescinding DACA will cause massive economic harm, depleting the country’s workforce and reducing

5 the demand for goods and services. The American economy will lose an estimated $215 billion in GDP

6 over ten years—a loss equivalent to the entire economic output of Oregon—and the federal government

7 alone will lose an estimated $60 billion as a result of the Rescission. See App. at 73 (Brannon Decl. ¶

8 11); see also id. ¶ 14. None of these costs were referenced in the Rescission or incorporated into the

9 agency’s decision-making process. See Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) (ignoring cost,

10 even where the relevant statutes “leave[] agencies with flexibility,” constitutes arbitrary and capricious

11 action).

12

Defendants also ignored the Rescission’s infringement on core constitutional interests. For

13 example, DACA recipients are already being deprived of the ability to travel internationally or practice

14 particular professions. See, e.g., Lester v. Parker, 235 F.2d 787, 789 (9th Cir. 1956) (recognizing the

15 “constitutionally protected right to work”); Greene v. McElroy, 360 U.S. 474, 492 (1959) (recognizing

16 the constitutionally protected right to “hold specific private employment and to follow a chosen

17 profession”); Kent v. Dulles, 357 U.S. 116, 125-26 (1958) (recognizing that the right to travel abroad is a

18 constitutionally protected liberty interest). The interests of educational institutions in choosing whom

19 they will educate and to create a rich and diverse academic climate informed by DACA recipients’

20 perspectives—central aspects of academic freedom protected by the First Amendment—are also being

21 seriously impaired. See App. at 504 (Hexter Decl. ¶ 14).9

22

23

24

8

See, e.g., App. at 724-25 (Lucey Decl. ¶¶ 19-20) (Rescission impacting medical students’

decisions as to whether to enter National Residency Matching Process); App. at 186 (Doe 1 Decl. ¶ 19)

25

(Rescission causing uncertainty about ability to become a lawyer); App. at 1324 (Sati Decl. ¶¶ 45-46) (Rescission causing uncertainty about ability to complete professional school).

26 9

Academic freedom is a First Amendment right that protects a university’s right “to determine for

27

itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (internal citation

28 omitted).

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1

The administrative record here reflects none of the consideration of the benefits or costs that

2 normally would be relevant to agency decisions. Indeed, the decision to rescind DACA was reached

3 after just two-and-a-half hours of meetings and a handful of follow-up conversations. See, e.g., App. at

4 1878-80, 1884-89, 1890-92 (McCament Dep. 72:22-75:17, 124:22-128:16, 130:2-132:7); App. at 1911-

5 26 (Hamilton Dep. 98:6-113:15). The decision was made without input from any of a host of interested

6 or knowledgeable sources. See, e.g., App. at 1942-45 (Nealon Dep. 165:3-168:18); App. at 1904-06

7 (McCament Dep. 240:20-242:5); App. at 2023-24 (Neufeld Dep. 187:6-188:8). Indeed, the agency did

8 not even consult with its own personnel responsible for immigration enforcement. See App. at 2192-93,

9 2196 (Miller Dep. 99:12-19, 100:3-7, 204:1-21).

10

As far as the record reveals, there was no policy rationale for the Rescission at all. Where, as

11 here, there “are no findings and no analysis . . . to justify the choice made,” the APA “will not permit” a

12 court to accept the agency’s decision. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167

13 (1962); see also Crickon v. Thomas, 579 F.3d 978, 985 (9th Cir. 2009) (same).

14

C. Defendants Failed to Offer a Reasoned Explanation for Their Reversal of Policy.

15

When the government reverses its own earlier policy, it has an even greater burden to justify its

16 actions. The agency must “acknowledge and provide an adequate explanation for its departure from

17 established precedent, and an agency that neglects to do so acts arbitrarily and capriciously.” Jicarilla

18 Apache Nation v. U.S. Dep’t of the Interior, 613 F.3d 1112, 1119 (D.C. Cir. 2010) (internal citation

19 omitted); see also Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (agency cannot

20 depart from prior policy without “explaining its changed position”). Thus, reversing a pre-existing

21 policy requires a “more detailed justification than what would suffice for a new policy created on a

22 blank slate.” Fox, 556 U.S. at 515.

23

Here, the Rescission represents a 180-degree reversal of DHS’s prior position on the merits of

24 deferred action and the legality of DACA. In introducing the program in 2012, the agency explained

25 that DACA was “necessary to ensure that [DHS’s] enforcement resources are not expended on [] low

26 priority cases but are instead appropriately focused on people who meet our enforcement priorities.” AR

27 1. It further explained:

28
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1

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

2

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

3

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.

4

5 AR 2. The Rescission did not address these findings at all.

6

With respect to the program’s legality, just two years ago, the government defended DACA

7 before the Ninth Circuit, stating that DACA was “a valid exercise of the Secretary’s broad authority and

8 discretion to set policies for enforcing the immigration laws, which includes affording deferred action

9 and work authorization to certain aliens who, in light of real-world resource constraints and weighty

10 humanitarian concerns, warrant deferral rather than removal.” United States’ Br. as Amicus Curiae,

11 Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017), petition for cert. filed, No. 15-15307 12 (U.S. Mar. 31, 2017), 2015 WL 5120846 at *1.10 DHS made similar arguments before the Fifth Circuit

13 in 2014. See Br. for United States, Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015) (No. 14-10049),

14 2014 WL 10657553; see also Br. for United States at 23, Crane, 2012 WL 6633751 (“It is in the public

15 interest to focus the government’s limited resources to the enforcement of its highest priority cases—

16 such as aliens who pose national security risks, serious criminals, and repeat offenders, rather than to

17 aliens who arrived in the United States as children and have no criminal record.”).

18

Because the Rescission did not address the policy merits of DACA at all, it did not begin to

19 evaluate the reliance interests engendered by the program. Perez, 135 S. Ct. at 1209 (government must

20 provide special justification “when its prior policy has engendered serious reliance interests that must be

21 taken into account”). The policy justification for the program has become ever stronger as DACA

22 recipients, in reliance on the program, have become more educated, better-employed, and even more

23 embedded in the fabric of American life. See supra Background § C. Since 2012, DACA recipients

24 have structured their lives around the program, making decisions to get married, start families, take out

25

26 10

The Ninth Circuit concluded that Arizona’s policy of rejecting documents issued to DACA

27

recipients as proof of authorized presence for the purpose of obtaining a state driver’s license was preempted by federal law, but declined to consider the legality of DACA. Ariz. Dream Act, 855 F.3d at

28 975.

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1 loans, enroll in graduate programs, and build careers in reliance on the government’s promises and

2 representations. See, e.g., App. at 2199-2201, Topics 1, 2, 4, 5.

3

Employers, employees, and institutions likewise have made important decisions in reliance on

4 the government’s representations about DACA. For example, educational institutions like UC have

5 admitted and hired DACA recipients, with the expectation that they would be able to live and teach,

6 research, pursue professional careers, or otherwise work in the United States for the foreseeable future.

7 See, e.g., App. at 2205-06, Topic 14. As DACA recipients are being forced to abandon their work and

8 studies—in many cases dropping out of degree programs—their employers and educational institutions

9 are losing the benefits they derive from the contributions of DACA recipients, as well as the value of the

10 considerable time, effort, energy, and financial resources invested in them. See, e.g., App. at 2205-06,

11 2208, Topics 14, 22. The elimination of DACA will force “systemic, significant changes” to these

12 institutions, see Encino Motors, 136 S. Ct. at 2126, disrupting education, research, and health care as

13 DACA-recipient teachers, scientists, and hospital workers can no longer fulfill those roles.

14

The Rescission’s failure to weigh the reliance interests created by DACA renders it untenable.

15

D. The Rescission Appears to Rely on a False Legal Premise.

16

In his one-page letter, the Attorney General opined that DACA was illegal and should be

17 rescinded. In the Rescission memorandum, the Acting Secretary stated that she was taking this letter

18 “into consideration.” AR 254–55. To the extent the Rescission depends on a conclusion that DACA

19 was illegal, that conclusion is wrong: DACA was a lawful exercise of DHS’s enforcement discretion.

20 And if, contrary to the Attorney General’s letter, DACA is legal, then the Rescission must be set aside.

21 See, e.g., Massachusetts v. EPA, 549 U.S. 497, 532 (2007); Chenery I, 318 U.S. at 94 (“[A]n order may

22 not stand if the agency has misconceived the law.”); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101

23 (9th Cir. 2007); Locke, 626 F.3d at 1051; see also Phillips Petroleum Co. v. FERC, 792 F.2d 1165,

24 1170–71 (D.C. Cir. 1986) (rejecting agency interpretation of statute where agency’s position “was based

25 solely on its erroneous reading” of a Supreme Court case and agency “believed itself bound by” that

26 case).

27

28
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1

1. DACA Is a Lawful Exercise of Enforcement Discretion

2

Contrary to the Attorney General’s assertion that DACA was an unconstitutional exercise of

3 authority by the Executive Branch, DACA was a lawful exercise of well-established enforcement

4 discretion that has been conferred by Congress. Deferred action programs like DACA are a lawful

5 exercise of the Secretary’s broad statutory authority to “[e]stablish[] national immigration enforcement

6 policies and priorities,” 6 U.S.C. § 202(f), and to carry out the “administration and enforcement of th[e

7 INA] and all other laws relating to the immigration and naturalization of aliens,” 8 U.S.C. § 1103(a),

8 including by authorizing aliens to be lawfully employed, 8 U.S.C. § 1324a(h)(2).

9

Prosecutorial discretion is well-recognized as important to the enforcement of the immigration

10 laws. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 490 (1999). This is true both

11 because “[d]iscretion in the enforcement of immigration law embraces immediate human concerns,”

12 such as which individuals “pose less danger than” others, Arizona v. United States, 567 U.S. 387, 396

13 (2012), and because there are many more removable aliens than there are enforcement resources. See

14 AR 4 (“[A]lthough there are approximately 11.3 million undocumented aliens in the country, [DHS] has

15 the resources to remove fewer than 400,000 such aliens each year.”); see also 8 U.S.C. § 1103(a)(3)

16 (granting DHS Secretary authority to “establish such regulations; . . . issue such instructions; and

17 perform such other acts as he deems necessary for carrying out his authority under the [INA]”).

18 Deferred action is explicitly contemplated in DHS’s regulations and “has become a regular feature of the

19 immigration removal system that has been acknowledged by both Congress and the Supreme Court.”

20 AR 16. As set forth above, DHS has often exercised enforcement discretion on not just an individual

21 but a programmatic basis, dating to the 1950s. See Background § A.

22

DACA is entirely consistent with earlier deferred action programs and is a reasonable exercise of

23 DHS’s enforcement authority under the INA. DACA is explicitly framed as an exercise of prosecutorial

24 discretion. See AR 1 (2012 DACA Memorandum sets forth how “in the exercise of our prosecutorial

25 discretion, the Department of Homeland Security (DHS) should enforce the Nation’s immigration

26 laws”). The 2012 DACA Memorandum identifies certain categories of “criteria” that “should be

27 satisfied before an individual is considered for an exercise of prosecutorial discretion.” Id. Some of the

28 criteria provide guidelines for how DHS employees are to exercise their discretion, such as whether the
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1 individual “poses a threat to national security or public safety.” Id. Moreover, the 2012 DACA

2 Memorandum instructs DHS officials to take deferred action under the policy only “on an individual”

3 and “case by case basis,” and to give “consideration . . . to the individual circumstances of each case.”

4 AR 2. Just like past deferred action programs, DACA is a use of “[d]iscretion in the enforcement of

5 immigration law” to “embrace[] immediate human concerns” by deprioritizing enforcement for those

6 who were brought to this country as children, have clean records, and have lived continuously in the

7 United States since 2007. Arizona, 567 U.S. at 396. (“The equities of an individual case may turn on

8 many factors, including whether the alien has . . . long ties to the community.”).

9

Merely because the creation of DACA was an act of prosecutorial discretion does not mean,

10 however, that the termination of DACA is unreviewable. First, courts have emphasized that judicial

11 review of general enforcement policies should proceed. See, e.g., Crowley Caribbean Transp., Inc. v.

12 Peña, 37 F.3d 671, 676 (D.C. Cir. 1994) (“[A]n agency’s statement of a general enforcement policy may

13 be reviewable for legal sufficiency where the agency has . . . articulated it in some form of universal

14 policy statement.”); Edison Elec. Inst. v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993) (distinguishing

15 between a reviewable “Enforcement Policy Statement” and the unreviewable particularized enforcement

16 decision); Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996) (same and collecting cases)). Here,

17 plaintiffs challenge DHS’s wholesale rescission of a program—a clearly justiciable policy choice.

18

Second, DHS’s decision to rescind DACA appears to be based on a legal determination

19 regarding the legality of DACA. Such legal questions fall squarely within the core function of the

20 judiciary; there is “law to apply,” and the policies underlying judicial deference to executive discretion

21 do not come into play. See, e.g., Int’l Longshoremen’s & Warehousemen’s Union v. Meese, 891 F.2d

22 1374, 1378–79 (9th Cir. 1989) (permitting judicial review of advisory opinion and policy statement in

23 light of agency’s interpretation of its organic statute); Edison, 996 F.2d at 333 (explaining that plaintiffs’

24 challenge to agency policy statement involves a challenge to “the [agency’s] interpretation of [the Act]

25 and its implementing regulations . . . Clearly, this interpretation has to do with the substantive

26 requirements of the law; it is not the type of discretionary judgment [that is] shield[ed] from judicial

27 review.”); Pinho v. Gonzales, 432 F.3d 193, 203-04 (3d Cir. 2005) (“purely legal determinations made

28
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1 by the agency [ ] remain subject to judicial review”). Courts can and should say what the law is, rather

2 than abdicating that function to administrative agencies.

3

2. The Texas Decision Is Neither Controlling Nor Persuasive with Respect to

4

DACA

5

The Attorney General’s one-page letter focused on a Fifth Circuit decision affirming a

6 preliminary injunction of DAPA. See AR 51; see also AR 253–255 (citing Texas v. United States

7 (Texas II), 809 F.3d 134 (5th Cir. 2015)). To the extent the Rescission was based on the premise that

8 Texas was controlling or persuasive authority for a finding that DACA was illegal, that premise is

9 mistaken.

10

First, Texas did not even purport to decide the legality of DACA. See, e.g., Texas II, 809 F.3d at

11 172–73 (observing that although district court’s “finding was partly informed by analysis of the

12 implementation of DACA, the precursor to DAPA, any extrapolation from DACA [to DAPA] must be

13 done carefully”); Br. for Pet’rs at 59, Texas, 2016 WL 836758 (“This suit does not challenge the original

14 DACA policy.”).

15

Second, Texas is an out-of-circuit case that does not control this Court or the Ninth Circuit. See,

16 e.g., Int’l Chem. Workers Union Council of the United Food & Commercial Workers Int’l v. NLRB, 467

17 F.3d 742, 748 n.3 (9th Cir. 2006).11 The Supreme Court’s four-four deadlock, see United States v.

18 Texas, 136 S. Ct. 2271 (2016), is not a precedential ruling either. See Neil v. Biggers, 409 U.S. at 192

19 (“If the judges are divided, the reversal cannot be had, for no order can be made.”).

20

Third, the executive branch’s formal public statements affirming DACA’s legality are more

21 persuasive and relevant to evaluating the Rescission than Texas’s provisional evaluation of DAPA. The

22 Office of Legal Counsel expressed its “preliminary view” in 2014 that DACA is “permissible.” AR 21

23 n.8. And the government has vigorously advocated DACA’s legality in court, explaining that the

24 program is “a valid exercise of the Secretary’s broad authority and discretion to set policies for

25

26

11 The Fifth Circuit issued two decisions in Texas—one denying the government’s motion for a stay pending appeal, see Texas v. United States, 787 F.3d 733 (5th Cir. 2015) (Texas I), and a second

27

affirming a preliminary injunction of the DAPA program, see Texas II, 809 F.3d 134. Both decisions are accompanied by powerful, lengthy dissents. See Texas II, 809 F.3d at 188-219 (King, J., dissenting);

28 Texas I, 787 F.3d at 769-84 (Higginson, J., dissenting).

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1 enforcing the immigration laws.” United States’ Br. as Amicus Curiae, Arizona Dream Act, 2015 WL

2 5120846; see also Br. for United States, Crane, 2014 WL 10657553; Br. for United States, Crane, 2012

3 WL 6633751; Br. for Pet’rs at 59–60, Texas, 2016 WL 836758.

4

Fourth, Texas is distinguishable on the facts and the law. DAPA was a deferred action program

5 for certain individuals who were parents of U.S. citizens or lawful permanent residents. See Texas II,

6 809 F.3d at 191 (King, J., dissenting). The Fifth Circuit found that DAPA was not actually discretionary

7 and therefore violated the APA’s notice-and-comment procedures. See id. at 170–78. The same cannot

8 be said for DACA. See Letter to Judge Garaufis from Counsel for Defs. at 5, Batalla Vidal v. Duke, No.

9 16-cv-4756 (E.D.N.Y. Sept. 29, 2017) (Dkt. No. 69) (“the original DACA policy itself . . . is an exercise

10 of ‘prosecutorial discretion’ that is ‘a special province of the Executive’”). Indeed, the Fifth Circuit has

11 acknowledged that the 2012 DACA Memorandum “makes it clear that [ICE] Agents shall exercise their

12 discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case

13 basis.” Crane v. Johnson, 783 F.3d 244, 254-55 (5th Cir. 2015).

14

Moreover, the Fifth Circuit concluded that DAPA was foreclosed by statute because the INA

15 contained “an intricate process for illegal aliens to derive a lawful immigration classification from their

16 children’s immigration status,” and DAPA was inconsistent with the statutory scheme. Texas II, 809

17 F.3d at 179; see also id. at 186. There is no comparable pathway for individuals brought to this country

18 as children.

19

The Fifth Circuit further suggested that the large number of individuals potentially eligible for

20 DAPA suggested administrative overreach. See id. at 181, 183. But more than one-third of the entire

21 undocumented population was eligible for DAPA, compared with less than ten percent potentially

22 eligible for deferred action under DACA. See id. at 148, 174 n.138.

23

Fifth and finally, any application of the Fifth Circuit’s reasoning to DACA would be unfounded,

24 as the government argued to the Supreme Court.12 The Fifth Circuit’s ruling depended heavily on the

25 invalid inference that because an allegedly low percentage of DACA applications had been denied based

26 on discretionary reasons, the discretion embedded in the DAPA program might be illusory. See id. at

27 28 12

See Br. for Pet’rs, Texas, No. 15-674, 2016 WL 836758 (Mar. 1, 2016).
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1 172-76. But it was entirely consistent with the reasonable exercise of discretion for there to be a low

2 denial rate for DACA. As even the Fifth Circuit recognized, “DACA involve[s] . . . self-selecting

3 applicants, and persons who expect[] to be denied relief would seem unlikely to apply.” Texas II, 809

4 F.3d at 174; see also id. (“Eligibility for DACA was restricted to a younger and less numerous

5 population, which suggests that DACA applicants are less likely to have backgrounds that would

6 warrant a discretionary denial.” (footnote omitted)). A declaration from Donald Neufeld, Associate

7 Director for USCIS Service Center Operations confirmed that “deferred action under DACA is a case-

8 specific process that necessarily involves the exercise of the agency’s discretion”; identified “several

9 instances of discretionary denials”; and noted “that approximately 200,000 requests for additional

10 evidence had been made upon receipt of DACA applications.” Id. at 175 (alteration and internal

11 quotation marks omitted).

12

The Fifth Circuit also improperly conflated two separate concepts—lawful presence and legal

13 status—in finding DAPA was a grant of legal status foreclosed by the INA. Those are immigration law

14 terms of art that are distinct. “Whereas legal status implies a right protected by law, legal presence

15 simply reflects an exercise of discretion by a public official.” Texas I, 787 F.3d at 774 (Higginson, J.,

16 dissenting) (internal citation and emphasis omitted); see also Texas II, 809 F.3d at 199 (King, J.,

17 dissenting); Reply Br. for Pet’rs at 16-18, Texas, 2016 WL 75049. DACA does not confer a legal status

18 under the immigration laws, which only Congress can do. Instead, it confers at most lawful presence.

19

In sum, the Rescission cannot be justified on the premise that Texas dictates a finding that

20 DACA was illegal.

21

3. Purported “Litigation Risk” Cannot Justify the Rescission

22

Despite the letter from Attorney General Sessions, the government has not in this litigation nor in

23 Batalla Vidal asserted that DACA was illegal. Instead, it has retreated to the position that DHS could 24 rescind DACA based on mere “litigation risk” stemming from a threat by nine state attorneys general

25 that they would seek to amend their complaint in the Texas case to encompass DACA. This post hoc 26 explanation was not asserted at the time of the Rescission and cannot be accepted as a justification for

27 DHS’s action. Chenery II, 332 U.S. at 196.
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1

Nor can the “litigation risk” rationale withstand scrutiny. “Litigation risk,” standing alone, is not

2 a sufficient reason for the federal government to do anything. The senior DHS official responsible for

3 drafting the Rescission has testified that acting on the basis of “litigation risk” is the “craziest policy you

4 could ever have” as a basis for government action. App. at 1928-26 (Hamilton Dep. 207:20-208:11);

5 see also App. at 1938-39 (Nealon Dep. 154:23-155:11) (not aware of any other policy rescinded due to

6 litigation risk); App. at 2025 (Neufeld Dep. 189:8-22) (not aware of termination of other deferred action

7 programs due to litigation risk or illegality).

8

This case and others illustrate the hollowness of the “litigation risk” rationale. Far from

9 eliminating “litigation risk,” the rescission of DACA predictably prompted at least nine lawsuits,

10 including suits by 19 state attorneys general, as well as universities, cities and counties, private

11 individuals, a union, and a civil rights group. App. at 2090 (Becerra Letter). Thus, “[a]t most, the

12 Department deliberately traded one lawsuit for another.” Organized Vill. of Kake v. U.S. Dep’t of

13 Agric., 795 F.3d 956, 970 (9th Cir. 2015) (agency’s desire to avoid litigation did not satisfy its

14 obligation to provide a reasoned explanation for its change in policy); see also Int’l Union, United Mine

15 Workers of Am. v. U.S. Dep’t of Labor, 358 F.3d 40, 44 (D.C. Cir. 2004) (litigation risk was not valid

16 grounds on which to act); California ex rel. Lockyer v. U.S. Dep’t of Agric., 459 F. Supp. 2d 874, 904

17 (N.D. Cal. 2006) (“legal uncertainty alone [is not] a sufficient justification” for agency action); Sierra

18 Club v. Jackson, 833 F. Supp. 2d 11, 34 (D.D.C. 2012) (similar).

19

To tolerate the “litigation risk” rationale—which could apply to virtually any agency action—

20 would be to countenance an end-run around the APA. An agency could ignore the policy merits of any

21 issue and simply cite litigation risk as a basis for its action. This is untenable. Cf. Mexichem Specialty

22 Resins, Inc. v. EPA, 787 F.3d 544, 557 (D.C. Cir. 2015) (“The risk is that an agency could circumvent

23 the rulemaking process through litigation concessions, thereby denying interested parties the opportunity

24 to oppose or otherwise comment on significant changes in regulatory policy. If an agency could engage

25 in rescission by concession, the doctrine requiring agencies to give reasons before they rescind rules

26 would be a dead letter.”).

27

Even taking “litigation risk” on its own terms, the administrative record does not contain any

28 intelligent assessment of litigation risk that could withstand APA review. A reasonable litigation risk
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1 assessment would have to address the probability of prevailing in the district courts, the courts of

2 appeals, and the Supreme Court, the timing of any resolution and the prospects of a stay of an adverse

3 judgment, and the risks of litigation weighed against the benefits of DACA, among other factors. A

4 reasonable litigation risk analysis would have to consider the government’s prior position that DACA

5 was legal. A reasonable analysis would also need to address the government’s current position that the

6 legality of deferred action programs such as DACA is non-justiciable. If the government were right

7 about that, then there would be no “litigation risk” justifying the Rescission.

8

The administrative record reflects no consideration of any of these factors. Nor does it reflect

9 any consideration of reasonable policy alternatives that could mitigate “litigation risk” while

10 maintaining the benefits of DACA. The government’s “litigation risk” rationale cannot support the

11 Rescission.

12

E. The Announced Reason for the Rescission Was Pretextual

13

The government’s failures to provide a clear explanation for the Rescission, to address DACA’s

14 benefits, or to justify the government’s reversal of position, suggest that the stated reasons for acting are

15 not the true reasons. In addition, the circumstances surrounding the announcement of the Rescission,

16 and subsequent actions by DHS, DOJ, and the White House, show that the Attorney General’s

17 articulated reason for the Rescission—the supposed illegality of DACA—is pretextual:

18

• The very same day as the Rescission, the President tweeted: “Congress now has 6 months to

19

legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!”13 But if the rationale for the Rescission were a genuine belief that DACA

20

was illegal, there would be no basis to “revisit this issue” and possibly reinstate an illegal policy.

21

• DHS did not immediately terminate DACA. Instead, it announced that it would continue

22

processing renewal applications for an additional month for benefits that expired between September 5, 2017 and March 5, 2018, and would recognize DACA grants already conferred,

23

leaving the program in place for at least an additional six months. If DACA were illegal, DHS would have no basis to leave it in place for months and years.

24

• On October 18, 2017, the Attorney General testified to Congress that DACA could be legal

25

under the Texas case if it were implemented “on an individualized basis.” See Oversight of the U.S. Department of Justice: Hearing before the S. Comm. on the Judiciary, 115th Cong.

26

(2017) (testimony of Jefferson B. Sessions, Att’y Gen. of the United States), available at

27 13

See Donald J. Trump (@realDonaldTrump), Twitter (Sept. 5, 2017, 8:38 PM),

28 https://twitter.com/realDonaldTrump/status/905228667336499200.

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1

https://www.judiciary.senate.gov/meetings/10/18/2017/oversight-of-the-us-department-of-

justice. If DACA “lacks statutory authority” and was “an unconstitutional exercise of

2

authority by the Executive Branch,” no manner of implementation by DHS could make it

legal.

3

• The motion to dismiss filed by the government in Batalla Vidal makes no argument that

4

DACA was effectuated without statutory authority or was an unconstitutional exercise of

authority, but relies instead on the “litigation risk” justification.

5

• The Senior Counselor to the Acting Secretary of DHS, who drafted the Rescission, undercut

6

the litigation risk justification when he testified that a policy of reacting to litigation threats

would be the “craziest policy you could ever have” because “you could never do anything if

7

you were always worried about being sued.” App. at 1928-26 (Hamilton Dep. 207:20-

208:11).

8

• In their motion to dismiss in Batalla Vidal, defendants contend that the rescission of DACA

9

is not reviewable under the APA and that the notice and comment requirement, 5 U.S.C. §

553, does not apply to the Rescission. However, if defendants really believed that the Texas

10

decision presented an unmanageable litigation risk, they also must believe that the Texas

decision correctly held that a program like DACA is reviewable and that the notice-and-

11

comment requirement applies.

12 These facts show that the decision to rescind DACA could not have been based on a good-faith
13 belief that the program was unsupported by legislative authority, was an unconstitutional exercise of
14 authority by the executive branch, or presented unmanageable litigation risk. Cf. Hernandez v. Hughes
15 Missile Sys. Co., 362 F.3d 564, 569 (9th Cir. 2004) (conflicting explanations may serve as evidence of
16 pretext); E.E.O.C. v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (same).
17 The true reason for the Rescission appears to have been revealed on October 8, 2017, when
18 President Trump sent a letter to Congressional leaders setting forth the “Immigration Principles and
19 Policies” that he said “must be included as part of any legislation addressing the status of [DACA]
20 recipients.” App. at 1990-99. The New York Times described the “Principles and Policies” as “a long
21 list of hard-line immigration measures,” including funding for a border wall. App. at 2004. This
22 evidence, linking the Rescission to the administration’s legislative strategy, suggests that the decision to
23 rescind DACA was a cynical ploy to make DACA recipients a bargaining chip in order to secure support
24 for harsh immigration legislation from members of Congress who support DACA recipients and would
25 not otherwise support the administration’s immigration agenda. A complete administrative record and
26 further discovery, if permitted by the court of appeals, will enable the parties to prove or disprove this
27

28
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1 point.14 But the current record of shifting explanations is enough evidence of pretext to warrant setting

2 aside the Rescission. See Pub. Citizen, 653 F. Supp. at 1237 (“For an agency to say one thing . . . and do

3 another . . . is the essence of arbitrary action. It indicates that the Secretary’s stated reason may very

4 well be pretextual.” (citation omitted)); see also New England Coal. on Nuclear Pollution, 727 F.2d at

5 1130–31 (agency action arbitrary and capricious where agency’s stated reason does not line up with

6 action); Squaw Transit Co., 574 F.2d at 496 (agency action is arbitrary and capricious where it “does not

7 apply the criteria it has announced as controlling”).

8 II. 9

The Rescission Should Be Vacated Because It Is a Substantive Rule That Did Not Comply with the APA’s Notice and Comment Requirements

10

The Rescission also fails to meet the APA’s procedural requirements. The Rescission is a

11 categorical rule limiting the power of DHS to exercise discretion, and DHS was therefore required to

12 abide by the full panoply of APA procedures including notice and comment in order to promulgate it. It

13 did not do so.

14

Under the APA, substantive rules must go through notice and comment rulemaking before they

15 become effective. San Diego Air Sports Ctr., Inc. v. F.A.A., 887 F.2d 966, 971 (9th Cir. 1989); see also

16 5 U.S.C. § 551(5) (defining “rule making” to include “repealing a rule”). A rule is substantive if it

17 “narrowly limits administrative discretion” or establishes a “binding norm” that “so fills out the statutory

18 scheme that upon application one need only determine whether a given case is within the rule’s

19 criterion.” Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th Cir. 2009) (internal

20 citation omitted). The ultimate question in discerning between substantive rules and non-binding policy

21 statements “is the agency’s intent to be bound.” Municipality of Anchorage v. United States, 980 F.2d

22 1320, 1325 (9th Cir. 1992) (internal citation omitted).

23

The Rescission is a substantive rule at least because it (1) binds DHS and limits its discretion,

24 and (2) bans DACA recipients from applying for and traveling on advance parole.

25

26

27 14

Pretextuality is one of the forms of “bad faith or improper behavior” that warrants discovery

28 from agency decisionmakers. Overton Park, 401 U.S. at 420.

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1

There can be no dispute that DHS intends to be bound by the Rescission, and that the Rescission

2 limits the agency’s discretion. See Colwell, 558 F.3d at 1124; Cmty. Nutrition Inst. v. Young, 818 F.2d

3 943, 948 (D.C. Cir. 1987) (“cabining of an agency’s prosecutorial discretion can in fact rise to the level

4 of a substantive, legislative rule”). The Rescission is a blanket prohibition that DHS and its agents must

5 apply in all DACA cases. As of September 5, 2017, DHS is flatly prohibited from accepting new

6 DACA applications, and as of October 5, 2017, is flatly prohibited from issuing DACA renewals.

7 Unlike DACA, the Rescission makes no exceptions for case-by-case determinations. See, e.g., AR 255

8 (stating that DHS will “reject all DACA renewal requests and associated applications for Employment

9 Authorization Documents filed outside of the parameters” set forth in the Rescission).15 By its terms,

10 the Rescission thus ensures that new or renewed requests for deferred action will be categorically

11 denied. Such mandatory language evinces a substantive rule. See Anchorage, 980 F.2d 1324 (the

12 “critical factor” in evaluating the substantive nature of an agency action is “the extent to which the

13 challenged [action] leaves the agency, or its implementing official, free to exercise discretion to follow,

14 or not to follow, the [announced] policy in an individual case” (internal citation omitted)); Alaska v. U.S.

15 Dep’t of Transp., 868 F.2d 441, 447 (D.C. Cir. 1989) (holding that agency order was a rule in part due to

16 “mandatory language cabining DOT’s enforcement discretion”). The Rescission’s only reference to

17 DHS’s discretion is its discretion to terminate, not continue, grants of deferred action. See AR 255

18 (DHS will “continue to exercise its discretionary authority to terminate or deny deferred action at any

19 time when immigration officials determine termination or denial of deferred action is appropriate”).

20

The Rescission is similarly categorical and substantive in banning current DACA recipients from

21 receiving advance parole based on their DACA eligibility. See id. (DHS “[w]ill not approve any new

22 Form I-131 applications for advance parole under standards associated with the DACA program” and

23 “[w]ill administratively close all pending Form I-131 applications” filed under DACA program). The

24

25 15 While the face of the Rescission admits no exceptions, DHS’s website states that it “will

26

consider DACA requests received from residents of the U.S. Virgin Islands and Puerto Rico on a caseby-case basis.” App. at 1894-95 (McCament Dep. 189:15-190: 13, 192:18-22) (USCIS not considering

27

whether to accept late applications from other geographic areas subject to natural disasters aside from Puerto Rico and U.S. Virgin Islands); App. at 2011-12 (Neufeld Dep. 113:2-114:18) (similar). See also

28 https://www.uscis.gov/archive/i-821d.

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1 ban on advance parole is a “binding norm,” such that DHS officials “need only determine whether a

2 given case is within the [the Rescission]’s criterion”; i.e., whether an individual with DACA seeks

3 advance parole. See Colwell, 558 F.3d at 1124.

4

By creating a categorical rule barring DACA recipients from renewing their grants of deferred

5 action and precluding new potential DACA recipients from obtaining deferred action under DACA,

6 DHS promulgated a substantive rule without following the proper procedures including notice and

7 comment, see 5 U.S.C. § 553, and an assessment of effects on small entities, see 5 U.S.C. § 604(a). The

8 Rescission must therefore be set aside. See Paulsen v. Daniels, 413 F.3d 999, 1003-04 (9th Cir. 2005)

9 (concluding that Bureau of Prisons “plainly violated the APA” by promulgating a rule that barred

10 category of prisoners from relief without notice).

11

In this regard, it is irrelevant that the 2012 DACA Memorandum did not go through the notice-

12 and-comment process. DACA was an exercise of prosecutorial discretion and not required to go

13 through notice and comment. See 5 U.S.C. § 553(b)(A); Lincoln v. Vigil, 508 U.S. 182, 197 (1993). By

14 contrast, the Rescission does not present itself as an exercise of DHS’s discretion, and in fact prohibits

15 the exercise of discretion in the adjudication of applications for deferred action.

16

In addition, DHS’s obligation to follow notice-and-comment procedures for the Rescission exists

17 whether or not DACA itself went through such procedures. See 5 U.S.C. § 551(5) (defining “rule

18 making” to include “repealing a rule”); see also Consumer Energy Council of Am. v. FERC, 673 F.2d

19 425, 448 (D.C. Cir. 1982) (“[T]he argument that repeal was required because the regulations were

20 defective does not explain why notice and comment could not be provided.”); id. at 447 n.79 (allowing

21 repeal, without notice and comment, of a defective rule “would ignore the fact that the question whether

22 the regulations are indeed defective is one worthy of notice and an opportunity to comment”). As the

23 Ninth Circuit observed, “when the government seeks to repeal a regulation, it is generally not bound for

24 [notice-and-comment] purposes by the way it classified that regulation at the time of its promulgation.”

25 Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1018 n.12 (9th Cir. 1987).

26

Under strikingly similar circumstances, the blanket rescission of a deferred action program has

27 been found to require notice and comment, even where the deferred action program itself was adopted

28 without such procedures. See Parco, 426 F. Supp. at 980–81 (holding that memorandum revoking
33
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1 existing discretion of immigration officials to extend indefinitely the voluntary departure of certain

2 categories of immigrants must be subjected to notice and comment). Because the rescission in Parco

3 left no discretion for agency officials considering requests for deferred action, it was “in reality a flat

4 rule of eligibility” requiring notice and comment. Id. at 984-85 (distinguishing Noel v. Chapman, 508

5 F.2d 1023 (2d Cir. 1975), which considered a program providing the agency official “sole discretion”

6 over applications for departure extensions).

7

The Rescission illustrates why the notice-and-comment process is so important. The record

8 developed through a proper procedure would have ensured that DHS did not “undo all that it

9 accomplished” through DACA “without giving all parties an opportunity to comment on the wisdom” of

10 that action. See Consumer Energy Council of Am., 673 F.2d at 446. Had DHS considered the evidence

11 that would have been presented in the notice-and-comment process—such as the Rescission’s

12 devastating effects on DACA recipients and their families and its broader consequences for employers,

13 educators, and the economy—the Rescission could not reasonably have been adopted.

14

PLAINTIFFS SATISFY THE REMAINING REQUIREMENTS FOR INJUNCTIVE RELIEF

15

The other preliminary injunction requirements are likewise satisfied because plaintiffs will suffer

16 irreparable harm without provisional relief, the balance of equities tips sharply in their favor, and

17 provisional relief is in the public interest.

18 I. 19

Plaintiffs Face Irreparable Harm. The Rescission is already inflicting severe and irreparable harm on plaintiffs, as discussed above

20 and in the attached Appendix. DACA recipients, including the individual plaintiffs and DACA-recipient

21 UC students, have already lost eligibility to travel using advance parole, in some cases with irreparable

22 consequences for their careers. App. at 2210, Topic 23. They are being forced right now to make

23 decisions with life-altering personal and professional consequences—such as whether to pursue or

24 continue professional educations and whether to forego the process for matching to a medical residency,

25 an opportunity virtually impossible to recover. App. 2204-2206, 2209, Topics 9-12, 20. The “loss of

26 opportunity to pursue one’s chosen profession constitutes irreparable harm.” Ariz. Dream Act Coalition

27 v. Brewer, 855 F.3d 957, 978 (9th Cir. 2017). This irreparable injury is further “exacerbated by

28 Plaintiffs’ young age and fragile economic status.” Id.
34
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1

The Rescission has caused serious emotional harm to the individual plaintiffs and DACA-

2 recipient university and community college students, who have lost the security of knowing they will be

3 able to live and work in the United States and are experiencing resulting anxiety, depression, and fear.

4 See App. at 2204-05, Topics 12-13; see also App. at 2202, Topic 8 (University of California has

5 observed increase in demand for mental health services, which it cannot fully meet). These emotional

6 and psychological injuries constitute irreparable harm. See, e.g., Chalk v. U.S. Dist. Court Cent. Dist. of

7 Cal., 840 F.2d 701, 710 (9th Cir. 1988); Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1193 (N.D. Cal.

8 2015). Beyond the losses experienced by individual DACA recipients, the Rescission is harming their

9 affiliated institutions such as the University of California, and cities and states within which they reside

10 and work, causing imminent, irreparable harm to plaintiff States, plaintiff County of Santa Clara,

11 plaintiff City of San Jose, and plaintiff University of California. See, e.g., App. at 2205-07, Topics 14,

12 17. As set forth above, DACA has resulted in the integration of hundreds of thousands of individuals

13 into the American social and economic fabric. The decisions made over the next few months by DACA

14 recipients will have irreparable consequences for their communities and State and local governments,

15 including the immediate losses of valued students, employees, and community members, along with

16 erosion of the gains in economic output, public health, and safety that resulted from DACA. In this

17 situation, “[a] delay, even if only a few months, pending trial represents precious, productive time

18 irretrievably lost.” Enyart v. Nat’l Conference of Bar Examiners, Inc., 630 F.3d 1153, 1166 (9th Cir.

19 2011).

20 II. 21

The Balance Of Equities and the Public Interest Weigh Heavily in Favor of Provisional Relief.

22

The final two elements of the preliminary injunction test—the balance of the equities and the

23 public interest—merge when the government is a party. See League of Wilderness Defs./Blue

24 Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). In assessing these

25 factors, courts consider the impacts of the injunction on nonparties as well. See id. at 766.

26

The balance of the equities and the public interest weigh overwhelmingly in favor of provisional

27 relief. DACA recipients are integral contributors to their families, schools, employers, communities,

28 and the United States as a whole. DACA permits recipients to earn a living in the United States, support

35
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1 their families, and attend college. See, e.g., App at 2199-2200, Topic 2; see also App. at 2206-07, Topic

2 17; App. at 224-30 (Essig Decl. ¶¶ 8-10, 12-13); App. at 1347-48 (J. Smith Decl. ¶ 6); App. at 1505,

3 1515-16, 1518-19, 1520-21 (Wong Decl. ¶¶ 21, 43, 49, 55); App. at 2199-2200, 2206-07, Topics 2, 17;

4 see also App. at 1504, 1509 (Wong Decl. ¶¶ 20, 30).

5

Moreover, the harm of taking DACA away from nearly 700,000 current DACA recipients would

6 be a loss of $215 billion in U.S. GDP over the next ten years, App. at 73 (Brannon Decl. ¶ 11), and those

7 losses are beginning now as DACA recipients prepare for the possibility of deportation. Enjoining the

8 rescission of the DACA program and allowing these individuals to continue contributing to their

9 communities and the country at large is in the public interest.

10

An injunction would also further public health and safety, which will suffer due to the

11 Rescission. For example, as individuals lose DACA protection they may become less likely to interact

12 with law enforcement even if they are victimized or witness crimes. See App. at 1342 (Smith Decl. ¶¶

13 7-8); App. at 1287-88 (Rosen Decl. ¶¶ 3, 5). Without work authorization, DACA recipients will not be

14 able to continue filling crucial positions providing public services. App. at 2209, Topic 18; see also

15 App. at 96 (Carrizales Decl. ¶¶ 9-10); App. at 790-91 (McLeod Decl. ¶ 6); App. at 1109 (Oh Decl. ¶ 6).

16 The Rescission also would cause many DACA recipients to lose health insurance, see App. at 716

17 (Lorenz Decl. ¶ 7); App. at 1310 (Santos Toledo Decl. ¶ 26); App. at 1324 (Sati Decl. ¶ 48); App. at

18 1448 (Tabares Decl. ¶ 14), and an increased uninsured population will burden emergency healthcare

19 services and reduce overall public health as people become reluctant to seek medical care due to lack of

20 insurance or fear of being reported to immigration authorities, see App. 2206, Topic 15; App. at 0177-78

21 (Cody Decl. ¶¶ 11-13); App. at 777, 0779 (Márquez Decl. ¶¶ 12, 17); App. at 0716 (Lorenz Decl. ¶¶ 6–

22 7). The Rescission also will likely contribute to an increase in the number of children using government

23 child welfare services programs, see App. at 0779 (Márquez Decl. ¶ 18), and contribute to heightened

24 levels of stress and anxiety in children whose parents face uncertain immigration status, see App. at 814-

25 16 (F. Mendoza Decl. ¶¶ 4, 6-8); App. at 464-67 (Hainmueller Decl. ¶¶ 4-11).

26

The government will not face any harm if a preliminary injunction is granted. There will be no

27 harm—and much benefit—to the United States if DHS continues to process new applications for DACA

28 status and renewal applications pending a final judgment. Furthermore, the government has no interest
36
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Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 46 of 51

1 in enforcing unlawful rules. See Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (“[The

2 government] cannot suffer harm from an injunction that merely ends an unlawful practice.”); Arizona

3 Dream Act, 855 F.3d at 978 (“[I]t is clear that it would not be equitable or in the public’s interest to

4 allow the state to violate the requirements of federal law, especially when there are no adequate

5 remedies available.” (quoting Valle del Sol v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013)). Moreover,

6 it is estimated that up to 200,000 individuals have had their DACA grants renewed since President

7 Trump took office. App. at 2092 (CAP Study). If the government believed DACA recipients presented

8 a serious harm to its interests, the administration would not have continued granting renewals for almost

9 nine months.

10

Accordingly, both the balance of the equities and the public interest favor provisional relief.

11

*

*

*

12

Plaintiffs have demonstrated a strong prospect of success on the merits, and have established

13 irreparable harm if the Rescission is permitted to proceed. The balance of equities and the public

14 interest likewise point to a single conclusion: the Court should award provisional relief.

15

16

CONCLUSION

17

For the foregoing reasons, this Court should enjoin defendants from proceeding with the

18 Rescission and should award provisional relief directing the government to restore the DACA program

19 pending adjudication on the merits.

20

21

22

23

24

25

26

27

28
37
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Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 47 of 51

1 Dated: November 1, 2017

Respectfully submitted,

2

3 COVINGTON & BURLING LLP

XAVIER BECERRA Attorney General of California

4 /s/ Jeffrey M. Davidson Jeffrey M. Davidson (SBN 248620)

MICHAEL L. NEWMAN Supervising Deputy Attorney General

5 Alan Bersin (SBN 63874)

6

One Front Street, 35th Floor San Francisco, CA 94111-5356

/s/ James F. Zahradka II JAMES F. ZAHRADKA II (SBN 196822)

7

Telephone: (415) 591-6000 Facsimile: (415) 591-6091

Deputy Attorney General

8 Email: jdavidson@cov.com

CHRISTINE CHUANG REBEKAH A. FRETZ

9 Lanny A. Breuer (pro hac vice)

RONALD H. LEE

10

Mark H. Lynch (pro hac vice) Alexander A. Berengaut (pro hac vice)

KATHLEEN VERMAZEN RADEZ SHUBHRA SHIVPURI

11

Megan A. Crowley (pro hac vice) Ashley Anguas Nyquist (pro hac vice)

1515 Clay Street, 20th Floor Oakland, CA 94612-0550

12 Jonathan Y. Mincer (Bar No. 298795) Ivano M. Ventresca (pro hac vice)
13 COVINGTON & BURLING LLP

Telephone: (510) 879-1247 Attorneys for Plaintiff State of California

14

One CityCenter 850 Tenth Street, NW

JANET T. MILLS

15

Washington, DC 20001-4956 Telephone: (202) 662-6000

Attorney General of Maine SUSAN P. HERMAN (pro hac vice)

16 Facsimile: (202) 662-6291

Deputy Attorney General

E-mail: lbreuer@cov.com, mlynch@cov.com, 6 State House Station

17 aberengaut@cov.com, mcrowley@cov.com,

Augusta, Maine 04333

18

anyquist@cov.com, jmincer@cov.com, iventresca@cov.com

Telephone: (207) 626-8814 Email: susan.herman@maine.gov

19 Mónica Ramírez Almadani (SBN 234893)

20 COVINGTON & BURLING LLP

1999 Avenue of the Stars 21 Los Angeles, CA 90067-4643

22

Telephone: (424) 332-4800 Facsimile: (424) 332-4749

23 Email: mralmadani@cov.com

24 Erika Douglas (SBN 314531)

COVINGTON & BURLING LLP 25 333 Twin Dolphin Drive, Suite 700

26

Redwood Shores, CA 94061-1418 Telephone: (650) 632-4700

27 Facsimile: (650) 632-4800 Email: edouglas@cov.com

28

Attorneys for Plaintiff State of Maine
BRIAN E. FROSH Attorney General of Maryland STEVEN M. SULLIVAN (pro hac vice) Solicitor General 200 Saint Paul Place, 20th Floor Baltimore, Maryland 21202 Telephone: (410) 576-6325 Email: ssullivan@oag.state.md.us
Attorneys for Plaintiff State of Maryland

PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF; MEMORANDUM IN SUPPORT All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

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1 Charles F. Robinson (SBN 113197)

2

Margaret Wu (Bar No. 184167) Julia M. C. Friedlander (SBN 165767)

3

Sonya Sanchez (SBN 247541) Norman Hamill (SBN 154272)

4 Harpreet Chahal (SBN 233268) Michael Troncoso (SBN 221180)

5 University of California

6

Office of the General Counsel 1111 Franklin Street, 8th Floor

7

Oakland, CA 94607-5200 Telephone: (510) 987-9800

8 Facsimile: (510) 987-9757 Email: charles.robinson@ucop.edu

9

LORI SWANSON Attorney General State of Minnesota JULIANNA F. PASSE (pro hac vice) Assistant Attorney General 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 Telephone: (651) 757-1136 Email: julianna.passe@ag.state.mn.us
Attorneys for Plaintiff State of Minnesota

10

Attorneys for Plaintiffs The Regents of the University of California and Janet Napolitano,

11 in her official capacity as President of the University of California
12

13 GIBSON, DUNN & CRUTCHER LLP 14 /s/ Theodore J. Boutrous, Jr.

COTCHETT, PITRE & McCARTHY, LLP OFFICE OF THE CITY ATTORNEY /s/ Nancy L. Fineman

15 THEODORE J. BOUTROUS, JR., SBN 132099 NANCY L. FINEMAN

16 tboutrous@gibsondunn.com

BRIAN DANITZ (SBN 247403)

KATHERINE M. MARQUART, SBN 248043 bdanitz@cpmlegal.com

17 kmarquart@gibsondunn.com

TAMARAH P. PREVOST (SBN 313422)

JESSE S. GABRIEL, SBN 263137 18 jgabriel@gibsondunn.com

tprevost@cpmlegal.com San Francisco Airport Office Center

19

333 South Grand Avenue Los Angeles, CA 90071-3197

840 Malcolm Road, Suite 200 Burlingame, CA 94010

20 Telephone: (213) 229-7000 Facsimile: (213) 229-7520

Telephone: (650) 697-6000 Facsimile: (650) 697-0577

21

22

ETHAN D. DETTMER, SBN 196046 edettmer@gibsondunn.com

RICHARD DOYLE (SBN 88625) NORA FRIMANN (SBN 93249)

23

555 Mission Street San Francisco, CA 94105

OFFICE OF THE CITY ATTORNEY 200 East Santa Clara Street, 16th Floor

24 Telephone: (415) 393-8200 Facsimile: (415) 393-8306

San José, California 95113 Telephone: (408) 535-1900

25

Facsimile: (408) 998-3131

26

Email Address: cao.main@sanJoséca.gov

27

Attorneys for Plaintiff City of San Jose

28

PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF; MEMORANDUM IN SUPPORT All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 49 of 51

1 PUBLIC COUNSEL

2

MARK D. ROSENBAUM, SBN 59940 mrosenbaum@publiccounsel.org

3

JUDY LONDON, SBN 149431 jlondon@publiccounsel.org

4 610 South Ardmore Avenue

Los Angeles, CA 90005 5 Telephone: (213) 385-2977

6 Facsimile: (213) 385-9089

7

BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO, SBN 310852

8 lcortes@barreralegal.com

19309 68th Avenue South, Suite R102 9 Kent, WA 98032

10

Telephone: (253) 872-4730 Facsimile: (253) 237-1591

11 LAURENCE H. TRIBE, SBN 39441

12 larry@tribelaw.com Harvard Law School

13

*Affiliation for identification purposes only 1575 Massachusetts Avenue

14

Cambridge, MA 02138 Telephone: (617) 495-1767

15 ERWIN CHEMERINSKY, pro hac vice

16 forthcoming

echemerinsky@law.berkeley.edu 17 University of California, Berkeley School of

18

Law *Affiliation for identification purposes only

19 215 Boalt Hall Berkeley, CA 94720-7200

20 Telephone: (510) 642-6483

21 LEAH M. LITMAN, pro hac vice

22

forthcoming llitman@law.uci.edu University of California, Irvine School of Law

23 *Affiliation for identification purposes only 401 East Peltason Drive Irvine, CA 92697

24 Telephone: (949) 824-7722

25 Attorneys for Plaintiffs DULCE GARCIA,
26 MIRIAM GONZALEZ AVILA, SAUL JIMENEZ SUAREZ, VIRIDIANA CHABOLLA
27 MENDOZA, NORMA RAMIREZ, and JIRAYUT LATTHIVONGSKORN
28

PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF; MEMORANDUM IN SUPPORT All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 50 of 51

1

2 /s/ James R. Williams

3 JAMES R. WILLIAMS, County Counsel

4 GRETA S. HANSEN

LAURA S. TRICE 5 laura.trice@cco.sccgov.org

6

MARCELO QUIÑONES marcelo.quinones@cco.sccgov.org

7

OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA

8 70 West Hedding Street

East Wing, Ninth Floor 9 San Jose, CA 95110-1770

10

Telephone: (408) 299-5900 Facsimile: (408) 292-7240

11 Attorneys for Plaintiff COUNTY OF SANTA
12 CLARA

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

/s/ Eric P. Brown
JONATHAN WEISSGLASS jweissglass@altber.com STACEY M. LEYTON sleyton@altber.com ERIC P. BROWN ebrown@altber.com ALTSHULER BERZON LLP 177 Post St., Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151
Attorneys for Plaintiffs COUNTY OF SANTA CLARA AND SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521

PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF; MEMORANDUM IN SUPPORT All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111 Filed 11/01/17 Page 51 of 51

1

ATTESTATION

2

I, Jeffrey M. Davidson, hereby attest, pursuant to Civil L.R. 5-1, that I have received

3 authorization to electronically sign and file this document from each of the persons identified in the

4 signature block.

5 Dated: November 1, 2017 6 7 8 9

/s/ Jeffrey M. Davidson Jeffrey M. Davidson
Counsel for Plaintiffs The Regents of the University of California and Janet Napolitano, in her official capacity as President of the University of California

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF; MEMORANDUM IN SUPPORT All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-1 Filed 11/01/17 Page 1 of 2

ADDENDUM A

HISTORY OF DEFERRED ACTION

Program

Creation

Termination

1 1956: Parole of orphans Presidential statement Act of Sept. 11, 1957, Pub. L. No.

adopted by U.S. citizens

85-316, § 4(d), 71 Stat. 639, 710

(1957) allowed paroled individuals

to become lawful permanent

residents

2 1956: Parole of

Presidential statement Act of July 25, 1958, Pub. L. No.

Hungarian refugees after

85-559, §2, 72 Stat. 419, 419-20

unsuccessful Hungarian

(1958) allowed paroled individuals

revolution

to become lawful permanent

residents

3 1956: Third Preference INS Operating

Notice and comment procedures.

visa petitioners granted Instruction

The INS originally attempted to

voluntary extended

242.10(a)(6)(i)

terminate the program with a

departure

perfunctory explanation in a memo

from the INS Associate

Commissioner of Operations, but a

district court held this violated the

APA’s notice and comment

requirements.

4 1961: Cuban Refugee

Presidential letter

Memorandum of Understanding

Program

with Cuba in 1965 and passage of

Cuban Adjustment Act

5 1962: Hong Kong Parole Presidential

Passage of Immigration and

Program in response to authorization of

Nationality Act of 1965

famine in China

Attorney General’s

use of parole authority

6 1975: Parole for

Presidential

Passage of the Refugee Act of

Southeast Asian refugees authorization of

1980, Pub. L. No. 96-212, 94 Stat.

Attorney General’s 102 (1980)

use of parole authority

7 1981: Polish refugees

Extended voluntary Reagan Administration ended

granted extended

departure

program when relations improved

voluntary departure

with Poland; existing beneficiaries

retained extended voluntary

departure

8 1987: Family Fairness INS Commissioner Passage of the Immigration Act of

Program

memo

1990, Pub. L. No. 101-649, 104

Stat. 4978 (1990)

9 1990: Expansion of

INS Commissioner Passage of the Immigration Act of

Family Fairness Program memo

1990, Pub. L. No. 101-649, 104

Stat. 4978 (1990)

1

Case 3:17-cv-05211-WHA Document 111-1 Filed 11/01/17 Page 2 of 2

10 1990: Certain Chinese Executive Order

Program was time-limited at

nationals provided

12711

inception, terminating January 1,

deferred enforced

1994

departure after Tiananmen

Square protests

11 1997: Petitioners for

INS Acting Executive N/A – still in place

relief under Violence

Associate

Against Women Act

Commissioner memo

12 2001: Applicants for

INS Acting Executive Codified into regulations regarding

nonimmigrant status or Associate

T and U visa status

visas made available

Commissioner memo

under the Victims of

Trafficking and Violence

Protection Act

13 2002: Certain T visa

INS Executive

Promulgation of regulations

applicants were provided Associate

codifying this policy, 8 C.F.R. §

deferred action

Commissioner memo 214.11(k)(1), (k)(4), (m)(2)

14 2003: Certain U visa

INS Associate

Promulgation of regulations

applicants were provided Director of Operations codifying this policy, 8 C.F.R. §

deferred action

memo

214.14(d)(2)

15 2005: Foreign students USCIS Press Release Program was time-limited from

affected by Hurricane

inception, terminating February 1,

Katrina were provided

2006

deferred action

16 2007: Certain Liberians Presidential memo

N/A – still in place

were provided deferred

enforced departure

17 2009: Certain surviving USCIS Acting

Passage of Section 568(c) of the

spouses of U.S. citizens Associate Director

Department of Homeland Security

provided were deferred memo

Appropriations Act, Pub. L. No.

action

111-83, 123 Stat. 4142, 4186

(2009)

2

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 1 of 12

1 JEFFREY M. DAVIDSON (SBN 248620)

XAVIER BECERRA

ALAN BERSIN (SBN 63874)

Attorney General of California

2 COVINGTON & BURLING LLP

MICHAEL L. NEWMAN

One Front Street, 35th Floor

Supervising Deputy Attorney General

3 San Francisco, CA 94111-5356

JAMES F. ZAHRADKA II (SBN 196822)

Telephone: (415) 591-6000

1515 Clay Street, 20th Floor

4 Facsimile: (415) 591-6091

P.O. Box 70550

Email: jdavidson@cov.com,

Oakland, CA 94612-0550

5 abersin@cov.com

Telephone: (510) 879-1247

Attorneys for Plaintiffs The Regents of the

Email: James.Zahradka@doj.ca.gov

6 University of California and Janet Napolitano, in Attorneys for Plaintiff State of California

her official capacity as President of the 7 University of California

JOSEPH W. COTCHETT (SBN 36324) NANCY L. FINEMAN (SBN 124870)

8 THEODORE J. BOUTROUS, JR. (SBN 132099) COTCHETT, PITRE & McCARTHY, LLP

ETHAN D. DETTMER (SBN 196046)

San Francisco Airport Office Center

9 JESSE S. GABRIEL (SBN 263137)

840 Malcolm Road, Suite 200

GIBSON, DUNN & CRUTCHER LLP

Burlingame, CA 94010

10 333 South Grand Avenue

Telephone: (650) 697-6000

Los Angeles, CA 90071-3197

Facsimile: (650) 697-0577

11 Telephone: (213) 229-7000

Email: nfineman@cpmlegal.com

Facsimile: (213) 229-7520 12 Email: tboutrous@gibsondunn.com,

Attorneys for Plaintiff City of San Jose

edettmer@gibsondunn.com,

JONATHAN WEISSGLASS (SBN 185008)

13 jgabriel@gibsondunn.com

STACEY M. LEYTON (SBN 203827)

Attorneys for Plaintiffs Dulce Garcia, Miriam ERIC P. BROWN (SBN 284245) 14 Gonzalez Avila, Saul Jimenez Suarez, Viridiana ALTSHULER BERZON LLP

Chabolla Mendoza, Norma Ramirez, and Jirayut 177 Post Street, Suite 300

15 Latthivongskorn

San Francisco, CA 94108

Telephone: (415) 421-7151

16 [Additional Counsel Listed on Signature Page] Facsimile: (415) 362-8064 Email: jweissglass@altber.com

17

Attorneys for Plaintiffs County of Santa Clara and

Service Employees International Union Local 521 18
UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

20 THE REGENTS OF THE UNIVERSITY OF

CASE NO. 17-CV-05211-WHA

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

REQUEST FOR JUDICIAL NOTICE IN

22 University of California,

SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF

23

Plaintiffs,

24

v.

25 U.S. DEPARTMENT OF HOMELAND SECURITY and ELAINE DUKE, in her
26 official capacity as Acting Secretary of the Department of Homeland Security,
27 Defendants.
28

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 2 of 12

1 STATE OF CALIFORNIA, STATE OF MAINE, STATE OF MARYLAND, and
2 STATE OF MINNESOTA,

CASE NO. 17-CV-05235-WHA

3

Plaintiffs,

4

v.

5 U.S. DEPARTMENT OF HOMELAND SECURITY, ELAINE DUKE, in her official
6 capacity as Acting Secretary of the Department of Homeland Security, and the UNITED
7 STATES OF AMERICA,

8

Defendants.

9 CITY OF SAN JOSE, a municipal corporation, CASE NO. 17-CV-05329-WHA

10

Plaintiffs,

11

v.

12 DONALD J. TRUMP, President of the United States, in his official capacity, ELAINE C.
13 DUKE, in her official capacity, and the UNITED STATES OF AMERICA,
14 Defendants.
15 DULCE GARCIA, MIRIAM GONZALEZ
16 AVILA, SAUL JIMENEZ SUAREZ, VIRIDIANA CHABOLLA MENDOZA,
17 NORMA RAMIREZ, and JIRAYUT LATTHIVONGSKORN,
18 Plaintiffs,
19 v.
20 UNITED STATES OF AMERICA, DONALD
21 J. TRUMP, in his official capacity as President of the United States, U.S. DEPARTMENT OF
22 HOMELAND SECURITY, and ELAINE DUKE, in her official capacity as Acting
23 Secretary of Homeland Security,

CASE NO. 17-CV-05380-WHA

24

Defendants.

25

26

27

28

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 3 of 12

1 COUNTY OF SANTA CLARA and SERVICE EMPLOYEES INTERNATIONAL
2 UNION LOCAL 521,

3

Plaintiffs,

4

v.

5 DONALD J. TRUMP, in his official capacity as President of the United States, JEFFERSON
6 BEAUREGARD SESSIONS, in his official capacity as Attorney General of the United
7 States; ELAINE DUKE, in her official capacity as Acting Secretary of the Department
8 of Homeland Security; and U.S. DEPARTMENT OF HOMELAND
9 SECURITY,

10

Defendants.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CASE NO. 17-CV-05813-WHA

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 4 of 12

1

PLEASE TAKE NOTICE that Plaintiffs The Regents of the University of California,

2 Janet Napolitano, in her official capacity as President of the University of California, the States of

3 California, Maine, Maryland, and Minnesota, Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez

4 Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, Jirayut Latthivongskorn, City of San Jose,

5 County of Santa Clara and Service Employees International Union Local 521 (collectively, “Plaintiffs”)

6 hereby request, pursuant to Rule 201 of the Federal Rules of Evidence, that the Court take judicial notice

7 of the items described below in connection with Plaintiffs’ Motion for Provisional Relief, filed

8 concurrently herewith. Plaintiffs request judicial notice of the following documents attached as Exhibits

9 to the Declaration of Jesse Gabriel in Support of Plaintiffs’ Motion for Provisional Relief:

10

1. Exhibit A: Memorandum from INS General Counsel Sam Bernsen to INS Commissioner titled

11

“Legal Opinion Regarding Service Exercise of Prosecutorial Discretion,” dated July 15, 1976, available at https://goo.gl/uXW6Sg.

12

2. Exhibit B: Statement by President Dwight Eisenhower Concerning the Entry Into the United

13

States of Adopted Foreign-Born Orphans, dated October 26, 1956, available at

https://goo.gl/VDfcgW. 14

15

3. Exhibit C: White House Statement Concerning the Admission of Additional Hungarian Refugees, dated December 1, 1956, available at https://goo.gl/D4DMuS.

16

4. Exhibit D: Letter from President John F. Kennedy to Secretary Abraham Ribicoff, dated January

17

27, 1961, available at https://goo.gl/Hnf1LL.

18

5. Exhibit E: USCIS publication titled “Refugee Timeline,” last updated June 27, 2017, available at

https://goo.gl/5fhA9y.

19

6. Exhibit F: “Legalization and Family Fairness – An Analysis” by Alan Nelson, dated October 26,

20

1987.

21

7. Exhibit G: Memorandum from INS Commissioner Gene McNary to Regional Commissioners

22

titled “Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens,” dated February 2, 1990, available at

23

https://goo.gl/7wcLLy.

24

8. Exhibit I: Memorandum from Paul Virtue for the Acting Executive Associate Commissioner to

25

Regional Directors, District Directors, Officers-in-Charge, and Service Center Directors, titled “Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues,” dated

26

May 6, 1997, available at https://goo.gl/QEp4kX.

27

9. Exhibit J: Memorandum from Stuart Anderson to Johnny N. Williams, titled “Deferred Action for Aliens with bona fide Applications for T Nonimmigrant Status,” dated May 8, 2002,

28

available at https://goo.gl/BUvRpU.

1
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 5 of 12

1

10. Exhibit K: Memorandum from USCIS Associate Director of Operations William R. Yates to

2

Director, Vermont Service Center, titled “Centralization for Interim Relief For U Nonimmigrant Status Applications,” dated October 8, 2003, available at https://goo.gl/tBvYwN.

3

11. Exhibit L: USCIS publication titled “Victims of Human Trafficking & Other Crimes,” last

4

updated August 25, 2017, available at https://goo.gl/wwV6jF.

5

12. Exhibit M: USCIS Press Release titled “USCIS Announces Interim Relief For Foreign Students

Adversely Impacted By Hurricane Katrina,” dated November 25, 2005, available at

6

https://goo.gl/rRmaHm.

7

13. Exhibit N: Memorandum from Donald Neufeld to USCIS Field Leadership, titled “Guidance

8

Regarding Surviving Spouses of Deceased U.S. Citizens and their Children,” dated September 4, 2009, available at https://goo.gl/cAXvUR.

9

14. Exhibit O: Memorandum from Donald Neufeld to USCIS Executive Leadership, titled

10

“Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their

Children,” dated December 2, 2009, available at https://goo.gl/T9dECx. 11

15. Exhibit Q: Remarks on Immigration Reform and an Exchange with Reporters by President

12

Barack Obama, dated June 15, 2012, available at https://obamawhitehouse.archives.gov/the-

13

press-office/2012/06/15/remarks-president-immigration.

14

16. Exhibit R: Archived USCIS publication of Frequently Asked Questions regarding DACA, available at https://www.uscis.gov/archive/frequently-asked-questions.

15 17. Exhibit S: USCIS publication titled “F5—General information… How do I request consideration

16

of deferred action for childhood arrivals?,” dated October 2013, available at

17

https://www.uscis.gov/sites/default/files/files/nativedocuments/daca.pdf.

18

18. Exhibit T: USCIS publication titled “(DACA) Toolkit,” dated June 2014, https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Deferred%20Action%20for%20C

19

hildhood%20Arrivals/DACA_Toolkit_CP_072914.pdf.

20

19. Exhibit U: USCIS publication titled “Don’t Let Your Work Permit Expire; Follow These DACA

Renewal Tips,” last updated June 5, 2015, https://www.uscis.gov/archive/dont-let-your-work-

21

permit-expire-follow-these-daca-renewal-tips.

22

20. Exhibit V: USCIS Form I-821D, titled “Consideration of Deferred Action for Childhood

23

Arrivals,” dated January 9, 2017.

24

21. Exhibit W: Letter from Secretary Jeh Johnson to Congresswoman Judy Chu, dated December 30, 2016, available at

25

https://chu.house.gov/sites/chu.house.gov/files/documents/DHS.Signed%20Response%20to%20

Chu%2012.30.16.pdf.

26

22. Exhibit AA: Letter from Tennessee Attorney General Herbert H. Slatery III to Senators Lamar

27

Alexander and Bob Corker, dated September 1, 2017, available at

28

2
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 6 of 12

1

http://static1.1.sqspcdn.com/static/f/373699/27673058/1504293882007/DACA%2Bletter%2B9-

2

1-2017.pdf?token%3DstUlwSIo3qeVjBe7%252BUHbTCIuvts%253D.

3

23. Exhibit CC: Remarks on DACA, as prepared for delivery, by Attorney General Jefferson Sessions, dated September 5, 2017, available at https://www.justice.gov/opa/speech/attorney-

4

general-sessions-delivers-remarks-daca.

5

24. Exhibit DD: “Statement from Acting Secretary Duke on the Rescission of Deferred Action for

Childhood Arrivals (DACA),” dated September 5, 2017, available at

6

https://www.dhs.gov/news/2017/09/05/statement-acting-secretary-duke-rescission-deferred-

7

action-childhood-arrivals-daca.

8

25. Exhibit KK: Transcript of the testimony of Attorney General Jefferson Sessions before the Senate Judiciary Committee, dated October 18, 2017.

9

26. Exhibit LL: White House publication titled “President Donald J. Trump’s Letter to House and

10

Senate Leaders & Immigration Principles and Policies,” dated October 8, 2017, available at

https://www.whitehouse.gov/the-press-office/2017/10/08/president-donald-j-trumps-letter-house-

11

and-senate-leaders-immigration.

12

27. Exhibit PP: Excerpts of the transcript of the testimony of Secretary Elaine Duke before the

13

Senate Committee on Homeland Security and Government Affairs, dated September 27, 2017.

14

28. Exhibit QQ: Department of Homeland Security publication titled “Fact Sheet: Rescission Of Deferred Action For Childhood Arrivals (DACA),” dated September 5, 2017, available at

15

https://www.dhs.gov/news/2017/09/05/fact-sheet-rescission-deferred-action-childhood-arrivals-

daca. 16

17

29. Exhibit RR: USCIS publication titled “Consideration of Deferred Action for Childhood Arrivals: Guidance for Employers,” dated November 20, 2012, available at

18

https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Deferred%20Action%20for%20C hildhood%20Arrivals/DACA-Fact-Sheet-I-9_Guidance-for-employers_nov20_2012.pdf.

19 30. Exhibit SS: Letter from ICE Director John Morton to All Employees titled “Secretary

20

Napolitano’s Memorandum Concerning the Exercise of Prosecutorial Discretion for Certain

Removable Individuals Who Entered the United States as a Child,” dated June 15, 2012,

21

available at https://www.ice.gov/doclib/about/offices/ero/pdf/s1-certain-young-people-

22

morton.pdf.

23

31. Exhibit TT: Social Security Administration publication titled “Social Security Number and Card—Deferred Action For Childhood Arrivals,” available at

24

https://www.ssa.gov/pubs/deferred_action.pdf.

25

32. Exhibit UU: USCIS Form G-1145, titled “e-Notification of Application/Petition Acceptance,”

available to download at https://www.uscis.gov/g-1145. 26

27

33. Exhibit VV: USCIS Form I-765, titled “Application for Employment Authorization,” dated January 17, 2017, available to download at https://www.uscis.gov/i-765.

28

3
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 7 of 12

1

34. Exhibit WW: Letter from California Attorney General Xavier Becerra, et al., to President Donald

2

J. Trump (July 21, 2017), available at https://oag.ca.gov/system/files/attachments/press_releases/7-21-

3

17%20%20Letter%20from%20State% 20AGs%20to%20President%20Trump%20re%20DACA.final_.pdf.

4 35. Exhibit YY: USCIS, “I-821D, Consideration of Deferred Action for Childhood Arrivals,” last

5

updated October 6, 2017, available at https://www.uscis.gov/archive/i-821d.

6

36. Exhibit ZZ: Memorandum for Michael A. Pearson, Executive Associate Commissioner, INS,

7

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

8

“U” Nonimmigrant Visas (Aug. 30, 2001), available at http://www.asistahelp.org/documents/resources/Policy_Memo__Cronin__83001_DFC4BA7F5E

9

85D.pdf.

10

37. Exhibit AAA: USCIS, DED Granted Country – Liberia, available at

https://www.uscis.gov/humanitarian/deferred-enforced-departure/ded-granted-country-

11

liberia/ded-granted-country-liberia.

12

38. Exhibit BBB: Gerald R. Ford Presidential Library, Emergency Program for Parole of Refugees

13

from Vietnam (Apr. 16, 1975), available at https://www.fordlibrarymuseum.gov/library/document/0164/19077062.pdf.

14 39. Exhibit CCC: Executive Order 12711, available at U.S. State Department,

15

https://www.state.gov/documents/organization/28450.pdf.

16 A Court “must take judicial notice” of adjudicative facts “if a party requests it and the
17 court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2). The Court can judicially
18 notice any “fact that is not subject to reasonable dispute because it: . . . can be accurately and readily
19 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).
20 Exhibits A, F, G, I-K, N, O, QQ, and ZZ are all government memoranda—many of which
21 are still publicly available on government websites—establishing or discussing the United States’
22 immigration policies. Exhibit M is a government press release announcing a new deferred action
23 program. Exhibits R-V, RR, UU, VV, WW, and YY are USCIS publications and forms. Exhibit SS is a
24 letter from ICE Director John Morton available on the ICE website. Exhibit TT is a Social Security
25 Administration publication. The Court may take judicial notice of such records and memoranda of
26 government administrative bodies. See Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012)
27 (taking judicial notice of USCIS interpretation guidance); Lee v. City of Los Angeles, 250 F.3d 668, 689-
28
4
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 8 of 12

1 90 (9th Cir. 2001) (a court may take judicial notice of undisputed matters of public record); Cnty. of

2 Santa Clara v. Trump, 250 F. Supp. 3d 497, 520 nn.5, 8, 11 (N.D. Cal. 2017) (taking judicial notice of

3 government memoranda and letters); McCray v. Unite Here! Local 19, No. 16-CV-01233-BLF, 2017

4 WL 567319, at *2 n.1 (N.D. Cal. Feb. 13, 2017) (collecting cases).

5

Exhibits E, L, and AAA are government websites that detail past and current policies

6 providing relief from immigration enforcement. Exhibits B-D are public statements of President

7 Eisenhower and President Kennedy that are hosted on a website maintained by the University of

8 California, Santa Barbara, a public university. Specifically, this website is of the American Presidency

9 Project, “the leading source of presidential documents on the internet.” See The American Presidency

10 Project, http://www.presidency.ucsb.edu/index.php. Exhibit Q is a statement by President Obama on the

11 White House archived website. Exhibit W is a letter from Secretary Jeh Johnson available on the House

12 of Representatives website. Exhibit AA is a letter from Tennessee Attorney General Herbert H. Slatery

13 III available on the world wide web. Exhibit CC is a prepared statement by Attorney General Jefferson

14 Sessions, available on the Department of Justice website. Exhibit DD is a statement from Acting

15 Secretary Duke available on the DHS website. Exhibit LL is a letter from President Trump found on the

16 White House website. Exhibit BBB is a document posted on the website of the Gerald R. Ford

17 Presidential Library. Exhibit CCC is an Executive Order posted on the U.S. State Department website.

18 Exhibit WW is a letter from California Attorney General Xavier Becerra available on the Office of the

19 Attorney General Website.

20

The Court may take notice of government documents and publications available on

21 websites. As a general matter, “[i]t is not uncommon for courts to take judicial notice of factual

22 information found on the world wide web.” O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1224

23 (10th Cir. 2007). The Ninth Circuit has held that it is appropriate to take judicial notice of information

24 “made publicly available by government entities” on their websites. Daniels-Hall v. Nat’l Educ. Ass’n,

25 629 F.3d 992, 998–99 (9th Cir. 2010). See also Lindsey v. United Airlines, Inc., No. C 17-00753, 2017

26 WL 2404911, at *6 (N.D. Cal. June 2, 2017) (Alsup, J.) (taking judicial notice of certificate of merger

27 because it “is a public document and its authenticity can be accurately and readily determined from the

28 Delaware Secretary of State website”); Cnty. of Santa Clara v. Astra USA, Inc., 401 F. Supp. 2d 1022,
5
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 9 of 12

1 1024 (N.D. Cal. 2005) (Alsup, J.) (taking judicial notice of a price-control regime described on a

2 Department of Health and Human Services website and a report by the same department).

3

Exhibits KK and PP are transcripts of congressional testimony. In general,

4 “[l]egislative history is properly a subject of judicial notice.” Anderson, 673 F.3d at 1094 n.1. This is

5 also true of testimony given at congressional hearings. See Adarand Constructors, Inc. v. Slater, 228

6 F.3d 1147, 1168 n.12 (10th Cir. 2000) (taking “judicial notice of the content of hearings and testimony

7 before [] congressional committees and subcommittees”); see also Cnty. of Santa Clara, 250 F. Supp. 3d

8 at nn. 4, 6, 7, 10 (taking judicial notice of government officials’ press conference statements, press

9 briefings, and interview statements).

10

Because the above documents satisfy the criteria of Rule 201(b) of the Federal Rules of

11 Evidence, the Court must take judicial notice of them pursuant to Rule 201(c)(2) of the Federal Rules of

12 Evidence.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
6
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 10 of 12

1 Dated: November 1, 2017

Respectfully submitted,

2 COVINGTON & BURLING LLP

/s/ Jeffrey M. Davidson
3 Jeffrey M. Davidson (SBN 248620)

4

Alan Bersin (SBN 63874) One Front Street, 35th Floor

5

San Francisco, CA 94111-5356 Telephone: (415) 591-6000

6

Facsimile: (415) 591-6091 Email: jdavidson@cov.com

7 Lanny A. Breuer (pro hac vice)

8 Mark H. Lynch (pro hac vice)
Alexander A. Berengaut (pro hac vice)

9 Megan A. Crowley (pro hac vice)
Ashley Anguas Nyquist (pro hac vice)

10 Jonathan Y. Mincer (Bar No. 298795)

Ivano M. Ventresca (pro hac vice)

11 COVINGTON & BURLING LLP

One CityCenter
12 850 Tenth Street, NW

Washington, DC 20001-4956
13 Telephone: (202) 662-6000

14

Facsimile: (202) 662-6291 E-mail: lbreuer@cov.com, mlynch@cov.com,

15

aberengaut@cov.com, mcrowley@cov.com, anyquist@cov.com, jmincer@cov.com,

16 iventresca@cov.com

17

Mónica Ramírez Almadani (SBN 234893) COVINGTON & BURLING LLP

18 1999 Avenue of the Stars
Los Angeles, CA 90067-4643

19 Telephone: (424) 332-4800

Facsimile: (424) 332-4749

20 Email: mralmadani@cov.com

21 Erika Douglas (SBN 314531)

COVINGTON & BURLING LLP
22 333 Twin Dolphin Drive, Suite 700

Redwood Shores, CA 94061-1418
23 Telephone: (650) 632-4700

24

Facsimile: (650) 632-4800 Email: edouglas@cov.com

XAVIER BECERRA Attorney General of California MICHAEL L. NEWMAN Supervising Deputy Attorney General
/s/ James F. Zahradka II JAMES F. ZAHRADKA II Deputy Attorney General
CHRISTINE CHUANG REBEKAH A. FRETZ RONALD H. LEE KATHLEEN VERMAZEN RADEZ SHUBHRA SHIVPURI 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 879-1247
Attorneys for Plaintiff State of California
JANET T. MILLS Attorney General of Maine SUSAN P. HERMAN (pro hac vice) Deputy Attorney General 6 State House Station Augusta, Maine 04333 Telephone: (207) 626-8814 Email: susan.herman@maine.gov
Attorneys for Plaintiff State of Maine
BRIAN E. FROSH Attorney General of Maryland STEVEN M. SULLIVAN (pro hac vice) Solicitor General 200 Saint Paul Place, 20th Floor Baltimore, Maryland 21202 Telephone: (410) 576-6325 Email: ssullivan@oag.state.md.us Attorneys for Plaintiff State of Maryland

25 Charles F. Robinson (SBN 113197)

26

Margaret Wu (Bar No. 184167) Julia M. C. Friedlander (SBN 165767)

27

Sonya Sanchez (SBN 247541) Norman Hamill (SBN 154272)

28 Harpreet Chahal (SBN 233268)

7
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 11 of 12

1 Michael Troncoso (SBN 221180)

University of California

2 Office of the General Counsel

1111 Franklin Street, 8th Floor
3 Oakland, CA 94607-5200

4

Telephone: (510) 987-9800 Facsimile: (510) 987-9757

5 Email: charles.robinson@ucop.edu

6 Attorneys for Plaintiffs THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA and JANET
7 NAPOLITANO, in her official capacity as President
of the University of California
8

LORI SWANSON Attorney General State of Minnesota JULIANNA F. PASSE (pro hac vice) Assistant Attorney General 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 Telephone: (651) 757-1136 Email: julianna.passe@ag.state.mn.us
Attorneys for Plaintiff State of Minnesota

9 GIBSON, DUNN & CRUTCHER LLP 10 /s/ Theodore J. Boutrous, Jr.

COTCHETT, PITRE & McCARTHY, LLP OFFICE OF THE CITY ATTORNEY /s/ Nancy L. Fineman

11 THEODORE J. BOUTROUS, JR., SBN 132099

tboutrous@gibsondunn.com
12 KATHERINE M. MARQUART, SBN 248043

kmarquart@gibsondunn.com
13 JESSE S. GABRIEL, SBN 263137

14

jgabriel@gibsondunn.com 333 South Grand Avenue

15

Los Angeles, CA 90071-3197 Telephone: (213) 229-7000

16 Facsimile: (213) 229-7520

NANCY L. FINEMAN BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com TAMARAH P. PREVOST (SBN 313422) tprevost@cpmlegal.com San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577

17

ETHAN D. DETTMER, SBN 196046 edettmer@gibsondunn.com

18 555 Mission Street
San Francisco, CA 94105

19 Telephone: (415) 393-8200

Facsimile: (415) 393-8306

20

PUBLIC COUNSEL

21 MARK D. ROSENBAUM, SBN 59940

mrosenbaum@publiccounsel.org
22 JUDY LONDON, SBN 149431

jlondon@publiccounsel.org
23 610 South Ardmore Avenue

24

Los Angeles, CA 90005 Telephone: (213) 385-2977

25 Facsimile: (213) 385-9089

RICHARD DOYLE (SBN 88625) NORA FRIMANN (SBN 93249) OFFICE OF THE CITY ATTORNEY 200 East Santa Clara Street, 16th Floor San José, California 95113 Telephone: (408) 535-1900 Facsimile: (408) 998-3131 Email Address: cao.main@sanJoséca.gov
Attorneys for Plaintiff City of San Jose

26

BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO, SBN 310852

27

lcortes@barreralegal.com 19309 68th Avenue South, Suite R102

28 Kent, WA 98032

8
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-2 Filed 11/01/17 Page 12 of 12

1 Telephone: (253) 872-4730

Facsimile: (253) 237-1591
2

LAURENCE H. TRIBE, SBN 39441
3 larry@tribelaw.com Harvard Law School

4

*Affiliation for identification purposes only 1575 Massachusetts Avenue

5

Cambridge, MA 02138 Telephone: (617) 495-1767

6 ERWIN CHEMERINSKY, pro hac vice

7

forthcoming echemerinsky@law.berkeley.edu

8 University of California, Berkeley School of Law
*Affiliation for identification purposes only

9 215 Boalt Hall, Berkeley, CA 94720-7200
Telephone: (510) 642-6483

10

LEAH M. LITMAN, pro hac vice
11 forthcoming

llitman@law.uci.edu
12 University of California, Irvine School of Law

13

*Affiliation for identification purposes only 401 East Peltason Drive Irvine, CA 92697

14 Telephone: (949) 824-7722

15

Attorneys for Plaintiffs DULCE GARCIA, MIRIAM GONZALEZ AVILA, SAUL

16 JIMENEZ SUAREZ, VIRIDIANA CHABOLLA
MENDOZA, NORMA RAMIREZ, and JIRAYUT

17 LATTHIVONGSKORN

18
/s/ James R. Williams

19
JAMES R. WILLIAMS, County Counsel

20 GRETA S. HANSEN

LAURA S. TRICE

21 laura.trice@cco.sccgov.org

MARCELO QUIÑONES
22 marcelo.quinones@cco.sccgov.org

OFFICE OF THE COUNTY COUNSEL
23 COUNTY OF SANTA CLARA

24

70 West Hedding Street East Wing, Ninth Floor

25

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

26 Facsimile: (408) 292-7240

27 Attorneys for Plaintiff COUNTY OF SANTA CLARA

/s/ Eric P. Brown
JONATHAN WEISSGLASS jweissglass@altber.com STACEY M. LEYTON sleyton@altber.com ERIC P. BROWN ebrown@altber.com ALTSHULER BERZON LLP 177 Post St., Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151
Attorneys for Plaintiffs COUNTY OF SANTA CLARA AND SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521

28
9
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-3 Filed 11/01/17 Page 1 of 3

1

2

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

3

SAN FRANCISCO DIVISION

4

5 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA and JANET NAPOLITANO,
6 in her official capacity as President of the University of California,
7 Plaintiffs,

8

v.

9 UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE
10 DUKE, in her official capacity as Acting Secretary of the Department of Homeland
11 Security,

12

Defendants.

CASE NO. 17-CV-05211-WHA
[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF

13

14 STATE OF CALIFORNIA, STATE OF MAINE, STATE OF MARYLAND, and
15 STATE OF MINNESOTA,

16

Plaintiffs,

17

v.

18

U.S. DEPARTMENT OF HOMELAND SECURITY, ELAINE DUKE, in her official

19

capacity as Acting Secretary of the Department of Homeland Security, and the UNITED

20 STATES OF AMERICA,

21

Defendants.

CASE NO. 17-CV-05235-WHA

22 CITY OF SAN JOSE, a municipal corporation, 23 Plaintiff,

CASE NO. 17-CV-05329-WHA

24 v.

25 DONALD J. TRUMP, President of the United States, in his official capacity, ELAINE C.
26 DUKE, in her official capacity, and the UNITED STATES OF AMERICA,
27 Defendants.
28

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-3 Filed 11/01/17 Page 2 of 3

1

2

3 DULCE GARCIA, MIRIAM GONZALEZ
AVILA, SAUL JIMENEZ SUAREZ, 4 VIRIDIANA CHABOLLA MENDOZA,
NORMA RAMIREZ, and JIRAYUT 5 LATTHIVONGSKORN,

CASE NO. 17-CV-05380-WHA

6

Plaintiffs,

7

v.

UNITED STATES OF AMERICA, DONALD 8 J. TRUMP, in his official capacity as President
of the United States, U.S. DEPARTMENT OF 9 HOMELAND SECURITY, and ELAINE
DUKE, in her official capacity as Acting 10 Secretary of Homeland Security,

11

Defendants.

12 COUNTY OF SANTA CLARA and
13 SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521,
14 Plaintiffs,

15

v.

CASE NO. 17-CV-05813-WHA

16 DONALD J. TRUMP, in his official capacity as President of the United States; JEFFERSON
17 BEAUREGARD SESSIONS, in his official capacity as Attorney General of the United
18 States; ELAINE DUKE, in her official capacity as Acting Secretary of Homeland
19 Security; and U.S. DEPARTMENT OF HOMELAND SECURITY,
20
Defendants. 21

22

23

24

25

26

27

28

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 111-3 Filed 11/01/17 Page 3 of 3

1

Having considered Plaintiffs’ Motion For Provisional Relief, ECF No. ___ (“Plaintiffs’

2 Motion”), IT IS HEREBY ORDERED THAT:

3

1) Plaintiffs have demonstrated that (a) they are likely to succeed on the merits of their

4

claim under the Administrative Procedure Act that the September 5, 2017 memorandum

5

rescinding the Deferred Action for Childhood Arrivals (“DACA”) program (“the

6

Rescission”) should be set aside, (b) the Rescission is causing and will cause irreparable

7

harm absent provisional relief, and (c) the balance of equities and the public interest

8

weigh heavily in favor of provisional relief in the form of returning to the status quo

9

existing prior to the Rescission. Plaintiffs’ Motion is therefore granted.

10

2) Defendants are enjoined from implementing the Rescission, or any portion thereof.

11

3) Defendants are directed to immediately return the administration of the DACA program

12

to the state of its existence prior to the Rescission, using the same means, methods and

13

policies for considering and granting deferred action requests and requests for advance

14

parole as were utilized before the Rescission, including without limitation:

15

a. restoration of eligibility for initial requests for deferred action and associated

16

employment authorization;

17

b. restoration of eligibility for renewals for deferred action and associated

18

employment authorization;

19

c. restoration of eligibility for requests for advance parole; and

20

d. restoration of its policies relating to the use of information provided by DACA

21

applicants and their employers.

22

23 SO ORDERED, this __ day of __________, 2017.

24

25

___________________________________

26

Honorable William H. Alsup United States District Judge

27

28

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PROVISIONAL RELIEF All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

 
 Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 1 of 60

1 CHAD A. READLER Acting Assistant Attorney General
2 BRIAN STRETCH United States Attorney
3 BRETT A. SHUMATE Deputy Assistant Attorney General
4 JENNIFER D. RICKETTS Director, Federal Programs Branch
5 JOHN R. TYLER Assistant Branch Director
6 BRAD P. ROSENBERG (DC Bar #467513) Senior Trial Counsel
7 STEPHEN M. PEZZI (DC Bar #995500) KATE BAILEY (MD Bar #1601270001)
8 Trial Attorneys United States Department of Justice
9 Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W.
10 Washington, DC 20530 Telephone: (202) 514-3374
11 Facsimile: (202) 616-8460 E-mail: brad.rosenberg@usdoj.gov
12
Attorneys for Defendants
13
UNITED STATES DISTRICT COURT FOR THE
14
NORTHERN DISTRICT OF CALIFORNIA
15

16 REGENTS OF UNIVERSITY OF CALIFORNIA and JANET NAPOLITANO, in
17 her official capacity as President of the University of California,
18

No. 3:17-cv-05211-WHA No. 3:17-cv-05235-WHA No. 3:17-cv-05329-WHA No. 3:17-cv-05380-WHA No. 3:17-cv-05813-WHA

19

Plaintiffs,

20

v.

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS ALL N.D.

21 UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE
22 DUKE, in her official capacity as Acting Secretary of the Department of Homeland
23 Security,

CAL. DACA CASES; MEMORANDUM IN SUPPORT
Judge: Honorable William Alsup Hearing: December 20, 2017, 8:00 a.m.

24

Defendants.

Place: San Francisco U.S. Courthouse,

Courtroom 8, 19th Floor

25

26

27

28

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 2 of 60

1

TABLE OF CONTENTS

2

PAGE

NOTICE OF MOTION AND MOTION TO DISMISS ................................................................. 1
3

4 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1

5 INTRODUCTION .......................................................................................................................... 1

6 BACKGROUND ............................................................................................................................ 5
7
A. Deferred Action Generally...................................................................................... 5
8
B. DAPA and DACA................................................................................................... 6
9

10

C. The Texas Litigation ............................................................................................... 7

11

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

12
E. These Actions........................................................................................................ 10
13
LEGAL STANDARDS ................................................................................................................ 12
14
15 ARGUMENT................................................................................................................................ 13

16 I. THESE CASES ARE NOT JUSTICIABLE..................................................................... 14

17

A. The Rescission Policy Is Not Justiciable Because this Immigration

18

Enforcement Policy Is a Matter Committed to Agency Discretion

by Law .................................................................................................................. 14

19

B. The INA Deprives District Courts of Jurisdiction over Challenges

20

to Denials of Deferred Action............................................................................... 17

21
C. The University, State, Municipal, and Union Plaintiffs’ Claims Are

22

Not Cognizable ..................................................................................................... 20

23

1. The University, State, Municipal, and Union Plaintiffs Lack

24

Article III Standing ................................................................................... 20

25

2. The University, State, Municipal, and Union Plaintiffs Lack

a Cause of Action Under the APA ............................................................ 21
26

27

D. The Government’s Justiciability Objections Are Not Inconsistent with

the Acting Secretary’s Reliance on the Fifth Circuit’s Decision .......................... 22

28

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

i

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 3 of 60

II.
1 2 3

PLAINTIFFS FAIL TO STATE A CLAIM ..................................................................... 23
A. The Acting Secretary Rationally Explained Her Decision To Wind Down DACA, Particularly Given the Imminent Risk of A Nationwide Injunction .............................................................................................................. 23

4

B. The Rescission Policy Is Exempt from Notice and Comment.............................. 29

5
C. Plaintiffs Fail to State an Equal Protection Claim ................................................ 32
6

D. Plaintiffs Fail to State a Procedural Due Process Claim....................................... 35
7

8

E. Plaintiffs Fail to State a Substantive Due Process Claim. .................................... 38

9

F. Plaintiffs’ Regulatory Flexibility Act Claim Fails Because Notice-

and-Comment Procedures Were Not Required..................................................... 41
10

11

G. Plaintiffs’ Equitable Estoppel Claims Fail............................................................ 42

12 III. NATIONWIDE DECLARATORY AND INJUNCTIVE RELIEF IS

13

IMPERMISSIBLE ............................................................................................................ 45

14 CONCLUSION............................................................................................................................. 46

15

16

17

18

19

20

21

22

23

24

25

26

27

28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
ii

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 4 of 60

TABLE OF AUTHORITIES
1

2

CASES

PAGE(S)

3 Aetna Life Ins. Co. v. Haworth,

4 300 U.S. 227 (1937)................................................................................................................... 45

5 Alexander v. Sandoval, 532 U.S. 275 (2001)................................................................................................................... 42
6
7 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982)................................................................................................................... 21
8
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 9 526 U.S. 40 (1999)..................................................................................................................... 36
10
Arizona v. United States, 11 567 U.S. 387 (2012)......................................................................................................... 5, 15, 34

12 Arpaio v. Obama, 13 797 F.3d 11 (D.C. Cir. 2015) .............................................................................................. passim

14 Ashcroft v. Iqbal, 556 U.S. 662 (2009)................................................................................................................... 12
15
16 Bates v. Donley, 935 F. Supp. 2d 14 (D.D.C. 2013) ....................................................................................... 12, 13
17
Bd. of Regents v. Roth,
18
408 U.S. 564 (1972)................................................................................................................... 36
19
Bell Atl. Corp. v. Twombly, 20 550 U.S. 544 (2007)................................................................................................................... 12
21
Bi-Metallic Inv. Co. v. State Bd. of Equalization, 22 239 U.S. 441 (1915)................................................................................................................... 38

23 Botezatu v. INS, 24 195 F.3d 311 (7th Cir. 1999) ............................................................................................... 18, 19

25 Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281 (1974)............................................................................................................. 25, 26
26
27 Brittain v. Hansen, 451 F.3d 982 (9th Cir. 2006) ..................................................................................................... 40
28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
iii

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 5 of 60
1 Califano v. Sanders, 2 430 U.S. 99 (1977)..................................................................................................................... 12
3 Camp v. Pitts, 411 U.S. 138 (1973)................................................................................................................... 24
4
5 Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010) ................................................................................................... 12
6
Chaudhry v. Holder,
7
705 F.3d 289 (7th Cir. 2013) ....................................................................................................... 6
8
Chavez v. Martinez, 9 538 U.S. 760 (2003)................................................................................................................... 40
10
Chevron U.S.A. Inc. v. Echazabal, 11 536 U.S. 73 (2002)..................................................................................................................... 25
12 Chrysler Corp. v. Braun, 13 441 U.S. 281 (1979)................................................................................................................... 30
14 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)............................................................................................................. 15, 23
15
16 Clarke v. Secs. Indus. Ass’n, 479 U.S. 388 (1987)................................................................................................................... 21
17
Cmty. Nutrition Inst. v. Young, 18 818 F.2d 943 (D.C. Cir. 1987) ................................................................................................... 30
19
Conn. Bd. of Pardons v. Dumschat, 20 452 U.S. 458 (1981)................................................................................................................... 40
21 Consumer Energy Council v. FERC, 22 673 F.2d 425 (D.C. Cir. 1982) ................................................................................................... 29
23 Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998)................................................................................................................... 40
24
25 De Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985) ................................................................................................... 37
26
Decatur Liquors, Inc. v. Dist. of Columbia,
27
478 F.3d 360 (D.C. Cir. 2007) ................................................................................................... 38
28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
iv

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 6 of 60
Dinh Nguy v. County of Yolo, 1 No. 2:14-cv-229-MCE-EFB PS, 2014 WL 4446829 (N.D. Cal. Sept. 9, 2014)........................ 45
2
Elgharib v. Napolitano, 3 600 F.3d 597 (6th Cir. 2010) ..................................................................................................... 18
4 Emery Min. Corp. v. Sec’y of Labor, 5 744 F.2d 1411 (10th Cir. 1984) ................................................................................................. 42
6 FCC v. Fox TV Stations, Inc., 556 U.S. 502 (2009)............................................................................................................. 23, 24
7
8 Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996) ..................................................................................................... 22
9
Fla. Power & Light Co. v. Lorion,
10
470 U.S. 729 (1985)................................................................................................................... 24
11
Gerhart v. Lake Cnty., 12 637 F.3d 1013 (9th Cir. 2011) ................................................................................................... 39
13
Green v. City of Tucson, 14 340 F.3d 891 (9th Cir. 2003) ..................................................................................................... 35
15 Heckler v. Chaney, 16 470 U.S. 821 (1985)............................................................................................................ passim
17 Heckler v. Community Health Servs., 467 U.S. 51, 104 S. Ct. 2218 (1984).......................................................................................... 43
18
19 Helgeson v. Bureau of Indian Affairs, Dep't of Interior, 153 F.3d 1000 (9th Cir. 1998) ............................................................................................. 14, 19
20
Herguan Univ. v. Immigration & Customs Enf’t, 21 No. 16-cv-06656-LHK, 2017 WL 2797860 (N.D. Cal. June 28, 2017) .................................... 12
22
Hoffman Plastic Compounds, Inc. v. NLRB, 23 535 U.S. 137 (2002)................................................................................................................... 35
24 Hyuk Joon Lim v. Holder, 25 710 F.3d 1074 (9th Cir. 2013) ................................................................................................... 40
26 ICC v. Bhd. of Locomotive Eng’rs (BLE), 482 U.S. 270 (1987)............................................................................................................. 14, 16
27
28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
v

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 7 of 60
Knievel v. ESPN, 1 393 F.3d 1068 (9th Cir. 2005) ................................................................................................... 13
2
Ky. Dep’t of Corrs. v. Thompson, 3 490 U.S. 454 (1989)................................................................................................................... 36
4 Lewis v. Casey, 5 518 U.S. 343 (1996)................................................................................................................... 45
6 Lincoln v. Vigil, 508 U.S. 182 (1993)................................................................................................................... 14
7
8 Linda R.S. v. Richard D., 410 U.S. 614 (1973)................................................................................................................... 20
9
Lujan v. Defs. of Wildlife,
10
504 U.S. 555 (1992)....................................................................................................... 12, 20, 29
11
Mada-Luna v. Fitzpatrick, 12 813 F.2d 1006 (9th Cir. 1987) ................................................................................................... 16
13
Madsen v. Women’s Health Ctr., Inc., 14 512 U.S. 753 (1994)................................................................................................................... 46
15 Mangindin v. Wash. Mut. Bank, 16 637 F. Supp. 2d 700 (N.D. Cal. 2009) ....................................................................................... 45
17 Marder v. Lopez, 450 F.3d 445 (9th Cir. 2006) ..................................................................................................... 13
18
19 Marilley v. Bonham, 844 F.3d 841 (9th Cir. Dec. 21, 2016) ....................................................................................... 35
20
Massachusetts v. Mellon, 21 262 U.S. 447 (1923)................................................................................................................... 21
22
McCarthy v. United States, 23 850 F.2d 558 (9th Cir. 1988) ..................................................................................................... 12
24 Mississippi v. Johnson, 25 71 U.S. (4 Wall.) 475 (1867) ..................................................................................................... 22
26 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)................................................................................................................... 46
27
28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
vi

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 8 of 60
1 Morgan v. United States, 2 304 U.S. 1 (1938)....................................................................................................................... 24
3 Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983)..................................................................................................................... 23
4
5 Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003) ..................................................................................................... 41
6
N.W. Mining Ass’n v. Babbitt,
7
5 F. Supp. 2d 9 (D.D.C. 1998) ................................................................................................... 41
8
Nat’l Ass’n of Regulatory Utility Comm’rs v. U.S. Dep’t of Energy, 9 851 F.2d 1424 (D.C. Cir. 1988) ................................................................................................. 31
10
Nat’l Mining Ass’n v. McCarthy, 11 758 F.3d 243 (D.C. Cir. 2014) ................................................................................................... 30
12 New Hampshire v. Maine, 13 532 U.S. 742 (2001)................................................................................................................... 42
14 Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011) ..................................................................................................... 36
15
16 Pac. Gas & Elec. Co. v. FPC, 506 F.2d 33 (D.C. Cir. 1974) ..................................................................................................... 30
17
Perales v. Casillas, 18 903 F.2d 1043 (5th Cir. 1990) ................................................................................................... 16
19
Perez v. Mortgage Bankers Ass’n, 20 135 S. Ct. 1199 (2015)......................................................................................................... 28, 43
21 Rempfer v. Sharfstein, 22 583 F.3d 860 (D.C. Cir. 2009) ............................................................................................. 12, 13
23 Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471 (1999)............................................................................................................ passim
24
25 Robinson v. United States, 586 F.3d 683 (9th Cir. 2009) ..................................................................................................... 12
26
Salgado-Diaz v. Gonzales,
27
395 F.3d 1158 (9th Cir. 2005) ................................................................................................... 44
28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
vii

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 9 of 60
San Antonio Indep. Sch. Dist. v. Rodriguez, 1 411 U.S. 1 (1973)....................................................................................................................... 35
2
San Luis Obispo Mothers for Peace v. U.S. N.R.C., 3 789 F.2d 26 (D.C. Cir. 1986) ..................................................................................................... 24
4 Syncor Int’l Corp. v. Shalala, 5 127 F.3d 90 (D.C. Cir. 1997) ..................................................................................................... 30
6 Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989) ................................................................................................... 26
7
8 Tefel v. Reno, 180 F.3d 1286 (11th Cir. 1999) ................................................................................................. 41
9
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
10
551 U.S. 308 (2007)................................................................................................................... 13
11
Texas v. United States, 12 809 F.3d 134 (5th Cir. 2015) .............................................................................................. passim
13
Town of Castle Rock v. Gonzales, 14 545 U.S. 748 (2005)................................................................................................................... 36
15 Town of Chester v. Laroe Estates, Inc., 16 137 S. Ct. 1645 (2017)............................................................................................................... 45
17 Troy Corp. v. Browner, 120 F.3d 277 (D.C. Cir. 1997) ................................................................................................... 24
18
19 U.S. Telecom Ass’n v. FCC, 400 F.3d 29 (D.C. Cir. 2005) ..................................................................................................... 41
20
United States v. Armstrong, 21 517 U.S. 456 (1996)............................................................................................................ passim
22
United States v. Browning, 23 630 F.2d 694 (10th Cir.1980) .................................................................................................... 43
24 United States v. Morgan, 25 313 U.S. 409 (1941)................................................................................................................... 24
26 United States v. Ritchie, 342 F.3d 903 (9th Cir. 2003) ..................................................................................................... 13
27
28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
viii

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 10 of 60
United States v. Texas, 1 136 S. Ct. 2271 (2016)................................................................................................................. 8
2
United States v. Texas, 3 137 S. Ct. 285 (2016)................................................................................................................... 8
4 Univ. Med. Ctr. of S. Nev. v. Shalala, 5 173 F.3d 438 (D.C. Cir. 1999) ................................................................................................... 13
6 Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016) ............................................................................................... 18
7
8 Velasco-Gutierrez v. Crossland, 732 F.2d 792 (10th Cir. 1984) ................................................................................................... 37
9
Washington v. Davis,
10
426 U.S. 229 (1976)................................................................................................................... 33
11
Washington v. Glucksberg, 12 521 U.S. 702 (1997)................................................................................................................... 40
13
Watkins v. United States Army, 14 875 F.2d 699 (9th Cir. 1989) ............................................................................................... 43, 44
15 Yassini v. Crosland, 16 618 F.2d 1356 (9th Cir. 1980) ................................................................................................... 38
17
18
STATUTES
19
20 5 U.S.C. § 553..................................................................................................................... 3, 29, 30 21 5 U.S.C. § 601............................................................................................................................... 41 22 5 U.S.C. § 604............................................................................................................................... 41 23 5 U.S.C. § 611............................................................................................................................... 41 24 5 U.S.C. § 701................................................................................................................... 14, 16, 19 25 5 U.S.C. § 702............................................................................................................................... 21 26 5 U.S.C. § 706............................................................................................................................... 23 27 6 U.S.C. § 202............................................................................................................................... 18 28 6 U.S.C. § 251............................................................................................................................... 18
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
ix

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 11 of 60
1 6 U.S.C. § 557............................................................................................................................... 18 2 8 U.S.C. § 1103............................................................................................................................... 5 3 8 U.S.C. § 1227............................................................................................................................... 5 4 8 U.S.C. § 1229b............................................................................................................................. 5 5 8 U.S.C. § 1252 (g) ................................................................................................................ passim 6 8 U.S.C. § 1154............................................................................................................................... 5 7 8 U.S.C. § 1158............................................................................................................................... 5 8 8 U.S.C. § 1182............................................................................................................................... 5 9 28 U.S.C. § 2201........................................................................................................................... 45
10
11 RULES 12 Fed. R. Civ. P. 8(c) ....................................................................................................................... 42 13 Fed. R. Civ. P. 12.................................................................................................................... 12, 13
14
15
REGULATIONS
16
8 C.F.R. § 274a.12(c)(14) ........................................................................................................... 5, 6
17
18
OTHER AUTHORITIES
19
20 Attorney General’s Manual on the Administrative Procedure Act 30 (1947) .............................. 30 21 DHS DACA FAQ, 22 https://go.usa.gov/xngCd ..................................................................................... 7, 28, 37, 39, 44
23 Press Release, DHS Statement from Acting Secretary Duke on the Rescission of DACA (Sept. 5, 2017),
24 https://go.usa.gov/xncuM........................................................................................................... 25
25
U.S. Dep’t of Justice, Office of Legal Counsel, 26 The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens
Unlawfully Present, 38 Op. O.L.C. (Nov. 19, 2014), 27 https://www.justice.gov/file/179206/download......................................................................... 28
28 DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
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Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 12 of 60
USCIS, Policy Memorandum (Nov. 7, 2011), 1 https://go.usa.gov/xncPK. ............................................................................................................ 7
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
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Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 13 of 60

1 CHAD A. READLER Acting Assistant Attorney General
2 BRIAN STRETCH United States Attorney
3 BRETT A. SHUMATE Deputy Assistant Attorney General
4 JENNIFER D. RICKETTS Director, Federal Programs Branch
5 JOHN R. TYLER Assistant Branch Director
6 BRAD P. ROSENBERG (DC Bar #467513) Senior Trial Counsel
7 STEPHEN M. PEZZI (DC Bar #995500) KATE BAILEY (MD Bar #1601270001)
8 Trial Attorneys United States Department of Justice
9 Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W.
10 Washington, DC 20530 Telephone: (202) 514-3374
11 Facsimile: (202) 616-8460 E-mail: brad.rosenberg@usdoj.gov
12
Attorneys for Defendants
13

14

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

15

16 REGENTS OF UNIVERSITY OF CALIFORNIA and JANET NAPOLITANO, in
17 her official capacity as President of the University of California,
18

No. 3:17-cv-05211-WHA No. 3:17-cv-05235-WHA No. 3:17-cv-05329-WHA No. 3:17-cv-05380-WHA No. 3:17-cv-05813-WHA

19

Plaintiffs,

20

v.

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS ALL N.D.

21 UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE
22 DUKE, in her official capacity as Acting Secretary of the Department of Homeland
23 Security,

CAL. DACA CASES; MEMORANDUM IN SUPPORT
Judge: Honorable William Alsup Hearing: December 20, 2017, 8:00 a.m.

24

Defendants.

Place: San Francisco U.S. Courthouse,

Courtroom 8, 19th Floor

25

26

27

28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 14 of 60

1

NOTICE OF MOTION AND MOTION TO DISMISS

2

PLEASE TAKE NOTICE that on December 20, 2017, at 8:00 a.m., before the Honorable

3 William Alsup of the United States District Court for the Northern District of California, in

4 Courtroom 8 of the 19th Floor of the Philip E. Burton Courthouse and Federal Building, 450

5 Golden Gate Avenue, San Francisco, California, Defendants will move this Court to dismiss all

6 claims in the following related matters (hereinafter, “DACA cases”):

7

• No. 3:17-cv-05211-WHA, Regents of the University of California, et al. v. U.S. Dep’t of

Homeland Security, et al.
8

9

• No. 3:17-cv-05235-WHA, State of California, et al. v. U.S. Dep’t of Homeland Security, et al.

10

• No. 3:17-cv-05329-WHA, City of San Jose v. Trump, et al.

11

• No. 3:17-cv-05380-WHA, Garcia, et al. v. United States of America, et al.

12

• No. 3:17-cv-05813-WHA, County of Santa Clara, et al. v. Trump, et al.

13

Defendants’ motion to dismiss is being made pursuant to Rules 12(b)(1) and 12(b)(6) of

14 the Federal Rules of Civil Procedure. The basis for this motion is set forth more fully in the

15 following Memorandum of Points and Authorities.

16
MEMORANDUM OF POINTS AND AUTHORITIES
17
INTRODUCTION
18

19

In 2012, then-Secretary of Homeland Security Janet Napolitano adopted the policy now

20 known as DACA, or Deferred Action for Childhood Arrivals. DACA made deferred action—a

21 practice by which the Secretary exercises individualized enforcement discretion to issue a

22 reversible notification that she does not intend to remove an alien for a set period of time—

23 available to a class of unlawfully present aliens who came to the United States as children. In

24 2014, one of her successors expanded the parameters of DACA and adopted a similar policy

25 known as DAPA, or Deferred Action for Parents of Americans. DAPA, if implemented, would

26 have made deferred action available to unlawfully present aliens who were parents of U.S.

27 citizens and lawful permanent residents.

28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
1

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 15 of 60

1

DAPA, including its expansion of DACA, was promptly challenged by a coalition of 26

2 states. Although then-Secretary of Homeland Security Jeh Johnson vigorously defended the

3 policy, he was rebuffed at every turn: the district court for the Southern District of Texas issued

4 a nationwide preliminary injunction; the Fifth Circuit affirmed, declaring the policy “manifestly

5 contrary” to the Immigration and Nationality Act (INA); and an equally divided Supreme Court

6 affirmed, leaving the injunction in place.

7

Armed with this victory, the states threatened to amend their complaint to challenge not

8 just DAPA, but DACA as well, arguing that it suffers from the same infirmities. In view of the

9 substantial similarities between the two policies, the significant litigation risk posed by the

10 Supreme Court and Fifth Circuit decisions, and the Attorney General’s view that DACA was in

11 fact unlawful, Acting Secretary of Homeland Security Elaine C. Duke was faced with two

12 options. On the one hand, she could wind down DACA in an orderly fashion, minimizing the

13 disruption to current recipients. On the other, continued litigation would in all likelihood result

14 in a nationwide injunction abruptly ending the policy, plunging its nearly 800,000 recipients into

15 uncertainty.

16

The Acting Secretary chose the less disruptive option: an orderly process that formally

17 rescinds DACA but allows it to sunset. Under this Rescission Policy, no DACA recipient will

18 have his or her deferred action abruptly terminated based solely on the Rescission Policy;

19 instead, prior grants will remain valid for the remainder of their stated duration (generally two

20 years) before ending consistent with their stated terms. Any DACA recipient whose deferred

21 action was due to expire within six months was given a month to request another two-year

22 renewal. And although the agency stopped accepting new DACA requests, it will finish

23 processing those it had received when the rescission began.

24

In these five related cases, Plaintiffs—the University of California system and its

25 president, four states, the City of San Jose, a group of individual DACA recipients, and Santa

26 Clara County and a local labor union—challenge the Rescission Policy on a variety of statutory,

27 constitutional, and common-law grounds, urging the Court to invalidate the agency’s decision

28 and enjoin the Acting Secretary from rescinding DACA. There is no basis to do so.

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

2

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 16 of 60

1

To begin, this case is not justiciable. The Rescission Policy is a classic exercise of

2 enforcement discretion “presumed immune from judicial review,” Heckler v. Chaney, 470 U.S.

3 821, 831–32 (1985), and particularly unfettered in the context of immigration, see Reno v. Am.-

4 Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471, 487–92 (1999). In fact, Congress has

5 stripped district courts of jurisdiction to review “‘no deferred action’ decisions and similar

6 discretionary determinations” such as the one here. AADC, 525 U.S. at 485; see 8 U.S.C.

7 § 1252(g). At a minimum, the university, state, municipal, and union Plaintiffs cannot proceed

8 due to their lack of standing and a cause of action. The Court should not permit Plaintiffs to

9 circumvent these bedrock limits on judicial review.

10

On the merits, Plaintiffs’ claims fail as a matter of law. Their claim that the Rescission

11 Policy is arbitrary and capricious under the Administrative Procedure Act (APA) because it was

12 inadequately supported on the record is fundamentally misguided. Agencies are always free to

13 change course on policy matters so long as they provide a rational explanation. Here, the Acting

14 Secretary’s explanation of her decision to rescind DACA amply meets that deferential standard,

15 particularly given the adverse ruling from the Fifth Circuit and the Supreme Court’s affirmance,

16 the evident similarities between DACA and the policy that expanded DACA and created DAPA,

17 the Attorney General’s opinion that DACA was likewise unlawful, and the imminent risk of a

18 nationwide injunction with potentially chaotic results. Importantly, because this claim can be

19 resolved now based on the Complaints, the documents attached or incorporated by reference

20 therein, and other judicially noticeable materials (including those in the administrative record),

21 the Court should either uphold the Rescission Policy and grant this motion if it agrees that the

22 record supports Defendants’ position, or set aside the Rescission Policy if it disagrees.

23

Plaintiffs’ notice-and-comment claim is equally unavailing. The APA exempts “general

24 statements of policy” from notice and comment, 5 U.S.C. § 553(b), and the Rescission Policy is

25 a reordering of enforcement priorities that readily qualifies. Indeed, the Department of

26 Homeland Security (DHS) and the former Immigration and Naturalization Service (INS) have

27 adopted more than 20 deferred action or similar policies over the past 50 years. Few have gone

28 through notice and comment, and there is no warrant for those procedures here. Nor does the

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

3

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 17 of 60

1 Fifth Circuit’s ruling that the states established a substantial likelihood of success on their claim

2 that the promulgation of DAPA required notice and comment mean that the rescission of DACA

3 and a return to the status quo ante must likewise meet these procedural demands. Plaintiffs’

4 Regulatory Flexibility Act (RFA) claim fails for the same reason, as that Act applies only where

5 notice and comment is required. And in any event, if DACA’s rescission required notice and

6 comment, then DACA was void from the outset because its adoption would also have required

7 notice and comment a fortiori.

8

Plaintiffs’ equal protection claims get them no further. To the extent that a

9 discriminatory motive claim—here, that the Policy was motivated by animus toward Mexican

10 nationals—can ever be brought in a context like this one, but see AADC, 525 U.S. at 487–92,

11 Plaintiffs must allege a clear case of discrimination given that they challenge an exercise of

12 enforcement discretion, see United States v. Armstrong, 517 U.S. 456 (1996). They have failed

13 to do so. Nor can Plaintiffs show that the Rescission Policy trenches on any fundamental right.

14

Plaintiffs’ due process claims also cannot survive a motion to dismiss. DACA recipients

15 have no protected liberty or property interest in the continued availability of deferred action,

16 which is an exercise of prosecutorial discretion that confers no rights and is revocable at any

17 time. Moreover, the Ninth Circuit has held that aliens—including those brought here as

18 children—have no substantive due process right to stay in the United States, thus further

19 dooming Plaintiffs’ substantive due process claim.

20

Finally, Plaintiffs cannot state an equitable estoppel claim because estoppel does not run

21 against the government. And even if they could, Plaintiffs fail to allege facts sufficient to make

22 out such a claim.

23

In sum, even if Plaintiffs’ challenge were somehow justiciable, the assumption

24 underlying it would compel dismissal. DAPA—including its expansion of DACA—was

25 enjoined by the Fifth Circuit, and that holding was affirmed by the Supreme Court. The original

26 DACA policy is materially indistinguishable as a legal matter. At bottom, Plaintiffs’ argument is

27 that, when making discretionary enforcement determinations, federal agencies must ignore the

28 legal rulings and reasoning of federal courts. To state the premise of this claim is to refute it.

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

4

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 18 of 60

1 These five cases should all be dismissed.

2

BACKGROUND

3

A. Deferred Action Generally

4

The Secretary of Homeland Security is charged “with the administration and

5 enforcement” of the INA along with “all other laws relating to the immigration and

6 naturalization of aliens.” 8 U.S.C. § 1103(a)(1). Under these laws, individuals are subject to

7 removal if, among other things, “they were inadmissible at the time of entry, have been

8 convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United States,

9 567 U.S. 387, 396 (2012) (citation omitted); see 8 U.S.C. §§ 1182(a), 1227(a).

10

Due to resource constraints, the federal government cannot remove every removable

11 alien, which means that a “principal feature of the removal system is the broad discretion

12 exercised by immigration officials.” Arizona, 567 U.S. at 396 (citation omitted). DHS officials

13 must first “decide whether it makes sense to pursue removal at all,” id., and once proceedings

14 begin, they may decide to grant certain forms of discretionary relief expressly authorized by

15 statute, such as asylum, parole, or cancellation of removal, 8 U.S.C. §§ 1158(b)(1)(A),

16 1182(d)(5)(A), 1229b. “At each stage” of the process, “the Executive has discretion to abandon

17 the endeavor” entirely. AADC, 525 U.S. at 483.

18

“One form of discretion the Secretary of Homeland Security exercises is ‘deferred

19 action,’ which entails temporarily postponing the removal of individuals unlawfully present in

20 the United States.” Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015) (citation omitted), cert.

21 denied, 136 S. Ct. 900 (2016). Deferred action is a practice by which the Secretary exercises her

22 “discretion to abandon” the removal process, and to notify an individual alien of a non-binding

23 decision to forbear from seeking his removal for a set period. AADC, 525 U.S. at 483; see 8

24 C.F.R. § 274a.12(c)(14) (describing “deferred action” as “an act of administrative convenience to

25 the government which gives some cases lower priority”). Although originally “developed

26 without express statutory authority,” individualized deferred action has been recognized by

27 Congress in certain circumstances inapplicable here, see, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II),

28 (IV) (providing that certain individuals are “eligible for deferred action”), and described by the
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
5

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 19 of 60

1 Supreme Court as an “exercise in administrative discretion,” AADC, 525 U.S. at 484. Deferred

2 action (or a similar form of relief) dates back to the 1960s, Arpaio, 797 F.3d at 16, and DHS and

3 the former INS have adopted over 20 such policies over the past 50 years—rarely through

4 notice-and-comment rulemaking.

5

A variety of consequences may flow from a decision to defer removal action, including

6 the ability to apply for work authorization, under DHS regulations not challenged here. See, e.g.,

7 8 C.F.R. § 274a.12(c)(14). That decision does not, however, confer lawful immigration status or

8 provide any defense to removal. Cf. Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013)

9 (discussing difference between “unlawful presence” and “unlawful status”). To the contrary,

10 deferred action is “discretionary and reversible, and ‘confers no substantive right, immigration

11 status or pathway to citizenship.’” Arpaio, 797 F.3d at 17 (citation omitted). DHS thus has

12 discretion to revoke deferred action unilaterally, for any reason or no reason, with or without

13 notice, and an individual with deferred action remains removable at any time. See AADC, 525

14 U.S. at 484–85.

15

B. DAPA and DACA

16

On June 15, 2012, then-Secretary Napolitano announced the policy now known as

17 DACA, or Deferred Action for Childhood Arrivals. See Admin. R. (AR) 1–3, ECF No. 64-11;

18 see also Compl. Ex. D, State of Cal. v. U.S. Dep’t of Homeland Sec., No. 3:17-cv-05235-WHA,

19 ECF No. 1-4 (DACA Memo). DACA made deferred action available to “certain young people

20 who were brought to this country as children” in violation of the immigration laws. DACA

21 Memo at 1 (AR 1). Following completion of a background check, successful requestors would

22 receive deferred action for a period of two years, subject to indefinite renewal. Id. at 2-3 (AR 2-

23 3).

24

The DACA Memo stated that deferred action was an “exercise of prosecutorial

25 discretion,” id. at 1 (AR 1), and that requests for this relief would “be decided on a case by case

26 basis,” id. at 2 (AR 2). Accordingly, the Memo provided that this grant of deferred action

27
1 Unless otherwise noted, all references to the docket refer to the docket in Regents of the
28
University of California v. U.S. Dep’t of Homeland Sec., No. 3:17-cv-05211-WHA.
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
6

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 20 of 60

1 “confer[red] no substantive right, immigration status or pathway to citizenship. Only the

2 Congress, acting through its legislative authority, can confer these rights.” Id. at 3 (AR 3).

3

In public guidance published on its website, DHS also informed DACA requestors that

4 information in their requests will be “protected from disclosure to [Immigration & Customs

5 Enforcement (ICE)] and [Customs & Border Patrol (CBP)] for the purpose of immigration

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

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

8 (for example, when issues of national security, public safety, or significant criminal activity are

9 raised). DHS DACA FAQ No. 19, Compl. Ex. E, State of Cal. v. U.S. Dep’t of Homeland Sec.,

10 No. 3:17-cv-05235-WHA, ECF No. 1-5 (https://go.usa.gov/xngCd); see USCIS, Policy

11 Memorandum (Nov. 7, 2011) (Notice to Appear Guidance), https://go.usa.gov/xncPK. DHS

12 instructed, however, that this information-sharing policy creates no rights and “may be modified,

13 superseded, or rescinded at any time without notice.” DHS DACA FAQ No. 19.

14

In 2014, then-Secretary Jeh Johnson expanded DACA and created a new, similar policy

15 known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

16 See AR 37–41 (DAPA Memo). DAPA made deferred action available to certain unlawfully

17 present aliens who were “parents of U.S. citizens or lawful permanent residents.” DAPA Memo

18 at 3 (AR 39). The DAPA Memo also expanded DACA by relaxing the eligibility criteria and

19 extending the DACA renewal period from two to three years. Id. at 3–4 (AR 39-40).

20

C. The Texas Litigation

21

The DAPA Memo—including its expansion of DACA—was challenged by a coalition of

22 26 states, led by Texas, which sought to enjoin its implementation. Affirming the district court,

23 the Fifth Circuit upheld a nationwide preliminary injunction against implementation of the

24 DAPA Memo. Texas v. United States, 809 F.3d 134 (5th Cir. 2015). Like the U.S. District

25 Court for the Southern District of Texas, the Fifth Circuit held that the promulgation of the

26 DAPA Memo was justiciable, in part because it believed that “the INA’s intricate regulatory

27 scheme for changing immigration classifications” allowed the court to determine whether DHS

28 had exceeded its statutory authority. Id. at 168. It stressed, however, that “the denial of

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1 voluntary departure and work authorization” would be unreviewable. Id. Also like the district

2 court, the Fifth Circuit held that the DAPA Memo failed to comply with the APA’s notice-and-

3 comment requirement, but emphasized that “DAPA is much more than a nonenforcement

4 policy,” and that “a traditional nonenforcement policy would not necessarily be subject to notice

5 and comment.” Id. at 178 n.156. And going beyond the district court, the Fifth Circuit held that

6 DAPA was “manifestly contrary” to the INA, in part because, unlike prior deferred-action

7 policies that served as “bridges from one legal status to another,” DAPA awarded deferred action

8 “to persons who have never had a legal status and may never receive one.” Id. at 184, 186

9 (footnotes omitted).

10

That decision was affirmed by an equally divided Supreme Court, United States v. Texas,

11 136 S. Ct. 2271 (2016) (per curiam), which later denied the government’s request for a rehearing

12 upon confirmation of a ninth Justice, 137 S. Ct. 285 (2016), leaving the preliminary injunction in

13 place. On November 18, 2016, the parties jointly moved the district court to stay merits

14 proceedings to allow them to evaluate “how they might choose to move forward” given the

15 upcoming “change in Administration[s].” Joint Mot. to Stay Merits ¶ 2, Texas v. United States,

16 No. 14-254 (S.D. Tex. Nov. 18, 2016) (ECF No. 430).

17

Faced with continued litigation over a policy that had been enjoined by the courts, DHS

18 rescinded the DAPA Memo on June 15, 2017, including its provisions expanding DACA. See

19 Memorandum for Kevin McAleenan, Acting Commissioner, U.S. Customs and Border

20 Protection, et al., from John F. Kelly, Secretary of Homeland Security, Re: Rescission of

21 November 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and

22 Lawful Permanent Residents (June 15, 2017), AR 235-37. Plaintiffs do not challenge that

23 decision here.

24

On June 29, 2017, Texas and several other states threatened to amend their complaint to

25 also challenge directly the DACA Memo, arguing that it suffers from the same legal infirmities

26 as the DAPA Memo. See AR 238–40 (Paxton Letter).

27

28
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1

D. Rescission of DACA

2

Faced again with the prospect of continued litigation, Acting Secretary Duke decided on

3 September 5, 2017, to wind down the DACA policy in an orderly fashion. See AR 252–56

4 (Rescission Policy or Policy); see also Compl. Ex. A, State of Cal. v. U.S. Dep’t of Homeland

5 Sec., No. 3:17-cv-05235-WHA, ECF No. 1-1. As the Acting Secretary explained, “[t]aking into

6 consideration the Supreme Court’s and Fifth Circuit’s ruling in the ongoing litigation, and the

7 September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA

8 program should be terminated.” Rescission Policy at 4 (AR 255). Specifically, she quoted the

9 Attorney General’s September 4 recommendation to rescind DACA, which explained that

10 because DACA “has the same legal and constitutional defects that the courts recognized as to

11 DAPA, it is likely that potentially imminent litigation would yield similar results.” Id. at 3 (AR

12 254). Invoking her “authority in establishing national immigration policies and priorities,” she

13 rescinded the DACA Memo, id. at 4 (AR 255), and instructed that deferred action should instead

14 be provided “only on an individualized[,] case-by-case basis,” id. at 2 (AR 253).

15

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

16

•

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

previously issued deferred action or revoke Employment Authorization

17

Documents solely based on the directives in this memorandum for the

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

18

•

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

19

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

associated applications for Employment Authorization Documents that

20

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

all DACA initial requests and associated applications for Employment

21

Authorization Documents filed after” that date. Id.

22

•

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

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

23

associated applications for Employment Authorization Documents from

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

24

5, 2017. Further, DHS will similarly adjudicate such requests and

applications “from current beneficiaries whose [deferred action under

25

DACA] will expire between [September 5, 2017,] and March 5, 2018[,]

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

26

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

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

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

2 256). Accordingly, DHS will “continue to exercise its discretionary authority to terminate or

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

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

5

E. These Actions

6

Plaintiffs in these five related lawsuits raise seven overlapping sets of claims. First, they

7 allege that the Rescission Policy is arbitrary and capricious and therefore violates the APA

8 because it constitutes a change in agency policy without an adequate explanation or basis. See

9 Regents of Univ. of Cal. Compl. ¶¶ 50-58 (Count 1), No. 3:17-cv-05211 ECF No. 1; State of Cal.

10 Compl. ¶¶ 152-155 (Count 3), No. 3:17-cv-05235 ECF No. 1; Garcia Compl. ¶ 175 (Count 4),

11 No. 3:17-cv-05380 ECF No. 1; Cty. of Santa Clara Compl. ¶ 71 (Count 2), No. 3:17-cv-05813

12 ECF No. 1. The Garcia and County of Santa Clara Plaintiffs also allege that the rescission is

13 arbitrary and capricious because DHS, in rescinding DACA, allegedly “disregard[ed]” the

14 “reliance” of DACA recipients in providing personal information to the government. See Garcia

15 Compl. ¶ 172; see generally id. ¶¶ 165-184 (Counts 4 & 5); Cty. of Santa Clara Compl. ¶ 72; see

16 generally id. ¶¶ 67-73 (Count 2). The Garcia Plaintiffs also quarrel with DACA’s rescission

17 both by claiming that the government improperly provided for a wind-down period, and then

18 claiming that the wind-down period is unreasonably “short.” Garcia Compl. ¶¶ 173-174; see

19 generally id. ¶¶ 165-184 (Counts 4 & 5). Finally, the Garcia Plaintiffs repackage their

20 constitutional claims under the rubric of the APA. See Garcia Compl. ¶¶ 160-164 (Count 3).

21

Second, Plaintiffs allege that the rescission violates the APA because it was issued

22 without notice and comment. See Regents of Univ. of Cal. Compl. ¶¶ 59-66 (Count 2); State of

23 Cal. Compl. ¶¶ 146-151 (Count 2); City of San Jose Compl. ¶¶ 59-63 (Count 2), No. 3:17-cv-

24 05329 ECF No. 1; Garcia Compl. ¶¶ 177-184 (Count 5).

25

Third, Plaintiffs allege that the rescission violates procedural due process because DACA

26 recipients will be deprived of their interests in their DACA status without notice or an

27 opportunity to be heard. See Regents of Univ. of Cal. Compl. ¶¶ 67-73 (Count 3); Garcia

28 Compl. ¶¶ 133-147 (Count 1); Cty. of Santa Clara Compl. ¶¶ 59-66 (Count 1).

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1

Fourth, Plaintiffs suggest that the rescission violates DACA recipients’ substantive due

2 process rights because the government has allegedly changed its policy regarding the use of

3 DACA-related information, including that the government will allegedly use such information

4 for enforcement purposes in a manner that is not “fundamentally fair.” State of Cal. Compl. ¶¶

5 141-145 (Count 1); Garcia Compl. ¶¶ 133-147 (Count 1); Cty. of Santa Clara Compl. ¶¶ 59-66

6 (Count 1).

7

Fifth, Plaintiffs contend that the rescission violates the Equal Protection component of the

8 Fifth Amendment’s Due Process Clause because it was allegedly motivated by discriminatory

9 animus against Mexican and Latino immigrants. City of San Jose Compl. ¶¶ 52-58 (Count 1);

10 Garcia Compl. ¶¶ 148-159 (Count 2); Cty. of Santa Clara Compl. ¶¶ 74-78 (Count 3). The State

11 of California Plaintiffs also claim that the rescission of DACA violates equal protection

12 principles because it “violates fundamental conceptions of justice by depriving DACA grantees

13 . . . of their substantial interests in pursuing a livelihood and to support themselves and further

14 their education.” State of Cal. Compl. ¶¶ 172-177 (Count 6).

15

Sixth, Plaintiffs allege that the rescission violates the Regulatory Flexibility Act because

16 it was unaccompanied by a regulatory flexibility analysis. State of Cal. Compl. ¶¶ 156-163

17 (Count 4); Garcia Compl. ¶¶ 185-191 (Count 6).

18

Seventh, Plaintiffs bring equitable estoppel claims, alleging that DACA recipients

19 provided detailed personal information to the government and “rearranged their lives” based on

20 the government’s representations, but now face the possibility of removal and deportation. On

21 that basis, Plaintiffs argue that the government should be equitably estopped from terminating

22 DACA or from using DACA information for enforcement purposes. State of Cal. Compl.

23 ¶¶ 164-171 (Count 5); Garcia Compl. ¶¶ 192-199 (Count 7); Cty. of Santa Clara Compl. ¶¶ 79-

24 86 (Count 4).

25

Finally, Plaintiffs seek declaratory judgments and injunctive relief. Regents of Univ. of

26 Cal. Compl. 16, Prayer for Relief; State of Cal. Compl. 35-36, Prayer for Relief; City of San Jose

27 Compl. 15-16, Prayer for Relief; Garcia Compl. 43, Prayer for Relief & ¶¶ 200-205 (Count 8);

28 Cty. of San Jose Compl. 26-27, Prayer for Relief.

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1

LEGAL STANDARDS

2

To survive a motion to dismiss under Rule 12(b)(1), a plaintiff must establish a court’s

3 jurisdiction through sufficient allegations. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

4 (1992). In evaluating its jurisdiction, this Court should not “rely simply on the allegations in the

5 complaint to determine subject matter jurisdiction. [It] must instead look to facts outside the

6 pleadings to determine whether [it] has jurisdiction.” Cassirer v. Kingdom of Spain, 616 F.3d

7 1019, 1043 n.7 (9th Cir. 2010) (citing Robinson v. United States, 586 F.3d 683, 685 (9th Cir.

8 2009)); see also McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (“[W]hen

9 considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the

10 face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve

11 factual disputes concerning the existence of jurisdiction.”). Furthermore, “[n]o presumptive

12 truthfulness attaches to plaintiffs’ allegations. Once challenged, the party asserting subject

13 matter jurisdiction has the burden of proving its existence.” Robinson, 586 F.3d at 685 (citations

14 omitted).

15

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “enough

16 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

17 544, 570 (2007). This “plausibility” standard “asks for more than a sheer possibility that a

18 defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

19

With respect to Plaintiffs’ APA claims, “the Court may consider matters outside the

20 pleadings without converting Defendants’ Motion to Dismiss to a motion for summary

21 judgment.” Herguan Univ. v. Immigration & Customs Enf’t, No. 16-cv-06656-LHK, 2017 WL

22 2797860, at *8 (N.D. Cal. June 28, 2017). “[W]hen a party seeks review of agency action under

23 the APA [before a district court], the district judge sits as an appellate tribunal.” Id. (alterations

24 in original) (quoting Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009)); see also Bates

25 v. Donley, 935 F. Supp. 2d 14, 17 (D.D.C. 2013) (citing Rempfer, 583 F.3d at 865).

26 “Accordingly, ‘[t]he entire case on review is a question of law, and the complaint, properly read,

27 actually presents no factual allegations, but rather only arguments about the legal conclusion to

28 be drawn about the agency action.’” Herguan Univ., 2017 WL 2797860, at *8 (quoting Rempfer,

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1 583 F.3d at 865). Under these circumstances, review “is based on the agency record and limited

2 to determining whether the agency acted arbitrarily and capriciously.” Id. (quoting Rempfer, 583

3 F.3d at 865); see also Univ. Med. Ctr. of S. Nev. v. Shalala, 173 F.3d 438, 440 n. 3 (D.C. Cir.

4 1999) (explaining that when reviewing agency action the question of whether the agency acted in

5 an arbitrary and capricious manner is a legal one which the district court can resolve on the

6 agency record, regardless of whether it is presented in the context of a motion for judgment on

7 the pleadings or in a motion for summary judgment).

8

Even outside the context of the APA, the Court may consider “matters of judicial notice.”

9 United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (citations omitted); see also Tellabs,

10 Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The Court may also consider

11 exhibits that are submitted with the complaint, see Knievel v. ESPN, 393 F.3d 1068, 1076 (9th

12 Cir. 2005), as well as “evidence on which the complaint ‘necessarily relies’ if: (1) the complaint

13 refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no party

14 questions the authenticity of the copy attached to the 12(b)(6) motion,” Marder v. Lopez, 450

15 F.3d 445, 448 (9th Cir. 2006) (citations omitted). A court may treat such a document as “part of

16 the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss

17 under Rule 12(b)(6).” Ritchie, 342 F.3d at 908.2

18

ARGUMENT

19

In seeking to invalidate the Rescission Policy, Plaintiffs ask the Court to override the

20 Acting Secretary’s judgment about how to exercise her discretion in enforcing the Nation’s

21 immigration laws. The Court need not consider this extraordinary request, however, because this

22 case is not justiciable. The exercise of enforcement discretion in the Rescission Policy is

23 committed to agency discretion by law and is therefore unreviewable. In fact, Congress has gone

24 so far as to strip district courts of jurisdiction over “no deferred action” decisions such as the one

25 here. At a minimum, the university, state, municipal, and union Plaintiffs lack standing. And in

26 all events, Plaintiffs fail to state a claim. These cases should therefore be dismissed.

27
28 2 In the alternative, however, the Court may if it wishes convert this motion to one for summary judgment. See Bates, 935 F. Supp. 2d at 17, 19.
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1 I.

THESE CASES ARE NOT JUSTICIABLE

2

A. The Rescission Policy Is Not Justiciable Because this Immigration

Enforcement Policy Is a Matter Committed to Agency Discretion by Law

3

4

1. The APA bars judicial review of certain categories of decisions that “courts

5 traditionally have regarded as ‘committed to agency discretion.’” Lincoln v. Vigil, 508 U.S. 182,

6 192 (1993) (quoting 5 U.S.C. § 701(a)(2)). These decisions are typically unreviewable because

7 there exists “no meaningful standard against which to judge the agency’s exercise of discretion”

8 in these areas. Chaney, 470 U.S. at 830. Moreover, review is particularly inappropriate where

9 “the subject matter is ‘an area of executive action in which the courts have long been hesitant to

10 intrude.’” Helgeson v. Bureau of Indian Affairs, Dep’t of Interior, 153 F.3d 1000, 1003 (9th Cir.

11 1998) (quoting Lincoln, 508 U.S. at 191). This bar applies even when “the agency gives a

12 ‘reviewable’ reason for otherwise unreviewable action.” ICC v. Bhd. of Locomotive Eng’rs

13 (BLE), 482 U.S. 270, 283 (1987).

14

Among the decisions committed to executive discretion are “an agency’s exercise of

15 enforcement power.” Chaney, 470 U.S. at 833. Such judgments involve “a complicated

16 balancing of factors which are peculiarly within [an agency’s] expertise,” including “whether

17 agency resources are best spent on this violation or another, whether the agency is likely to

18 succeed if it acts, whether the particular enforcement action requested best fits the agency’s

19 overall priorities, and, indeed, whether the agency has enough resources to undertake the action

20 at all.” Id. at 831. As there is “no meaningful standard against which to judge the agency’s

21 exercise of discretion” in weighing these factors, an agency’s exercise of enforcement powers is

22 “presumed immune from judicial review under § 701(a)(2).” Id. at 830, 832.

23

For instance, an “agency decision not to prosecute or enforce, whether through civil or

24 criminal process, is a decision generally committed to an agency’s absolute discretion.” Id. at

25 831 (citation omitted). After all, “[a]n agency generally cannot act against each technical

26 violation of the statute it is charged with enforcing,” and it “is far better equipped than the courts

27 to deal with the many variables involved in the proper ordering of its priorities.” Id. at 831–32.

28
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1

An agency’s decision to enforce the law against a particular individual is likewise

2 presumptively unreviewable. Just as “the decision whether or not to prosecute” presumptively

3 “rests entirely in [the prosecutor’s] discretion,” Armstrong, 517 U.S. at 464 (citation omitted), an

4 agency’s decision to bring a civil enforcement action is generally not open to judicial scrutiny.

5 Considerations such as “whether agency resources are best spent on this violation or another,

6 whether the agency is likely to succeed if it acts, [and] whether the particular enforcement action

7 requested best fits the agency’s overall priorities” are equally present in enforcement decisions as

8 in nonenforcement decisions, Chaney, 470 U.S. at 831, and judicial intrusion into the

9 deliberative process is equally improper, see Citizens to Pres. Overton Park, Inc. v. Volpe, 401

10 U.S. 402, 420 (1971) (“there must be a strong showing of bad faith or improper behavior before”

11 courts can engage in an “inquiry into the mental processes of administrative decisionmakers”

12 (citation omitted)), abrogated on other grounds by Califano v. Sanders, 40 U.S. 99 (1977).

13

This presumption of nonreviewability applies with particular force when it comes to

14 immigration. On top of the general concerns implicated in any enforcement decision, the

15 enforcement of immigration laws “embraces immediate human concerns,” and the “dynamic

16 nature of relations with other countries requires the Executive Branch to ensure that

17 [immigration] enforcement policies are consistent with this Nation’s foreign policy.” Arizona,

18 567 U.S. at 396–97. Given these realities, the “broad discretion exercised by immigration

19 officials” has become a “principal feature of the removal system.” Id. at 396. One form of that

20 broad discretion is deferred action, a “discretionary and reversible” decision to notify an alien

21 that DHS has chosen not to seek his removal for a specific period of time. Arpaio, 797 F.3d at

22 17; see supra at 5-6. Like other agency nonenforcement decisions, grants of deferred action rest

23 on a complex balancing of policy considerations that cannot serve as “meaningful standard

24 against which to judge the agency’s exercise of discretion.” Chaney, 470 U.S. at 830. Such

25 determinations are thus presumptively unreviewable. See Arpaio, 797 F.3d at 16.

26

The converse is equally true: denials of deferred action are also committed to agency

27 discretion. See AADC, 525 U.S. at 485 (treating “‘no deferred action’ decisions” as

28 “discretionary determinations”). Because “[g]ranting an illegally present alien permission to

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1 remain and work in this country” is fundamentally “a dispensation of mercy,” there are “no

2 standards by which judges may patrol its exercise.” Perales v. Casillas, 903 F.2d 1043, 1051

3 (5th Cir. 1990) (INS’s decision not to grant pre-hearing voluntary departures and work

4 authorizations to a group of aliens non-justiciable). To be sure, a decision “not to grant deferred

5 action status to a particular alien is not precisely a ‘decision not to take enforcement action,’” but

6 that does not obscure the fact that “many of the same factors” underlying the latter

7 determinations usually play a role in the former. Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1011

8 n.4 (9th Cir. 1987) (“denials of deferred action status applications are not subject to judicial

9 review” under § 701(a)(2)).

10

2. As an exercise of enforcement discretion, the Rescission Policy is a classic example of

11 a discretionary determination that is entrusted to the agency alone. Indeed, any attempt to judge

12 the Policy would quickly entangle this Court in the sort of complex and discretionary balancing

13 that has been entrusted by Congress to the Executive Branch. For example, the judiciary is

14 institutionally ill-equipped to assess whether the Acting Secretary’s decision to change

15 “immigration policies and priorities” by rescinding DACA, Rescission Policy at 4 (AR 255), was

16 an appropriate use of “the Department’s limited resources,” Arpaio, 797 F.3d at 16. Nor is this

17 Court well suited to second-guess the Acting Secretary’s balancing of the costs and benefits of

18 keeping the policy in place, on one hand, with the risk of “potentially imminent litigation” that

19 could throw DACA into immediate turmoil, on the other. Rescission Policy at 3 (AR 254)

20 (citation omitted).

21

To be sure, the Acting Secretary also gave substantive legal reasons for her decision, id.

22 at 2–4 (AR 253–55), but that does not render it justiciable. That is because the Supreme Court

23 has rejected the proposition that if an “agency gives a ‘reviewable’ reason for otherwise

24 unreviewable action, the action becomes reviewable.” BLE, 482 U.S. at 283. For example, “a

25 common reason for failure to prosecute an alleged criminal violation is the prosecutor’s belief

26 (sometimes publicly stated) that the law will not sustain a conviction,” which “is surely an

27 eminently ‘reviewable’ proposition, in the sense that courts are well qualified to consider the

28 point.” Id. But that does not change the fact that “it is entirely clear that the refusal to prosecute

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1 cannot be the subject of judicial review.” Id. Likewise, the Acting Secretary’s discussion of the

2 question of DACA’s legality does not transform her generally unreviewable exercise of

3 enforcement discretion into a matter fit for judicial scrutiny.

4

Indeed, reviewing the Rescission Policy would be particularly inappropriate given the

5 wide discretion the Secretary enjoys in the enforcement of the immigration laws. In AADC, the

6 Supreme Court held that “an alien unlawfully in this country has no constitutional right to assert

7 selective enforcement as a defense against his deportation,” 525 U.S. at 488 (footnote omitted),

8 subject to the “possib[le]” exception “of a rare case in which the alleged basis of discrimination

9 is so outrageous that the foregoing considerations can be overcome,” id. at 491. The reason for

10 this highly restrictive rule is that the concerns raised by challenges to the Executive’s

11 enforcement discretion “are greatly magnified in the deportation context.” Id. at 490. An alien

12 subject to removal is, by definition, in continuing violation of the INA, and judicial interference

13 with the Executive’s enforcement therefore would compel the Executive to disregard such

14 ongoing violations. The “delay” associated with challenges to discretionary decisions not to

15 forgo enforcement is more likely than in the criminal arena, as “[p]ostponing justifiable

16 deportation (in the hope that the alien’s status will change … or simply with the object of

17 extending the alien’s unlawful stay) is often the principal object of resistance to a deportation

18 proceeding,” and “the consequence is to permit and prolong a continuing violation” of the

19 immigration laws. Id. at 490. For another, reviewing immigration decisions may involve “not

20 merely the disclosure of normal domestic law enforcement priorities and techniques, but often

21 the disclosure of foreign-policy objectives” or other sensitive matters as well. Id. at 490–91.

22 Finally, the idea that “an ongoing violation of United States law . . . must be allowed to continue

23 because it has been improperly selected is not powerfully appealing.” Id. at 491 (emphasis

24 omitted).

25

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

26

of Deferred Action

27

Not only is the denial of deferred action committed to agency discretion under the APA,

28 but the INA itself deprives federal district courts of jurisdiction over challenges to such denials

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1 altogether. As the Supreme Court explained in AADC, the Executive’s “exercise of [its]

2 discretion” in granting deferred action in some circumstances had “opened the door to litigation

3 . . . where” the Executive had “chose[n] not to exercise it.” Id. at 484. Specifically, some courts

4 had entertained challenges to “the refusal to exercise such discretion” on various bases such as

5 “selective prosecution,” the use of “arbitrary or unconstitutional criteria, or on other grounds

6 constituting abuse of discretion.” Id. at 485 (citation omitted). To address what the Supreme

7 Court referred to as this “particular evil”—i.e., “attempts to impose judicial constraints upon

8 prosecutorial discretion”—Congress enacted 8 U.S.C. § 1252(g). Id. at 485 & n.9.

9

Section 1252(g) commands that, outside of petitions for review from final removal orders

10 and certain other limited channels for review, “no court shall have jurisdiction to hear any cause

11 or claim by or on behalf of any alien arising from the decision or action by the [Secretary of

12 Homeland Security3] to commence proceedings, adjudicate cases, or execute removal orders

13 against any alien under this Act.” These were “the acts … that had prompted challenges to the

14 … exercise of prosecutorial discretion” in denying deferred action, and thus § 1252(g) “seems

15 clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar

16 discretionary determinations, providing that if they are reviewable at all, they at least will not be

17 made the bases for separate rounds of judicial intervention outside the streamlined process that

18 Congress has designed”—namely, an individual removal proceeding. AADC, 525 U.S. at 485 &

19 n.9.

20

Denials of deferred action—including under DACA itself—thus fall outside the

21 jurisdiction of the federal courts. See, e.g., Vasquez v. Aviles, 639 F. App’x 898, 901 (3d Cir.

22 2016) (“[Section] 1252(g) … deprives all courts of jurisdiction to review a denial of DACA

23 relief because that decision involves the exercise of prosecutorial discretion not to grant a

24 deferred action.”); Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999) (“Review of refusal to

25 grant deferred action is … excluded from the jurisdiction of the district court.”).

26

27 3 See 6 U.S.C. § 557; see also id. §§ 202, 251; Elgharib v. Napolitano, 600 F.3d 597, 607 (6th 28 Cir. 2010) (“[U]nder 6 U.S.C. § 557, . . . the statutory reference to the ‘Attorney General’ in
§ 1252(g) now means ‘Secretary of DHS.’”).
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1

To be sure, Plaintiffs brought this challenge to the Rescission Policy before any removal

2 proceedings took place, but that is beside the point. The decision not to continue deferred action

3 is an ingredient to the commencement of enforcement proceedings at some future date, and a

4 person cannot circumvent the bar in 8 U.S.C. § 1252(g) by singling out that single step for a

5 preemptive challenge. Indeed, if aliens (or entities suing on their behalf) could evade

6 § 1252(g)’s bar simply by challenging the forthcoming expiration of deferred action before

7 actual removal proceedings (if any) began, then jurisdiction would turn on a race to the

8 courthouse. Such a framework would create the perverse incentive for DHS to begin removal

9 proceedings immediately rather than to allow, as it did here, for rolling expirations of deferred

10 action status over a two-and-a-half year period. There is no indication that Congress sought to

11 enact such a nonsensical regime. Instead, § 1252(g) precludes review of either “the decision or

12 action” by the Acting Secretary “to commence proceedings,” and thereby sweeps in the

13 Rescission Policy (emphasis added).

14

Moreover, at least one court has applied § 1252(g) to actions that are “not … on the list

15 of precluded items”—i.e., “decisions to commence proceedings, adjudicate cases, or execute

16 removal orders”—in order to effectuate the object of this jurisdictional bar. Botezatu, 195 F.3d

17 at 313–14. In Botezatu, the Seventh Circuit rejected an alien’s argument that a court could

18 review the Executive’s “refusal to … grant him humanitarian parole or deferred action” simply

19 because that denial occurred in “post-deportation procedures.” Id. at 313–14. As the Seventh

20 Circuit explained, because AADC broadly held that “‘no deferred action’ decisions and similar

21 discretionary determinations’ [were] governed by § 1252(g),” that jurisdictional bar should apply

22 regardless of when such determinations occurred. Id. at 314 (quoting AADC, 525 U.S. at 485).

23 Thus, just as an alien (or entity suing on his behalf) cannot circumvent § 1252(g) by bringing a

24 challenge to a denial of deferred action on the back-end, Plaintiffs’ broad front-end assault on the

25 Rescission Policy is beyond the jurisdiction of this Court. At the very least, 8 U.S.C. § 1252(g)

26 reinforces the conclusion that enforcement discretion under the INA is at the core of

27 unreviewable matters committed to agency discretion by law under the APA. 5 U.S.C.

28 § 701(a)(2). See Helgeson, 153 F.3d at 1003 (review inappropriate for subject areas where

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1 courts traditionally hesitant to intrude).4

2

C. The University, State, Municipal, and Union Plaintiffs’ Claims Are Not

Cognizable

3

1. The University, State, Municipal, and Union Plaintiffs Lack Article

4

III Standing

5

At a minimum, the Court should dismiss the actions brought by the Regents of the

6 University of California (including its president); the States of California, Maine, Maryland, and

7 Minnesota; the City of San Jose; and the County of Santa Clara in conjunction with the Service

8 Employees International Union Local 521 for lack of standing. To establish Article III standing,

9 these parties must at least show that they have suffered an “injury in fact” that is “fairly

10 traceable” to Defendants’ challenged conduct and that will likely be “redressed by a favorable

11 decision.” Lujan, 504 U.S. at 560–61 (brackets and citations omitted). They cannot do so. The

12 Rescission Policy does not regulate them, require them to do (or refrain from doing) anything, or

13 restrict them in any way. Instead, these Plaintiffs complain of injury “from the government’s

14 allegedly unlawful regulation (or lack of regulation) of someone else,” making standing

15 “substantially more difficult to establish.” Id. at 562 (emphasis added). That burden becomes

16 insurmountable when a plaintiff claims to be injured by the incidental effects of federal

17 enforcement policies, as it is settled that “a private citizen lacks a judicially cognizable interest in

18 the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619

19 (1973).

20

These principles apply with particular force where, as here, the parties are relying

21 primarily on the incidental effects of federal immigration policies. See, e.g., Regents of Univ. of

22 Cal. Compl. ¶ 2 (alleging harm arising from effect of DACA rescission on “members of [the

23

24 4 The Ninth Circuit’s decision in Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004), does not foreclose the application of § 1252(g) to this case. That case did not involve a decision
25
not to continue deferred action, an ingredient to the commencement of enforcement proceedings 26 and a subject directly addressed by AADC itself. See id. at 964-65. AADC thus provides more
relevant guidance. Indeed, Kawi Fun Wong relied upon the fact that the challenge there did “not 27 pose the threat of obstruction of the institution of removal proceedings or the execution of
removal orders about which AADC was concerned.” Id. at 970. The same cannot be said about
28
Plaintiffs’ challenge here.
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
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1 University of California] community” such as “students and employees”); State of Cal. Compl. 2 ¶ 10 (alleging that DACA rescission will injure state-run colleges, upset workforces, disrupt 3 statutory and regulatory interests, cause harm to state residents, damage economies, and hurt 4 companies)5; City of San Jose Compl. ¶ 10 (alleging that San Jose has suffered injury and has 5 third-party standing to bring lawsuit “on behalf of its employees” with whom it allegedly “has a 6 close relationship”); Cty. of Santa Clara Compl. ¶¶ 15-16 (alleging injury to county due to large 7 number of foreign-born residents and county employment of DACA recipients); id. ¶¶ 18-20 8 (allegations that local union has members who are DACA recipients). It would be extraordinary 9 to find Article III standing based on these assertions, as virtually any administration of federal 10 law by a federal agency could have such effects. The unavoidable reality that any enforcement 11 of immigration laws will inevitably have some unintended or derivative effects does not provide 12 carte blanche to challenge such enforcement decisions whenever there is a disagreement about 13 federal immigration policy.6

14

2. The University, State, Municipal, and Union Plaintiffs Lack a Cause

15

of Action Under the APA

16

Even if the non-individual Plaintiffs could establish Article III standing, they would lack

17 a cause of action under the APA. The APA does not “allow suit by every person suffering an

18 injury in fact.” Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 395 (1987). Rather, it provides a

19 cause of action only to a plaintiff “adversely affected or aggrieved by agency action within the

20 meaning of a relevant statute.” 5 U.S.C. § 702. To be “aggrieved” in this sense, “the interest

21 sought to be protected by the complainant [must] be arguably within the zone of interests to be

22 protected or regulated by the statute … in question.” Clarke, 479 U.S. at 396 (brackets and

23 citation omitted). Here, no provision of the INA even arguably protects the non-individual

24 5 It is unclear whether and, if so, the extent to which the State of California can rely upon any alleged injury to its “state-run colleges and universities,” as the University of California system
25
is a separate plaintiff in the separate Regents of the University of California lawsuit. 26 6 Plaintiffs cannot overcome their failure to establish standing in their own right by invoking the
asserted rights of their citizens or residents as parens patriae. “A State does not have standing as 27 parens patriae to bring an action against the Federal Government,” Alfred L. Snapp & Son, Inc. v.
Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982) (citation omitted), as “it is no part of [a 28 state’s] duty or power to enforce [its citizens’] rights in respect of their relations with the federal
government,” Massachusetts v. Mellon, 262 U.S. 447, 485–86 (1923).
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1 Plaintiffs from bearing any incidental effects of a denial of deferred action. Cf. Fed’n for Am. 2 Immigration Reform, Inc. v. Reno, 93 F.3d 897, 899 (D.C. Cir. 1996) (dismissing under zone-of3 interests a suit challenging parole of aliens into this country, where plaintiffs relied on incidental 4 effects of that policy on workers).

5

D. The Government’s Justiciability Objections Are Not Inconsistent with the

6

Acting Secretary’s Reliance on the Fifth Circuit’s Decision

7

Although the Fifth Circuit in Texas included holdings that a challenge to the DAPA

8 Memo was reviewable, 809 F.3d at 165–70, neither that decision nor Acting Secretary Duke’s

9 reliance on it forecloses the government from arguing here that the DACA Rescission Policy is

10 unreviewable. First, neither the Acting Secretary’s memo nor the Attorney General’s letter

11 expressly relied upon or gave any indication that they agreed with the Fifth Circuit’s

12 justiciability rulings, and it was far from arbitrary and capricious for the Acting Secretary to

13 weigh litigation risk based on judicial decisions without regard to whether those courts had been

14 correct to assert jurisdiction in the first place. Second, officers of the Executive Branch have an

15 independent duty to consider the legality of their policies regardless of whether they are

16 judicially reviewable; all swear an oath to uphold the United States Constitution. See Mississippi

17 v. Johnson, 71 U.S. (4 Wall.) 475, 499 (1867) (Take Care Clause imposes a generally

18 nonjusticiable duty on the Executive Branch). Finally, even if courts could have reviewed the

19 adoption of DACA as “an abdication of [DHS’s] statutory responsibilities,” Chaney, 470 U.S. at

20 833 n.4, that would not make the Rescission Policy, a classic exercise of agency enforcement

21 discretion, open to challenge. After all, the Fifth Circuit itself emphasized that “DAPA is much

22 more than a nonenforcement policy, which presumptively would be committed to agency

23 discretion,” Texas, 809 F.3d at 178 n.156, and pointed out that a “denial of voluntary departure

24 and work authorization” by DHS would have been nonjusticiable, id. at 168. Denials of deferred

25 action under a return to a more traditional enforcement policy should be treated no differently.7

26
7 Similarly, the fact that the Fifth Circuit held that Texas had standing because it specifically 27 demonstrated that “it would incur significant costs in issuing driver’s licenses to DAPA
beneficiaries,” has no bearing on the States’ standing in this case. Texas, 809 F.3d at 155. The 28 States here have failed to point to analogous injury similarly traceable to the Rescission Policy.
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
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1 II. PLAINTIFFS FAIL TO STATE A CLAIM

2

Even if Plaintiffs’ claims were justiciable, the Court should dismiss these cases in their

3 entirety for failure to state a claim.

4

A. The Acting Secretary Rationally Explained Her Decision To Wind Down

5

DACA, Particularly Given the Imminent Risk of A Nationwide Injunction

6

Plaintiffs contend that the Rescission Policy is arbitrary and capricious because it

7 constitutes a change in agency policy without an adequate explanation. Regents of Univ. of Cal.

8 Compl. ¶¶ 50-58 (Count 1); State of Cal. Compl. ¶¶ 152-155 (Count 3); Garcia Compl. ¶¶ 175

9 (Count 4); Cty. of Santa Clara Compl. ¶ 71 (Count 2). Plaintiffs’ allegations misapprehend the

10 nature of the inquiry under the APA. It is black-letter law that agencies are free to change course

11 on policy matters so long as they provide a rational explanation. Here, the Acting Secretary’s

12 explanation of her decision to rescind DACA readily meets this deferential standard, particularly

13 in view of the imminent risk of a nationwide injunction, which could have prompted an

14 immediate—and chaotic—end to the policy.

15

1. Under the APA, an agency’s decision must be upheld unless arbitrary, capricious, an

16 abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A); see also id.

17 § 706(2)(B). The agency’s decision is presumed valid under this standard, and the Court asks

18 only whether it “was based on a consideration of the relevant factors and whether there has been

19 a clear error of judgment.” Overton Park, 401 U.S. at 416. A decision may be held to be

20 arbitrary and capricious only when the agency “has relied on factors which Congress has not

21 intended it to consider, entirely failed to consider an important aspect of the problem, [or]

22 offered an explanation for its decision that runs counter to the evidence before the agency,” or

23 the decision “is so implausible that it could not be ascribed to a difference in view or the product

24 of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983). The

25 Court may not “substitute its judgment for that of the agency.” Id. And when an agency changes

26 policies, it “need not demonstrate to a court’s satisfaction that the reasons for the new policy are

27 better than the reasons for the old one.” FCC v. Fox TV Stations, Inc., 556 U.S. 502, 515 (2009).

28 Rather, “it suffices that the new policy is permissible under the statute, that there are good

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1 reasons for it, and that the agency believes it to be better, which the conscious change of course

2 adequately indicates.” Id.

3

In assessing whether a decision was arbitrary and capricious, “[t]he task of the reviewing

4 court is to apply the appropriate APA standard of review to the agency decision based on the

5 record the agency presents to the reviewing court.” Fla. Power & Light Co. v. Lorion, 470 U.S.

6 729, 743-44 (1985) (citation omitted). If the agency’s action “is not sustainable on the

7 administrative record made,” then the administrative “decision must be vacated and the matter

8 remanded to [the agency] for further consideration.” Camp v. Pitts, 411 U.S. 138, 143 (1973).

9 This Court should therefore decide whether the Acting Secretary’s decision to wind down

10 DACA was arbitrary and capricious on the administrative record she has produced. This Court

11 cannot consider additional materials concerning her deliberative process. It is “not the function

12 of the court to probe the mental processes” of the agency. Morgan v. United States, 304 U.S. 1,

13 18 (1938). “Just as a judge cannot be subjected to such a scrutiny . . . so the integrity of the

14 administrative process must be equally respected.” United States v. Morgan, 313 U.S. 409, 422

15 (1941). Deliberative materials are therefore not merely protected from disclosure—they do not

16 form part of the administrative record at all. See San Luis Obispo Mothers for Peace v. U.S.

17 N.R.C., 789 F.2d 26, 45 (D.C. Cir. 1986) (en banc). Thus, while the government submits that the

18 Acting Secretary’s decision was plainly not arbitrary and capricious under the record already

19 before this Court, if this Court were to disagree, it should do no more than simply grant Plaintiffs

20 the relief they seek by setting aside the Rescission Policy and remanding to her.

21

2. The Rescission Policy amply meets the “minimal standards of rationality” required by

22 the APA. Troy Corp. v. Browner, 120 F.3d 277, 283 (D.C. Cir. 1997). Plaintiffs do not deny

23 that “the new policy is permissible under the [INA].” Fox, 556 U.S. at 515. And there are

24 eminently “good reasons for it,” id., particularly in view of the litigation risk posed by the

25 proceedings in Texas. In the Rescission Policy, the Acting Secretary explained that, “[t]aking

26 into consideration the Supreme Court’s and Fifth Circuit’s rulings in the ongoing litigation, and

27 the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA

28 program should be terminated.” Rescission Policy at 4 (AR 255). Specifically, after

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1 summarizing the Texas litigation and the nationwide injunction against DAPA (and its expansion

2 of DACA), she quoted the Attorney General’s conclusion in his letter that because DACA “has

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

4 potentially imminent litigation would yield similar results.” Id. at 3 (AR 254). The Acting

5 Secretary thus concluded that maintaining the DACA Policy would, in all likelihood, result in

6 another nationwide injunction plunging the policy, and its nearly 800,000 recipients, into

7 uncertainty.

8

The Acting Secretary was then “faced with two options: wind the program down in an

9 orderly fashion that protects beneficiaries in the near-term while working with Congress to pass

10 legislation; or allow the judiciary to potentially shut the program down completely and

11 immediately.” Press Release, DHS, Statement from Acting Secretary Duke on the Rescission of

12 DACA (Sept. 5, 2017), https://go.usa.gov/xncuM. She reasonably opted for an orderly

13 rescission, which she considered “the least disruptive option.” Id.

14

There is nothing at all irrational about this choice or that explanation. Cf. Chevron U.S.A.

15 Inc. v. Echazabal, 536 U.S. 73, 84 (2002) (“regulation reasonable” based on concerns about

16 subjecting parties to “possible … liability”). Indeed, it is entirely sensible, given the turmoil that

17 an abrupt, court-ordered shutdown would likely have provoked. The Acting Secretary balanced

18 the litigation risk of keeping DACA in place with “the administrative complexities associated

19 with ending the program,” and opted for a solution that would “wind it down in an efficient and

20 orderly fashion” accounting for the interests of DACA recipients. Rescission Policy at 3 (AR

21 254). She explained her reasonable decision to rescind DACA, and the APA requires no more.

22 See Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (APA

23 satisfied where agency’s explanation is clear enough that its “path may reasonably be

24 discerned”).8 And no matter whether her (or the Attorney General’s) judgment about the likely

25 result of the Texas litigation would have turned out to be correct, it was surely not an irrational or

26 arbitrary and capricious conclusion in light of the fact that at least the Fifth Circuit and four

27 8 For these same reasons, the Garcia Plaintiffs’ inconsistent allegations that the government both 28 improperly provided for a wind-down period and, at the same time, made that wind-down period
unreasonably “short,” fails to state a claim under the APA. See Garcia Compl. ¶¶ 173-74.
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1 justices of the Supreme Court had already held that a materially indistinguishable policy was

2 unlawful.

3

3. Plaintiffs acknowledge that the State of Texas and nine other states sent a letter to the

4 Attorney General “threaten[ing] to challenge DACA in court unless the federal government

5 rescinded the DACA program by September 5, 2017.” Garcia Compl. ¶ 115. Plaintiffs

6 nonetheless contend that the decision to rescind DACA was arbitrary and capricious because the

7 Acting Secretary of Homeland Security considered the Attorney General’s views regarding the

8 legality of DACA, which views Plaintiffs contend “contradict conclusions previously reached by

9 both the Department of Justice” through the Office of Legal Counsel “and the Department of

10 Homeland Security” through its prior litigation position in the Texas litigation. Id. ¶ 120; see

11 also Regents of Univ. of Cal. Compl. ¶¶ 7, 9-12, 40-41, 43; State of Cal. Compl. ¶¶ 105-108; City

12 of San Jose Compl. ¶¶ 44; Cty. of Santa Clara Compl. ¶ 57. Plaintiffs’ argument suffers from

13 three independent flaws.

14

First, the Acting Secretary did not rely on the Attorney General’s September 4 letter

15 solely for its assessment of DACA’s legality. Instead, as discussed above, she concluded that

16 DACA “should” be wound down after considering, among other things, his litigation-risk

17 determination that it was “likely” that a legal challenge to DACA “would yield similar results”

18 as the DAPA litigation under Fifth Circuit precedent. Rescission Policy at 3 (AR 254). That

19 independent conclusion, based on a reasonable predictive judgment about litigation risk, is a

20 sufficient basis for upholding the Acting Secretary’s decision to rescind DACA. See Bowman,

21 419 U.S. at 286.

22

Second, to the extent the Acting Secretary did rely on the proposition that DACA was

23 unlawful, this Court need not agree with that determination to uphold her decision. If an

24 agency’s constitutional analysis and policy judgment overlap, courts should presume an

25 independent policy judgment to avoid constitutional questions, even if the two determinations

26 are arguably “intertwined.” See Syracuse Peace Council v. FCC, 867 F.2d 654, 657–59 (D.C.

27 Cir. 1989) (if “even in the absence of constitutional problems the [agency] would have reached

28 the same outcome,” “we must end our inquiry without reaching that issue”). Here, the Attorney

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1 General regarded DACA as unconstitutional in part because it was an “open-ended” policy that

2 closely tracked “proposed legislation” that Congress had repeatedly rejected. Rescission Policy

3 at 3 (AR 254). But those same concerns equally support a policy judgment by the Acting

4 Secretary that “deferred action” should “be applied only on an individualized case-by-case basis”

5 rather than used as a tool “to confer certain benefits to illegal aliens that Congress had not

6 otherwise acted to provide by law.” Id. at 2 (AR 253). This Court should sustain her decision

7 based on a reasonable policy judgment that immigration decisions of this magnitude should be

8 left to Congress.

9

Third, although this Court need not decide the issue to resolve this case in favor of the

10 government on the basis that the agency decision was at least rational, the Attorney General’s

11 view that DACA was unlawful is strongly supported by the Fifth Circuit’s decision in Texas that

12 was affirmed by the Supreme Court. The Fifth Circuit held not only that DAPA—including its

13 proposed expansion of DACA—was likely unlawful, but also that DACA bore many “important

14 similarities” to it. Texas, 809 F.3d at 174 & n.139 (noting that “the DAPA Memo’s plain

15 language … equates the DACA and DAPA procedure[s],” making DACA an “apt comparator”).

16 Indeed, given that DAPA was enjoined before its implementation, the Fifth Circuit’s decision

17 was “informed by analysis of the implementation of DACA” itself. Id. at 172. On that score,

18 while, “[l]ike the DAPA Memo, the DACA Memo instructed agencies to review applications on

19 a case-by-case basis,” and thus “facially purport[ed] to confer discretion,” id. at 171–72, the

20 court found that discretion to be illusory in practice: Because relatively few DACA requests

21 were denied, the Fifth Circuit believed “there was evidence from DACA’s implementation that

22 [this] discretionary language was pretextual,” id. at 172–73. Based on these findings by the Fifth

23 Circuit, it would follow that DACA, like DAPA, did not “genuinely leave the agency and its

24 employees free to exercise discretion” on a case-by-case basis, id. at 176—which supports the

25 Attorney General’s view that DACA was unlawful. And it seems likely that at least four Justices

26 of the Supreme Court agree.

27

Regardless of whether the Office of Legal Counsel was correct when it previously “orally

28 advised” that its “preliminary view” was that the proposed version of DACA would be lawful,

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1 the reasoning in that opinion further confirms the invalidity of DACA as actually implemented in

2 practice as found by the Fifth Circuit.9 The “preliminary” conclusion was conditioned on the

3 proviso that “it was critical that … the DACA program require immigration officials to evaluate

4 each application for deferred action on a case-by-case basis.” Id. Yet the Fifth Circuit found

5 that DHS officials did not “genuinely” retain such discretion in practice. Texas, 809 F.3d at 176.

6 Indeed, because deferred action continues to exist on an individualized basis, the only change

7 made by the Acting Secretary is the elimination of the factors that, according to the Fifth Circuit,

8 led to the policy being applied without sufficient case-by case discretion. See id. at 172–73

9 (noting testimony that, for DACA, requests were “simply rubberstamped if the applicants meet

10 the necessary criteria”). Further, the original DACA program largely shares the relevant defects

11 of the proposed expansion of deferred action that OLC rejected, rather than the aspects of the

12 new program that it approved.

13

4. The University of California, Garcia, and County of Santa Clara plaintiffs also allege

14 that the rescission is arbitrary and capricious because DHS has failed to “tak[e] into account” the

15 “serious reliance interests” of DACA recipients who submitted personal information to DHS.

16 Garcia Compl. ¶ 171 (quoting Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015)); see

17 also Univ. of Cal. Compl. ¶ 55 (similar); Cty. of Santa Clara Compl. ¶ 72 (similar). The Garcia

18 Complaint’s citation to inapposite Supreme Court dicta—which concerned whether agencies

19 could “skirt notice-and-comment provisions” that applied to “regulated entities”—has no bearing

20 here: DHS made clear that the DACA information-sharing policy on which Plaintiffs allegedly

21 relied created no rights and “may be modified, superseded, or rescinded at any time without

22 notice.” DHS DACA FAQ No. 19. For these reasons, as described more fully in Part II.E, infra,

23 any “reliance” by Plaintiffs on that policy was, at best, misplaced. Moreover, as set forth in Part

24 II.D, supra, the Rescission Memo is merely a statement of policy that—like the original DACA

25

26

27 9 U.S. Dep’t of Justice, Office of Legal Counsel, The Department of Homeland Security’s 28 Authority to Prioritize Removal of Certain Aliens Unlawfully Present, 38 Op. O.L.C. 1, 18 n.8
(Nov. 19, 2014) (OLC Op.), https://www.justice.gov/file/179206/download.
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1 policy—does not create any enforceable rights and is subject to change at any time.10 And

2 insofar as Plaintiffs suggest that the Acting Secretary failed to consider the reliance interests of

3 DACA recipients more generally, that assertion ignores her calculus based the looming risk of a

4 nationwide injunction ending the DACA program altogether. Given her view that she faced an

5 imminent, court-ordered end to DACA, the Acting Secretary opted for an orderly wind-down

6 process that would protect the reliance interests of DACA recipients far more than an immediate

7 injunction terminating the program would. See Part II.A.2, supra. Finally, to the extent that she

8 rationally concluded DACA was illegal, there would be no legitimate reliance interests at all.

9

In all events, the foregoing analysis confirms that the Acting Secretary’s decision was at

10 a minimum reasonable and that Plaintiffs’ APA challenge can be resolved at this stage based on

11 the record now before the Court. Indeed, whatever this Court decides, there is no basis for

12 supplementing the record or discovery to assess the Acting Secretary’s explanation.

13

B. The Rescission Policy Is Exempt from Notice and Comment

14

Plaintiffs miss the mark in arguing that the Rescission Policy must be set aside because it

15 is a substantive rule issued without notice and comment. See Regents of Univ. of Cal. Compl.

16 ¶¶ 59-66 (Count 2); State of Cal. Compl. ¶¶ 146-151; City of San Jose Compl. ¶¶ 59-63 (Count

17 2); Garcia Compl. ¶¶ 177-184 (Count 5); see also 5 U.S.C. § 553(b)–(c). If winding down the

18 DACA policy is a “substantive rule,” then a fortiori so was enacting the policy in the first place.

19 Critically, though, the DACA Memo itself also was not adopted through notice and comment.

20 So even on Plaintiffs’ own theory, it would be void ab initio—leaving Plaintiffs without a

21 remedy. That is reason enough to dismiss this claim. See Lujan, 504 U.S. at 561 (plaintiff must 22 show “injury will be ‘redressed by a favorable decision’” to establish standing).11

23 10 The Garcia plaintiffs also allege that DACA’s termination violated the APA because it was unconstitutional. See Garcia Compl. ¶¶ 160-164 (Count 3). Plaintiffs’ allegations that the
24 rescission of DACA was unconstitutional are addressed in Sections II.C-E, infra. 11 To be sure, the D.C. Circuit has rejected the “argument that notice and comment requirements
25
do not apply to ‘defectively promulgated regulations’” as “untenable because it would permit an
26 agency to circumvent the requirements of § 553 merely by confessing that the regulations were
defective in some respect and asserting that modification or repeal without notice and comment 27 was necessary to correct the situation.” Consumer Energy Council of Am. v. FERC, 673 F.2d
425, 447 n.79 (D.C. Cir. 1982). That holding, however, concerned the rescission of a rule
28
promulgated after notice and comment that was allegedly defective on other grounds, not a rule
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

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1

In any event, Plaintiffs’ claim is erroneous. DHS and INS have adopted over 20 deferred

2 action or similar policies over the past 50 years—rarely through notice and comment. That is

3 because such policies, like the Rescission Policy, are not substantive rules at all. Rather, they are

4 classic examples of “general statements of policy” that are exempt from the APA’s notice-and-

5 comment requirements. 5 U.S.C. § 553(b)(3)(A).

6

A “substantive rule establishes a standard of conduct which has the force of law.” Pac.

7 Gas & Elec. Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974). Thus, an “agency action that

8 purports to impose legally binding obligations or prohibitions on regulated parties—and that

9 would be the basis for an enforcement action for violations of those obligations or

10 requirements—is a legislative rule.” Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 251 (D.C.

11 Cir. 2014).

12

A statement of policy, by contrast, “advise[s] the public prospectively of the manner in

13 which the agency proposes to exercise a discretionary power.” Chrysler Corp. v. Brown, 441

14 U.S. 281, 302 n.31 (1979) (quoting Attorney General’s Manual on the Administrative Procedure

15 Act 30 n.3 (1947)). It “explains how the agency will enforce a statute or regulation—in other

16 words, how it will exercise its broad enforcement discretion or permitting discretion under some

17 extant statute or rule.” McCarthy, 758 F.3d at 252. It serves to “appris[e] the regulated

18 community of the agency’s intentions” and “inform[] the exercise of discretion by agents and

19 officers in the field.” Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 949 (D.C. Cir. 1987). And

20 “a general statement of policy, like a press release,” often “announces the course which the

21 agency intends to follow in future adjudications.” Pac. Gas & Elec., 506 F.2d at 38.

22 Accordingly, policy statements “are binding on neither the public nor the agency,” and the

23 agency “retains the discretion and the authority to change its position … in any specific case.”

24 Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (citations omitted).

25

26
that was defective precisely because it had failed to go through notice and comment in the first 27 place. See id. at 445–46. When an agency has already “circumvent[ed] the requirements of
§ 553,” id. at 447 n.79, there is no reason why it must go those procedures to cure the underlying
28
defect.
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1

As these principles make clear, the Rescission Policy is a quintessential policy

2 statement—a point that its text reinforces again and again. It was issued as an “exercise of [the

3 Secretary’s] authority in establishing national immigration policies and priorities.” Rescission

4 Policy at 4 (AR 255). It explains how the agency intends to exercise its enforcement authority

5 on a prospective basis, a matter that is “generally committed to an agency’s absolute discretion.”

6 Chaney, 470 U.S. at 831. It does not immediately deprive any DACA recipients of their current

7 deferred action status, but describes how pending and future deferred action requests will be

8 “adjudicate[d]—on an individual, case-by-case basis.” Rescission Policy at 4 (AR 255). It does

9 not categorically forbid the agency from continuing to defer enforcement action against DACA

10 recipients in the future, but instead acknowledges the background principle, recognized by

11 Congress and the courts, that deferred action is “an act of prosecutorial discretion” that may be

12 exercised “on an individualized case-by-case basis,” id. at 2 (AR 253), and that places “no

13 limitations” on the agency’s exercise of such “otherwise lawful enforcement … prerogatives,” id.

14 at 5 (AR 256). And it explains that it “does not … create any right or benefit, substantive or

15 procedural, enforceable at law by any party.” Id. Thus, in the wake of the Rescission Policy,

16 deferred action “remains discretionary and reversible,” Arpaio, 797 F.3d at 17—as with the 20-

17 odd deferred action or similar policies that DHS and INS have adopted over the past half-

18 century, generally without going through the full notice-and-comment process.12

19

That is as it should be. An agency’s enforcement priorities will inevitably shift over

20 time, whether due to changing circumstances or resource constraints. See Chaney, 470 U.S. at

21 831. Indeed, the DACA policy was originally adopted in part to set enforcement priorities in

22 view of the agency’s limited resources. See Arpaio, 797 F.3d at 16; DACA Memo at 1 (AR 1);

23 DAPA Memo at 1 (AR 37). Under Plaintiffs’ theory, however, even if Congress were to vastly

24
25 12 The Fifth Circuit’s ruling that the adoption of the DAPA Memo required notice and comment does not imply that the rescission of DACA does as well. Unlike the DAPA or DACA Memos,
26 the Rescission Policy announced a return to an enforcement policy of using deferred action on an individualized basis, which cannot be cast as a substantive rule. Indeed, the Fifth Circuit itself
27 stressed that “DAPA is much more than a nonenforcement policy,” and that “a traditional nonenforcement policy would not necessarily be subject to notice and comment.” Texas, 809
28 F.3d at 178 n.156. In any event, if this Court agrees with the Fifth Circuit, then DACA was void ab initio and Plaintiffs lack a remedy.
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
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1 increase appropriations for immigration enforcement, the agency’s hands would be tied: it

2 would not be free to adjust its enforcement priorities without engaging in “cumbersome and

3 time-consuming rulemaking proceedings.” Nat’l Ass’n of Regulatory Util. Comm’rs v. U.S.

4 Dep’t of Energy, 851 F.2d 1424, 1430 (D.C. Cir. 1988). The Court should not endorse such an

5 intrusion into matters that have “long been regarded as the special province of the Executive

6 Branch.” Chaney, 470 U.S. at 832.

7

C. Plaintiffs Fail to State an Equal Protection Claim

8

1. If this Court disagrees with Defendants and concludes that it can review Plaintiffs’

9 equal protection challenges under AADC, but see supra § I.A, B, it nonetheless should dismiss

10 them for failure to state a claim. In Armstrong, the Supreme Court considered whether

11 criminal defendants could obtain discovery to support a “selective prosecution” claim arising

12 under the Equal Protection Clause. 517 U.S. at 463–64. The Court recognized that such

13 claims, like the discriminatory-motive claims here, “ask[] a court to exercise judicial power

14 over a ‘special province’ of the Executive”—specifically, the “constitutional responsibility to

15 ‘take Care that the Laws be faithfully executed’”—and thereby risk “impair[ing] the

16 performance of a core executive constitutional function.” Id. at 464-65 (citations omitted).

17 Given these considerations, a “presumption of regularity supports” such enforcement decisions

18 and, “in the absence of clear evidence to the contrary, courts presume that they have properly

19 discharged their official duties.” Id. at 464 (citation omitted). Applying this “rigorous

20 standard,” id. at 468, the Court refused to allow discovery in support of the selective-

21 prosecution claim before it, even though the claimants had provided evidence that in each of

22 the 24 prosecutions for certain drug-trafficking offenses that were closed by the federal

23 defender’s office in a single year, the defendant was African-American, id. at 459, 469-70.

24

Although Plaintiffs here allege that the Rescission Policy was motivated by

25 discriminatory animus rather than assert that they have been selectively prosecuted, Armstrong

26 still requires them to allege, and ultimately prove, that this is a “clear” case of discrimination in

27 order to overcome the presumption that Defendants have faithfully enforced the laws. Id. at

28 464. As in Armstrong, Plaintiffs here ask this Court to “exercise judicial power over a ‘special

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1 province’ of the Executive,” with the associated risk of “impair[ing] the performance of a core

2 executive constitutional function.” Id. at 464–65 (citations omitted). Plaintiffs consequently

3 must overcome “a significant barrier to the litigation” of their claims. Id. at 464. And that is

4 especially true given that they allege an unlawful enforcement of the immigration laws. Even

5 if AADC permitted the adjudication of Plaintiffs’ claims, that decision would at least require

6 them to satisfy a rigorous standard similar to the one in Armstrong. As AADC explained, the

7 concerns justifying a heightened burden under Armstrong “are greatly magnified in the

8 deportation context,” 525 U.S. at 490, and all of those considerations are present here, see

9 supra p. 17. Accordingly, Plaintiffs must at least meet a heavy burden to survive a motion to

10 dismiss on a claim that Defendants harbored a hidden discriminatory motive in their

11 enforcement of the immigration laws.

12

Plaintiffs cannot carry that burden here. Their allegations consist of the assertion that

13 80 percent of DACA recipients were Mexican nationals, see Cty. of Santa Clara Compl. ¶ 75,

14 and that approximately 93 percent of DACA recipients are individuals from Latin American

15 countries, see id.; see also Garcia Compl. ¶ 151, as well as selected references to statements by

16 the President and others relating to immigrants, Mexicans, or Latinos, see City of San Jose

17 Compl. ¶¶ 30-36; Garcia Compl. ¶¶ 99-113; Cty. of Santa Clara Compl. ¶ 9. These

18 allegations are insufficient to overcome the “significant barrier” to moving forward on a claim

19 of this sort. Armstrong, 517 U.S. at 464.

20

The fact that approximately 80 percent of approved DACA recipients are Mexican

21 nationals is an unsurprising accident of geography, not evidence of discrimination, let alone the

22 kind sufficient to establish discriminatory motive in the enforcement of immigration laws.

23 Even in the ordinary domestic equal protection setting, a disparate impact of a facially neutral

24 rule such as the Rescission Policy, standing alone, cannot establish discriminatory intent. See

25 Washington v. Davis, 426 U.S. 229, 242 (1976), superseded by statute, see Veasey v. Perry, 29

26 F. Supp. 3d 896, 916 (S.D. Tex. 2014). Much less can it do so when the exercise of

27 enforcement discretion is involved: In Armstrong, the fact that 100 percent of the relevant

28 defendants were African-American was not enough to justify discovery. 517 U.S. at 459. A

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1 fortiori, the fact that approximately 80 percent of DACA recipients are Mexican nationals

2 provides no basis for ordering discovery into the discretionary administration of the

3 immigration laws, especially given the heightened deference owed to the political branches on

4 immigration matters, where sensitive considerations of relations and proximity to particular

5 foreign nations necessarily plays a role.

6

Nor do the President’s statements—most of which were made before he took the oath

7 of office—indicate that the rescission of DACA is a clear case of discrimination. To start,

8 none of these stray remarks concern the Rescission Policy itself. To the contrary, Plaintiffs

9 themselves emphasize that when the President has spoken on this issue, he has shown support

10 for DACA recipients.13 More importantly, Plaintiffs point to nothing that would suggest

11 Acting Secretary Duke—the decisionmaker ultimately responsible for the Rescission Policy—

12 chose to wind-down DACA due to animus towards Mexican nationals. Given that the

13 statements at issue have no connection to either the relevant decision (the rescission of DACA)

14 or the relevant decision-maker (the Acting Secretary), adopting Plaintiffs’ theory would mean

15 that any time DHS enforces the immigration laws in a way that has a statistically significant

16 disparate impact on Mexican nationals, the agency would be subject to intrusive discovery on

17 allegations of a violation of Fifth Amendment equal protection principles. That would set a

18 dangerous precedent, and it would freeze the enforcement discretion of the entire Executive

19 Branch. That ossification would be particularly inappropriate in this context, given that

20 immigration enforcement policies must constantly be adjusted to account for “[t]he dynamic

21 nature of relations with other countries.” Arizona, 567 U.S. at 397. In all events, Plaintiffs’

22

23
24 13 See City of San Jose Compl ¶ 37 (alleging the President “has repeatedly stated his support for DACA recipients” including through statement that “[w]e’re going to work something out that’s
25 going to make people happy and proud. They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful
26 jobs.”); id. ¶ 38 (President’s statement that his plan to address DACA is “going to have a lot of heart”); id. ¶ 39 (Presidential statement that DACA grantees “shouldn’t be very worried” because
27 “[w]e’re going to take care of everybody.”); id. ¶ 40 (describing DACA recipients as “some absolutely incredible kids – I would say mostly.”); id. ¶ 42 (Presidential statement that “I do not
28 favor punishing children, most of whom are now adults, for the actions of their parents. But we must also recognize that we are [a] nation of opportunity because we are a nation of laws.”).
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1 inferences from unrelated remarks cannot qualify as the sort of “clear” allegations of

2 discrimination necessary in this context. Armstrong, 517 U.S. at 464.

3

2. The State Plaintiffs advance a separate equal protection theory alleging that “[t]he

4 rescission of DACA violates fundamental conceptions of justice by depriving DACA grantees,

5 as a class, of their substantial interests in pursuing a livelihood to support themselves and further

6 their education.” State of Cal. Compl. ¶ 174. This claim fails for the simple reason that

7 Plaintiffs have failed to identify any “fundamental rights” implicated by the Rescission Policy.

8 See Green v. City of Tucson, 340 F.3d 891, 896 (9th Cir. 2003) (under equal protection doctrine,

9 strict scrutiny applies if “the statute in question substantially burdens fundamental rights, such as

10 the right to vote”). Even for U.S. citizens, “the right to pursue a calling is not a fundamental

11 right for purposes of the Equal Protection Clause.” Marilley v. Bonham, 844 F.3d 841, 854-55

12 (9th Cir. 2016) (citation omitted), cert. denied, No. 16-1391, 2017 WL 2256242 (Oct. 10, 2017).

13 Nor, for that matter, is the right to further an education. See San Antonio Indep. Sch. Dist. v.

14 Rodriguez, 411 U.S. 1, 37 (1973). If the contrary were true, then all sorts of regulations

15 addressing employment and education, including various licensing laws, would suddenly be

16 subject to strict scrutiny. A fortiori, unlawfully present aliens, who do not even have a

17 fundamental right to remain in the United States, see infra Part D, cannot invoke a right to

18 pursue a calling or further an education. Indeed, an alternate rule would call into question

19 longstanding immigration laws. See, e.g., Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.

20 137, 147 (2002) (discussing “[Immigration Reform and Control Act of 1986], a comprehensive

21 scheme prohibiting the employment of illegal aliens in the United States” (citations omitted)).

22 Accordingly, the Rescission Policy can be subject only to rational-basis review, see Green, 340

23 F.3d at 896, and easily survives that standard for the reasons given above, see Part II.A, supra.

24 Plaintiffs’ claim therefore fails as a matter of law.

25

D. Plaintiffs Fail to State a Procedural Due Process Claim

26

The University of California, Garcia, and County of Santa Clara Plaintiffs allege that the

27 rescission violates procedural due process norms to the extent that DACA recipients will be

28 deprived of their interests in their DACA status without notice and an opportunity to be heard.

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1 See Regents of Univ. of Cal. Compl. ¶¶ 67-73 (Count 3); Garcia Compl. ¶¶ 133-147 (Count 1);

2 Cty. of Santa Clara Compl. ¶¶ 59-66 (Count 1). This claim fails on the merits for the simple

3 reason that DACA recipients have no protected liberty or property interest in deferred action

4 entitling them to due process protections.

5

The Fifth Amendment provides that “no person shall . . . be deprived of life, liberty, or

6 property, without due process of law.” U.S. Const. amend. V. Thus, the “first inquiry in every

7 due process challenge is whether the plaintiff has been deprived of a protected interest in

8 ‘property’ or ‘liberty.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citation

9 omitted). The “Due Process Clause does not protect everything that might be described as a

10 ‘benefit.’” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005). Rather, “‘[t]o have a

11 property interest in a benefit, a person clearly must have more than an abstract need or desire’

12 and ‘more than a unilateral expectation of it. He must, instead, have a legitimate claim of

13 entitlement to it.’” Id. (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). Such

14 entitlements “are not created by the Constitution. Rather, they are created and their dimensions

15 are defined by existing rules or understandings that stem from an independent source”—e.g.,

16 statutes or regulations—“that secure certain benefits and that support claims of entitlement to

17 those benefits.” Roth, 408 U.S. at 577.

18

A benefit “is not a protected entitlement” for due process purposes where, as here,

19 “government officials may grant or deny it in their discretion.” Castle Rock, 545 U.S. at 756.

20 For due process purposes, statutes or regulations limit discretion only when they contain

21 “explicitly mandatory language”—i.e., “specific directives to the decisionmaker that if the

22 regulations’ substantive predicates are present, a particular outcome must follow.” Ky. Dep’t of

23 Corrs. v. Thompson, 490 U.S. 454, 462–63 (1989) (citation omitted). The DACA policy

24 contains no such “explicitly mandatory language.” Id. The policy is codified in no statute or

25 regulation. Its source—the DACA Memo—describes it as a “policy” for the “exercise of

26 prosecutorial discretion.” DACA Memo at 2-3 (AR 2-3); see Omar v. McHugh, 646 F.3d 13, 22

27 n.7 (D.C. Cir. 2011) (the “use of the word ‘policy’”—“rather than a word such as ‘right’—

28 reinforces the conclusion that Congress did not intend to create an ‘entitlement’”). And the

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

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1 agency’s public guidance makes clear that, under DACA, deferred action “may be terminated at

2 any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.” DHS DACA

3 FAQ No. 27.

4

Under DACA, “deferred action remains discretionary and reversible, and ‘confers no

5 substantive right, immigration status or pathway to citizenship.’” Arpaio, 797 F.3d at 17

6 (quoting DACA Memo at 3 (AR 3)). “Only the Congress, acting through its legislative

7 authority, can confer these rights.” DACA Memo at 3 (AR 3). Simply put, there is “no

8 protectable liberty interest in deferred action.” Romiero de Silva v. Smith, 773 F.2d 1021, 1024

9 (9th Cir. 1985). Thus, deferred action is not a protected entitlement for due process purposes,

10 and Plaintiffs’ claim fails as a matter of law. See Velasco-Gutierrez v. Crossland, 732 F.2d 792,

11 798 (10th Cir. 1984) (deferred action guidance “places no effective limitations on official

12 discretion, and thus creates no protected liberty interest in deferred action”).

13

Moreover, even if DACA could be conceived of as an entitlement, Plaintiffs’ due process

14 claim would still fail because changes in agency policy do not require individualized process.

15 Due process doctrine recognizes a “distinction between individualized deprivations, [which] are

16 protected by procedural due process, and policy-based deprivations of the interests of a class,

17 [which] are not protected by procedural due process.” 2 Richard J. Pierce, Jr., Administrative

18 Law Treatise § 9.2 (5th ed. 2010). The rescission of DACA falls squarely in the latter

19 category.14

20

Plaintiffs allege that DACA could not be rescinded without first giving recipients

21 “process before depriving them of their work authorizations and DACA status, and the benefits

22 that flow from that status.” Regents of Univ. of Cal. Compl. ¶ 16; see also Cty. of Santa Clara

23 Compl. ¶¶ 7, 63 (alleging violation of due process rights). But Plaintiffs’ theory is not that

24 individual DACA requests were adjudicated incorrectly (for example, due to factual error)—the

25 sort of mistake that notice and a hearing could conceivably help correct. Instead, Plaintiff’s

26 14 The University of California and Santa Clara Plaintiffs also appear to allege that the due 27 process rights of the university and county have somehow been violated. See Univ. of Cal.
Compl. ¶ 69; Cty. of Santa Clara Compl. ¶¶ 60, 62. The legal basis for this claim is unclear at 28 best, and in any event to the extent this Court finds that individual DACA recipients lack due
process rights, a fortiori universities, counties, and other entities would also lack any such rights.
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
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1 claim appears to be that DHS cannot alter the DACA policy, even on a prospective basis, without

2 providing individualized notice and hearings to nearly 800,000 recipients.

3

Such individualized process is not required. The Supreme Court held long ago that

4 where a government policy “applies to more than a few people, it is impracticable that every one

5 should have a direct voice in its adoption,” and thus due process does not require individualized

6 pre-deprivation notice. Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445

7 (1915). This case presents “the classic Bi-Metallic scenario”—the challenged policy applies

8 across-the-board to a large number of people, so “[n]ot only would individualized hearings be

9 impractical, they would be unnecessary.” Decatur Liquors, Inc. v. Dist. of Columbia, 478 F.3d

10 360, 363 (D.C. Cir. 2007) (citing Bi-Metallic, 239 U.S. at 445).

11

The Ninth Circuit’s decision in Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980), is

12 instructive in this regard. There, the INS had issued a policy directive granting “deferred

13 voluntary departure”—a form of deferred action—to Iranian nationals who were unwilling to

14 return home due to political instability. Id. at 1359. Then, in response to the Iranian hostage

15 crisis, the INS issued another policy directive “rescinding the … deferred departure” and

16 requiring its recipients to depart the country within 30 days. Id. Relying on Bi-Metallic, the

17 Ninth Circuit rejected the plaintiff’s claim “that he should have had a prior opportunity to contest

18 [the INS’s] decision to rescind deferred departure.” Id. at 1363. “Where an agency action is not

19 based on individual grounds, but is a matter of general policy,” the court explained, “no hearing

20 is constitutionally required.” Id. (citing, inter alia, Bi-Metallic, 239 U.S. 441). So too here.

21

E. Plaintiffs Fail to State a Substantive Due Process Claim.

22

Taking a different tack, the State of California, Garcia, and County of Santa Clara

23 Plaintiffs assert that the Rescission Policy violates substantive due process because DHS has

24 allegedly changed its policy on the use of information contained in DACA requests, including

25 that DHS will allegedly use such information for enforcement purposes in a manner that is not

26 “fundamentally fair.” State of Cal. Compl. ¶¶ 141-145 (Count 1); Garcia Compl. ¶¶ 133-147

27 (Count 1); Cty. of Santa Clara Compl. ¶¶ 59-66 (Count 1). None of these claims has merit.

28
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1

As a threshold matter, no Plaintiff alleges facts sufficient to show that there actually has

2 been a substantive change in policy regarding information sharing. For example, the State

3 Plaintiffs merely allege that the “Rescission Memorandum does not provide adequate assurances

4 that this information will not be used for enforcement purposes following DACA’s termination.”

5 State of Cal. Compl. ¶ 120; see also Garcia Compl. ¶ 126 (similar allegations); Cty. of Santa

6 Clara Compl. ¶ 58 (alleging that there “appears” to be a change of policy). And while they cite

7 language in the Rescission FAQs indicting that information “[g]enerally . . . will not be

8 proactively provided to other law enforcement entities,” State of Cal. Compl. ¶ 122 (emphasis

9 omitted) (quoting Rescission FAQs), that language is entirely consistent with DHS’s policy

10 regarding the protection of DACA information, including its many exceptions that Plaintiffs

11 largely gloss over. See State of Cal. Compl. ¶ 121 (characterizing exceptions to policy as

12 “limited”).

13

Contrary to Plaintiffs’ suggestion that DHS has flatly and completely prohibited the use

14 of DACA information for enforcement purposes, see Garcia Compl. ¶ 126, the agency’s

15 information-sharing policy in fact contains (and has always contained) a number of exceptions.

16 For example, under that policy, information submitted in DACA requests “is protected from

17 disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the

18 requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the

19 criteria set forth in USCIS’[s] Notice to Appear guidance” (for example, when issues of national

20 security, public safety, or significant criminal activity are raised). DHS DACA FAQ No. 19

21 (emphasis added); see Notice to Appear Guidance. While this policy “may be modified,

22 superseded, or rescinded at any time” and creates no legal rights, DHS DACA FAQ No. 19,

23 nothing in the Rescission Policy purports to change it, and it currently remains in effect. Cf.

24 Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1020-21 (9th Cir. 2011) (“A person’s belief of

25 entitlement to a government benefit, no matter how sincerely or reasonably held, does not create

26 a property right if that belief is not mutually held by the government . . . . ‘[A] constitutional

27 entitlement cannot be created—as if by estoppel—merely because a wholly and expressly

28
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1 discretionary state privilege has been granted generously in the past.’” (quoting Conn. Bd. of

2 Pardons v. Dumschat, 452 U.S. 458, 465 (1981)) (citations omitted)).

3

In any event, Plaintiffs fail to state a substantive due process claim. Substantive due

4 process protects those rights that rank as “fundamental”—that is, both “objectively, deeply

5 rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty, such

6 that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg,

7 521 U.S. 702, 720-21 (1997) (citation omitted). The Supreme Court has also made clear that a

8 plaintiff must provide “a ‘careful description’ of the asserted fundamental liberty interest” when

9 raising such a claim. Chavez v. Martinez, 538 U.S. 760, 775–76 (2003). “[V]ague generalities,”

10 like Plaintiffs’ wish that DHS would adopt their preferred policies, “will not suffice.” Id. at 776.

11

While in rare cases a “denial of fundamental fairness” may rise to the level of a

12 substantive due process violation, to survive dismissal in a “challenge to executive action” such

13 as this one, Plaintiffs must allege behavior that is “so egregious” and “outrageous” as “to shock

14 the contemporary conscience.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 850 (1998).

15 “It is not enough to allege conscience shocking action, however. As a threshold matter, to

16 establish a substantive due process claim a plaintiff must how a government deprivation of life,

17 liberty, or property.” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006) (quotation omitted).

18

Plaintiffs here cannot meet that standard because the Ninth Circuit—in a context nearly

19 identical to the circumstances presented by Plaintiffs here—squarely rejected the argument that

20 the denial of discretionary relief in the immigration context can give rise to a substantive due

21 process claim. In Munoz v. Ashcroft, a Guatemalan citizen who was unlawfully brought to the

22 United States when he was one year old, and who continuously lived in the United States until he

23 was 24 years old, was found to be removable by the Board of Immigration Appeals. 399 F.3d

24 950, 953-54 (9th Cir. 2003). On review of the Board’s decision, the Ninth Circuit rejected

25 petitioner’s argument that he had acquired a substantive due process right to stay in the United

26 States due to his unique circumstances, holding that the “denial of [discretionary] relief cannot

27 violate a substantive interest protected by the Due Process clause.” Id. at 954; see also Hyuk

28 Joon Lim v. Holder, 710 F.3d 1074, 1076 (9th Cir. 2013) (“Cancellation of removal is a form of

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

40

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 54 of 60

1 discretionary relief which does not give rise to a ‘substantive interest protected by the Due 2 Process Clause.’”) (quoting Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003)); Tefel v. Reno, 3 180 F.3d 1286, 1300-01 (11th Cir. 1999) (“[n]o constitutionally protected interest arises from the 4 INS’ actions in granting or denying applications for suspension,” that “prior generosity in 5 awarding wholly and expressly discretionary relief does not prove the existence of a 6 constitutional entitlement,” and that “awarding and then revoking discretionary relief does not 7 offend due process” (quotation marks omitted)). The harm alleged by Plaintiffs here—that the 8 alleged use of information for immigration enforcement purposes—therefore cannot give rise to 9 a substantive due process claim because DACA recipients simply “ha[ve] no substantive due 10 process right[s] to stay in the United States.” Munoz, 339 F.3d at 954. And even if they did, 11 there is certainly nothing conscience-shocking about DHS’s information-sharing policy, which 12 has always been subject to a number of exceptions and in fact remains unchanged.

13

F. Plaintiffs’ Regulatory Flexibility Act Claim Fails Because Notice-and-

14

Comment Procedures Were Not Required

15

Plaintiffs’ Regulatory Flexibility Act (RFA) claim fails for the same reasons as its notice-

16 and-comment claim, and it can be quickly dispatched. See State of Cal. Compl. ¶¶ 156-163

17 (Count 4); Garcia Compl. ¶¶ 185-191 (Count 6). The RFA’s requirement that an agency publish

18 analyses of a rule’s impact on small businesses applies only “‘when an agency promulgates a

19 final rule under section 553 of … title [5], after being required by that section or any other law to

20 publish a general notice of proposed rulemaking,’” U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 42

21 (D.C. Cir. 2005) (quoting 5 U.S.C. § 604(a))—in other words, only where notice-and-comment

22 procedures are required. Because those procedures were not required here, see supra § II.B, the

23 RFA does not apply.

24

Plaintiffs also lack standing to raise an RFA claim: They allege no facts to demonstrate

25 that they are “small entities” entitled to seek judicial review under the RFA. See 5 U.S.C.

26 § 601(6) (defining “small entity”); id. § 611 (restricting judicial review to “a small entity that is

27 adversely affected or aggrieved”); see also, e.g., N.W. Mining Ass’n v. Babbitt, 5 F. Supp. 2d 9,

28 13 (D.D.C. 1998) (“[T]he language of the RFA extends standing to seek judicial review only to a

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

41

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 55 of 60

1 ‘small entity.’”). Plaintiff states are not, of course, small entities subject to the RFA, and they

2 offer only conclusory allegations about the impact of DACA’s rescission on undefined small

3 entities within their respective states. See State of Cal. Compl. ¶ 4, 28, 49, 88, 156-163. And the

4 Garcia plaintiffs—who are individual DACA recipients—do not offer any substantive RFA

5 allegations at all.

6

G. Plaintiffs’ Equitable Estoppel Claims Fail.

7

The States, Garcia, and County of Santa Clara Plaintiffs have brought equitable estoppel

8 claims, alleging that DACA recipients provided detailed personal information to the government

9 and “rearranged their lives” based on the government’s representations, but now face removal

10 due to the rescission of DACA. On that basis, those Plaintiffs claim that the government should

11 be equitably estopped from terminating DACA or from using DACA information for

12 enforcement purposes. See State of Cal. Compl. ¶¶ 164-171 (Count 5); Garcia Compl. ¶¶ 192-

13 199 (Count 7); Cty. of Santa Clara Compl. ¶¶ 79-86 (Count 4).

14

Plaintiffs’ equitable estoppel claims cannot succeed for several reasons. As a threshold

15 matter, Plaintiffs cannot succeed because there is no recognized cause of action for estoppel.

16 The Supreme Court has explained that “private rights of action to enforce federal law must be

17 created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Congress has created

18 no such cause of action for estoppel. This is further confirmed by the Federal Rules of Civil

19 Procedure, which expressly recognize estoppel as an affirmative defense—not a cause of action.

20 See Fed. R. Civ. P. 8(c).

21

Even then, the remedy of equitable estoppel does not apply in this context. Even

22 assuming arguendo that this remedy could ever be applied to the federal government, but see

23 OPM v. Richmond, 496 U.S. 414, 419, 423 (1990), equitable estoppel does not apply to the

24 policy decisions of the federal government. See, e.g., United States v. Owens, 54 F.3d 271, 275

25 (6th Cir. 1995) (“[T]he government should not be unduly hindered from changing its position if

26 that shift is the result of a change in public policy.”), cited in New Hampshire v. Maine, 532 U.S.

27 742, 755 (2001); Emery Min. Corp. v. Sec’y of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984) (the

28 doctrine of estoppel cannot be justified against the government where it would “interfere with

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

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1 underlying government policies or unduly undermine the correct enforcement of a particular law

2 or regulation”). Indeed, it is axiomatic that the government may alter its policies for any number

3 of reasons, in accordance with any applicable procedures. See generally Perez v. Mortg. Bankers

4 Ass’n, 135 S. Ct. 1199, 1210 (2015). Here, the Acting Secretary of Homeland Security issued a

5 memorandum rescinding DACA, which is a matter committed to agency discretion by law.

6

Finally, even if a cause of action for estoppel were available to challenge the policy here

7 (it is not), Plaintiffs could not satisfy the elements of that claim. Even in situations where an

8 estoppel claim against the government may be appropriate (e.g., individualized challenges to

9 non-policy actions), courts “invoke the doctrine of estoppel against the government with great

10 reluctance.” United States v. Browning, 630 F.2d 694, 702 (10th Cir. 1980); see also Heckler v.

11 Cmty. Health Servs., 467 U.S. 51, 60 (1984) (government may not be estopped on same terms as

12 any other litigant). In other words, estoppel can only be invoked against the government “where

13 justice and fair play require it.” Watkins v. U.S. Army, 875 F.2d 699, 706 (9th Cir. 1989) (en

14 banc) (quotation omitted). In the rare circumstances in which equitable estoppel may apply

15 against the government, a party must show “affirmative misconduct going beyond mere

16 negligence” and, “even then, estoppel will only apply where the government’s wrongful act will

17 cause a serious injustice, and the public’s interest will not suffer undue damage by imposition of

18 the liability.” Id. at 707 (quotation omitted). Plaintiffs cannot meet this standard.

19

First, Plaintiffs have failed to plausibly allege that the government engaged in any

20 “affirmative misconduct going beyond mere negligence.” Id. To meet that standard, Plaintiffs

21 must plead “an affirmative misrepresentation or affirmative concealment of a material fact by the

22 government.” Id. The cases that Plaintiffs have previously cited to this Court, see Letter from

23 State of Cal. re Equitable Estoppel, ECF No. 51, make clear that Plaintiffs cannot overcome this

24 high bar. In the Watkins case, the Army affirmatively misrepresented a soldier’s qualifications

25 throughout fourteen years of official records. Watkins, 875 F.2d at 707. Similarly, in Salgado-

26 Diaz v. Gonzales, the INS was precluded from relying upon a misrepresentation made by an

27 alien petitioner that occurred only after, and as a downstream effect of, the INS’s own

28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
43

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 57 of 60

1 misconduct in denying the alien’s due process rights. 395 F.3d 1158, 1166 (9th Cir. 2005).15

2 Here, Plaintiffs have not identified any governmental misconduct, let alone extraordinary

3 misconduct. Instead, they have merely pleaded that there was a change in policy.

4

Second, estoppel for individual claims is only available where the government’s act will

5 cause a “serious injustice” and applying estoppel will not cause the public’s interest to “suffer

6 undue damage.” Watkins, 875 F.2d at 707 (quotation omitted). Plaintiffs have failed to

7 sufficiently plead facts that would support these necessary threshold elements. To the contrary,

8 as reflected in Plaintiffs’ exhibits, DHS made clear in its FAQs that “DACA is an exercise of

9 prosecutorial discretion and deferred action may be terminated at any time, with or without a

10 Notice of Intent to Terminate, at DHS’s discretion.” DHS DACA FAQ No. 27, attached as Ex. E

11 to State of Cal. Compl. Moreover, nothing in the 2012 DACA Memorandum, the form used to

12 request DACA (USCIS Form I-821D, attached as Ex. N to State of Cal. Compl.), or in the

13 DACA FAQs generally could be construed to represent to DACA recipients that the DACA

14 policy was permanent and not subject to change. There is therefore no “serious injustice” that

15 Plaintiffs can point to relating to the rescission of this discretionary policy.16

16

At bottom, Plaintiffs’ estoppel claims merely repackage their policy challenges.

17 Equitable estoppel, however, is unavailable for such broad-based challenges. And even if the

18 Court were to review Plaintiffs’ claims on an individualized basis, those claims still fail. While

19 Plaintiffs surely disagree with the rescission of DACA, that disagreement does not mean that

20 Plaintiffs have alleged that there is a “serious injustice,” much less a circumstance in which

21 estoppel should apply. For these reasons, Plaintiffs’ equitable estoppel claims should be

22 dismissed.

23

24 15 As both of these cases previously cited by Plaintiffs make clear, to the extent equitable estoppel is available at all, it is only available for individualized claims. Plaintiffs’ authority is

25

inapplicable to the policy challenges that Plaintiffs present here. 16 Even if this Court were to conclude that Plaintiffs can somehow meet these threshold

26 requirements, it would still need to apply traditional estoppel elements to Plaintiffs’ claims on an individualized bases: “(1) The party to be estopped must know the facts; (2) he must intend that

27 he conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on

28 the former’s conduct to his injury.” Watkins, 875 F.2d at 709 (quotation omitted). Plaintiffs have failed to plausibly allege facts in support of these elements as well.

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT

All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

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Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 58 of 60

1 III. NATIONWIDE DECLARATORY AND INJUNCTIVE RELIEF IS IMPERMISSIBLE

2

The Garcia Plaintiffs seek in a separate cause of action a declaratory judgment that

3 DACA is “lawful.” See Garcia Compl. ¶¶ 200-205 (Count 8). Declaratory relief, however, “is a

4 remedy, not an independent cause of action.” Dinh Nguy v. Cty. of Yolo, No. 2:14-cv-229-MCE-

5 EFB PS, 2014 WL 4446829, at *8 (E.D. Cal. Sept. 9, 2014); see Mangindin v. Wash. Mut. Bank,

6 637 F. Supp. 2d 700, 708 (N.D. Cal. 2009) (dismissing declaratory relief claim as “duplicative

7 and unnecessary” because relief “is entirely commensurate with the relief sought through their

8 other causes of action”). Moreover, to establish standing and seek relief under the Declaratory

9 Judgment Act, a plaintiff must demonstrate that there is an “actual controversy” necessitating

10 declaratory relief. 28 U.S.C. § 2201(a); see Garcia Compl. ¶ 202; Aetna Life Ins. Co. of

11 Hartford v. Haworth, 300 U.S. 227, 239-40 (1937). The dispute must be “definite and concrete,

12 touching the legal relations of parties having adverse legal interests.” Aetna, 300 U.S. at 240.

13

Here, even assuming DACA were “lawful,” any declaratory relief that this Court might

14 provide would merely be an academic dispute because the Acting Secretary still would have had

15 the discretion to rescind the policy. See supra Part II.A. Instead, the “controversy” (to the extent

16 it is even justiciable) concerns whether the Acting Secretary of Homeland Security’s decision to

17 rescind DACA in light of litigation risk that DHS was facing was arbitrary or capricious. Any

18 after-the-fact conclusion by this Court that DACA is “lawful” has no bearing on that decision,

19 which was based on the litigation risk that DHS was then confronting. Thus, any declaratory

20 judgment that this Court might issue would not provide any actual benefits to Plaintiffs.

21

Plaintiffs also seek injunctive relief. To the extent this Court ultimately concludes that

22 Plaintiffs are entitled to any injunction, it should dismiss the request for nationwide relief. Both

23 constitutional and equitable principles require that injunctive relief be limited to redressing a

24 plaintiff’s own cognizable injuries. Article III demands that “a plaintiff must demonstrate

25 standing … for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S.

26 Ct. 1645, 1650 (2017) (citation omitted). “The remedy” sought thus must “be limited to the

27 inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey,

28 518 U.S. 343, 357 (1996). “The actual-injury requirement would hardly serve [its] purpose … of

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)

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Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 59 of 60

1 preventing courts from undertaking tasks assigned to the political branches[,] if once a plaintiff

2 demonstrated harm from one particular inadequacy in government administration, the court were

3 authorized to remedy all inadequacies in that administration.” Id. And equitable principles

4 independently require that an injunction “be no more burdensome to the defendant than

5 necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512

6 U.S. 753, 765 (1994) (citation omitted); see also Monsanto Co. v. Geertson Seed Farms, 561

7 U.S. 139, 163 (2010) (narrowing injunction in part because the plaintiffs “do not represent a

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

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

10 Plaintiffs found to have cognizable claims.

11

CONCLUSION

12

For the foregoing reasons, the Court should grant Defendants’ motion to dismiss these

13 cases.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
46

Case 3:17-cv-05211-WHA Document 114 Filed 11/01/17 Page 60 of 60

1 Dated: November 1, 2017

Respectfully submitted,

2

CHAD A. READLER

Acting Assistant Attorney General

3

BRIAN STRETCH

4

United States Attorney

5

BRETT A. SHUMATE

Deputy Assistant Attorney General

6

JENNIFER D. RICKETTS

7

Director, Federal Programs Branch

8

JOHN R. TYLER

Assistant Branch Director

9

10

/s/ Brad P. Rosenberg

BRAD P. ROSENBERG (DC Bar #467513)

11

Senior Trial Counsel

STEPHEN M. PEZZI (DC Bar #995500)

12

KATE BAILEY (MD Bar #1601270001)

Trial Attorneys

13

United States Department of Justice

Civil Division, Federal Programs Branch

14

20 Massachusetts Avenue N.W.

Washington, DC 20530

15

Phone: (202) 514-3374

Fax: (202) 616-8460

16

Email: brad.rosenberg@usdoj.gov

17

Attorneys for Defendants

18

19

20

21

22

23

24

25

26

27

28
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS; MEM. IN SUPPORT All N.D. Cal. DACA Cases (Nos. 17-5211; 17-5235; 17-5329; 17-5380; 17-5813)
47

 
 CaCsaes3e:1177--c7v2-0951271, 1-2W/2H0A/201D7o,cIuDm: 1e0n6t 92823499F,iDlekdtE1n2t/r2y1:/4147, PPaaggee11ooff44

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

1

Per Curiam

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

CaCsaes3e:1177--c7v2-0951271, 1-2W/2H0A/201D7o,cIuDm: 1e0n6t 92823499F,iDlekdtE1n2t/r2y1:/4147, PPaaggee22ooff44

2

IN RE UNITED STATES

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

CaCsaes3e:1177--c7v2-0951271, 1-2W/2H0A/201D7o,cIuDm: 1e0n6t 92823499F,iDlekdtE1n2t/r2y1:/4147, PPaaggee33ooff44

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

3

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

CaCsaes3e:1177--c7v2-0951271, 1-2W/2H0A/201D7o,cIuDm: 1e0n6t 92823499F,iDlekdtE1n2t/r2y1:/4147, PPaaggee44ooff44

4

IN RE UNITED STATES

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

It is so ordered.

 
 Case 3:17-cv-05211-WHA Document 234 Filed 01/09/18 Page 1 of 49

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

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

12 University of California,

13

Plaintiffs,

14

v.

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and KIRSTJEN

16

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

17

Defendants.

18

/

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

19

INTRODUCTION

20

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

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

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

23 is GRANTED.

24

STATEMENT

25

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

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

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

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

Case 3:17-cv-05211-WHA Document 234 Filed 01/09/18 Page 2 of 49

United States District Court For the Northern District of California

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

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

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

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

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

6 than in compliance with the law.

7

1.

HISTORY OF DEFERRED ACTION.

8

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

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

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

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

12

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

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

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

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

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

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

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

19

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

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

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

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

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

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

25

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

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

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

28

2

Case 3:17-cv-05211-WHA Document 234 Filed 01/09/18 Page 3 of 49

United States District Court For the Northern District of California

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

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

3

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

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

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

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

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

8 8 U.S.C. § 1254a.

9

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

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

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

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

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

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

15

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

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

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

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

19

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

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

20

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

removal proceedings under any other provision of the immigration

21

laws of the United States.

22

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

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

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

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

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

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

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

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1

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

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

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

4 not entitled to work in the United States as an alien who is neither a legal permanent resident

5 nor “authorized to be . . . employed by [the INA] or by the [Secretary of Homeland Security]”).

6 Pursuant to this statutory authority, regulations promulgated in the 1980s allowed recipients of

7 deferred action to apply for work authorization if they could demonstrate an “economic necessity

8 for employment.” 8 C.F.R. § 274a.12(c)(14).

9

The George W. Bush Administration began to use deferred action to mitigate a harsh

10 statutory provision involving “unlawful presence.” The Illegal Immigration Reform and

11 Immigrant Responsibility Act of 1996 created three- and ten-year bars on the admission of

12 aliens who departed or were removed from the United States after periods of “unlawful

13 presence” of between 180 days and one year, or more than one year, respectively. 8 U.S.C.

14 § 1182(a)(9)(B)(i). It also imposed a permanent bar on the admission of any alien who,

15 without being admitted, entered or attempted to reenter the United States after having been

16 unlawfully present for an aggregate period of more than one year. 8 U.S.C. § 1182(a)(9)(C)(i).

17 Beginning in 2007, however, DHS regulations and policy guidance provided that deferred action

18 recipients did not accrue “unlawful presence” for purposes of the INA’s bars on re-entry.

19 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); Memorandum for Field Leadership,

20 from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS,

21 Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections

22 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42 (May 6, 2009). DHS excluded recipients

23 of deferred action from being “unlawfully present” because their deferred action is a period of

24 stay authorized by the government. Brewer I, 757 F.3d at 1059 (citing 8 U.S.C.

25 § 1182(a)(9)(B)(ii)). This nonaccrual practice arose well before DACA.1

26

27
1 Undocumented aliens do not begin to accrue “unlawful presence” for purposes of
28 Section 1182(a)(9)(B)(i) until they reach the age of eighteen. 8 U.S.C. § 1182(a)(9)(B)(iii).

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1

DACA grew out of a long agency history of discretionary relief programs. In 1956, the

2 Eisenhower Administration paroled roughly one thousand foreign-born orphans who had been

3 adopted by American citizens but were precluded from entering the United States because of

4 statutory quotas. That same administration later granted parole to tens of thousands of

5 Hungarian refugees after the unsuccessful Hungarian revolution. Both programs flowed from

6 presidential statements, and the programs later ended (in 1959 and 1958, respectively) when

7 Congress passed laws enabling the paroled individuals to become lawful permanent residents

8 (App. 1602–03, 1948–57; AR 33).2

9

In 1987, President Ronald Reagan instituted the Family Fairness Program, a non-

10 statutory program that provided extended voluntary departure to children whose parents were in

11 the process of legalizing their immigration status under the Immigration Reform and Control Act

12 of 1986. President George H.W. Bush extended the non-statutory program in 1990 to cover

13 spouses of such legalized aliens, and the program ultimately provided immigration relief to

14 approximately 1.5 million people. The need for the program ended with the passage of the

15 Immigration Act of 1990 (App. 1607, 1612–13, 1703).

16

On at least four occasions prior to the creation of DACA, immigration officials have

17 extended deferred action programs to certain classes of aliens, none of which programs was

18 expressly authorized by statute:

19

•

In 1997, INS established a deferred action program for individuals

20

self-petitioning for relief under the Violence Against Women Act of

21

1994. This program is still in place today. As originally enacted, the

22

Act did not mention deferred action, but instead provided a pathway

23

to lawful permanent residency. Deferred action allowed applicants

24

to remain in the country pending a decision on their applications.

25

26

2 “App.” refers to the appendix submitted in support of plaintiffs’ motion for provisional relief (Dkt.

Nos. 113, 117–19, 121, 124). In connection with their motion for provisional relief, plaintiffs seek judicial
27 notice of thirty-nine exhibits submitted with the appendix (Dkt. No. 111-2). The request is unopposed.

These exhibits consist of congressional testimony and government publications, memoranda, and press releases.
28 Plaintiffs’ request for judicial notice is GRANTED.

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1

Congress later expanded the deferred action program in the 2000

2

VAWA reauthorization legislation (App. at 1640–46).

3

•

In 2002 and 2003, INS issued memoranda instructing officers to make

4

deferred action assessments for T visa applicants (victims of human

5

trafficking) and U visa applicants (victims of crimes such as domestic

6

violence) (App. 1650–58). These programs have since been codified in

7

regulations promulgated by INS and DHS. 8 C.F.R. §§ 214.11(k)(1),

8

(k)(4), (m)(2); 8 C.F.R. § 214.14(d)(2).

9

•

After Hurricane Katrina in 2005, USCIS announced a deferred action

10

program for certain foreign students (F-1 visa holders) who, because of

11

the hurricane, could not satisfy the requirements of their student visas.

12

In announcing the program, USCIS stated that “[t]he interim relief

13

[would] remain in effect until February 1, 2006” (App. 1661–62).

14

•

In 2009, to fill a gap under the law, USCIS established a deferred

15

action program for widowed spouses who had been married to United

16

States citizens for less than two years. Congress later eliminated the

17

statutory requirement that an alien be married to a United States citizen

18

for at least two years at the time of the citizen’s death to retain

19

eligibility for lawful immigration status, and USCIS accordingly

20

withdrew the deferred action program as “obsolete” (App. 1664–82).

21

In sum, by the time DACA arrived in 2012, deferred action programs had become a

22 well-accepted feature of the executive’s enforcement of our immigration laws, recognized as

23 such by Congress and the Supreme Court.

24

2. DACA.

25

On June 15, 2012, Secretary of Homeland Security Janet Napolitano issued a

26 memorandum establishing Deferred Action for Childhood Arrivals. Under DACA, immigrants

27 brought to the United States as children could apply for deferred action for a two-year period,

28 subject to renewal. To qualify for DACA, an individual must: (1) have come to the United

6

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1 States before the age of sixteen and been under the age of thirty-one on June 15, 2012;

2 (2) have been present in the United States on June 15, 2012; (3) have been continuously residing

3 in the United States for at least the prior five years; (4) have been enrolled in school, graduated

4 from high school, obtained a GED, or been honorably discharged from the United States military

5 or Coast Guard; and (5) not pose a threat to national security or public safety (AR 1).

6

The 2012 DACA memo described the program as an exercise of “prosecutorial

7 discretion.” Secretary Napolitano found leniency “especially justified” for the DACA-eligible,

8 whom she described as “productive young people” who “have already contributed to our country

9 in significant ways.” The memo further stated that these individuals “lacked the intent to violate

10 the law” and were low priority cases for deportation (AR 1–2).

11

DACA applicants had to pass a DHS background check and applications had to be

12 “decided on a case by case basis.” To apply for DACA, eligible individuals completed USCIS

13 Form I-821D. The application called for substantial personal information, such as biographical

14 information, date of entry into the United States, immigration status or lack thereof, educational

15 history, and all prior residential addresses since entering the United States.

16

Form I-821D also required substantial documentary support, including proof of identity

17 and proof of continuous residence in the United States through rent receipts, utility bills,

18 employment documents, or similar records. Applicants also appeared at a USCIS field office

19 to provide fingerprints, photographs, and signatures. The form’s instructions stated (App. 1820):

20

Information provided in this request is protected from disclosure

to ICE and U.S. Customs and Border Protection (CBP) for the

21

purpose of immigration enforcement proceedings unless the

requestor meets the criteria for the issuance of a Notice To Appear

22

or a referral to ICE under the criteria set forth in USCIS’ Notice to

Appear guidance (www.uscis.gov/NTA). The information may be

23

shared with national security and law enforcement agencies,

including ICE and CBP, for purposes other than removal,

24

including for assistance in the consideration of deferred action for

childhood arrivals request itself, to identify or prevent fraudulent

25

claims, for national security purposes, or for the investigation or

prosecution of a criminal offense. The above information sharing

26

clause covers family members and guardians, in addition to the

requestor.

27

28

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1

The form’s instructions also stated (App. 1808):

2

Individuals who receive deferred action will not be placed into

removal proceedings or removed from the United States for a

3

specified period of time, unless the Department of Homeland

Security (DHS) chooses to terminate the deferral.

4

DACA applicants also submitted a Form I-765, Application for Employment

5

Authorization, a Form I-765WS, Worksheet, and the accompanying fees. To determine an

6

applicant’s eligibility for work authorization, USCIS reviewed the applicant’s current annual

7

income, current annual expenses, and the total current value of his or her assets (App. 1762,

8

1801–21, 2067–87).

9

If approved, the recipient received a Form I-797, Notice of Action, stating (App. 585):

10

USCIS, in the exercise of its prosecutorial discretion, has decided

11

to defer action in your case. Deferred action is an exercise of

prosecutorial discretion by USCIS not to pursue the removal of an

12

individual from the United States for a specific period. Deferred

action does not confer or alter any immigration status.

13

Significantly, DHS could terminate a recipient’s deferred action at any time, at the

14

agency’s discretion, and DACA paved no pathway to lawful permanent residency, much less

15

citizenship (App. 1774, 1808). Secretary Napolitano concluded her DACA memorandum

16

(AR 1–3):

17

This memorandum confers no substantive right, immigration status

18

or pathway to citizenship. Only the Congress, acting through its

legislative authority, can confer these rights. It remains for the

19

executive branch, however, to set forth policy for the exercise of

discretion within the framework of the existing law. I have done

20

so here.

21

But DACA did provide important benefits. First, under pre-existing regulations, DACA

22 recipients became eligible to receive employment authorization for the period of deferred action,

23 thereby allowing them to obtain social security numbers and to become legitimate taxpayers and

24 contributing members of our open economy. 8 C.F.R. § 274a.12(c)(14). Second, deferred action

25 provided a measure of safety for a period of two years from detention and removal, albeit always

26 subject to termination at any time in any individual case. Third, DACA recipients could apply

27 for “advance parole” to obtain permission to travel overseas and be paroled back into the United

28 States. 8 C.F.R. § 212.5(f). Fourth, also pursuant to pre-existing regulations, DACA recipients

8

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1 avoided accrual of time for “unlawful presence” under the INA’s bar on re-entry. 8 U.S.C.

2 § 1182(a)(9)(B)–(C) (establishing three-year, ten-year, and permanent bars on the admission

3 of aliens after specified periods of “unlawful presence”).

4

USCIS “strongly encourage[d]” DACA recipients to submit renewal requests between

5 120 and 150 days before the expiration date-stamped on the recipient’s Form I-797. According

6 to the “Frequently Asked Questions” posted on the agency’s website, recipients were eligible for

7 renewal under DACA so long as they: (1) did not depart the United States on or after August 15,

8 2012, without advance parole; (2) continuously resided in the United States since submitting

9 their most recent DACA request; and (3) had not received criminal convictions (with minor

10 exceptions). Renewal requests did not require additional documentary support (App. 1756–57).

11

The agency adopted DACA without any notice or opportunity for public comment.

12

According to data published by USCIS, 793,026 applicants received deferred action

13 under DACA since its inception. As of September 2017, there remained approximately 689,800

14 active DACA recipients. Their average age was 23.8. Based on a survey completed by

15 Associate Professor Tom K. Wong in August 2017, 91 percent of DACA recipients had jobs,

16 and 45 percent of DACA recipients were enrolled in school (App. 1494–1522, 1533–52).

17

3. THE DAPA LITIGATION.

18

In 2014, DHS announced a different deferred action program for parents of United States

19 citizens or lawful permanent residents, titled “Deferred Action for Parents of Americans and

20 Lawful Permanent Residents” — shortened to the confusingly-similar acronym DAPA.

21

For our purposes, DAPA is important because the United States Court of Appeals for

22 the Fifth Circuit promptly held that DAPA exceeded the statutory authority of DHS, a holding

23 that eventually moved Attorney General Jeff Sessions to rule that DACA too had exceeded the

24 agency’s authority. Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

25

The 2014 DAPA memo directed USCIS “to establish a process, similar to DACA, for

26 exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,”

27 for aliens who had a son or daughter who was a United States citizen or lawful permanent

28 resident and: (1) were not an enforcement priority under DHS policy; (2) had continuously

9

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1 resided in the United States since before January 1, 2010; (3) had been physically present in the

2 United States both when DHS announced DAPA and at the time of application to the program;

3 and (4) presented “no other factors that, in the exercise of discretion, [made] the grant of

4 deferred action inappropriate” (AR 37–41).

5

That same 2014 announcement also expanded DACA in three minor ways: (1) allowing

6 otherwise eligible immigrants to apply for DACA even if they were older than 31 on the day

7 DACA was earlier announced; (2) extending DACA renewals and work authorizations from

8 two- to three-year periods; and (3) adjusting DACA’s date-of-entry requirement from June 15,

9 2007, to January 1, 2010 (AR 37–41).

10

DAPA was also adopted without notice or opportunity for public comment.

11

A coalition of twenty-six states immediately filed suit in the United States District Court

12 for the Southern District of Texas to challenge DAPA. The district court preliminarily enjoined

13 its implementation on the ground that DHS had failed to comply with the APA’s

14 notice-and-comment requirements. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

15 The district court’s order stated that “with three minor exceptions,” the case did not involve

16 DACA (id. at 606):

17

The Complaint in this matter does not include the actions taken by

Secretary Napolitano, which have to date formalized the status of

18

approximately 700,000 teenagers and young adults. Therefore,

those actions are not before the Court and will not be addressed

19

by this opinion. Having said that, DACA will necessarily be

discussed in this opinion as it is relevant to many legal issues in

20

the present case. For example, the States maintain that the DAPA

applications will undergo a process identical to that used for

21

DACA applications and, therefore, DACA’s policies and

procedures will be instructive for the Court as to DAPA’s

22

implementation.

23

In holding that DAPA violated notice-and-comment procedures, the district court held

24 that it constituted “a new rule that substantially change[d] both the status and employability of

25 millions” and inflicted “major costs on both states and federal government.” It therefore should

26 have been issued, the district court held, after notice and opportunity for public comment. Id. at

27 671. Though the order focused on DAPA, it also preliminarily enjoined everything in the 2014

28

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1 memorandum, including the three minor ways in which DACA had been modified (but left alone

2 the 2012 DACA program).

3

The Fifth Circuit affirmed in a split decision but added a further ground for affirmance.

4 Texas, 809 F.3d at 178. Over a dissent, the appellate panel added the ground that DAPA was

5 substantively foreclosed by statute because the INA contained “an intricate process for illegal

6 aliens to derive a lawful immigration classification from their children’s immigration status,”

7 and that DAPA, by providing “the benefits of lawful presence” to undocumented immigrants

8 “solely on account of their children’s immigration status,” was inconsistent with this statutory

9 scheme, which provided its own pathway for lawful presence to parents of children lawfully

10 in the United States. Id. at 179–80, 186. The Fifth Circuit’s holding was also based on its

11 observation that “the INA does not grant the Secretary discretion to grant deferred action and

12 lawful presence on a class-wide basis to 4.3 million otherwise removable aliens.” Id. at 186

13 n.202. The decision was later affirmed without opinion by an equally divided Supreme Court.

14 United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).3

15

In February 2017, DHS Secretary John Kelly issued guidance regarding the Trump

16 Administration’s immigration enforcement priorities. Although the guidance rescinded “all

17 existing conflicting directives, memoranda, or field guidance regarding the enforcement of our

18 immigration laws and priorities for removal,” the 2012 DACA memo and 2014 DAPA memo

19 were explicitly left in place. The guidance also said that the 2014 DAPA memo would “be

20 addressed in future guidance” (AR 229–34).

21

In June 2017, Secretary Kelly rescinded the 2014 DAPA memo, which rescission

22 included the 2014 expansions of DACA. He explained:

23

I have considered a number of factors, including the preliminary

injunction in this matter, the ongoing litigation, the fact that DAPA

24

never took effect, and our new immigration enforcement priorities.

After consulting with the Attorney General, and in the exercise of

25

my discretion in establishing national immigration enforcement

policies and priorities, I hereby rescind the November 20, 2014,

26

memorandum.

27

28

3 Such an affirmance has no precedential value. Neil v. Biggers, 409 U.S. 188, 192 (1972).

11

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1 Again, however, Secretary Kelly declared that the 2012 DACA memo would remain in effect

2 (AR 235–37).

3

4. RESCISSION OF DACA.

4

Also in June 2017, ten of the twenty-six plaintiffs from the DAPA litigation wrote to

5 Attorney General Jeff Sessions to demand rescission of the 2012 DACA memo. Their letter

6 stated that if DACA was rescinded by September 5, they would dismiss the still-pending DAPA

7 litigation. Otherwise, the letter threatened to try to amend their complaint to additionally

8 challenge the legality of DACA (AR 238–40).

9

A day before the deadline, the Attorney General advised Acting Secretary of Homeland

10 Security Elaine Duke via a short letter that the Obama Administration had created DACA

11 “without proper statutory authority and with no established end-date, after Congress’ repeated

12 rejection of proposed legislation that would have accomplished a similar result,” and that

13 therefore the program was an “unconstitutional exercise of authority by the Executive Branch.”

14 The Attorney General’s letter also referenced the preliminary injunction against DAPA, then

15 stated that “[b]ecause the DACA policy has the same legal and constitutional defects that the

16 courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar

17 results with respect to DACA” (AR 251).

18

The following day, without prior notice, the Acting Secretary rescinded DACA.

19 The rescission was not based on any policy criticism. Instead, it was based on the legal

20 determination by the Attorney General. The Acting Secretary explained that after “[t]aking into

21 consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and

22 the September 4, 2017, letter from the Attorney General, it is clear that the June 15, 2012,

23 DACA program should be terminated.” She said that “[r]ecognizing the complexities associated

24 with winding down the program,” DHS would “provide a limited window” in which it would

25 adjudicate certain requests, but that new DACA requests and applications for employment

26 authorization would be rejected starting immediately. DHS would adjudicate, on a case-by-case

27 basis, DACA renewal requests received within thirty days from beneficiaries whose DACA

28 status would expire before March 5, 2018. She also instructed DHS to immediately stop

12

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1 approving new applications for advance parole. The rescission left in place all extant grants of

2 deferred action and work authorizations for the remainder of their validity periods (AR 252–56).

3 Consequently, starting in March 2018, the DACA population will, over two years, dwindle down

4 to zero.

5

On the night of the rescission, President Trump called upon Congress specifically to

6 enact DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama

7 Administration was unable to do). If they can’t, I will revisit this issue!” During an interview

8 earlier in 2017, President Trump had stated “we are not after the dreamers, we are after the

9 criminals” and that “the dreamers should rest easy” (App. 1852–53, 1958).

10

In sum, the new administration didn’t terminate DACA on policy grounds. It terminated

11 DACA over a point of law, a pithy conclusion that the agency had exceeded its statutory and

12 constitutional authority. An important question now presented is whether that conclusion was a

13 mistake of law.

14

5.

THE INSTANT LITIGATION.

15

Plaintiffs herein filed five related non-class lawsuits in this district, all now before the

16 undersigned judge. The first commenced on September 8, brought by The Regents of the

17 University of California, on its own behalf and on behalf of its students, and Janet Napolitano,

18 in her official capacity as President of the University. UC Plaintiffs allege they have invested

19 considerable resources in recruiting students and staff who are DACA recipients, and that these

20 individuals make important contributions to the University. As DACA recipients lose their work

21 authorizations, UC Plaintiffs allege that the University will lose significant intellectual capital

22 and productivity. They further allege that students who lose DACA protections will be unable

23 “to plan for the future, apply for and obtain internships and certain financial aid and

24 scholarships, study abroad, or work to pay their tuition and other expenses,” and as a result may

25 withdraw from the University altogether (UC Compl. ¶¶ 4–6, 34–37, 48–49).4

26

27

4 Two additional DACA lawsuits proceed in the Eastern District of New York before Judge Nicholas

Garaufis, State of New York v. Trump, Case No. 17-cv-05228 NGG, and Vidal v. Baran, Case No. 16-cv-04756
28 NGG.

13

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1

On September 11, the States of California, Maine, Maryland, and Minnesota filed suit.

2 Plaintiff States allege that they are home to more than 238,000 DACA recipients, and that the

3 loss of their residents’ DACA status and work authorizations will injure their public colleges

4 and universities, upset the States’ workforces, disrupt the States’ statutory and regulatory

5 interests, cause harm to hundreds of thousands of their residents, damage their economies,

6 and hurt companies based in Plaintiff States (States Compl. ¶¶ 1–10).

7

The City of San Jose, on its own behalf and on behalf of its employees who are DACA

8 recipients, filed its action on September 14. San Jose alleges that it has hired DACA recipients

9 into vital City jobs, that substantial resources were invested in training these employees, and that

10 the City will be harmed when these employees are forced to leave the workforce (when they lose

11 their work authorizations). San Jose further alleges that it will continue to lose tax revenue as

12 DACA recipients lose work authorizations and can no longer contribute to the City’s tax base

13 (San Jose Compl. ¶¶ 10, 28, 49–51).

14

On September 18, Individual DACA recipients Dulce Garcia, Miriam Gonzalez Avila,

15 Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and Jirayut

16 Latthivongskorn brought suit to challenge the termination of DACA. Individual Plaintiffs work

17 and study in the fields of law, medicine, education, and psychology. They allege that the loss of

18 DACA will frustrate their professional goals and accomplishments. They further allege that as a

19 result of the rescission, they will lose access to numerous federal and state benefits, and may not

20 be able to reside in the United States with their families. They applied for DACA in reliance on

21 the government’s representations that information provided under the program would not be

22 used for purposes of immigration enforcement (Garcia Compl. ¶¶ 4–9, 55, 59, 72, 78, 85, 95,

23 128).

24

Finally, the County of Santa Clara and the Service Employees International Union Local

25 521 filed their complaint on October 10. The County alleges that it employs DACA recipients,

26 including union members, in key positions, such as in its In-Home Supportive Services Program

27 and New Americans Fellowship Program. The County alleges that it has expended time and

28 money in training these employees, and that it relies on them to provide important services.

14

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1 As DACA recipients leave the workforce, the County will lose important employees, will incur

2 harm to its economy and suffer decreased tax revenue, and will incur the costs of increased

3 dependency on subsidized health care and other County services. Local 521 sues as an

4 associational plaintiff on behalf of its members who are DACA recipients, and alleges that the

5 Union’s organizational mission is to organize, represent, and empower employees, as well as

6 mobilize immigration reform (Santa Clara Compl. ¶¶ 1, 15–20, 32, 37, 43–52).

7

Collectively, plaintiffs assert the following claims:

8

•

The rescission violated the Administrative Procedure Act because it

9

was arbitrary, capricious, an abuse of discretion, and otherwise not in

10

accordance with law (UC Compl. ¶¶ 50–58; State Compl. ¶¶ 152–55;

11

Garcia Compl. ¶¶ 165–84; Santa Clara Compl. ¶¶ 67–73).

12

•

The rescission violated the APA because it was a substantive rule that

13

did not comply with the APA’s notice-and-comment requirements or

14

the Regulatory Flexibility Act’s mandate under 5 U.S.C. § 604 that

15

an agency publish analysis of a rule’s impact on small businesses

16

(UC Compl. ¶¶ 59–66; State Compl. ¶¶ 146–63; San Jose Compl.

17

¶¶ 59–63; Garcia Compl. ¶¶ 177–84).

18

•

The rescission deprived DACA recipients of constitutionally-protected

19

property and liberty interests without due process of law. Plaintiffs also

20

allege that the rescission violated due process because the government

21

changed its policy regarding agency use of DACA-related information

22

(UC Compl. ¶¶ 67–73; State Compl. ¶¶ 141–45; Garcia Compl.

23

¶¶ 133–47; Santa Clara Compl. ¶¶ 59–66).

24

•

The rescission violates equal protection of the law because it was

25

motivated by discriminatory animus and because it deprived DACA

26

grantees of their substantial interests in supporting themselves and

27

furthering their education (State Compl. ¶¶ 172–77; San Jose Compl.

28

¶¶ 52–58; Garcia Compl. ¶¶ 148–59; Santa Clara Compl. ¶¶ 74–78).

15

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1

•

The rescission violates equitable estoppel. DACA recipients provided

2

detailed personal information to the government and rearranged their

3

lives based on the government’s representations, but now face the

4

possibility of removal. Plaintiffs argue that the government should

5

therefore be equitably estopped from terminating DACA or from using

6

their DACA information for immigration enforcement purposes (State

7

Compl. ¶¶ 164–71; Garcia Compl. ¶¶ 192–99; Santa Clara Compl.

8

¶¶ 79–86).

9

•

Plaintiffs seek a declaration that the rescission was unlawful and an

10

order restoring DACA (UC Compl. at 16, State Compl. at 35–36;

11

San Jose Compl. at 15–16; Garcia Compl. at 43; Santa Clara Compl.

12

at 26–27).

13

On September 21, an initial case management conference occurred for all DACA actions

14 in our district. At the conference, all counsel, including government counsel, presented a joint

15 proposal whereby the government would file the administrative record by October 13.

16 Significantly, although the government argued that discovery would be premature, it agreed to

17 submit the administrative record without any condition that it be done before any decision on its

18 threshold jurisdictional motion (presumably because it knew its jurisdictional motion would be

19 premised on the administrative record) (see Dkt. No. 114 at 16; Tr. at 17:3, 22:2). The Court

20 made only slight revisions to the joint proposal, all in aid of a stated goal of providing a full

21 record and final decision for our court of appeals prior to the March 5 expiration date. Pursuant

22 to FRCP 26, a case management order then set a October 6 deadline for the government to file

23 the administrative record, set a briefing schedule for the parties’ motions to dismiss, for

24 provisional relief, or for summary judgment, and permitted the parties to proceed with

25 reasonable, limited, and narrowly-directed discovery (Dkt. No. 49).

26

The government filed an administrative record on October 6. It was merely, however,

27 fourteen documents comprising 256 pages of which 187 consisted of published opinions from

28 the DAPA litigation, and all of which already resided in the public domain. All non-public

16

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1 materials, some eighty-four documents, actually reviewed by the Acting Secretary remained

2 withheld as privileged (Dkt. No. 71). In other words, of the ninety-eight DACA-related

3 documents personally considered by the decisionmaker, all but the fourteen already known to

4 the public were withheld as privileged. Although government counsel further indicated, upon

5 inquiry by the district judge, that the decisionmaker had also likely received verbal input,

6 nothing was included in the administrative record to capture this input. Nor were there any

7 materials regarding the agency’s earlier, recent decisions to leave DACA in place.

8

On October 9, plaintiffs moved to require the government to complete the administrative

9 record, seeking all materials considered directly or indirectly by the Acting Secretary in

10 reaching her decision to rescind DACA, which motion was granted in part and denied in part.

11 The government, having earlier consented to filing the administrative record, was ordered to

12 keep its word and to file a complete administrative record (Dkt. Nos. 65, 79–80).

13

Instead, the government filed a petition for writ of mandamus with our court of appeals,

14 seeking relief from having to complete the administrative record until after its jurisdictional

15 arguments were determined, a turnabout from its earlier voluntary proposal and stipulation to

16 file the administrative record as part of an agreed-upon schedule. After full briefing and oral

17 argument, our court of appeals denied the government’s mandamus petition and vacated the

18 stay (over one dissent).5

19

The government was again ordered to complete the administrative record, this time by

20 November 22, later extended to December 22 to accommodate the government’s claim of

21 burden. On December 1, however, the government filed a petition for writ of mandamus and

22 application for a stay in the United States Supreme Court. Ultimately, the Supreme Court did

23 not reach the merits of the government’s petition but required that defendants’ jurisdictional

24 defenses be adjudicated prior to consideration of discovery or completing the administrative

25
5 Recently, the United States Court of Appeals for the Second Circuit denied the government’s petition
26 for a writ of mandamus to stay an order to supplement the same administrative record. The court of appeals
found that there was “a strong suggestion that the record before the District Court was not complete” and, noting
27 that nearly 200 pages of the record consisted of published opinions from various federal courts, “[i]t is difficult
to imagine that a decision as important as whether to repeal DACA would be made based upon a factual record
28 of little more than 56 pages, even accepting that litigation risk was the reason for repeal.” In Re: Kirstjen M.
Nielsen, No. 17-3345 (2d. Cir. Dec. 27, 2017).

17

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1 record (Dkt. Nos. 86, 188, 197, 214, 224), a decision the district judge himself might have made

2 at the outset save for the government’s own proposal and agreement to file the administrative

3 record in October.

4

Consequently, this action has proceeded on the incomplete administrative record

5 initially filed by the government. Plaintiffs have been forced to draw on other materials.

6 Ironically, even the government in these motions relies on material outside of the administrative

7 record to defend the agency decision (Dkt. No. 204 at 10, 12, 19–20). The parties have now

8 fully briefed motions to dismiss and a motion for provisional relief, all argued on December 20

9 (Dkt. Nos. 111, 114). This order now follows.

10

ANALYSIS

11

1.

MOTION TO DISMISS.

12

Defendants raise three jurisdictional arguments under FRCP 12(b)(1). First, they argue

13 that the decision to rescind DACA was a discretionary act barred from judicial review under

14 the APA. Second, they contend that the INA bars judicial review. Third, although defendants

15 concede that Individual Plaintiffs have standing, they contend that no others do. Each is

16 now addressed in turn. A separate order will consider defendants’ motion to dismiss under

17 FRCP 12(b)(6).

18

A. The DACA Rescission Was Not Committed

To Agency Discretion by Law.

19

Congress has instructed our district courts to review and set aside agency action found

20

to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

21

5 U.S.C. § 706(2)(A). Under the APA, however, our district courts lack subject-matter

22

jurisdiction to review agency action that is “committed to agency discretion by law.” 5 U.S.C.

23

§ 701(a)(2).

24

In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), the

25

Supreme Court explained that the jurisdictional bar of Section 701(a)(2) is “very narrow” and

26

“applicable in those rare instances where statutes are drawn in such broad terms that in a given

27

case there is no law to apply.” The Supreme Court held that because the statute there at issue

28

contained “clear and specific directives” guiding the agency’s decision, there was “‘law to

18

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1 apply,’ so the exemption for action ‘committed to agency discretion’ [was] inapplicable.” Id. at

2 411–13 (quotations and citations omitted).

3

When it next revisited the exception in Heckler v. Chaney, 470 U.S. 821, 830 (1985),

4 the Supreme Court reiterated that the exception applies only where “the statute is drawn so

5 that a court would have no meaningful standard against which to judge the agency’s exercise

6 of discretion.” There, condemned inmates asked the FDA to bring an enforcement action to

7 prevent purported violations of the Federal Food, Drug, and Cosmetic Act through the

8 administration of death-penalty drugs. The FDA Commissioner, however, refused to do so on

9 the ground that the FDA lacked jurisdiction and otherwise should not interfere with the state

10 criminal justice system. Skipping over the agency jurisdiction issue, the Supreme Court held

11 that such decisions not to prosecute or initiate enforcement actions are generally not reviewable

12 as they are “committed to an agency’s absolute discretion.” Id. at 824–25, 831.

13

Chaney identified several characteristics of non-enforcement decisions as key to

14 its holding. First, non-enforcement decisions require a complicated balancing of factors

15 “peculiarly within [the agency’s] expertise,” including whether “resources are best spent on

16 this violation or another, whether the agency is likely to succeed if it acts, whether the particular

17 enforcement action requested best fits the agency’s overall policies, and . . . whether the agency

18 has enough resources to undertake the action at all.” Id. at 831. Second, in refusing to act,

19 an agency “does not exercise its coercive power over an individual’s liberty” and accordingly

20 “does not infringe upon areas that courts often are called upon to protect.” Id. at 832. When an

21 agency does act to enforce, however, that action itself provides a focus for judicial review,

22 inasmuch as the agency must have exercised its power in some manner. Third, a refusal to

23 institute enforcement proceedings is similar to a prosecutor’s decision not to indict, which

24 decision “has long been regarded as the special province of the Executive Branch.” Ibid.

25

Our case is different from Chaney. There, the agency simply refused to initiate an

26 enforcement proceeding. Here, by contrast, the agency has ended a program which has existed

27 for five years affecting 689,800 enrollees. Importantly, major policy decisions are “quite

28 different from day-to-day agency nonenforcement decisions.” National Treasury Employees

19

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1 Union v. Horner, 854 F.2d 490, 496 (D.C. Cir. 1988). Rather, broad enforcement policies “are

2 more likely to be direct interpretations of the commands of the substantive statute rather than

3 the sort of mingled assessments of fact, policy, and law that drive an individual enforcement

4 decision.” Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 677 (D.C. Cir. 1994).

5 Even defendants concede that where “the agency’s interpretation of a statute is embedded in a

6 non-reviewable enforcement policy, the former may be reviewable as such” (Dkt. No. 218 at 3

7 n.4). Although they contend that the rescission memorandum “does not contain an embedded

8 interpretation of the INA,” that assertion is incompatible with the Acting Secretary’s explicit

9 references to the INA and the Attorney General’s determination that DACA was effectuated

10 without “statutory authority.” The first and third Chaney factors, accordingly, do not apply to

11 the instant case.6

12

Chaney is also distinguishable because, unlike there, here the government reversed

13 course after five years of inviting DACA recipients out of the shadows. In contrast to

14 nonenforcement decisions, “rescissions of commitments, whether or not they technically

15 implicate liberty and property interests as defined under the fifth and fourteenth amendments,

16 exert much more direct influence on the individuals or entities to whom the repudiated

17 commitments were made.” Robbins v. Reagan, 780 F.2d 37, 47 (D.C. Cir. 1985). Through

18 DACA, the government has invited undocumented aliens who meet threshold criteria to step

19 forward, disclose substantial personal information, pay a hefty fee, and comply with ongoing

20 conditions, all in expectation of (though not a right to) continued deferred action. DACA

21 allows enrollees to better plan their careers and lives with a reduced fear of removal. DACA

22 work authorizations, for example, allow recipients to join in the mainstream economy (and pay

23 taxes). DACA covers a class of immigrants whose presence, seemingly all agree, pose the least,

24 if any, threat and allows them to sign up for honest labor on the condition of continued good

25 behavior. This has become an important program for DACA recipients and their families, for

26
6 Contrary to defendants, Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir. 1990), is distinguishable
27 on its facts. There, the Fifth Circuit addressed a class action stemming from the Immigration and Naturalization
Service’s failure to adjudicate requests for voluntary departure. The court of appeals determined that the district
28 court had improperly issued an injunction directing INS to consider particular grounds in deciding individual
requests for voluntary departure and employment authorization. Id. at 1046.

20

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1 the employers who hire them, for our tax treasuries, and for our economy. An agency action to

2 terminate it bears no resemblance to an agency decision not to regulate something never before

3 regulated.

4

Finally, there is law to apply. The main, if not exclusive, rationale for ending DACA

5 was its supposed illegality. But determining illegality is a quintessential role of the courts.7

6

B. The INA Does Not Bar Review.

7

The principle that courts owe substantial deference to the immigration determinations of

8 the political branches is important and undisputed. Washington v. Trump, 847 F.3d 1151, 1162

9 (9th Cir. 2017). That deference, however, does not remove the decision to rescind DACA from

10 the ambit of judicial review. Rather, the Supreme Court has applied the “strong presumption

11 in favor of judicial review of administration action” in the immigration context. See INS v.

12 St. Cyr, 533 U.S. 289, 298–99 (2001).

13

In this connection, defendants raise two arguments. First, they contend that review

14 of discretionary enforcement decisions results in the inappropriate delay of removal, and

15 accordingly prolongs violations of our immigration laws. This argument, however, again

16 ignores that plaintiffs do not challenge any particular removal but, rather, challenge the abrupt

17 end to a nationwide deferred-action and work-authorization program. In any individual case,

18 DACA allows DHS to revoke deferred status and to deport. Second, defendants assert that

19 review of such decisions may involve disclosure of law enforcement priorities and

20 foreign-policy objectives. Neither concern is implicated here, as defendants’ stated reasons

21 for the rescission all relate to the across-the-board cancellation of DACA based on supposed

22 illegality, not to the facts particular to any proposed removal.

23

24

25

26
7 Defendants are correct, of course, that a presumptively unreviewable agency action does not become
27 reviewable simply because “the agency gives a reviewable reason for otherwise unreviewable action.” ICC v.
Bhd. of Locomotive Eng’s, 482 U.S. 270, 283 (1987). As discussed above, however, the rescission of DACA
28 was not such an unreviewable decision.

21

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1

Nor does Section 1252(g) bar judicial review of the agency action in question. 8 U.S.C.

2 § 1252(g) provides:

3

Except as provided in this section and notwithstanding any other

provision of law (statutory or nonstatutory) . . . no court shall have

4

jurisdiction to hear any cause or claim by or on behalf of any alien

arising from the decision or action by the Attorney General to

5

commence proceedings, adjudicate cases, or execute removal

orders against any alien under this chapter.

6

As explained by the Supreme Court, this provision applies only to the three discrete

7

decisions or actions named in Section 1252(g). AADC, 525 U.S. at 482. Plaintiffs’ claims do

8

not involve such decisions, but rather the challenge here is to the across-the-board cancellation

9

of a nationwide program.8

10

Defendants recognize that these actions were brought prior to the commencement of

11

any removal proceedings. Nevertheless, they argue that Section 1252(g) precludes review of

12

plaintiffs’ claims because the decision to discontinue deferred action is “an ingredient to the

13

commencement of enforcement proceedings.” It is true that eliminating DACA draws its

14

enrollees one step closer to deportation, but the Supreme Court rejected the argument that

15

Section 1252(g) somehow precludes review of the “many other decisions or actions that may be

16

part of the deportation process.” As AADC emphasized, “[i]t is implausible that the mention of

17

three discrete events along the road to deportation was a shorthand way of referring to all claims

18

arising from deportation proceedings.” Ibid.

19

Defendants cite two decisions. Importantly, however, both stemmed from already-

20

commenced deportation or removal proceedings. See Botezatu v. I.N.S., 195 F.3d 311, 312

21

(7th Cir. 1999) (declining to review a decision to deny deferred action after plaintiff had been

22

found deportable); Vasquez v. Aviles, 639 F. App’x 898, 899–900 (3d Cir. 2016) (district court

23

lacked jurisdiction to hear habeas corpus petition that claimed plaintiff was improperly denied

24

DACA relief).

25

By comparison, our court of appeals has held, following AADC, that Section 1252(g)

26

does not bar review of actions that occur “prior to any decision to ‘commence proceedings.’”

27

28

8 The district court in Batalla Vidal also concluded that Section 1252(g) did not bar judicial review of

challenges to the DACA rescission. Batalla Vidal v. Duke, 2017 WL 5201116, at *13.

22

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1 Kwai Fun Wong v. United States, 373 F.3d 952, 965 (9th Cir. 2004). The claims in Kwai Fun

2 Wong challenged the revocation of the plaintiff’s parole without first deciding her application

3 for immigration relief, conduct which “resulted in the INS’s decision to commence removal

4 proceedings and ultimately to remove” the plaintiff from the United States. Id. at 959, 964.

5 Contrary to defendants, it is immaterial that Kwai Fun Wong did not involve deferred action,

6 as both the revocation of parole and the revocation of deferred action are “an ingredient” to the

7 commencement of enforcement proceedings. The jurisdictional limits of Section 1252(g) were

8 instead “directed at the deconstruction, fragmentation, and hence prolongation of removal

9 proceedings.” AADC, 525 U.S. at 482.

10

C. Most Plaintiffs Have Standing.

11

To establish standing, Article III of the United States Constitution requires plaintiffs

12 to show “(1) they suffered an injury in fact, (2) that is fairly traceable to the challenged conduct

13 of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,

14 Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

15 560–61 (1992)). The standing inquiry is focused on whether the plaintiff has a sufficient

16 personal stake in the outcome of the controversy to ensure that the parties will be truly adverse

17 and their legal presentations sharpened. Massachusetts v. EPA, 549 U.S. 497 (2007). Standing

18 must be assessed on a claim-by-claim basis. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352

19 (2006).

20

Defendants do not dispute that the Individual Plaintiffs have standing. Rather, they argue

21 in brief that the entity plaintiffs (the state and local governments, UC Plaintiffs, and SEIU Local

22 521) lack Article III standing because the rescission does not regulate or restrict them in any

23 way. Defendants therefore posit that the entity plaintiffs’ claimed injuries are due only to

24 “incidental effects” of the rescission, which defendants contend are insufficient to establish

25 injury-in-fact. As set forth below, these arguments lack merit.

26

First, California, Maryland, the City of San Jose, and the County of Santa Clara each

27 employ DACA recipients, in connection with whom they have invested substantial resources

28 in hiring and training. Plaintiffs allege that they will not only lose these employees as work

23

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1 authorizations expire, but that they will also need to expend additional resources to hire and train

2 replacements. San Jose further alleges that as a result of the rescission, the City has had

3 decreased productivity, and that it has had to expend time and resources to deal with decreased

4 employee morale (States Compl. ¶¶ 26–27, 32, 53; San Jose Compl. ¶¶ 49–50; Santa Clara

5 Compl. ¶¶ 32–37; App. 11, 95–97, 706–07, 798, 1575–76).

6

Second, Plaintiff States, including Maine and Maryland, stand to lose significant tax

7 revenue as a result of the rescission (States Compl. ¶¶ 28–30, 37, 49–50, 70–71). Although

8 general allegations of injury to a state’s economy and the associated decline in general tax

9 revenues may not be sufficient to establish standing, here, Plaintiff States sufficiently allege a

10 “direct injury in the form of a loss of specific tax revenues.” Wyoming v. Oklahoma, 502 U.S.

11 437, 448 (1992). They allege, for example, that Maine stands to lose $96,000 in annual state

12 and local taxes as DACA recipients leave the workforce (States Compl. ¶¶ 30, 38). Evidence

13 submitted by plaintiffs supports these allegations, and demonstrates that DACA’s rescission

14 would reduce state and local tax contributions by DACA-eligible individuals by at least half

15 (App. 68–74, 218–30).

16

Third, the University of California has also established that it will suffer injury to its

17 proprietary interests. As declarations submitted by the University demonstrate, the rescission

18 has harmed the University in multiple ways. Because DACA recipients can no longer seek

19 advance parole, these students are unable to travel outside of the United States for research and

20 educational conferences. DACA recipients have also decided to cancel their enrollment in the

21 University, and additional recipients are at risk of dropping out, because they would not be able

22 to pay the cost of attendance without work authorizations. The University has also invested

23 resources in recruiting and retaining DACA recipients as employees in various roles, including

24 as teaching assistants and health care providers. Such investments would be lost should these

25 employees lose their ability to work in the United States.

26

California, Maryland, and Minnesota also allege injury to their public universities

27 through harm to their educational missions and the loss of students and teachers. According to

28 the declarations filed by plaintiffs, the rescission, and the resulting loss of work authorization

24

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1 and potential for deportation, will adversely impact the diversity of the talent pool of potential

2 students, which will make it more difficult for the universities to fulfill their missions of

3 increasing diversity (States Compl. ¶¶ 27, 55, 64–66; App. 12–16, 496–514, 884–90). Our court

4 of appeals recently affirmed the standing of two state governments to challenge an immigration

5 policy that similarly harmed the plaintiffs’ public universities. Washington v. Trump, 847 F.3d

6 1151, 1160–01 (9th Cir. 2017). These injuries accordingly give the University of California and

7 the States of California, Maryland, and Minnesota Article III standing. Ibid. (citing Singleton v.

8 Wulff, 428 U.S. 106, 114–16 (1976)).9

9

Fourth, State Plaintiffs Maryland and Minnesota further allege that the rescission will

10 negatively impact their public health programs. In particular, Maryland and Minnesota allege

11 that rescinding DACA will cause many DACA grantees to lose their employer-based health

12 insurance, imposing higher healthcare costs on the state (State Compl. ¶¶ 51, 62). These injuries

13 are also sufficient to confer Article III standing.10

14

Finally, SEIU Local 521 has associational standing to bring its claims on behalf of its

15 members who are DACA recipients. An association has standing to bring suit on behalf of its

16 members when: (1) its members would otherwise have standing to sue in their own right;

17 (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the

18 claim asserted nor the relief requested requires the participation of individual members in the

19 lawsuit. Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock,

20

21

9 The public universities of California, Maryland, and Minnesota are branches of the states under state

law. Campbell v. Regents of Univ. of California, 35 Cal. 4th 311, 321 (2005); Hanauer v. Elkins, 217 Md. 213,
22 219, 141 A.2d 903, 906 (Md. 1958); Univ. of Minn. v. Raygor, 620 N.W.2d 680, 683 (Minn. 2001).

23

10 Although not discussed by the parties, the District of Columbia Circuit held that Joe Arpaio, Sheriff

of Maricopa County, Arizona, lacked Article III standing to challenge DACA. Arpaio v. Obama, 797 F.3d 11
24 (D.C. Cir. 2015). While the court of appeals found that the plaintiff’s alleged harm — increased spending on

criminal investigation, apprehension, and incarceration — was sufficiently concrete, his theory that DACA 25 would lead to an increased number of undocumented immigrants committing crimes in his jurisdiction was too

speculative. Id. at 19–20. Here, by contrast, plaintiffs allege that the rescission will cause DACA recipients to
26 lose their work authorizations, and that plaintiffs will lose employees and students, suffer decreased tax revenue,

and otherwise incur increased costs as a direct result. This case is also different from Crane v. Johnson,
27 783 F.3d 244, 252 (5th Cir. 2015), where the Fifth Circuit held that Mississippi lacked standing to challenge

DACA because it failed to submit evidence that DACA eligible immigrants resided in the state. Defendants do
28 not dispute State Plaintiffs’ allegations that hundreds of thousands of DACA recipients live in Plaintiff States.

25

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1 477 U.S. 274, 282 (1986) (quoting Hunt v. Washington State Apple Advertising Comm’n,

2 432 U.S. 333, 343 (1977)). SEIU has established all three elements here. SEIU has members

3 who are DACA recipients. Its constitution states that part of its mission is to provide its

4 members with a voice in the larger community, and that its members should be treated equally

5 with dignity regardless of immigration status or national origin. SEIU has also formed a

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

7 organizing, advocacy, and education to help undocumented workers. Its members’ interests in

8 these actions are therefore germane to SEIU’s stated purpose (App. 801–09). Furthermore, this

9 action does not require the participation of SEIU’s individual members.

10

Defendants, in arguing that the entity plaintiffs lack standing, rely solely on Linda R.S. v.

11 Richard D., 410 U.S. 614, 619 (1973). There, the plaintiff lacked standing to challenge a Texas

12 state court’s interpretation of a child support statute. Ibid. The Supreme Court held that,

13 although the plaintiff had alleged an injury, she had not shown “a direct nexus between the

14 vindication of her interest and the enforcement of the State’s criminal laws” because the

15 relationship between the state’s decision not to prosecute and the father’s decision not to pay

16 under the statute could “at best, be termed only speculative.” Id. at 618–19. Linda R.S. has no

17 application here. As explained above, the entity plaintiffs have alleged harm to their proprietary

18 interests as a direct result of defendants’ decision to terminate the DACA program, most notably

19 through its termination of work authorizations. Accordingly, the entity plaintiffs have

20 sufficiently alleged injury-in-fact traceable to the termination of DACA, and have demonstrated

21 that these harms are redressable by their requested relief.11

22

Turning to prudential standing under the APA, a plaintiff must show that it has suffered

23 or will suffer sufficient injury-in-fact, and that “the interest[s] sought to be protected by the

24 complainant [are] arguably within the zone of interests to be protected or regulated by the

25 statute . . . in question.” Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S.

26 479, 488 (1998).

27
11 Because defendants’ conduct imposes direct injury on the State Plaintiffs’ proprietary interests, this
28 order need not reach defendants’ argument that the State Plaintiffs lack standing as parens patriae.

26

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1

A plaintiff that is not itself the subject of the contested regulatory action lacks prudential

2 standing only where its interests “are so marginally related to or inconsistent with the purposes

3 implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the

4 suit.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987). This test is “not meant to be

5 especially demanding,” and must be applied “in keeping with Congress’s evident intent when

6 enacting the APA to make agency action presumably reviewable.” Match-E-Be-Nash-She-Wish

7 Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quotations and citations

8 omitted).

9

The parties’ briefs include only a cursory discussion of plaintiffs’ prudential standing

10 under the APA. Again, defendants do not dispute that the Individual Plaintiffs also have

11 statutory standing. SEIU, which asserts the rights of its members who are DACA recipients,

12 likewise seeks the protection of interests regulated by the INA. Not all of the entity plaintiffs,

13 however, have established prudential standing to proceed on their APA claims.

14

Plaintiffs primarily rely on our court of appeals’ recent decision in Hawaii v. Trump,

15 859 F.3d 741, 765 (9th Cir. 2017), as well as on various provisions of the INA which provide for

16 student- and employment-related immigrant visas. Plaintiffs do not contend, however, that their

17 DACA-recipient students or employees qualify for such visas. Nor do plaintiffs point to

18 any provisions of the INA which indicate a protected interest in enrolling students with deferred

19 action in their schools or universities. Plaintiffs are also unable to point to any provision of the

20 INA indicating that Congress intend to protected Plaintiff States’ interests in maintaining income

21 tax revenue or avoiding increased healthcare costs.

22

By contrast, local and state governments San Jose, Santa Clara, California, and

23 Maryland, as well as the University of California, have all identified injuries resulting from their

24 status as employers, and allege harm caused by their employees’ future loss of deferred action

25 and associated work authorization. The INA gives the Executive Branch broad discretion to

26 determine when noncitizens may work in the United States, 8 U.S.C. § 1324a(h)(3), and

27 regulations promulgated pursuant to this authority allow recipients of deferred action to apply

28 for work authorization if they can demonstrate an “economic necessity for employment.”

27

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1 8 C.F.R. § 274a.12(c)(14). Moreover, the INA contains detailed provisions which subject

2 employers to criminal and civil liability for knowingly hiring unauthorized aliens, see 8 U.S.C.

3 § 1324a(a)(1)(A), and for “continu[ing] to employ the alien in the United States knowing

4 the alien is (or has become) an unauthorized alien with respect to such employment,” id.

5 § 1324a(a)(2). The work authorization document that the agency issues to DACA recipients

6 is one of the documents that is acceptable for Form I-9, Employment Eligibility Verification,

7 which employers must complete and retain for each individual they hire for employment in the

8 United States (App. 2061–62). Plaintiffs’ interest in their employees’ continued authorization

9 to work in the United States is therefore “arguably within the zone of interests” that the INA

10 protects. Hawaii, 859 F.3d at 765; Nat’l Credit Union Admin., 522 U.S. at 488.12

11

Accordingly, even though the zone of interests inquiry is not demanding, this order

12 concludes that Maine and Minnesota’s interests are “so marginally related” to the purposes

13 implicit in the INA that it cannot reasonably be assumed that Congress intended to permit the

14 suit. Maine and Minnesota’s APA claims are accordingly DISMISSED WITH LEAVE TO AMEND.

15 The remaining entity plaintiffs, however, have established that their interests that support

16 Article III standing also satisfy the APA’s zone of interests test.

17

*

*

*

18

Apart from the holding that Maine and Minnesota do not have statutory standing, the

19 foregoing rejects all of the government’s jurisdictional arguments to dismiss plaintiffs’

20 challenges under the Administrative Procedure Act.

21

2.

PROVISIONAL RELIEF.

22

Plaintiffs seek a preliminary injunction to restore DACA. To support a preliminary

23 injunction, plaintiffs must establish four elements: (1) likelihood of success on the merits;

24 (2) irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in

25

26

12 Defendants’ sole argument against the entity plaintiffs’ prudential standing is that no provision

of the INA protects the entity plaintiffs from “bearing the incidental effects” of a denial of deferred action.
27 The case on which defendants rely, however, dealt with a private anti-immigration organization whose members

were not impacted by the immigration policy at issue. See Fed’n for Am. Immigration Reform, Inc. v. Reno,
28 93 F.3d 897, 899 (D.C. Cir. 1996).

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1 their favor; and (4) that the injunction is in the public interest. Winter v. Natural Resources

2 Defense Council Inc., 555 U.S. 7, 20 (2008). As now explained, the record warrants most of the

3 provisional relief requested.

4

A. Likelihood of Success on the Merits.

5

Plaintiffs have shown a likelihood of success on their claim that the rescission

6 was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.

7 Specifically, plaintiffs are likely to succeed on their claims that: (1) the agency’s decision to

8 rescind DACA was based on a flawed legal premise; and (2) government counsel’s supposed

9 “litigation risk” rationale is a post hoc rationalization and would be, in any event, arbitrary and

10 capricious.

11

(1) The Rescission was Based on a Flawed Legal Premise.

12

The agency action was “not in accordance with law” because it was based on the flawed

13 legal premise that the agency lacked authority to implement DACA. When agency action is

14 based on a flawed legal premise, it may be set as aside as “arbitrary, capricious, an abuse of

15 discretion, or otherwise not in accordance with law.” See Massachusetts, 549 U.S. at 532

16 (setting aside the EPA’s denial of a petition for rulemaking under the Clean Air Act for

17 supposed lack of authority); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007).

18 This order holds that DACA fell within the agency’s enforcement authority. The contrary

19 conclusion was flawed and should be set aside.

20

The administrative record includes the 2014 determination of the Office of Legal Counsel

21 of the United States Department of Justice that programmatic deferred action is a permissible

22 exercise of DHS’s enforcement discretion. OLC noted that deferred action programs such as

23 DACA are permissible so long as immigration officials retain discretion to evaluate each

24 application on an individualized basis and so long as the concerns animating the program were

25 consistent with the types of concerns that have customarily guided the exercise of immigration

26 enforcement discretion. OLC recognized that the “practice of granting deferred action date[d]

27 back several decades,” and that “Congress has long been aware of the practice of granting

28 deferred action, including in its categorical variety, and of its salient features; and it has never

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1 acted to disapprove or limit the practice.” Indeed, not only has Congress not limited the practice,

2 but it has “enacted several pieces of legislation that have either assumed that deferred action

3 would be available in certain circumstances, or expressly directed that deferred action be

4 extended to certain categories of aliens” (AR 15–27).

5

As explained in OLC’s opinion, each feature of the DACA program is anchored in

6 authority granted or recognized by Congress or the Supreme Court. Because this is the heart

7 of the problem, and with apology for some repetition, this order will now examine each feature

8 in turn.

9

The Secretary of Homeland Security is responsible under the INA for “establishing

10 national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). The Secretary is

11 also charged with the administration and enforcement of the INA. 8 U.S.C. § 1103. In making

12 immigration enforcement decisions, the executive “considers a variety of factors such as the

13 danger posed to the United States of an individual’s unlawful presence, the impact of removal

14 on the nation’s international relations, and the ‘human concerns’ of whether the individual ‘has

15 children born in the United States, long ties to the community, or a record of distinguished

16 military service.’” Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015) (citing Arizona v. United

17 States, 132 S. Ct. 2492, 2499 (2012)). In instituting DACA, Secretary Napolitano explained that

18 the program was “necessary to ensure that [DHS’s] enforcement resources are not expended on

19 [] low priority cases but are instead appropriately focused on people who meet our enforcement

20 priorities” (AR 1).13

21

As set forth above, deferred action originated without any statutory basis apart from the

22 discretion vested by Congress in connection with the agency’s enforcement of the immigration

23 laws. Over the decades, however, deferred action became such a fixture that Congress referred

24 to it by name in several INA amendments. See, e.g., 8 U.S.C. § 1227(d)(2) (stating that U visa

25 and T visa applicants who were denied an administrative stay of removal were not precluded

26 from applying for “deferred action”); 8 U.S.C. § 1154(a)(1)(D)(i)(II) (stating that eligible

27
13 The United States Court of Appeals for the District of Columbia Circuit did not reach the merits of
28 Sheriff Joe Arpaio’s challenges to DACA and DAPA but instead dismissed the case for lack of Article III
standing. Arpaio, 797 F.3d at 15.

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1 derivatives of VAWA petitioners were eligible for “deferred action” and work authorization); 8

2 U.S.C. § 1151 note (stating that certain immediate family members of certain United States

3 citizens “shall be eligible for deferred action”). Congress has also acknowledged deferred action

4 in enactments outside of the INA. See, e.g., 49 U.S.C. § 30301 note (specifying that evidence of

5 lawful status includes proof of “deferred action status”); USA PATRIOT Act of 2001, Pub. L.

6 No. 107-56, § 423(b), 115 Stat. 272, 361 (stating that immediate family members of legal

7 permanent residents killed on September 11, 2001 “may be eligible for deferred action”).

8 Congress has been free to constrain DHS’s discretion with respect to granting deferred action,

9 but it has yet to do so.

10

The Supreme Court has recognized the authority of DHS to grant relief from removal,

11 Arizona, 567 U.S. at 396, and has specifically recognized deferred action as a way to exercise

12 that discretion — “for humanitarian reasons or simply for [the Executive’s] own convenience.”

13 AADC, 525 U.S. at 484. Notably, our court of appeals has said that “the exercise of

14 prosecutorial discretion in deferred action flows from the authority conferred on the Secretary by

15 the INA.” Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 968 (9th Cir. 2017) (“Brewer

16 II”).14

17

In extending programmatic deferred action to DACA enrollees, the agency acted within

18 the scope of this long and recognized practice. In the exercise of its enforcement discretion and

19 policy-making, the agency simply found that DACA enrollees represented low priority cases

20 for removal and instituted DACA to manage that population while it redirected its resources

21 elsewhere. Even for enrollees approved under the program, DHS expressly retained the

22 authority to terminate their deferred action at any time, in the agency’s discretion. DACA

23 provided no guarantee against removal.

24

Nevertheless, DACA has provided recipients with a major benefit, namely work

25 authorizations for the period of deferral upon a demonstration of economic need. This has

26

27

14 In Brewer II, our court of appeals denied a petition for rehearing en banc. Circuit Judge Kozinski,

joined by five other Circuit Judges, filed a dissent to the denial of the petition, expressing the view that DACA
28 did not preempt Arizona’s law refusing to issue drivers’ licenses to DACA recipients. 855 F.3d at 958–62.

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1 allowed DACA recipients to become part of the mainstream workforce and contribute openly

2 to our economy. Significantly, Section 1324a(h)(3) defines an “unauthorized alien” not entitled

3 to work in the United States as an alien who is neither a legal permanent resident nor “authorized

4 to be . . . employed by [the INA] or by the [Secretary of Homeland Security].” In turn, the

5 Secretary of Homeland Security has allowed work authorizations in cases of deferred action

6 under 8 C.F.R. § 274a.12(c)(14). As our court of appeals has stated, “the Executive Branch has

7 determined that deferred action recipients — including DACA recipients — are ordinarily

8 authorized to work in the United States.” See Brewer I, 757 F.3d at 1062.

9

It is also within the lawful authority of the agency to determine that DACA recipients

10 do not accrue “unlawful presence” for purposes of the INA’s bars on re-entry. Pursuant to

11 pre-existent DHS regulations and policy guidance, deferred action recipients already avoided

12 accrual of “unlawful presence.” 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2);

13 Memorandum for Field Leadership, from Donald Neufeld, Acting Associate Director, Domestic

14 Operations Directorate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence

15 for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42 (May 6, 2009).

16 Importantly, DHS excludes recipients of deferred action from being “unlawfully present”

17 because their deferred action is considered a period of stay authorized by the government. See 8

18 U.S.C. § 1182(a)(9)(B)(ii) (an alien is deemed to be unlawfully present if the alien is present “in

19 the United States after the expiration of the period of stay authorized by the Attorney General

20 [and now the Secretary of Homeland Security]”); Brewer I, 757 F.3d at 1059.

21

Allowing DACA recipients to apply for and obtain advance parole to travel overseas and

22 return to the United States is also in accord with pre-existing regulations. 8 C.F.R. § 212.5(f);

23 8 U.S.C. § 1182(d)(5)(A) (the Attorney General [and now the Secretary of Homeland Security]

24 may “in his discretion parole into the United States temporarily under such conditions as he

25 may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public

26 benefit”).

27

In short, what exactly is the part of DACA that oversteps the authority of the agency?

28 Is it the granting of deferred action itself? No, deferred action has been blessed by both the

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1 Supreme Court and Congress as a means to exercise enforcement discretion. Is it the granting

2 of deferred action via a program (as apposed to ad hoc individual grants)? No, programmatic

3 deferred action has been in use since at least 1997, and other forms of programmatic

4 discretionary relief date back to at least 1956. Is it granting work authorizations coextensive

5 with the two-year period of deferred action? No, aliens receiving deferred action have been able

6 to apply for work authorization for decades. Is it granting relief from accruing “unlawful

7 presence” for purposes of the INA’s bars on reentry? No, such relief dates back to the George

8 W. Bush Administration for those receiving deferred action. Is it allowing recipients to apply for

9 and obtain advance parole? No, once again, granting advance parole has all been in accord

10 with pre-existing law. Is it combining all these elements into a program? No, if each step is

11 within the authority of the agency, then how can combining them in one program be outside its

12 authority, so long as the agency vets each applicant and exercises its discretion on a case-by-case

13 basis?

14

Significantly, the government makes no effort in its briefs to challenge any of the

15 foregoing reasons why DACA was and remains within the authority of the agency. Nor does the

16 government challenge any of the statutes and regulations under which deferred action recipients

17 obtain the foregoing benefits.

18

Instead, the administrative record shows that the Attorney General told the Acting

19 Secretary that DACA was illegal. First, the Attorney General said that DACA had been

20 improperly adopted by the Obama Administration after “Congress’ repeated rejection of

21 proposed legislation that would have accomplished a similar result.” But the proposals rejected

22 by Congress markedly differ from DACA. Importantly, while the proposed legislation would

23 have offered Dreamers the ability to become lawful permanent residents, no comparable

24 pathway was offered by DACA. Our court of appeals recognized this distinction, noting that “the

25 DREAM Act and the DACA program are not interchangeable policies because they provided

26 different forms of relief.” Brewer II, 855 F.3d at 976 n.10. In fact, the 2012 DACA memo

27 made explicit that DACA offered no pathway to lawful permanent residency, much less

28 citizenship. Secretary Napolitano concluded her memo by stating that DACA “confer[ed] no

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1 substantive right, immigration status or pathway to citizenship.” To claim that DACA was

2 rejected by Congress, therefore, is unfair.15

3

Second, another criticism of DACA was that applications received mechanical, routine

4 approval without individualized consideration. In her rescission memorandum, the Acting

5 Secretary indicated that “[United States Citizenship and Immigration Services] has not been

6 able to identify specific denial cases where an applicant appeared to satisfy the programmatic

7 categorical criteria as outlined in the [original DACA] memorandum, but still had his or her

8 application denied based solely upon discretion.” The simple answer to this, if true, would be

9 for the agency to instruct its adjudicators to exercise discretion, on a individualized basis, to

10 make sure applicants do not pose a threat to national security or public safety and are otherwise

11 deserving of deferred action.

12

It appears, moreover, that the Acting Secretary was in error when she said that USCIS

13 has been unable to identify discretionary denials of DACA applications. She cited no evidence

14 for this fact, and none is found in the administrative record. Possibly, the Acting Secretary relied

15 on findings made in the DAPA litigation. There, the majority panel noted that USCIS could not

16 produce any applications that satisfied the guidelines of the original DACA memorandum but

17 were nonetheless refused through an exercise of discretion. Texas, 809 F.3d at 172. As the

18 dissent pointed out, however, the district court may have conflated rejections of DACA

19 applications with denials, and as a result suggested that most denials were made for mechanical,

20 administrative reasons. Id. at 210 (King, J., dissenting). A declaration submitted in that case by

21 Donald Neufeld, then-Associate Director for Service Center Operations for USCIS, pointed to

22 several instances of discretionary denials. Id. at 175. That same declaration explained that while

23 a DACA application was rejected when it was “determined upon intake that the application [had]

24 a fatal flaw,” an application was denied when a USCIS adjudicator, on a case-by-case basis,

25 determined that the requestor either had not demonstrated that they satisfied the guidelines for

26
15 See, e.g., S. 1291, 107th Congress (2001); S. 1545, 108th Congress (2003); S. 2075, 109th Congress
27 (2005); H.R. 5131, 109th Congress (2006); H.R. 1275, 110th Congress (2007); S. 2205, 110th Congress (2007);
H.R. 1751, 111th Congress (2009); S. 3827, 111th Congress (2010); S. 3962, 111th Congress (2010); S. 3992,
28 111th Congress (2010); H.R. 6497, 111th Congress (2010); S. 952, 112th Congress (2011).

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1 DACA or when an adjudicator determined that deferred action should be denied even though

2 the threshold guidelines were met. Id. at 210–11 (dissent). The United States District Court

3 for the District of Columbia, in addressing nearly identical statistics, recognized the distinction.

4 The district court noted that as of December 2014, 36,860 requests for deferred action under

5 DACA were denied and another 42,632 applicants were rejected as not eligible, and concluded

6 that such statistics “reflect that [] case-by-case review is in operation.” Arpaio, 27 F. Supp. 3d

7 at 209 n.13. The administrative record tendered in our case completely fails to explain this

8 apparent discrepancy.

9

Third, the main ground given by the Attorney General for illegality was the Fifth

10 Circuit’s decision in the DAPA litigation. DACA, the Attorney General said, suffered from the

11 same “legal and constitutional defects” leveled against DAPA in Texas v. United States, 809

12 F.3d 134 (5th Cir. 2015). Upon consideration of the full history of that case, however, this was

13 an overstatement.

14

In the DAPA litigation, the district court held that DAPA violated the APA’s notice-and-

15 comment procedures because it constituted “a new rule that substantially change[d] both the

16 status and employability of millions” and inflicted “major costs on both states and federal

17 government.” The district court found that the discretionary aspects of DAPA were “merely

18 pretext,” based on its finding that DACA had been implemented in such a mechanical way

19 as to prevent the exercise of discretion on a case-by-case basis, and DAPA would therefore be

20 implemented in the same manner. Notice and opportunity for public comment, it held, should

21 have accordingly been given. Texas, 86 F. Supp. 3d at 671.

22

Although the Fifth Circuit recognized that “there was conflicting evidence on the degree

23 to which DACA allowed discretion,” because the government had failed to produce any

24 applications that satisfied all of the criteria but were refused deferred action by an exercise of

25 discretion, it was “not error — clear or otherwise —” for the district court to have concluded that

26 DHS had only issued denials under mechanical formulae. The appellate court also pointed to

27 DACA’s Operating Procedures, which contained “nearly 150 pages of specific instructions for

28

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1 granting or denying deferred action,” as supporting the conclusion that DACA did not leave the

2 agency free to exercise discretion.

3

It cautioned, however, that “[f]or a number of reasons, any extrapolation from DACA

4 must be done carefully.” Texas, 809 F.3d at 173 (emphasis added). In particular, the appellate

5 court recognized that DACA involved self-selecting applicants, and those who expected to be

6 denied relief were unlikely to apply. Id. at 174. The court also recognized that “DACA and

7 DAPA are not identical” and that because eligibility for DACA was restricted to a younger and

8 less numerous population, DACA applicants were less likely to have backgrounds that would

9 warrant a discretionary denial. Ibid.

10

In addition to affirming the notice-and-comment holding (over one dissent), two of the

11 judges on the Fifth Circuit panel went a large step further and held that DAPA conflicted with

12 the INA. The majority pointed out that the INA already had a specific provision through which

13 aliens could derive lawful status from their children’s immigration status. Id. at 180 n.167

14 (citing 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255). DAPA, the majority

15 said, circumvented this statutory pathway.

16

The Fifth Circuit also pointed out that the INA had specific provisions through which

17 aliens could be classified as “lawfully present,” could obtain discretionary relief from removal,

18 or could obtain eligibility for work authorization. Because DAPA could make 4.3 million

19 removable aliens eligible for lawful presence, employment authorization, and associated

20 benefits, the Fifth Circuit concluded that DAPA implicated “questions of deep ‘economic and

21 political significance’ that are central to [the INA’s] statutory scheme,” and therefore had

22 Congress wished to assign that decision to an agency, “it surely would have done so expressly.”

23

The Fifth Circuit rejected the argument that various provisions of the INA, such as the

24 broad grant of authority to the agency in 6 U.S.C. § 202(5) (providing that the Secretary “shall

25 be responsible for establishing national immigration enforcement policies and priorities”),

26 provided the authority to implement DAPA. Rather, it found that such grants of authority could

27 not reasonably be construed as assigning the agency decisions of such massive “economic and

28 political significance.” Such an interpretation, the majority said, would allow the agency to

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1 grant lawful presence and work authorization to any illegal alien in the United States. It

2 concluded that “even with ‘special deference’ to the Secretary,” the INA did not permit the

3 reclassification of 4.3 million aliens as “lawfully present,” thereby making them newly eligible

4 for a host of federal and state benefits, including work authorization.

5

The majority also rejected the argument that DAPA was moored in historical practice,

6 finding that such historical practice “does not, by itself, create power,” and that in any event,

7 previous deferred-action programs were not analogous to DAPA because most discretionary

8 deferrals had been done on a country-specific basis, usually in response to war, civil unrest, or

9 natural disasters, or had been bridges from one legal status to another. It found that “[n]othing

10 like DAPA, which alters the status of more than four million aliens, has ever been contemplated

11 absent direct statutory authorization.”

12

The majority concluded that Congress had “directly addressed the precise question

13 at issue” in DAPA because the INA “prescribes how parents may derive an immigration

14 classification on the basis of their child’s status and which classes of aliens can achieve deferred

15 action and eligibility for work authorization.” Texas, 809 F.3d at 186. Because it found that

16 DAPA was foreclosed by Congress’s “careful plan,” the majority held that the program was

17 “manifestly contrary to the statute.”

18

While at least some of the majority’s reasons for holding DAPA illegal would apply to

19 DACA, fairness requires saying that DACA and DAPA were different, as the panel opinion

20 stated. An important criticism against DAPA would not apply against DACA, namely the fact

21 that Congress had already established a pathway to lawful presence for alien parents of citizens

22 (so that DAPA simply constituted a more lenient substitute route). DACA, by contrast, has no

23 such analogue in the INA. And, there is a difference between 4.3 million and 689,800. Finally,

24 the criticism that DACA had been mechanically administered without the exercise of discretion

25 in individual cases, if true, could be fixed by simply insisting on exercise of discretion. In sum,

26 the DAPA litigation was not a death knell for DACA.

27

This order holds that, in light of our own court of appeals’ reasoning in Brewer I and

28 Brewer II, in light of the analysis of the Office of Legal Counsel of the United States Department

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1 of Justice, and the reasoning set forth above, our court of appeals will likely hold that DACA

2 was and remains a lawful exercise of authority by DHS. Plaintiffs are therefore likely to succeed

3 on the merits of their claim that the rescission was based on a flawed legal premise and must be

4 set aside as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

5 law.” Massachusetts, 549 U.S. at 528; Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 94

6 (1943); Safe Air for Everyone, 488 F.3d at 1101.16

7

(2) Government Counsel’s Alternative Rationale

Is Post Hoc and, in Any Event, Arbitrary,

8

Capricious, and an Abuse of Discretion.

9

Government counsel now advances an alternative rationale for the Secretary’s decision to

10 rescind DACA. Counsel contends that DHS acted within its discretion in managing its litigation

11 exposure in the Fifth Circuit, weighing its options, and deciding on an orderly wind down of the

12 program so as to avoid a potentially disastrous injunction in the Fifth Circuit. This, they say,

13 constituted a reasonable judgment call involving management of litigation risk and agency

14 resources.

15

Courts, of course, may not accept post hoc rationalizations for agency action, see

16 Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962), nor may they “supply a

17 reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp.,

18 Inc. v. Ark.-Best Freight Sys., 419 U.S. 281, 285–86 (1974); see also Cal. Pub. Util. Comm’n v.

19 Fed. Energy Regulatory Comm’n, No. 16-70481 at 15 (9th Cir. Jan. 8, 2018). Rather, “an

20 agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor

21 Vehicle Mfrs. Ass’n. of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50

22 (1983).

23

24
16 Defendants argue that if the Acting Secretary had relied on DACA’s purported illegality in
25 terminating the program, that reliance should be presumed to be a “reasonable policy judgment that immigration
decisions of this magnitude should be left to Congress.” This argument finds no support in the administrative
26 record. In Syracuse Peace Council v. F.C.C., upon which defendants rely, the agency explicitly based its
decision on the independent grounds that a policy was both unconstitutional and contrary to the public interest.
27 867 F.2d 654, 656 (D.C. Cir. 1989). Although the court of appeals elected to review only the agency’s policy
determination under the APA, it noted that “if the Commission had written its opinion in purely constitutional
28 terms, we would have no choice but to address the constitutional issue.” Id. at 659.

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1

The reason actually given in the administrative record for the rescission was DACA’s

2 purported illegality. The Attorney General’s letter and the Acting Secretary’s memorandum can

3 only be reasonably read as stating DACA was illegal and that, given that DACA must, therefore,

4 be ended, the best course was “an orderly and efficient wind-down process,” rather than a

5 potentially harsh shutdown in the Fifth Circuit. Nowhere in the administrative record did

6 the Attorney General or the agency consider whether defending the program in court would

7 (or would not) be worth the litigation risk. The new spin by government counsel is a classic

8 post hoc rationalization. That alone is dispositive of the new “litigation risk” rationale.

9

Significantly, the INA itself makes clear that once the Attorney General had determined

10 that DACA was illegal, the Acting Secretary had to accept his ruling as “controlling.” Section

11 1103(a)(1) of Title 8, a provision that allocates immigration power and duties among the

12 Secretary of Homeland Security, the Secretary of State, and the Attorney General, provides that

13 “determinations and rulings by the Attorney General with respect to all questions of law shall be

14 controlling.” Therefore, once the Attorney General advised the Acting Secretary that DACA

15 was illegal, that ruling became “controlling” upon her. She had no choice other than to end

16 DACA. She had no room to push back with arguments for the program, to weigh litigation risks,

17 or to consider whether DACA recipients warranted fighting for. The ruling of law by the

18 Attorney General, controlling upon her, made all such considerations moot. Therefore, the new

19 spin by government counsel that the decisionmaker here indulged in a litigation risk assessment

20 and, out of caution, chose not to fight for the program in favor of an orderly wind-down is

21 foreclosed by the INA itself. Her wind-down references plainly presuppose that DACA had to

22 end and the only question was how.

23

Nevertheless, this order now indulges government counsel’s new explanation and

24 addresses whether it holds up even if taken as authentic. In that event, two major criticisms can

25 and should be made of the “litigation risk management” rationale.

26

First, even as to the risk in the Fifth Circuit, the administrative record mentions only

27 similarities between DAPA and DACA (and even then only in an exceedingly conclusory way).

28 No mention appears concerning the differences between DAPA and DACA that might have led

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1 to a different result. In addition to the distinctions made above, one powerful consideration

2 should have been the doctrine of laches. Unlike the DAPA challenge filed immediately after

3 DAPA was announced, the threatened DACA challenge by ten states would have come five

4 years after the program began and after hundreds of thousands of young adults had enrolled and

5 entered the workforce. See Abbott Labs., Inc. v. Gardner, 387 U.S. 136, 155 (1967) (adopting

6 laches in APA context); see also Arpaio v. Obama, 27 F. Supp. 3d 185, 210 (D.D.C. 2014),

7 aff’d, 797 F.3d 11 (D.C. Cir. 2015) (noting that even if plaintiff did have standing he could not

8 demonstrate irreparable harm since he waited two years to challenge DACA). Another

9 difference was that DACA was precisely the kind of interstitial program of deferred action

10 seemingly approved even by the Fifth Circuit, Texas, 809 F.3d at 185, given that both sides of

11 the aisle and our two most recent presidents have called for Dreamer legislation. Nor was there

12 any mention of our own circuit’s more recent decision in Brewer II that favored DACA, or of

13 recognition by the district court in the District of Columbia that DACA had, contrary to the

14 Fifth Circuit, involved discretionary denials of DACA relief.

15

Second, if we are to indulge the spin that the decision to end DACA rested on a

16 litigation-management assessment (rather than on a ruling of illegality), then the Acting

17 Secretary committed a serious error. Against the litigation risk the Acting Secretary should

18 have — but did not — weigh DACA’s programmatic objectives as well as the reliance interests

19 of DACA recipients. Encino Motorcars, LLC v. Navarro, — U.S. —, 136 S. Ct. 2117, 2126–27

20 (2016). This responsibility lay with the Acting Secretary, not the Attorney General. That is,

21 once the Acting Secretary was informed of the supposed litigation risk, it remained her

22 responsibility to balance it against competing policy considerations. It remained her

23 responsibility to recognize the litigation risk, yet still ask whether the program was worth

24 fighting for. The administrative record is utterly silent in this regard.

25

The agency reversed over five years of DHS policy, did so only one day after the

26 Attorney General’s letter, and did so just three months after Secretary Kelly had continued the

27 program (despite the Fifth Circuit’s decision and affirmance). The Acting Secretary failed to

28 provide a “reasoned explanation” as to why she was “disregarding facts and circumstances

40

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1 which underlay or were engendered by the prior policy.” See F.C.C. v. Fox Television Stations,

2 Inc., 556 U.S. 502, 516 (2009).

3

Encino Motorcars seems very close on point. There, the Supreme Court addressed the

4 Department of Labor’s reversal of an interpretive regulation construing the Fair Labor Standard

5 Act’s minimum wage and overtime provisions for car dealership employees. Our court of

6 appeals gave Chevron deference to the new interpretation. The Supreme Court reversed.

7 In determining whether the regulation was “procedurally defective” — and accordingly whether

8 the agency’s regulation warranted Chevron deference — the Supreme Court evaluated whether

9 the agency had given adequate reasons for its decision to reverse course. Encino Motorcars,

10 136 S. Ct. at 2125 (citing Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43). The Supreme Court

11 explained (at page 2126) that while agencies are free to change their existing policies, they must

12 provide a reasoned explanation for a change (quotes and citations omitted):

13

In explaining its changed position, an agency must also be

cognizant that longstanding policies may have engendered serious

14

reliance interests that must be taken into account. In such cases

it is not that further justification is demanded by the mere fact

15

of policy change; but that a reasoned explanation is needed for

disregarding facts and circumstances that underlay or were

16

engendered by the prior policy. It follows that an unexplained

inconsistency in agency policy is a reason for holding an

17

interpretation to be an arbitrary and capricious change from agency

practice.

18

Because the agency “gave almost no reason at all” for its change in position, the Supreme Court

19

concluded that the agency had failed to provide the sort of reasoned explanation required in light

20

of the “significant reliance issues involved.” Id. at 2126–27.

21

So too here.

22

As there, the agency here reversed its interpretation of its statutory authority. As there,

23

the administrative record here includes no analysis of the “significant reliance issues involved.”

24

The parallel is striking. In terminating DACA, the administrative record failed to address the

25

689,800 young people who had come to rely on DACA to live and to work in this country.

26

These individuals had submitted substantial personal identifying information to the government,

27

paid hefty fees, and planned their lives according to the dictates of DACA. The administrative

28

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1 record includes no consideration to the disruption a rescission would have on the lives of DACA

2 recipients, let alone their families, employers and employees, schools and communities.17

3

Ironically, government counsel now cite material outside of the administrative record in

4 an attempt to show the Acting Secretary considered the plight of DACA recipients (Dkt. 204 at

5 10, 12, 19–20). This press release came after the fact and was not part of the administrative

6 record, and therefore cannot now rescue the agency. In that respect, Cal. Pub. Util. Comm’n,

7 No. 16-70481 at 17 n.4 is analogous. There, our court appeals refused to consider an agency’s

8 position which was not advanced in connection with the decision under review but, rather, was

9 offered for the first time afterwards.

10

Defendants next argue that because no statute here dictated the factors for an agency to

11 consider in granting or rescinding deferred action, the agency need not have given weight to the

12 benefits of the DACA program or the harm that would be caused to its recipients upon its

13 rescission. The Supreme Court has recognized, however, that “[c]onsideration of cost reflects

14 the understanding that reasonable regulation ordinarily requires paying attention to the

15 advantages and the disadvantages of agency decision.” Michigan v. EPA, — U.S. —, 135 S. Ct.

16 2699, 2707 (2015). While defendants attempt to distinguish Michigan on the ground that the

17 text of the statute required regulation there to be “appropriate and necessary,” they ignore that a

18 change in agency policy requires the agency to have “good reasons for it.” Fox TV Stations,

19 Inc., 556 U.S. at 515.

20

Defendants, of course, are correct that when an agency reverses policy it “need not

21 demonstrate to a court’s satisfaction that the reasons for the new policy are better than the

22 reasons for the old one.” Ibid. Where, however, an agency abruptly changes course and

23 terminates a program on which so many people rely, the APA requires “a more detailed

24 justification.” Ibid. Indeed, “[i]t would be arbitrary and capricious to ignore such matters.”

25 Ibid. In such cases, “it is not that further justification is demanded by the mere fact of policy

26 change; but that a reasoned explanation is needed for disregarding facts and circumstances that

27
17 Here, perhaps in light of Encino Motors, the government does not argue that Chevron deference
28 should be afforded to the Attorney General’s legal conclusion that DACA exceeded the agency’s authority.

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1 underlay or were engendered by the prior policy.” Id. at 515–16. Defendants’ attempt to portray

2 DACA as a program that did not generate reliance interests is unconvincing. As plaintiffs’

3 evidence shows, DACA recipients, their employers, their colleges, and their communities all

4 developed expectations based on the possibility that DACA recipients could renew their deferred

5 action and work authorizations for additional two-year periods.

6

In sum, government counsel’s alternative spin on the administrative record is just a post

7 hoc rationalization. But, even if it had been the actual rationale, it was arbitrary, capricious, and

8 an abuse of discretion under Encino Motors.

9

*

*

*

10

Accordingly, plaintiffs have shown that they are likely to succeed on the merits of their

11 claim that the rescission was arbitrary and capricious and must be set aside under the APA.

12

B. Irreparable Harm.

13

Plaintiffs have clearly demonstrated that they are likely to suffer serious irreparable harm

14 absent an injunction. Before DACA, Individual Plaintiffs, brought to America as children, faced

15 a tough set of life and career choices turning on the comparative probabilities of being deported

16 versus remaining here. DACA gave them a more tolerable set of choices, including joining the

17 mainstream workforce. Now, absent an injunction, they will slide back to the pre-DACA era and

18 associated hardship.

19

The University of California and other entity plaintiffs have also demonstrated that they

20 face irreparable harm as they begin to lose valuable students and employees in whom they have

21 invested, and that loss of DACA recipients from the workforce will have a detrimental impact on

22 their organization interests, economic output, public health, and safety.

23

Our court of appeals recently confirmed that “prolonged separation from family

24 members” and “constraints to recruiting and retaining faculty members to foster diversity and

25 quality within the University community” are harms which are not compensable with monetary

26 damages and therefore weigh in favor of finding irreparable harm. Hawaii v. Trump,

27 No. 17-17168, 2017 WL 6554184, at *22 (9th Cir. Dec. 22, 2017). These showings accordingly

28

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1 demonstrate that preliminary relief is appropriate. Ibid.; see also Valle del Sol Inc. v. Whiting,

2 732 F.3d 1006, 1029 (9th Cir. 2013).

3

Defendants do not dispute that plaintiffs are likely to suffer such harms. Rather, they

4 argue that these harms will not happen before the phase-out begins on March 5, 2018, the date

5 by which the undersigned judge had wanted to present a final record and final decision for

6 appellate review.

7

Delays in this case, however, have made it impossible to send a final judgment to our

8 court of appeals by March 5. To take only one example, it would be unfair to reach a conclusion

9 without giving plaintiffs an opportunity to examine the complete administrative record.

10 Government counsel, however, succeeded in obtaining an order from the Supreme Court

11 postponing proceedings on completing the administrative record until after ruling on its

12 FRCP 12(b)(1) motion to dismiss. As a result, we have yet to receive a complete administrative

13 record. Although plaintiffs are likely to prevail on even the truncated administrative record, as

14 set forth above, our appellate court might disagree with that conclusion or the agency might seek

15 to cure the flaws in its process via a fresh agency action. Plaintiffs are entitled to learn of all

16 flaws, if any more there be, lurking in the whole record. One such possibility suggested by

17 plaintiffs is that the rescission was contrived to give the administration a bargaining chip to

18 demand funding for a border wall in exchange for reviving DACA. A presidential tweet after

19 our hearing gives credence to this claim. Another possibility raised by plaintiffs is racial animus.

20 These theories deserve the benefit of the full administrative record. It will be impossible to

21 litigate this case to a fair and final conclusion before March 5.18

22

23

24

25
18 On December 29, 2017, President Trump tweeted: “The Democrats have been told, and fully
26 understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an
END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our
27 Country at all cost!” (Dkt. No. 227-2). Plaintiffs separately request judicial notice of this tweet. Defendants
object to judicial notice on various relevancy grounds, but do not argue that it is not properly subject to judicial
28 notice under FRE 201 (Dkt. Nos. 227, 230). Plaintiffs’ request is accordingly GRANTED.

44

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1

C. Balance of Equities and Public Interest.

2

On provisional relief motions, district judges must consider whether (or not) such relief

3 would be in the public interest. On this point, we seem to be in the unusual position wherein the

4 ultimate authority over the agency, the Chief Executive, publicly favors the very program the

5 agency has ended. In September, President Trump stated his support for DACA, tweeting:

6 “Does anybody really want to throw out good, educated and accomplished young people who

7 have jobs, some serving in the military? Really! . . . .” He has also called upon Congress to

8 ratify DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama

9 Administration was unable to do). If they can’t, I will revisit this issue!” (App. 1958).

10

For the reasons DACA was instituted, and for the reasons tweeted by President Trump,

11 this order finds that the public interest will be served by DACA’s continuation (on the conditions

12 and exceptions set out below). Beginning March 5, absent an injunction, one thousand

13 individuals per day, on average, will lose their DACA protection. The rescission will result in

14 hundreds of thousands of individuals losing their work authorizations and deferred action status.

15 This would tear authorized workers from our nation’s economy and would prejudice their being

16 able to support themselves and their families, not to mention paying taxes to support our nation.

17 Too, authorized workers will lose the benefit of their employer-provided healthcare plans and

18 thus place a greater burden on emergency healthcare services.

19

On provisional relief motions, district judges must also weigh the balance of hardships

20 flowing from a grant versus denial of provisional relief. The hardship to plaintiffs need not be

21 repeated. The only hardship raised by defendants is interference with the agency’s judgment on

22 how best to allocate its resources in keeping our homeland secure, as well as its judgment in

23 phasing out DACA. Significantly, however, the agency’s judgment here was not based on a

24 policy change. It was based on a mistake of law. If the instant order is correct that DACA fell

25 within the statutory and constitutional powers of the Executive Branch, then a policy supported

26

27

28

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1 as high up as our Chief Executive has been the victim of a colossal blunder. A preliminary

2 injunction will set that right without imposing any policy unwanted by the Executive Branch.19

3

D. Scope of Provisional Relief.

4

For the foregoing reasons, defendants ARE HEREBY ORDERED AND ENJOINED, pending

5 final judgment herein or other order, to maintain the DACA program on a nationwide basis on

6 the same terms and conditions as were in effect before the rescission on September 5, 2017,

7 including allowing DACA enrollees to renew their enrollments, with the exceptions (1) that new

8 applications from applicants who have never before received deferred action need not be

9 processed; (2) that the advance parole feature need not be continued for the time being for

10 anyone; and (3) that defendants may take administrative steps to make sure fair discretion is

11 exercised on an individualized basis for each renewal application.

12

Nothing in this order prohibits the agency from proceeding to remove any individual,

13 including any DACA enrollee, who it determines poses a risk to national security or public

14 safety, or otherwise deserves, in its judgment, to be removed. Nor does this order bar the agency

15 from granting advance parole in individual cases it finds deserving, or from granting deferred

16 action to new individuals on an ad hoc basis.

17

The agency shall post reasonable public notice that it will resume receiving DACA

18 renewal applications and prescribe a process consistent with this order. The agency shall keep

19 records of its actions on all DACA-related applications and provide summary reports to the

20 Court (and counsel) on the first business day of each quarter.20

21

22

19 If a likelihood of irreparable injury is shown and an injunction is in the public interest, a preliminary

injunction is also appropriate when a plaintiff demonstrates that serious questions going to the merits are raised
23 and the balance of hardships tips sharply in the plaintiff’s favor. Alliance for the Wild Rockies v. Cottrell,

632 F.3d 1127, 1134–35 (9th Cir. 2011). Because plaintiffs have clearly demonstrated a likelihood of
24 irreparable injury and that the balance of hardships tips sharply in plaintiffs’ favor, preliminary relief would also

be appropriate under this alternative standard of review.
25

20 A mandatory injunction orders a responsible party to take action, while “[a] prohibitory injunction
26 prohibits a party from taking action and preserves the status quo pending a determination of the action on the

merits.” Brewer I, 757 F.3d at 1060. The relevant status quo is the legally relevant relationship between the
27 parties before the controversy arose. Id. at 1061. Here, plaintiffs contest the validity of defendants’ rescission

of DACA, the status quo before which was that DACA was fully implemented. Accordingly, plaintiffs’
28 requested preliminary injunction is not mandatory. But even if it were, plaintiffs have demonstrated that

sufficiently serious irreparable harm would result to warrant even a mandatory injunction.

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1

By way of explanation, while plaintiffs have demonstrated that DACA recipients,

2 as well as their families, schools, employers, and communities, are likely to suffer substantial,

3 irreparable harm as a result of the rescission, they have not made a comparable showing as to

4 individuals who have never applied for or obtained DACA.

5

This order will not require advance parole. Unlike the widespread harm to plaintiffs and

6 our economy that would result were the 689,800 DACA enrollees to lose their ability to work in

7 this country, plaintiffs have not demonstrated that comparable harm will occur as a result of

8 DACA recipients’ inability to travel abroad. True, Individual Plaintiffs Jirayut Latthivongskorn

9 and Norma Ramirez describe professional disadvantages that may result if they are unable to

10 travel internationally. These, however, do not amount to hardships justifying a provisional

11 injunction requiring DHS to resume accepting applications for advance parole. However, as

12 stated, nothing in this order would bar individuals from asking for such agency relief or bar the

13 agency from granting it in deserving cases.

14

With respect to geographical scope, this order finds a nationwide injunction is

15 appropriate. Our country has a strong interest in the uniform application of immigration law

16 and policy. Plaintiffs have established injury that reaches beyond the geographical bounds

17 of the Northern District of California. The problem affects every state and territory of the

18 United States.

19

In February 2017, our court of appeals considered this very issue in Washington v.

20 Trump, 847 F.3d 1151, 1167 (9th Cir. 2017), and upheld a nationwide injunction imposed by a

21 single district court, observing that limiting the geographic scope of an injunction on an

22 immigration enforcement policy “would run afoul of the constitutional and statutory

23 requirements for uniform immigration law and policy” and that, as here, “the government ha[d]

24 not proposed a workable alternative.” Indeed, the Fifth Circuit reached the same conclusion in

25 determining the appropriate scope of an injunction over DAPA, Texas, 809 F.3d at 187–88,

26

27

28

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1 holding that uniform application of the immigration laws justified a nationwide injunction. So

2 too here.21

3

Limiting relief to the States in suit or the Individual Plaintiffs would result in

4 administrative confusion and simply provoke many thousands of individual lawsuits all over the

5 country. The most practical relief is to maintain DACA in the same manner to which the agency

6 and recipients are accustomed, subject to the exceptions above noted.

7

CONCLUSION

8

Defendants’ motion to dismiss under FRCP 12(b)(1) is GRANTED IN PART only to the

9 limited extent stated above and is otherwise DENIED. Maine and Minnesota’s APA claims are

10 hereby DISMISSED. Maine or Minnesota may seek leave to amend and will have 21 CALENDAR

11 DAYS from the date of this order to file a motion, noticed on the normal 35-day track, for leave to

12 file an amended complaint. A proposed amended complaint must be appended to the motion and

13 plaintiffs must plead their best case. Any such motion should clearly explain how the

14 amendments to the complaint cure the deficiencies identified herein. To the extent stated above,

15 plaintiffs’ motion for provisional relief is GRANTED. A separate order will address defendants’

16 motion to dismiss pursuant to FRCP 12(b)(6).

17

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

18

Pursuant to our court of appeals’ order dated December 21, 2017, the district court

19 hereby certifies for interlocutory appeal the issues decided herein (i) whether (or not) the

20 rescission of DACA is unreviewable as committed to agency discretion or by reason of 8 U.S.C.

21 § 1252(g), (ii) whether (or not) plaintiffs have standing, and (iii) all other questions interposed

22 by the government in its motion to dismiss under FRCP 12(b)(1). This order finds that these are

23 controlling questions of law as to which there is substantial ground for difference of opinion and

24

25

21 Oddly, the government’s contrary authority is Bresgal v. Brock, 843 F.2d 1163, 1169–70 (9th Cir.

1987), a decision in which our court of appeals upheld a nationwide injunction and held, “[t]here is no general
26 requirement that an injunction affect only the parties in the suit,” and “nationwide relief in federal district or

circuit court [is permitted] when it is appropriate.” Bresgal merely observed that “[w]here relief can be
27 structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown.” Id. at 1170.

Here, it cannot be so structured. Nor are any of the government’s other authorities, which restate the general
28 proposition that a remedy should match the injury alleged, see, e.g., Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645, 1650 (2017), to the contrary.

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1 that their resolution by the court of appeals will materially advance the litigation. This order

2 realizes that the same issues are reviewable upon appeal of this injunction. Nevertheless, out of

3 caution and to avoid any problem concerning scope of review, the district court so certifies.

4

5

IT IS SO ORDERED.

6

7 Dated: January 9, 2018. 8

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

9

10

11

12

13

14

15

16

17

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22

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26

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1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

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

12 University of California,

13

Plaintiffs,

14

v.

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA No. C 17-05813 WHA

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and KIRSTJEN

16

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

17 Security,

ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6)

18

Defendants.

/

19

20

INTRODUCTION

21

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

22 Arrivals program, the government moves to dismiss plaintiffs’ complaints for failure to state a

23 claim. For the reasons discussed below, the motion is GRANTED IN PART and DENIED IN PART.

24

STATEMENT

25

This order incorporates the statement set forth in the order dated January 9, 2018,

26 largely denying dismissal under FRCP 12(b)(1) and largely granting plaintiffs’ motion for

27 provisional relief (Dkt. No. 234). This order, however, addresses a separate motion by the

28 government to dismiss all claims for failure to state a claim for relief under FRCP 12(b)(6).

This order sustains three claims for relief but finds that the rest fall short.

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1

ANALYSIS

2

1. APA CLAIMS UNDER 5 U.S.C. § 706(2)(A).

3

For the same reasons that plaintiffs are likely to succeed on their claim that the

4 rescission of DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in

5 accordance with law” in violation of the Administrative Procedure Act, as explained in the

6 January 9 order, the government’s motion to dismiss plaintiffs’ APA claims under 5 U.S.C. §

7 706(2)(A) is DENIED.

8

2. APA CLAIMS UNDER 5 U.S.C. § 706(2)(D).

9

The original DACA program began in 2012 without any notice or opportunity for public

10 comment. Likewise, the rescission in question ended DACA without notice or opportunity for

11 public comment. One issue now presented is whether the rescission is invalid for having been

12 carried out without notice-and-comment procedures.

13

Under the APA, an agency action must be set aside if it was done “without observance

14 of procedure required by law.” 5 U.S.C. § 706(2)(D). An agency is required to follow

15 prescribed notice-and-comment procedures before promulgating certain rules. 5 U.S.C. § 553.

16 The Regulatory Flexibility Act further requires that notice-and-comment rulemaking include

17 an assessment of the impact on small entities. 5 U.S.C. § 604(a). These requirements do not

18 apply, however, to general statements of policy. 5 U.S.C. § 553(b)(A).

19

A general statement of policy “advis[es] the public prospectively of the manner in which

20 the agency proposes to exercise a discretionary power.” Mada-Luna v. Fitzpatrick, 813 F.2d

21 1006, 1012–13 (9th Cir. 1987). Such policies also “serve to educate and provide direction to

22 the agency’s personnel in the field, who are required to implement its policies and exercise its

23 discretionary power in specific cases.” Id. at 1013 (quotes and citations omitted). “The critical

24 factor” in determining whether a directive constitutes a general statement of policy is “the

25 extent to which the challenged [directive] leaves the agency, or its implementing official, free to

26 exercise discretion to follow, or not to follow, the [announced] policy in an individual case.”

27 Ibid. Thus, to qualify as a statement of policy two requirements must be satisfied: (1) the

28 policy operates only prospectively, and (2) the policy does “not establish a binding norm,” and

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1 is not “finally determinative of the issues or rights to which [it] address[es],” but instead leaves

2 officials “free to consider the individual facts in the various cases that arise.” Id. at 1014

3 (quotes and citations omitted). Under this standard, the rescission memorandum is a general

4 statement of policy.

5

This order rejects plaintiffs’ contention that the rescission could only be done through

6 notice and comment. For the same reasons that the promulgation of DACA needed no notice

7 and comment, its rescission needed no notice and comment.

8

Almost this exact problem was addressed in Mada-Luna. There, our court of appeals

9 held that the repeal of an INS policy under which applicants could seek deferred action was not

10 subject to notice and comment. It rejected the argument that the repeal could not constitute a

11 general statement of policy because it diminished the likelihood of receiving deferred action for

12 a class of individuals. Id. at 1016. Rather, because the original policy allowed for discretion

13 and failed to establish a “binding norm,” the repeal of that policy also did not require notice and

14 comment. Id. at 1017. So too here. The DACA program allowed but did not require the

15 agency to grant deferred action, and upon separate application, travel authorization, on a case-

16 by-case basis at the agency’s discretion. Therefore, neither its promulgation nor its rescission

17 required notice and comment.

18

Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), on which plaintiffs heavily rely,

19 does not warrant the conclusion that the rescission policy is a substantive rule. Parco also

20 addressed whether the rescission of an INS policy required notice and comment. Notably, the

21 government in Parco stipulated that the policy’s precipitous rescission was the sole reason for

22 denial of the plaintiff’s application for immigration relief. Id. at 984. The district court

23 determined that the repeal therefore left no discretion, explaining that “discretion” was stripped

24 of all meaning where “one contends that under a certain regulation ‘discretion’ was exercised

25 favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in

26 each such case.” Ibid. Here, by contrast, plaintiffs do not allege that all deferred action

27 applications under DACA were approved but now, after the rescission, all requests for deferred

28 action will be denied.

3

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1

Plaintiffs argue that the rescission memorandum is more than a policy because it creates

2 a blanket prohibition against granting deferred action to DACA applicants. Plaintiffs are

3 correct that the rescission policy contains mandatory language on its face. It is also true that the

4 rescission memorandum categorically eliminates advance parole for DACA recipients.

5 This comes closer to resembling a substantive rule. However, it remains the case that because

6 the original promulgation of the discretionary program did not require notice and comment,

7 a return to the status quo ante also does not require notice and comment. Mada-Luna, 813 F.2d

8 at 1017.

9

Defendants’ motion to dismiss plaintiffs’ claims pursuant to Section 706(2)(D) of the

10 APA and the Regulatory Flexibility Act is accordingly GRANTED.

11

3.

DUE PROCESS CLAIMS.

12

To assert a due process claim, a plaintiff must first show that he or she has an interest in

13 liberty or property protected by the Constitution. See Bd. of Regents v. Roth, 408 U.S. 564, 569

14 (1972). Plaintiffs fail to make the threshold showing that they have a protected interest in the

15 continuation of DACA and, accordingly, their due process claims based on the rescission must

16 be dismissed. Plaintiffs have adequately alleged, however, that the agency’s changes to its

17 information-sharing policy are “fundamentally unfair.”

18

A. Deferred Action.

19

Because discretionary immigration relief “is a privilege created by Congress, denial of

20 such relief cannot violate a substantive interest protected by the Due Process clause.” Munoz v.

21 Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (citing INS v. Yang, 519 U.S. 26, 30 (1996)).

22 Moreover, “aliens have no fundamental right to discretionary relief from removal” for purposes

23 of due process. Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004). Our court of

24 appeals has accordingly held there is no protected interest in temporary parole, since such relief

25 is “entirely within the discretion of the Attorney General.” Kwai Fun Wong v. United States,

26 373 F.3d 952, 967–68 (9th Cir. 2004). Nor did an INS policy which allowed the agency to

27 recommend deferred action as “an act of administrative choice” create substantive liberty

28 interests. Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985). These authorities

4

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1 foreclose any argument that plaintiffs have a protected interest in continued deferred action or

2 advance parole under DACA.1

3

Plaintiffs reply that even absent a protected interest in the initial, discretionary grant of

4 deferred action, there is a protected interest in the renewal of DACA and its associated benefits.

5 Yet a benefit is not a “protected entitlement” where “government officials may grant or deny it

6 in their discretion.” Castle Rock, 545 U.S. 748, 756 (2005). Rather, an individual has a

7 protected property right in public benefits where the rules conferring those benefits “greatly

8 restrict the discretion” of the people who administer them. Nozzi v. Hous. Auth. of City of Los

9 Angeles, 806 F.3d 1178, 1191 (9th Cir. 2015). Plaintiffs’ authorities confirm that the same

10 principle applies in the context of renewing or retaining existing benefits. Wedges/Ledges of

11 California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 64 (9th Cir. 1994); Stauch v. City of

12 Columbia Heights, 212 F.3d 425, 430 (8th Cir. 2000). No such limitations on agency discretion

13 are alleged to have applied under DACA. Rather, the USCIS DACA FAQs referenced by

14 plaintiffs in their complaints make clear that “USCIS retain[ed] the ultimate discretion to

15 determine whether deferred action [was] appropriate in any given case even if the guidelines

16 [were] met” (Garcia Compl. ¶ 24 n.16; Santa Clara Compl. ¶ 58; UC Compl., Exh. B; State

17 Compl., Exh. E).

18

Next, plaintiffs argue that once DACA status was conferred, and recipients organized

19 their lives in reliance on the program’s protections and benefits, they developed interests

20 protected by the Constitution. Plaintiffs’ authorities, however, stand only for the

21 uncontroversial proposition that once in possession of a particular benefit, the alteration,

22 revocation or suspension of that benefit may implicate due process.2 Such a principle has no

23 application where, as here, extant benefits are not impacted by a change in policy. Indeed, there

24 is no dispute that the rescission acts only prospectively. That is, all existing DACA recipients

25
1 Plaintiffs’ attempt to distinguish Romeiro de Silva on the ground that the INS policy there involved
26 “unfettered discretion,” whereas the exercise of prosecutorial discretion under DACA was guided by standard
operating procedures, is unconvincing.
27
2 See Bell v. Burson, 402 U.S. 535, 539 (1971); Gallo v. U.S. Dist. Court For Dist. of Arizona,
28 349 F.3d 1169, 1179 (9th Cir. 2003); Medina v. U.S. Dep’t of Homeland Sec., 2017 WL 5176720, at *9
(W.D. Wash. Nov. 8, 2017).

5

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1 will receive deferred action through the end of their two-year terms. What they will not receive,

2 if the rescission endures, will be DACA renewal, thereafter. For this reason, Ixcot v. Holder,

3 646 F.3d 1202 (9th Cir. 2011), and Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003), which

4 addressed whether amendments to the INA were impermissibly retroactive, do not compel a

5 different result.

6

Plaintiffs contend that the government’s communications with plaintiffs regarding

7 renewals, its operation of the program, and the public promises of government officials

8 “together created an understanding that DACA recipients were entitled to the continued benefits

9 of the program so long as they met the renewal criteria” (Dkt. No. 205 at 29). Plaintiffs are

10 correct, of course, that claims of entitlement can be defined by “rules or mutually explicit

11 understandings.” Perry v. Sindermann, 408 U.S. 593, 601 (1972). Importantly, however, a

12 person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably

13 held, does not create a protected right if that belief is not mutually held by the government.

14 Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1020 (9th Cir. 2011). An agency’s past practice of

15 generally granting a government benefit is also insufficient to establish a legal entitlement.

16 Ibid.

17

This order empathizes with those DACA recipients who have built their lives around

18 the expectation that DACA, and its associated benefits, would continue to be available to them

19 if they played by the rules. That expectation, however, remains insufficient to give rise to a

20 constitutional claim under the Fifth Amendment. Because plaintiffs have failed to allege facts

21 demonstrating a protected interest in DACA’s continuation or the renewal of benefits

22 thereunder, defendants’ motion to dismiss plaintiffs’ due process claims based on the rescission

23 must be GRANTED.

24

B. Information-Sharing Policy.

25

Plaintiffs fare better with their substantive due process claim that DHS allegedly

26 changed its policy with respect to the personal information provided by DACA recipients

27 during the application process. Plaintiffs allege that the government repeatedly represented

28 that information provided by DACA applicants would not be used for immigration enforcement

6

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United States District Court For the Northern District of California

1 purposes absent special circumstances, and that DACA recipients relied on these promises in

2 submitting the extensive personal information needed to meet the program’s requirements.

3

Defendants insist that the agency’s information-sharing policy remains unchanged.

4 On a motion to dismiss, however, the well-pled factual allegations in a complaint must be

5 accepted as true. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.

6 2008). Plaintiffs have clearly alleged that DHS changed its information-sharing policy such

7 that now, rather than affirmatively protecting DACA recipients’ information from disclosure,

8 the government will only refrain from “proactively” providing their information for purposes of

9 immigration enforcement proceedings (Garcia Compl. ¶ 126; Santa Clara Compl. ¶ 58; State

10 Compl. ¶ 122).

11

Plaintiffs have also adequately alleged a “mutually explicit understanding” giving rise

12 to a protected interest in the confidentiality of DACA recipients’ personal information.

13 They allege that throughout DACA’s existence, DHS made affirmative representations as to

14 how this information would (and would not) be used. The policy stated (Garcia Compl. ¶ 126;

15 Santa Clara Compl. ¶ 58; State Compl. ¶ 121 (citing USCIS DACA FAQs)):

16

Information provided in this request is protected from disclosure

to ICE and CBP for the purpose of immigration enforcement

17

proceedings unless the requestor meets the criteria for the issuance

of a Notice to Appear or a referral to ICE under the criteria set

18

forth in USCIS’ Notice to Appear guidance

(www.uscis.gov/NTA). Individuals whose cases are deferred

19

pursuant to DACA will not be referred to ICE. The information

may be shared with national security and law enforcement

20

agencies, including ICE and CBP, for purposes other than removal,

including for assistance in the consideration of DACA, to identify

21

or prevent fraudulent claims, for national security purposes, or for

the investigation or prosecution of a criminal offense. The above

22

information sharing policy covers family members and guardians,

in addition to the requestor. This policy, which may be modified,

23

superseded, or rescinded at any time without notice, is not intended

to, does not, and may not be relied upon to create any right or

24

benefit, substantive or procedural, enforceable by law by any party

in any administrative, civil, or criminal matter.

25

The language contained in the policy’s caveat, that it could “be modified, superseded,

26

or rescinded at any time,” is ambiguous. One reading advanced by the government is that this

27

caveat allows the agency to change how it treats information already received from DACA

28

applicants. Another reading, however, is that it simply allows the government to change its

7

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1 policy in connection with future applicants. Secretary of Homeland Security Jeh Johnson’s

2 December 2016 letter to United States Representative Judy Chu supports the later reading.

3 He stated that, “[s]ince DACA was announced in 2012, DHS has consistently made clear that

4 information provided by applicants . . . will not later be used for immigration enforcement

5 purposes except where it is independently determined that a case involves a national security

6 or public safety threat, criminal activity, fraud, or limited other circumstances where issuance

7 of a notice to appear is required by law” (Garcia Compl. ¶¶ 36–37; State Compl. ¶ 98, Exh. F).

8 This ambiguity presents a question of fact that cannot be resolved on the pleadings.

9

Taken as true at this stage, as must be done on a FRCP 12(b)(6) motion, plaintiffs’

10 allegations regarding the government’s broken promise as to how DACA recipients’ personal

11 information will be used — and its potentially profound consequences — “shock[s] the

12 conscience and offend[s] the community’s sense of fair play and decency.” Marsh v. County of

13 San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (quotes and citations omitted). Defendants’

14 motion to dismiss plaintiffs’ due process claims based on changes to the government’s

15 information-use policy is DENIED.

16

4.

EQUITABLE ESTOPPEL.

17

Plaintiffs bring claims for equitable estoppel, arguing that the government should not be

18 permitted to terminate DACA or use the information collected from applicants for immigration

19 enforcement purposes.

20

Defendants first contend that plaintiffs’ equitable estoppel claims fail because there is no

21 recognized claim for relief based on estoppel. The Supreme Court has refused to adopt,

22 however, “a flat rule that estoppel may not in any circumstances run against the Government,”

23 noting that “the public interest in ensuring that the Government can enforce the law free from

24 estoppel might be outweighed by the countervailing interest of citizens in some minimum

25 standard of decency, honor, and reliability in their dealings with their Government.” Heckler v.

26 Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 60–61 (1984). Moreover, our court of

27 appeals has addressed such claims on the merits, and has held that the government may be

28

8

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United States District Court For the Northern District of California

1 subject to equitable estoppel if it has engaged in “affirmative misconduct.” Watkins v. U.S.

2 Army, 875 F.2d 699, 706–07 (9th Cir. 1989).

3

To state an equitable estoppel claim against the government, a party must show

4 (1) that the government engaged in “affirmative conduct going beyond mere negligence”; and

5 (2) “the government’s wrongful act will cause a serious injustice, and the public’s interest will

6 not suffer undue damage” if the requested relief is granted. Id. at 707. “Neither the failure to

7 inform an individual of his or her legal rights nor the negligent provision of misinformation

8 constitute affirmative misconduct.” Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000).

9 Moreover, our court of appeals has defined “affirmative misconduct” to mean a “deliberate lie”

10 or “a pattern of false promises.” Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001).

11 The allegations in the complaints fail to meet this standard, inasmuch as no affirmative instances

12 of misrepresentation or concealment have been plausibly alleged.

13

Plaintiffs are correct that estoppel “does not require that the government intend to

14 mislead a party,” Watkins, 875 F.2d 707, but plaintiffs fail to explain how contradictory policies

15 under two different administrations add up to “affirmative misconduct beyond mere negligence.”

16 Plaintiffs fail to allege, for example, that the government’s past statements regarding DACA’s

17 legality were a “deliberate lie” or more than mere negligence. Nor have plaintiffs pleaded that

18 the alleged change in the agency’s information-use policy was the result of an affirmative

19 misrepresentation. Rather, they have merely alleged a change in policy. Under plaintiffs’ theory

20 new administrations would almost never be able to change prior policies because someone could

21 always assert reliance upon the old policy. Defendants’ motion to dismiss plaintiffs’ equitable

22 estoppel claims is GRANTED.

23

5.

EQUAL PROTECTION CLAIMS.

24

To state an equal protection claim plaintiffs must show that the rescission was motivated

25 by a discriminatory purpose. Arce v. Douglas, 793 F.3d 968, 977 (2015) (citing Vill. of

26 Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)). Determining

27 whether discrimination is a motivating factor “demands a sensitive inquiry into such

28 circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at

9

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United States District Court For the Northern District of California

1 266. A plaintiff need not show that the discriminatory purpose was the sole purpose of the

2 challenged action, but only that it was a “motivating factor.” Ibid. In analyzing whether a

3 facially-neutral policy was motivated by a discriminatory purpose, district courts must consider

4 factors such as whether the policy creates a disparate impact, the historical background and

5 sequence of events leading up to the decision, and any relevant legislative or administrative

6 history. Id. at 266–68.3

7

First, Individual Plaintiffs and Santa Clara clearly allege that the rescission had a

8 disproportionate impact on Latinos and Mexican nationals. Indeed, such individuals account

9 for 93 percent of DACA recipients (Garcia Compl. ¶¶ 100, 151; Santa Clara Compl. ¶¶ 9, 75).

10 Defendants reply that this disparate impact is an accident of geography, not evidence of

11 discrimination. True, a disparate impact of a facially-neutral rule, standing alone, cannot

12 establish discriminatory intent. See Washington v. Davis, 426 U.S. 229, 242 (1976). Individual

13 Plaintiffs and Santa Clara, however, have alleged a discriminatory impact only as a starting

14 point. They also allege a history of bias leading up to the rescission of DACA in the form of

15 campaign statements and other public comments by President Trump, as next discussed.4

16

Second, plaintiffs allege that President Trump has, on multiple occasions since he

17 announced his presidential campaign, expressed racial animus towards Latinos and Mexicans.

18 When President Trump announced his candidacy on June 16, 2015, for example, he

19 characterized Mexicans as criminals, rapists, and “people that have lots of problems.” Three

20 days later, President Trump tweeted that “[d]ruggies, drug dealers, rapists and killers are coming

21 across the southern border,” and asked, “When will the U.S. get smart and stop this travesty?”

22

23

3 The Supreme Court’s decision in United States v. Armstrong, 517 U.S. 456 (1996), which addressed

the showing necessary for a defendant to be entitled to discovery on a selective-prosecution claim, has no
24 application here. Plaintiffs’ claims cannot fairly be characterized as selective-prosecution claims because they

do not “implicate the Attorney General’s prosecutorial discretion — that is, in this context, his discretion to
25 choose to deport one person rather than another among those who are illegally in the country.” Kwai Fun

Wong, 373 F.3d at 970. Rather, plaintiffs allege that the agency’s decision to end a nationwide deferred action
26 program was motivated by racial animus towards a protected class.

27

4 The City of San Jose’s equal protection claim falls a little short. Rather than alleging a disparate

impact on a protected class, it alleges only that “[d]efendants’ actions target individuals for discriminatory
28 treatment based on their national origin, without lawful justification” (San Jose Compl. ¶ 54). For this reason,

defendants’ motion to dismiss San Jose’s equal protection claim is GRANTED.

10

Case 3:17-cv-05211-WHA Document 239 Filed 01/12/18 Page 11 of 14

United States District Court For the Northern District of California

1 During the first Republican presidential debate, President Trump claimed that the Mexican

2 government “send[s] the bad ones over because they don’t want to pay for them.” And in

3 August 2017, he referred to undocumented immigrants as “animals” who are responsible for “the

4 drugs, the gangs, the cartels, the crisis of smuggling and trafficking, MS 13” (Garcia Compl. ¶¶

5 102–13, 124; Santa Clara Compl. ¶¶ 75–76).

6

Circumstantial evidence of intent, including statements by a decisionmaker, may be

7 considered in evaluating whether government action was motivated by a discriminatory purpose.

8 Arlington Heights, 429 U.S. at 266–68. These statements were not about the rescission (which

9 came later) but they still have relevance to show racial animus against people south of our

10 border.

11

Should campaign rhetoric be admissible to undermine later agency action by the victors?

12 This order recognizes that such admissibility can readily lead to mischief in challenging the

13 policies of a new administration. We should proceed with caution and give wide berth to the

14 democratic process. Yet are clear cut indications of racial prejudice on the campaign trail to be

15 forgotten altogether?

16

Our court of appeals recently confirmed that “evidence of purpose beyond the face of the

17 challenged law may be considered in evaluating Establishment and Equal Protection Clause

18 claims.” Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017). Washington found that

19 President Trump’s statements regarding a “Muslim ban” raised “serious allegations and

20 presented significant constitutional questions,” although it ultimately reserved consideration of

21 plaintiffs’ equal protection claim. Id. at 1167–68. Citing to Washington, at least two district

22 courts have since considered President Trump’s campaign statements in finding a likelihood of

23 success on Establishment Clause claims. See, e.g., Aziz v. Trump, 234 F. Supp. 3d 724, 736

24 (E.D. Va. 2017) (Judge Leonie Brinkema); Hawai’i v. Trump, 245 F. Supp. 3d 1227, 1236 (D.

25 Haw. 2017) (Judge Derrick Watson). This order will follow these decisions and hold that, at

26 least at the pleading stage, campaign rhetoric so closely tied to the challenged executive action is

27 admissible to show racial animus.

28

11

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United States District Court For the Northern District of California

1

Third, a final consideration is the unusual history behind the rescission. DACA received

2 reaffirmation by the agency as recently as three months before the rescission, only to be

3 hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality).

4 This strange about-face, done at lightning speed, suggests that the normal care and consideration

5 within the agency was bypassed (Garcia Compl. ¶ 154; Santa Clara Compl. ¶¶ 8, 77).

6

That President Trump has at other times shown support for DACA recipients cannot wipe

7 the slate clean as a matter of law at the pleading stage. Although the government argues that

8 these allegations fail to suggest that the Acting Secretary (as the purported decisionmaker)

9 terminated DACA due to racial animus, plaintiffs have alleged that it was President Trump

10 himself who, in line with his campaign rhetoric, directed the decision to end the program

11 (Garcia Compl. ¶¶ 11, 124; Santa Clara Compl. ¶ 21).

12

Construed in the light most favorable to plaintiffs, as must be done at the pleading stage,

13 these allegations raise a plausible inference that racial animus towards Mexicans and Latinos

14 was a motivating factor in the decision to end DACA. The fact-intensive inquiry needed to

15 determine whether defendants acted with discriminatory intent cannot be made on the pleadings.

16 Accordingly, defendants’ motion to dismiss Santa Clara’s and Individual Plaintiffs’ equal

17 protection claims must be DENIED.

18

State Plaintiffs allege an equal protection claim on the alternative theory that the

19 rescission “violates fundamental conceptions of justice by depriving DACA grantees, as a class,

20 of their substantial interests in pursuing a livelihood to support themselves and further their

21 education” (State Compl. ¶¶ 172–77). Plaintiffs do not respond to the government’s arguments

22 that this theory fails to state a claim under FRCP 12(b)(6). Defendants’ motion to dismiss State

23 Plaintiffs’ equal protection claim is accordingly GRANTED.

24

6.

DECLARATORY RELIEF.

25

Defendants move to dismiss the Individual Plaintiffs’ claim for declaratory relief.

26 Individual Plaintiffs’ request for declaratory relief is also contained in their prayer for relief and,

27 accordingly, the standalone claim is superfluous. Defendants’ motion to dismiss this claim is

28 GRANTED.

12

Case 3:17-cv-05211-WHA Document 239 Filed 01/12/18 Page 13 of 14

United States District Court For the Northern District of California

1

CONCLUSION

2

Consistent with the foregoing, defendants’ motion to dismiss is GRANTED IN PART and

3 DENIED IN PART as follows:

4

•

Plaintiffs’ APA claims are sustained, except for the following: Garcia

5

Complaint – Fifth Claim for Relief; UC Complaint – Second Claim for

6

Relief; State Complaint – Second Claim for Relief; San Jose Complaint

7

– Second Claim for Relief.

8

•

Plaintiffs’ Regulatory Flexibility Act claims are dismissed.

9

•

Plaintiffs’ due process claims are sustained, except for the following:

10

UC Complaint – Third Claim for Relief; Garcia Complaint –

11

First Claim for Relief (to the extent based on the rescission);

12

Santa Clara Complaint – First Claim for Relief (to the extent based on

13

the rescission).

14

•

Plaintiffs’ equal protection claims are sustained, except for the

15

following: State Complaint – Sixth Claim for Relief; San Jose

16

Complaint – First Claim for Relief.

17

•

Plaintiffs’ equitable estoppel claims are dismissed.

18

•

Individual Plaintiffs’ declaratory relief claim is dismissed.

19

Plaintiffs may seek leave to amend and will have 21 CALENDAR DAYS from the date of

20 this order to file motions, noticed on the normal 35-day track, seeking leave to amend solely

21 as to the claims dismissed above. Proposed amended complaints must be appended to each

22 motion and plaintiffs must plead their best case. Any such motion should clearly explain how

23 the amendments to the complaints cure the deficiencies identified herein and should include as

24 an exhibit a redlined or highlighted version of the complaints identifying all changes.

25

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

26

The district court hereby certifies for interlocutory appeal the issues of whether

27 (i) President Trump’s campaign statements are properly considered in evaluating plaintiffs’

28 equal protection claims, (ii) whether the Individual Plaintiffs’ and County of Santa Clara’s

13

Case 3:17-cv-05211-WHA Document 239 Filed 01/12/18 Page 14 of 14

United States District Court For the Northern District of California

1 allegations as pleaded state an equal protection claim, (iii) whether plaintiffs’ allegations

2 concerning changes to the government’s information-sharing policy state a due process claim;

3 (iv) whether plaintiffs have failed to state a claim under 5 U.S.C. § 553; and (v) whether

4 plaintiffs have failed to state a due process claim based on the rescission of DACA. This order

5 finds that these are controlling questions of law as to which there is substantial ground for

6 difference of opinion and that their resolution by the court of appeals will materially advance the

7 litigation.

8

9

IT IS SO ORDERED.

10

11 Dated: January 12, 2018. 12

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

 
 Case: 18-15068, 02/13/2018, ID: 10762501, DktEntry: 31, Page 1 of 87
Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the Northern District of California
APPELLANTS’ OPENING BRIEF
CHAD A. READLER Acting Assistant Attorney General
ALEX G. TSE Acting United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

Case: 18-15068, 02/13/2018, ID: 10762501, DktEntry: 31, Page 2 of 87
TABLE OF CONTENTS Page
INTRODUCTION ..................................................................................................................1 STATEMENT OF JURISDICTION ...................................................................................3 STATEMENT OF THE ISSUES..........................................................................................4 PERTINENT STATUTES AND REGULATIONS ........................................................5 STATEMENT OF THE CASE.............................................................................................5
A. Overview of “deferred action” and the Acting Secretary’s decision to wind down the discretionary DACA non-enforcement policy..............5
B. Prior proceedings ...............................................................................................8 SUMMARY OF ARGUMENT........................................................................................... 12 STANDARD OF REVIEW ................................................................................................ 15 ARGUMENT ......................................................................................................................... 15 I. Plaintiffs’ Claims Are Non-Justiciable..................................................................... 15
A. The Acting Secretary’s decision is not subject to APA review because it is committed to agency discretion by law...............................15
B. 8 U.S.C. § 1252 bars pre-enforcement review of plaintiffs’ claims. ................................................................................................................25
II. The Acting Secretary’s Decision Was Lawful. ....................................................... 28 A. The DACA rescission was not arbitrary and capricious............................28 B. The DACA rescission did not violate equal protection.............................40 C. The implementation of the DACA rescission will not violate due process. ..............................................................................................................45

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III. The District Court Erred In Granting A Nationwide Preliminary Injunction..................................................................................................................... 48 A. Injunctive relief must be limited to redressing plaintiffs’ cognizable injuries............................................................................................49 B. The injunction goes well beyond redressing plaintiffs’ cognizable injuries. ............................................................................................................... 54
CONCLUSION ..................................................................................................................... 57 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM
ii

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TABLE OF AUTHORITIES

Cases:

Page(s)

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .............................................................................................................33

Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir. 1987) ....................................................................................... 20, 21

Arizona v. United States, 567 U.S. 387 (2012) ..................................................................................................5, 13, 17

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................................44

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) .............................................................................................................28

Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999)..............................................................................................26

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (1974) ................................................................................................28, 31, 36

Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987)..................................................................................... 51, 53

Brittain v. Hansen, 451 F.3d 982 (9th Cir. 2006)..............................................................................................47

Califano v. Yamasaki, 442 U.S. 682 (1979) ...................................................................................................... 50, 51

Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987) .............................................................................................................55

County of Sacramento v. Lewis, 523 U.S. 833 (1998) ...................................................................................................... 47, 48

Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) .............................................................................................20

Case: 18-15068, 02/13/2018, ID: 10762501, DktEntry: 31, Page 5 of 87
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .............................................................................................................48
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).........................................................................................................35
Federal Trade Comm’n v. Enforma Nat. Prods., Inc., 362 F.3d 1204 (9th Cir. 2004)............................................................................................15
Federation for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996) .............................................................................................55
Garcia v. McCarthy, 649 F. App’x 589 (9th Cir. 2016) ......................................................................................19
Gerhart v. Lake Cty., 637 F.3d 1013 (9th Cir. 2011)............................................................................................47
Greater Los Angeles Council on Deafness, Inc. v. Baldrige, 827 F.2d 1353 (9th Cir. 1987)............................................................................................24
Green v. Napolitano, 627 F.3d 1341 (10th Cir. 2010)..........................................................................................27
Hadayat v. Gonzalez, 458 F.3d 659 (7th Cir 2006)...............................................................................................43
Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017)..............................................................................................53
Heckler v. Chaney, 470 U.S. 821 (1985) .......................................................................... 2, 6, 13, 16, 17, 19, 20 21, 22, 23, 24, 37, 38
ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987) ......................................................................................... 13, 16, 21, 23
Kandamar v. Gonzales, 464 F.3d 65 (1st Cir. 2006).................................................................................................43
Kowalski v. Tesmer, 543 U.S. 125 (2004) .............................................................................................................56
iv

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Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004)..............................................................................................28
Lewis v. Casey, 518 U.S. 343 (1996) .............................................................................................................50
Lincoln v. Vigil, 508 U.S. 182 (1993) ................................................................................................16, 20, 22
Linda R.S. v. Richard D., 410 U.S. 614 (1973) ...................................................................................................... 54, 55
Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011) ....................................................................................... 50, 51
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) .............................................................................................................51
Massachusetts v. EPA, 549 U.S. 497 (2007) .............................................................................................................39
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) .............................................................................................................56
McKenzie v. City of Chi., 118 F.3d 552.........................................................................................................................50
Meinhold v. U.S. Dep’t of Def., 34 F.3d 1469 (9th Cir. 1994)..............................................................................................50
Morales de Soto v. Lynch, 824 F.3d 822 (9th Cir. 2016) ....................................................................................... 18, 19
Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ........................................................................................... 28, 33, 34, 38
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) ...............................................................................................44
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ...................................................................... 2, 5, 6, 10, 13, 14, 18, 25 26, 27, 40, 41, 42, 43
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San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014)..............................................................................................31
Sierra Club v. Whitman, 268 F.3d 898 (9th Cir. 2001)..............................................................................................20
Steckman v. Hart Brewing Inc., 143 F.3d 1293 (9th Cir. 1998)..................................................................................... 15, 46
Summers v. Earth Island Inst., 555 U.S. 488 (2009) .............................................................................................................49
Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) ..................................................................................7 809 F.3d 134 (5th Cir. 2015)...................................................7, 24, 29, 30, 31, 32, 33, 39
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) .............................................................................................................26
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017).........................................................................................................49
United States v. Armstrong, 517 U.S. 456 (1996) ................................................................................................16, 40, 43
In re United States, 138 S. Ct. 443 (Dec. 20, 2017).............................................................................................9
United States v. Texas, 136 S. Ct. 2271 (2016)...........................................................................................................7
Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016)........................................................................................26
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017)............................................................................................53 858 F.3d 1168 (9th Cir. 2017)............................................................................................44
Wayte v. United States, 470 U.S. 598 (1985) .............................................................................................................40
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Webster v. Doe, 486 U.S. 592 (1988) .............................................................................................................24
Zepeda v. U.S. Immigration & Naturalization Serv., 753 F.2d 719 (9th Cir. 1983) ....................................................................................... 49, 50
Statutes: 5 U.S.C. § 701(a)(2) ........................................................................................... 2, 4, 12, 15, 18 5 U.S.C. § 702...........................................................................................................................55 5 U.S.C. § 706(2)(A) ................................................................................................................28 6 U.S.C. § 202(5) .............................................................................................. 5, 17, 34, 35, 38 8 U.S.C. § 1103(a) ....................................................................................................................43 8 U.S.C. § 1103(a)(1) .......................................................................................................... 5, 37 8 U.S.C. § 1182(a) ......................................................................................................................5 8 U.S.C. § 1182(h)....................................................................................................................27 8 U.S.C. § 1182(i).....................................................................................................................27 8 U.S.C. § 1227(a) ......................................................................................................................5 8 U.S.C. § 1229b ......................................................................................................................27 8 U.S.C. § 1229c.......................................................................................................................27 8 U.S.C. § 1252(a)(1) ...............................................................................................................26 8 U.S.C. § 1252(a)(2)(B)(i) ......................................................................................................27 8 U.S.C. § 1252(a)(2)(D) .........................................................................................................27 8 U.S.C. § 1252(b)................................................................................................................. 2, 4 8 U.S.C. § 1252(b)(9)...............................................................................................................13 8 U.S.C. § 1252(g).....................................................................................................2, 4, 25, 26
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8 U.S.C. § 1255.........................................................................................................................27 28 U.S.C. § 1292(a)(1) ...............................................................................................................3 28 U.S.C. § 1292(b) ...................................................................................................................4 28 U.S.C. § 1331 ........................................................................................................................3 42 U.S.C. § 7521(a)(1) .............................................................................................................39 Regulation: 8 C.F.R. § 247a.12(c)(14) ................................................................................................... 6, 55 Other Authorities: Remarks by the President on Immigration (June 15, 2012),
https://go.usa.gov/xnZFY ...............................................................................................34 DHS, USCIS:
Frequently Asked Questions: Rejected DACA Requests Q5 (Dec. 27, 2017), https://www.uscis.gov/daca2017/mail-faqs .................................47
Response to Preliminary Injunction (Jan. 13, 2018), https://www.uscis.gov/humanitarian/deferred-action-childhoodarrivals-response-january-2018-preliminary-injunction .............................................11
Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) (Nov. 7, 2011), https://go.usa.gov/xncPK (last visited Feb 13, 2018)..................46
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INTRODUCTION In 2012, the Secretary of Homeland Security set forth the enforcement policy commonly known as DACA (Deferred Action for Childhood Arrivals). Under that policy, individuals illegally in this country who met certain criteria were granted deferred action, which is a temporary forbearance from removal that may also entail certain collateral benefits. From its inception, the policy was a stop-gap measure in anticipation of potential legislative action, and the government made clear that the policy did not grant any substantive rights, lawful immigration status, or pathway to citizenship. The government later expanded the criteria for DACA and created a new policy known as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). Texas and twenty-five other states brought suit challenging the latter policies. The suit resulted in a nationwide injunction that was affirmed by the Fifth Circuit and by an equally divided Supreme Court. Texas then threatened to challenge the original DACA policy. In September 2017, in light of the prior litigation and the Attorney General’s legal analysis, the Acting Secretary of Homeland Security decided to rescind the DACA policy through an orderly wind-down. Plaintiffs in these and other suits challenged that enforcement decision on a variety of grounds under the Administrative Procedure Act (APA) and the Constitution. The district court denied in significant part the Government’s motion to dismiss and granted a preliminary injunction. Those remarkable orders require the government to maintain a

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discretionary non-enforcement policy that is materially indistinguishable from one previously found unlawful by the Fifth Circuit and four Justices of the Supreme Court, and to thereby affirmatively sanction an ongoing violation of federal law by nearly 700,000 aliens without lawful status. The orders (which have been certified for interlocutory appeal) should be reversed.
First, the Acting Secretary’s decision is not subject to judicial review in this action. The decision to rescind DACA is an exercise of enforcement discretion that is traditionally committed to agency discretion under the APA. 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 830-32 (1985). And, even assuming that judicial review of this deferred-action rescission were available at all, it could take place only on review of a final removal decision. 8 U.S.C. § 1252(b), (g); Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 485 (1999) (AADC).
Second, in any event, the Acting Secretary’s decision was not arbitrary and capricious under the APA. For this purely discretionary enforcement decision, the Immigration and Nationality Act (INA) prescribes no legal or factual determinations that must be made or even considered. There is thus no warrant for setting aside the Acting Secretary’s entirely rational decision to discontinue the DACA policy in light of the prior nationwide injunction against policies closely related to DACA, as well as the Attorney General’s opinion regarding the legal viability of DACA itself.
Third, the Acting Secretary’s decision does not violate the Constitution’s equalprotection guarantee. The rescission of DACA applies equally to all persons without
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regard to their ethnicity. This immigration enforcement policy is not subject to challenge based on the common circumstance that it has a greater impact on members of certain ethnicities than others, especially given the lack of any evidence that the Acting Secretary would have retained DACA if the aliens lacking lawful status had been other than predominantly Latino, let alone in the face of questions about DACA’s legality.
In sum, while there is significant room for disagreement over immigration enforcement in general and DACA in particular, such policy decisions belong in the hands of the political branches and should not be judicially second-guessed, at least absent a colorable constitutional claim. The district court’s preliminary injunction should be vacated, and its order denying in part the government’s motion to dismiss should be reversed.
STATEMENT OF JURISDICTION The plaintiffs in five related cases invoked the district court’s jurisdiction under 28 U.S.C. § 1331. See, e.g., Excerpts of Record (ER.) 76. On January 9, 2018, the district court granted plaintiffs’ motion for a preliminary injunction, denied in part the government’s motion to dismiss, and certified the issues decided therein for interlocutory appeal. ER.46-48. The defendants filed timely notices of appeal on January 16. E.g., ER.64-68. This court has jurisdiction over the injunction appeals under 28 U.S.C. § 1292(a)(1).
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On January 12, 2018, the district court denied in part and granted in part the government’s motion to dismiss. ER.62-63. The district court also certified for interlocutory appeal the issues decided in that order, and both sides petitioned this Court to grant permission for interlocutory appeal. On January 25, this Court accepted the district court’s orders for interlocutory review. This Court has jurisdiction over the motion-to-dismiss appeals under 28 U.S.C. § 1292(b).
STATEMENT OF THE ISSUES 1. Whether plaintiffs’ APA claims are not subject to review because the Acting Secretary’s decision to wind down the DACA non-enforcement policy was “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2). 2. Whether the district court lacked jurisdiction to consider plaintiffs’ claims in light of the jurisdiction-channeling provisions in 8 U.S.C. § 1252(b), (g). 3. Whether plaintiffs failed to state a claim that the Acting Secretary’s decision was arbitrary and capricious; 4. Whether plaintiffs failed to state a claim that the Acting Secretary’s decision violated equal protection; 5. Whether plaintiffs failed to state a claim that the implementation of the DACA rescission will violate due process; and 6. Whether the district court erred in granting a preliminary injunction requiring the government to maintain DACA on a nationwide basis.
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PERTINENT STATUTES AND REGULATIONS Pertinent statutes and regulations are reproduced in the addendum.
STATEMENT OF THE CASE A. Overview of “deferred action” and the Acting Secretary’s
decision to wind down the discretionary DACA nonenforcement policy 1. The INA charges the Secretary of Homeland Security “with the administration and enforcement” of the INA and “all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1). Individuals are subject to removal if, inter alia, “they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United States, 567 U.S. 387, 396 (2012); see 8 U.S.C. §§ 1182(a), 1227(a). As a practical matter, the federal government cannot remove every removable alien, and a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 567 U.S. at 396. The Secretary of Homeland Security is vested with authority to “[e]stablish[ ] national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). In light of such policies and priorities, officials of the Department of Homeland Security (DHS) must first “decide whether it makes sense to pursue removal at all.” Arizona, 567 U.S. at 396. “At each stage” of the process, moreover, “the Executive has discretion to abandon the endeavor.” AADC, 525 U.S. at 483. Like other exercises of enforcement discretion, this may
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involve “a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Chaney, 470 U.S. at 831.
2. This case concerns an application of the practice of “deferred action” by which the Secretary of Homeland Security may exercise discretion to forbear from seeking the removal of an alien for a designated period. See AADC, 525 U.S. at 48384; 8 C.F.R. § 274a.12(c)(14) (describing “deferred action” as “an act of administrative convenience to the government which gives some cases lower priority”). In addition to the temporary relief from removal directly flowing from a grant of deferred action, certain collateral consequences may flow under pre-existing laws and regulations, including the ability to apply for work authorization in certain circumstances. See, e.g., 8 C.F.R. § 247a.12(c)(14). However, DHS retains the discretion to revoke deferred action unilaterally, and an individual with deferred action remains removable at any time. See AADC, 525 U.S. at 484-85.
On June 15, 2012, DHS announced the policy known as DACA, which makes deferred action available to “certain young people who were brought to this country as children.” ER.140. Following successful completion of a background check and review, an alien who met certain age, residence, and other guidelines could receive deferred action for a period of two years, subject to renewal. ER.142-43. The DACA Memo stated that it “confer[red] no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.” ER.143. DHS later expanded DACA by loosening certain guidelines and
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extending the period of deferred action to three years, and it also created a new, similar policy known as DAPA for parents of Americans and lawful permanent residents. ER.269.
The District Court for the Southern District of Texas entered a nationwide preliminary injunction against DAPA and the expansion of DACA. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015). The Fifth Circuit affirmed, concluding that the policy violated both the INA and the APA’s notice-and-comment requirements. Texas v. United States, 809 F.3d 134 (5th Cir. 2015). The Supreme Court affirmed the injunction by an equally divided Court. United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). In response, then-Secretary John Kelly rescinded DAPA and the DACA expansion in June 2017. ER.176. Shortly thereafter, Texas threatened to challenge the original DACA policy. ER.274.
3. On September 5, 2017, DHS decided to wind down the remaining DACA policy in an orderly fashion. ER.125. As Acting Secretary Elaine Duke explained in the memorandum, “[t]aking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and [a] September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated.” ER.130. Therefore, “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,” the Acting Secretary determined to begin an orderly wind-down of the policy. Id. The memorandum provides that DHS will “adjudicate—on an individual, case by case basis—properly filed pending DACA
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renewal requests . . . from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.” Id. The memorandum further provides that DHS “[w]ill not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum” for the remaining periods of deferred action. Id.
B. Prior proceedings 1. Shortly after the Acting Secretary’s decision, plaintiffs—consisting of individual DACA recipients, a union with DACA recipient members, the University of California and its president, and various States and localities—brought these five related suits in the Northern District of California challenging the rescission of DACA. See Case Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813 (N.D. Cal.). Similar challenges are pending in other district courts. Plaintiffs challenged the rescission on substantive and procedural grounds under the APA. Plaintiffs also alleged that the rescission violated equal protection and that its implementation violated due process. Planning to move to dismiss on threshold grounds, the government asked the district court to permit it to brief dispositive issues in the case prior to any discovery or record proceedings. The district court rejected that request, and the government filed the administrative record. Dkt.No.64.
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The district court then ordered the government to “complete” the administrative record with “all emails, letters, memoranda, notes, media items, opinions and other materials directly or indirectly considered in the final agency decision to rescind DACA,” including “all DACA-related materials considered by persons (anywhere in the government)” who provided the Acting Secretary with written or verbal advice. Dkt.No.79, at 12-13. The district court further determined that, because the Acting Secretary’s decision referred to concerns about DACA’s legality, the government had categorically “waived attorney-client privilege over” certain materials. Id. at 10. And the court ruled—without briefing—that thirty-five documents identified on a court-ordered privilege log must be filed on the public docket. Id. at 13. In the meantime, plaintiffs served burdensome discovery requests upon the government and took numerous depositions from government personnel, including high-level officials and senior advisors.
2. In response to these extraordinary rulings, the government sought relief first from this Court and, after a divided panel of this Court denied mandamus, from the Supreme Court, which stayed the district court’s orders and ultimately vacated this Court’s decision. In re United States, 138 S. Ct. 443, 445 (Dec. 20, 2017) (per curiam). The Court made clear that the government’s threshold defenses deserve close attention, noting that the district court should “consider certifying [its] ruling for interlocutory appeal under 28 U.S.C. § 1292(b)” and only consider whether an expanded record was necessary following resolution of threshold issues. Id. at 445.
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3. While the mandamus proceedings were pending, the government filed a motion to dismiss, and plaintiffs filed a motion for a preliminary injunction.
On January 9, 2018, the district court denied in substantial part the government’s justiciability arguments in its motion to dismiss and granted plaintiffs’ preliminary injunction motion. ER.1. Although the court acknowledged that, under Heckler v. Chaney, “decisions not to prosecute or initiate enforcement actions are generally not reviewable,” it declared that “[o]ur case is different from Chaney” on various grounds. ER.19-21. It further held that its jurisdiction was unaffected by 8 U.S.C. § 1252(g), ER.22-23, which channels claims against actions taken to remove an alien into the review of final removal orders, thus protecting “‘no deferred action’ decisions and similar discretionary determinations.” AADC, 525 U.S. at 483, 485. The court concluded that this provision did not restrict its jurisdiction because plaintiffs challenged “the across-the-board cancellation of a nationwide program” rather than “already-commenced deportation or removal proceedings.” ER.22. The court explained that its order rejecting the bulk of the government’s threshold arguments met the criteria for interlocutory appeal under 28 U.S.C. § 1292(b) and certified that order accordingly. ER.48-49.1
1 The district court accepted the government’s threshold arguments only to the extent it held that plaintiffs Minnesota and Maine did not have statutory standing because the interests they asserted were only “marginally related” to the INA’s purposes. ER.28.
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In issuing a preliminary injunction, the court concluded that plaintiffs were likely to succeed on their claim that the DACA rescission was arbitrary and capricious. First, the court held that the rescission was “‘not in accordance with law’ because it was based on the flawed legal premise that the agency lacked authority to implement DACA.” ER.29. Second, the district court held that the government’s invocation of litigation risk was a “post-hoc rationalization” because the memorandum “can only be reasonably read as” relying on a claim of illegality, and that, in any event, the Acting Secretary failed to consider factors weighing against the rescission of DACA, including reliance interests of DACA recipients. ER.39-40.2
4. On January 12, the district court denied in part and granted in part the government’s merits arguments in its motion to dismiss. ER.50. The court held that plaintiffs had stated a claim that the rescission of DACA was arbitrary and capricious for the reasons given in its prior opinion. ER.51. The court also held that plaintiffs had stated a claim that the DACA rescission denied them equal protection because “93 percent of DACA recipients” are “Latinos and Mexican nationals,” and plaintiffs’ allegations regarding “campaign rhetoric” raised “a plausible inference that racial animus towards Mexicans and Latinos was a motivating factor in the decision to end
2 Although the government appeals the injunction, it has taken steps to comply in the interim. See Response to Preliminary Injunction (Jan. 13, 2018), https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-responsejanuary-2018-preliminary-injunction.
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DACA.” ER.59-61. The court additionally denied the motion to dismiss plaintiffs’ claim that the rescission’s implementation violated substantive due process. ER.55-57.
The court dismissed plaintiffs’ claim that the Acting Secretary was required to use notice-and-comment rulemaking to rescind DACA. ER.51-53. The court also rejected plaintiffs’ claims that the DACA rescission violated an equal protection right to pursue a livelihood, violated due process, and was equitably estopped. ER.5361.The court again certified its order for interlocutory review. ER.62-63.
5. On January 16, the government filed a notice of appeal from the district court’s order granting a preliminary injunction. ER.64-68. Both the government and the plaintiffs also filed petitions under 28 U.S.C. § 1292(b) asking this Court to accept the district court’s certification of its orders for interlocutory appeal. This Court granted those petitions on January 25, and, on January 26, this Court sua sponte consolidated the various appeals and issued an omnibus briefing schedule.3
SUMMARY OF ARGUMENT 1. In rescinding the previous non-enforcement policy embodied in DACA, the Acting Secretary reset the agency’s enforcement priorities. A determination of general enforcement policy, like other enforcement decisions, is traditionally committed to agency discretion by law and thus not subject to APA claims. See 5 U.S.C. § 701(a)(2);
3 The government also filed a petition for writ of certiorari before judgment on January 18, 2018. See Department of Homeland Sec. v. Regents of the Univ. of Cal., No. 171003. That petition is currently scheduled for consideration at the Supreme Court’s February 16, 2018, conference.
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Heckler v. Chaney, 470 U.S. 821, 831 (1985). That is particularly true in the immigration context, where the “broad discretion exercised by immigration officials” is a “principal feature of the removal system.” Arizona v. United States, 567 U.S. 387, 39697 (2012). That the Acting Secretary’s discretionary enforcement decision was based on legal analysis is immaterial, because the fact that an “agency gives a ‘reviewable’ reason for otherwise unreviewable action” does not mean that “the action becomes reviewable.” ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (BLE) (emphases added).
Nothing in the INA cabins that discretion here. To the contrary, 8 U.S.C. § 1252(g) precludes jurisdiction over challenges to “‘no deferred action’ decisions and similar discretionary determinations . . . outside the streamlined process that Congress has designed” for litigating an alien’s removal. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 485 & n.9 (1999) (AADC); see also 8 U.S.C. § 1252(b)(9). Thus, even if the Acting Secretary’s exercise of enforcement discretion were subject to review at all, that review could take place only in a petition from a final removal order.
2. Assuming that the Acting Secretary’s decision to wind down DACA were nevertheless subject to review here, the decision would plainly satisfy the APA’s deferential standard. Regardless whether the original DACA policy was consistent with the INA, there is no claim that it was mandated by the statute or that rescinding it violated the statute. And the Acting Secretary’s discretionary rescission of DACA based on her clearly expressed concern that it would be enmeshed in litigation and
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likely enjoined nationwide was eminently reasonable, given the Texas litigation invalidating DAPA and expanded DACA, as well as the Attorney General’s opinion that DACA would and should meet the same fate. Neither precedent nor the APA required the Secretary to spell out the subsidiary legal reasons why it is illusory to distinguish DACA from expanded DACA and DAPA, and there likewise is no basis for a court to set aside the Secretary’s purely discretionary enforcement decision based on mere disagreement with her reasonable legal conclusion.
The Acting Secretary’s decision in no way violates equal protection rights. The DACA rescission applies equally to persons of all ethnicities, although, like virtually all immigration policies, it has a disproportionate effect on certain ethnicities—here, Latinos from Central and South America. A challenge to such a facially-neutral immigration enforcement policy based on allegations of discriminatory motive is not permitted under AADC. 525 U.S. at 488-92. And, even assuming such a challenge could proceed at all under AADC, plaintiffs have come nowhere near alleging the clear evidence of outrageous government conduct necessary to make out a claim of discriminatory enforcement in the immigration context. Id.
Plaintiffs’ due process challenge to the DACA rescission’s implementation is similarly meritless. Plaintiffs do not and cannot offer any plausible factual basis for their conclusory (and incorrect) assertion that the government has changed its policy regarding whether information provided by DACA recipients to U.S. Citizenship and Immigration Services (USCIS) will be shared with other DHS components for
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purposes of immigration enforcement proceedings. And plaintiffs in any event fail to identify a deprivation of a protected interest that would be a conscience-shocking violation of substantive due process rights.
3. Finally, even if injunctive relief were appropriate, the nationwide injunction entered would be patently overbroad. Bedrock principles of standing and equitable discretion limit the scope of any injunction to plaintiffs in this case, and only those plaintiffs with a cognizable injury—i.e., the particular DACA recipients who are named plaintiffs or validly represented by the union plaintiff.
STANDARD OF REVIEW “[T]he legal premises underlying a preliminary injunction” are reviewed de novo. Federal Trade Comm’n v. Enforma Nat. Prods., Inc., 362 F.3d 1204, 1211 (9th Cir. 2004). Otherwise, the district court’s entry of the preliminary injunction is reviewed for abuse of discretion. Id. The district court’s decision on the motion to dismiss is reviewed de novo. Steckman v. Hart Brewing Inc., 143 F.3d 1293, 1295 (9th Cir. 1998).
ARGUMENT I. Plaintiffs’ Claims Are Non-Justiciable.
A. The Acting Secretary’s decision is not subject to APA review because it is committed to agency discretion by law.
1. The APA precludes review of agency actions that are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This provision applies to various types of agency decisions that “traditionally” have been regarded as unsuitable for judicial
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review, Lincoln v. Vigil, 508 U.S. 182, 191 (1993), including the decision whether or not to institute enforcement actions, Chaney, 470 U.S. at 831. Such exercises of discretion, the Supreme Court has explained, can involve “a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Id. An agency may “not only assess whether a violation has occurred,” but “whether agency resources are best spent on this violation or another”; whether enforcement in a particular scenario “best fits the agency’s overall policies”; and whether the agency “has enough resources to undertake the action at all.” Id. In addition, when an agency declines to enforce, 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.” Id. at 832. In this way and others, agency enforcement discretion “shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch [whether or] not to indict—a decision which has long been regarded as the special province of the Executive Branch.” Id.; United States v. Armstrong, 517 U.S. 456, 464 (1996) (“[T]he decision whether or not to prosecute . . . generally rests entirely in [the prosecutor’s] discretion.” (emphasis added)). Such discretionary enforcement actions “cannot be the subject of judicial review” even when an agency (or a prosecutor) bases them on what would be “a ‘reviewable’ reason” in another context. BLE, 482 U.S. at 283.
The Acting Secretary’s decision to discontinue a prior non-enforcement policy falls well within the types of enforcement decisions that traditionally have been
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understood as “committed to agency discretion.” Like the decision to adopt a policy of selective non-enforcement, the decision whether to retain such a policy can “involve[] a complicated balancing” of factors that are “peculiarly within [the] expertise” of the agency, including determining how the agency’s resources are best spent and how the non-enforcement policy fits with the agency’s overall policies. Chaney, 470 U.S. at 831. Likewise, a decision to abandon an existing non-enforcement policy will not, in itself, deprive any individual of liberty or property. Indeed, an agency’s decision to reverse a prior policy of civil non-enforcement is akin to changes in policy as to criminal prosecutorial discretion, which regularly occur within the Department of Justice both during and across presidential administrations, and which, as noted, are generally not amenable to judicial review. Judicial review is available if a decision to enforce results in an adverse final determination that deprives an individual of liberty or property, but that review is limited to the substance of the final determination; an individual cannot escape his guilt of the criminal or civil offense by bringing an APA challenge to an agency’s discretionary decision to enforce the law.
This presumption of nonreviewability applies with particular force in the context of immigration enforcement discretion. In general, the “broad discretion exercised by immigration officials” has become a “principal feature of the removal system.” Arizona v. United States, 567 U.S. 387, 396 (2012); see also, e.g., 6 U.S.C. § 202(5) (vesting authority in the Secretary of Homeland Security to “[e]stablish[] national immigration enforcement policies and priorities”). And more specifically, a
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suit challenging a discretionary decision to enforce the immigration laws would entail the extraordinary relief of ordering the government to allow a “continuing violation of United States law” to persist. AADC, 525 U.S. at 490. The revocation of a prior immigration non-enforcement policy is thus plainly a decision that is “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), and not subject to attack under the APA.
2. The district court’s reasons for rejecting that conclusion are all contrary to precedent and unpersuasive on their own terms.
First, the district court reasoned that the Acting Secretary’s decision was reviewable because, rather than adopting a non-enforcement policy, it rescinded one. ER.21 (“An agency action to terminate [an existing non-enforcement policy] bears no resemblance to an agency decision not to regulate something never before regulated.”). That distinction is irreconcilable with this Court’s decision in Morales de Soto v. Lynch, 824 F.3d 822 (9th Cir. 2016), which expressly rejected the notion that Chaney’s rule would apply only to a “decision not to enforce agency regulations” and not “the contrary decision to enforce.” Id. at 827 n.4. In that case, an alien had unlawfully reentered the country after being ordered removed, and Immigration and Customs Enforcement (ICE) had chosen to “reinstate the prior order of removal” (without a hearing), rather than exercise its “prosecutorial discretion to initiate a new removal proceeding before an immigration judge.” Id. at 825. The Court held that, under Chaney, it had “no authority to review the merits of ICE’s discretionary decision
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to reinstate a prior removal order,” even though the agency had exercised its discretion “to enforce” that order rather than “not to enforce” it. Id. at 827 & n.4. Morales de Soto and Chaney compel a similar conclusion here. As explained above, a decision to enforce and a decision not to enforce are both traditionally committed to agency discretion as they both implicate “the same need for ‘a complicated balancing of a number of factors . . . peculiarly within [the agency’s] expertise.’” Id. (quoting Chaney, 470 U.S. at 831).4
Second, the district court reasoned that the rescission of DACA was reviewable because it addressed “broad enforcement policies,” instead of “an individual enforcement decision.” ER.20. As an initial matter, this distinction mischaracterizes Chaney. The non-enforcement decision in Chaney was not an individualized decision by the FDA to forgo enforcement of the Federal Food, Drug, and Cosmetic Act against an alleged violator. Rather, the plaintiffs in Chaney requested the FDA to enforce the statute’s misbranding prohibition against the use of certain drugs for capital punishment, by taking “various investigatory and enforcement actions” against “drug manufacturers,” “prison administrators,” and “all [others] in the chain of distribution”; the FDA, however, categorically concluded that its enforcement discretion “should not be exercised to interfere with this particular aspect of state criminal
4 For the same reason, an agency’s decision whether, and on what terms, to settle an enforcement action is likewise committed to its discretion by law. See Garcia v. McCarthy, 649 F. App’x 589, 591 (9th Cir. 2016) (collecting cases).
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justice systems.” 470 U.S. at 824-25. Similarly, in Lincoln, the Indian Health Service’s
unreviewable decision reallocated funds from an entire regional treatment program in
the Southwest to other nationwide Service programs, not from an individual’s
treatment plan. 508 U.S. at 184, 188. In short, the question under Section 701(a)(2) is
whether the type of agency decision at issue is inherently discretionary in nature, not
the number of people to whom it applies.5
Common sense would dictate this conclusion even if it were not already settled
law. Agency decisions about how its “resources are best spent” or how certain
enforcement activity “best fits the agency’s overall policies,” Chaney, 470 U.S. at 831,
are at least as susceptible to implementation through broad guidance as through case-
by-case enforcement decisions. See Sierra Club v. Whitman, 268 F.3d 898, 903 (9th Cir.
2001) (explaining that “[t]o leave enforcement decisions to the discretion of the
[agency]” means that the agency must decide “the most effective way to accomplish
the objectives of the [law] as a whole”).
5 Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994), does not, as the district court appeared to believe, establish a different rule. In that case, the D.C. Circuit distinguished between a “single-shot non-enforcement decision” and a “general enforcement policy,” but did so on the ground that broad enforcement policies “are more likely to be direct interpretations of the commands of the substantive statute rather than the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision.” Id. at 676-77. But this case involves no embedded interpretation of the INA’s substantive commands. The Acting Secretary’s decision to wind down the DACA non-enforcement policy did not directly interpret the INA’s provisions governing the primary conduct of aliens and other parties, but rather addressed (at most) the INA’s constraints on her enforcement discretion.
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For example, in Alaska Fish & Wildlife Federation & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir. 1987), this Court explained that “[p]olitical and geographical considerations” led the agency “to conclude that traditional methods of enforcing game laws are not effective in the vast reaches of rural Alaska” and therefore to “adopt[] a written policy stating that subsistence hunting in Alaska during the closed season would not be punished.” Id. at 935. The Court held that a statutory grant of enforcement discretion “precludes . . . review of the [agency]’s failure to enforce” the law, id. at 938, notwithstanding the fact that the agency had adopted a broad non-enforcement policy. Conversely, individual enforcement decisions are regularly informed by general interpretations of the agency’s substantive statute to determine “whether a violation has occurred.” Chaney, 470 U.S. at 831; see BLE, 482 U.S. at 283 (“[A] common reason for failure to prosecute an alleged criminal violation is the prosecutor’s belief (sometimes publicly stated) that the law will not sustain a conviction.”).
Third, the district court reasoned that review of the Acting Secretary’s decision was appropriate because DACA recipients had relied on collateral benefits obtained as a result of their deferred action. ER.20. The court noted that “work authorizations, for example, allow recipients to join in the mainstream economy” and suggested that “[i]n contrast to nonenforcement decisions, rescissions of commitments . . . exert much more direct influence on the individuals . . . to whom the repudiated commitments were made.” Id. (quotation marks omitted). At the outset, the premise
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of the district court’s reasoning—that DHS had made a commitment to certain persons unlawfully in the country—is simply incorrect. Indeed, DHS made explicit when it adopted the DACA non-enforcement policy that “[t]his memorandum confers no substantive right.” ER.130. More fundamentally, any reliance interests would not legitimate judicial review of otherwise nonreviewable acts of discretion. In Lincoln, for example, the Indian Health Service had operated its regional program for seven years, providing important medical treatment to disabled children on which the recipients had undoubtedly come to rely. See 508 U.S. at 185-88. Notwithstanding that reliance, the Supreme Court held that the Service’s discretionary decision to discontinue the program by reallocating a lump-sum appropriation was nonreviewable. Id. at 193-94.
Nor does the availability of review turn on the significance of a plaintiff’s asserted interest in an agency’s discretionary enforcement decision. The Supreme Court made this clear in Chaney, where plaintiffs offered “evidence that use of the drugs [that FDA declined to regulate] could lead to a cruel and protracted death.” 470 U.S. at 827. Holding that it could not properly review the agency’s decision, the Supreme Court emphasized that “[t]he fact that the drugs involved in this case are ultimately to be used in imposing the death penalty must not lead this Court or other courts to import profound differences of opinion over the meaning of the Eighth Amendment . . . into the domain of administrative law.” Id. at 838.
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Fourth, the district court reasoned that review was possible because “there is law to apply” in this case, given that “[t]he main, if not exclusive, rationale for ending DACA was its supposed illegality” and “determining illegality is a quintessential role of the courts.” ER.21. But it is both well established and common sense that an agency’s discretionary decision whether to enforce a law is not made reviewable because it is based on an understanding of governing law. As the Supreme Court held in BLE, that an “agency gives a ‘reviewable’ reason for otherwise unreviewable action” does not mean that “the action becomes reviewable.” 482 U.S. at 283. The Court noted, by way of example, “that a common reason for failure to prosecute an alleged criminal violation is the prosecutor’s belief (sometimes publicly stated) that the law will not sustain a conviction”; although “[t]hat is surely an eminently ‘reviewable’ proposition, in the sense that courts are well qualified to consider the point . . . it is entirely clear that the refusal to prosecute cannot be the subject of judicial review.” Id. Thus, the fact that the Acting Secretary’s exercise of enforcement discretion reasonably considered not only the litigation risk from a lawsuit by Texas but also the Attorney General’s legal assessment of DACA does not meaningfully distinguish this case from countless instances where the enforcement decisions of prosecutors or agencies turn in part on legal analysis regarding the meaning of statutes, regulations, or the Constitution.
Rather, for an enforcement decision to be reviewable, the “law to apply” must depart from tradition by “circumscrib[ing] agency enforcement discretion” and
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“provid[ing] meaningful standards for defining the limits of that discretion.” Chaney, 470 U.S. at 834. Such limits might be found in the statute that provides the agency with enforcement discretion, if Congress has set “substantive priorities” or otherwise limited “an agency’s power to discriminate among issues or cases it will pursue.” Id. at 833; see also Texas v. United States, 809 F.3d 134, 168 (5th Cir. 2015) (holding that court could review whether DAPA ran afoul of alleged INA constraints on enforcement discretion). Or they might be found in the agency’s own regulations having a similarly restrictive effect. See Greater Los Angeles Council on Deafness, Inc. v. Baldrige, 827 F.2d 1353, 1361 (9th Cir. 1987). But neither plaintiffs nor the district court have identified anything in the INA or immigration regulations that limited DHS’s discretion in rescinding DACA.6
In sum, none of the district court’s reasons, individually or collectively, justify applying APA review to the Acting Secretary’s discretionary decision to rescind the DACA non-enforcement policy. And it warrants emphasis that those reasons, if accepted by this Court, would lead to a radical and untenable intrusion on agencies’ enforcement discretion. Consider the following example of a quintessential exercise of prosecutorial discretion: one chief prosecutor adopts a general policy of not enforcing
6 Constitutional constraints on enforcement discretion also are traditionally reviewable and provide meaningful standards to apply. See Webster v. Doe, 486 U.S. 592, 603-04 (1988). Review of plaintiffs’ constitutional claims is therefore not precluded by § 701(a)(2), although those claims are separately barred here by 8 U.S.C. § 1252(g) and are meritless in any event. See infra Parts I.B, II.B-C.
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drug laws against low-level, non-violent offenders because she views them as victims of circumstance who should receive treatment and support; but her successor then rescinds that non-enforcement policy based on her legal concerns that the policy would violate her duty to faithfully execute the laws and provide equal treatment to defendants. The district court’s analysis in this case would allow drug offenders in that circumstance, who are concededly guilty, to nevertheless seek judicial review of the legal reasoning underlying the second prosecutor’s discretionary decision to enforce the drug laws in a different manner than her predecessor. That is not, and cannot possibly be, the law.
B. 8 U.S.C. § 1252 bars pre-enforcement review of plaintiffs’ claims.
1. Under 8 U.S.C. § 1252, judicial review of DHS enforcement decisions is generally available, if at all, only through the procedures for reviewing removal orders set forth in that section. As particularly relevant here, section 1252(g) states that “[e]xcept as provided in this section . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this subchapter.” As the Supreme Court explained in AADC, section 1252(g) is “designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of
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judicial intervention outside the streamlined process that Congress has designed.” See 525 U.S. at 485 & n.9.
The Acting Secretary’s rescission of DACA is such a “‘no deferred action’ decision[],” AADC, 525 U.S. at 485, and is an initial “action” in the agency’s “commence[ment] [of ] proceedings” against aliens who are unlawfully in the country, 8 U.S.C. § 1252(g). Thus, even assuming that the DACA rescission were reviewable, it would be reviewable only as otherwise “provided in [Section 1252],” id.—that is, through “[ j]udicial review of a final order of removal,” id. § 1252(a)(1). See, e.g., Vasquez v. Aviles, 639 F. App’x 898, 901 (3d Cir. 2016) (concluding that, under section 1252(g), “[t]he District Court therefore lacked jurisdiction to consider [plaintiff ’s] challenge to his denial of DACA relief ”); Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999) (“Review of refusal to grant deferred action is . . . excluded from the jurisdiction of the district court.”). That review of a final order of removal is the sole avenue for judicial review is underscored by 8 U.S.C. § 1252(b)(9), which channels into the review of final removal orders all questions of law or fact arising from any action taken to remove an alien. See AADC, 525 U.S. at 483 (characterizing section 1252(b)(9) as an “unmistakable ‘zipper’ clause”); see also Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994).
The limitation on review here is consistent with the review procedures for other kinds of discretionary DHS actions. For example, under 8 U.S.C.
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§ 1252(a)(2)(B), “no court shall have jurisdiction to review” judgments regarding the grant or denial of specified forms of discretionary relief—including cancellation of removal, voluntary departure, certain waivers of inadmissibility, and adjustment of status. See 8 U.S.C. § 1252(a)(2)(B)(i) (citing 8 U.S.C. §§ 1182(h), 1182(i), 1229b, 1229c, 1255). Congress provided a limited exception to that jurisdictional bar for “review of constitutional claims or questions of law,” id. § 1252(a)(2)(D), but it mandated that any such review occur only “upon a petition for review [of a final order of removal] filed with an appropriate court of appeals in accordance with this section,” id.; see, e.g., Green v. Napolitano, 627 F.3d 1341, 1347 (10th Cir. 2010).
2. The district court nevertheless held that Section 1252(g) did not affect its jurisdiction because plaintiffs challenged “the across-the-board cancellation of a nationwide program” rather than “already-commenced deportation proceedings.” ER.22 (emphasis omitted). But Section 1252 does not permit parties to evade its jurisdictional-channeling provisions merely by initiating pre-enforcement challenges. Section 1252(g) bars review of any “action” to “commence proceedings” in order to protect “‘no deferred action’ decisions and similar discretionary determinations,” which includes preventing the decision to wind down the DACA policy from being challenged in “separate rounds of judicial intervention” outside the process designed by Congress. AADC, 525 U.S. at 485. Plaintiffs cannot frustrate the INA’s reticulated review scheme by filing suit before the agency has officially initiated an enforcement proceeding.
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This Court’s decision in Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004), cited by the district court, ER.22-23, is inapposite. That case involved a claim for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), on the ground that certain actions taken by agency officials were unconstitutional. The plaintiff expressly disclaimed a challenge to her removal, Kwai Fun Wong, 373 F.3d at 964, and this Court relied upon the fact that the challenge did “not pose the threat of obstruction of the institution of removal proceedings or the execution of removal orders about which AADC was concerned,” id. at 970. Plainly, the same cannot be said concerning plaintiffs’ challenge to the rescission of the DACA non-enforcement policy. II. The Acting Secretary’s Decision Was Lawful.
A. The DACA rescission was not arbitrary and capricious. 1. Even if the Acting Secretary’s decision were reviewable under the APA, it was plainly not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). That standard of review is “narrow,” Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983): “[A] court is not to substitute its judgment” for the agency’s reasonable judgment, and should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).
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It is uncontroverted that nothing in the INA requires any aspect of the DACA policy. The claim, instead, is that once an agency has adopted a purely discretionary non-enforcement policy, it must provide a robust explanation for a decision to pursue a different enforcement policy. Unsurprisingly, neither plaintiffs nor the district court have identified any authority for this proposition. Nor can they seriously dispute that it would have been reasonable for the Secretary to act based on the litigation risks presented by maintaining a policy (original DACA) that was materially indistinguishable to ones (expanded DACA and DAPA) that had been enjoined nationwide by the Fifth Circuit in a decision affirmed by an equally divided Supreme Court, especially in the face of a threat by Texas and other States to challenge DACA on the same grounds.
Yet that is precisely what the Secretary did, based on the evident risk that the existing DACA policy would at a minimum be the subject of protracted litigation, and very likely be enjoined nationwide. In Texas v. United States, the court concluded that DAPA and expanded DACA were unlawful on both procedural and substantive grounds. 809 F.3d at 178; see id. at 147 n.11 (including the “DACA expansions” within the opinion’s references to “DAPA”). The entirety of the Fifth Circuit’s reasoning applies equally to the original DACA policy.
With respect to procedure, the Fifth Circuit concluded that the memorandum expanding DACA and creating DAPA was not exempt from notice and comment as a statement of policy because of how the original DACA policy had been implemented.
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Texas, 809 F.3d. at 171-78. The court found that, “[a]lthough the DAPA Memo facially purports to confer discretion,” in fact it would operate as a binding statement of eligibility for deferred action because that is how the original DACA policy had been implemented. Id. at 171, 174 n.139.
With respect to substance, the Fifth Circuit held that DAPA and expanded DACA were contrary to the INA because (1) “[i]n specific and detailed provisions,” the INA already “confers eligibility for ‘discretionary relief,’ ” including “narrow classes of aliens eligible for deferred action,” Texas, 809 F.3d at 179; (2) the INA’s otherwise “broad grants of authority” could not reasonably be construed to assign to the Secretary the authority to create additional categories of aliens of “vast ‘economic and political significance,’ ” id. at 182-83; (3) DAPA and expanded DACA were inconsistent with historical deferred-action policies because they neither were undertaken on a “country-specific basis . . . in response to war, civil unrest, or natural disasters,” nor served as a “bridge[] from one legal status to another,” id. at 184; and (4) “Congress ha[d] repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (‘DREAM Act’), features of which closely resemble DACA and DAPA.” Id. at 185 (footnote omitted). Every one of those factors likewise applies to the original DACA policy.
2. In declining to uphold the Acting Secretary’s plainly reasonable rationale, the district court subjected her enforcement decision to review that would have been inappropriate even for decisions less inherently discretionary. The court posited
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reasons that might (in its view) distinguish DACA from DAPA and expanded DACA, and faulted the Acting Secretary for failing to expressly address them. ER.37. But the district court provided no authority (because none exists) for the proposition that the APA required the Acting Secretary to provide the equivalent of a bench memo setting out the subsidiary legal arguments to be made by each side in the course of protracted litigation, with an accompanying evaluation of the likelihood of success in various district courts, the courts of appeals, and the Supreme Court. Cf. San Luis & DeltaMendota Water Auth. v. Locke, 776 F.3d 971, 999 (9th Cir. 2014) (even very brief explanation was adequate); Bowman, 419 U.S. at 286 (rationale need only be reasonably discernable). So long as the ultimate litigation judgment was reasonable, the Acting Secretary’s decision was not arbitrary and capricious. And the judgment was eminently reasonable, because even assuming that some courts might deem certain distinctions material, the prospect of litigation and a nationwide injunction in the Fifth Circuit were at a minimum substantial. The district court did not conclude otherwise or provide any support for the proposition that the Acting Secretary was required to maintain DACA’s discretionary non-enforcement policy in the face of such a significant risk based on the mere possibility of a different outcome.
Moreover, even on its own terms, the district court’s litigation-risk analysis does not withstand scrutiny. The court emphasized the Fifth Circuit’s observation that “any extrapolation from DACA [to DAPA] must be done carefully.” Texas, 809 F.3d at 173. The Fifth Circuit’s point, however, was that DAPA might be lawful even if
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DACA were not, rather than the other way around. See id. at 174 (noting that the “DAPA Memo contain[ed] additional discretionary criteria”). And regardless, the Fifth Circuit went on to affirm, “under any standard of review,” the comparison of the policies undertaken by the district court in that case. Id. at 174 n.139.
The district court here speculated, however, that DAPA might have been more vulnerable to challenge because “Congress had already established a pathway to lawful presence for alien parents of citizens,” while “no such analogue” exists for DACA recipients. ER.37. That reasoning gets matters entirely backward. Insofar as the creation of pathways to lawful presence was relevant, the fact that Congress had legislated only for certain individuals similarly situated to DAPA beneficiaries—and not DACA recipients—would make DACA more inconsistent with the INA than DAPA. In any event, the basis of the Fifth Circuit’s Texas decision was not the existence of a particular statutory pathway to lawful presence, but the “specific and intricate provisions” of the INA as a whole addressing discretionary relief. 809 F.3d at 186. Those provisions no more include DACA recipients than DAPA beneficiaries. Confirming the point, the Fifth Circuit also affirmed the injunction with respect to expanded DACA, which differed from the original DACA policy only in legally immaterial ways: the length of the deferred-action period, and the modified age and duration-of-residence guidelines.
The district court also reasoned that DACA might be distinguishable from DAPA because 689,800 aliens are recipients of DACA, whereas 4.3 million aliens
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potentially qualified for DAPA. ER. 37. But whatever the ultimate number of individuals that might be affected, there can be no debate that DACA is, like DAPA and expanded DACA, a policy of “vast ‘economic and political significance,’ ” to which the Fifth Circuit’s reasoning would apply. Texas, 809 F.3d at 183. By contrast, the type of historical deferred-action practices that the Fifth Circuit suggested are permissible were much more “limited in time and extent, affecting only a few thousand aliens for months or, at most, a few years.” Id. at 185 n.197. The Acting Secretary did not act arbitrarily in failing to credit a distinction between DACA and DAPA that the Fifth Circuit expressly rejected.
The district court further erred in suggesting that, whether or not the original DACA policy was unlawful as it had been implemented, it could have been fixed “by simply insisting on exercise of discretion” in individual cases. ER.37. The Fifth Circuit relied on the lack of individual discretion only for its conclusion that the DAPA Memorandum was procedurally unlawful, not substantively so. Texas, 809 F.3d at 17178. Thus, even if the Acting Secretary could have altered the DACA policy sufficiently to overcome the procedural objection, it would not have affected the Fifth Circuit’s substantive conclusion—at least unless the change were so drastic as to return to a
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practice of “single, ad hoc grants of deferred action made on a genuinely case-by-case basis,” id. at 186 n.202, which is precisely what the DACA rescission achieves.7
Lastly, the district court erroneously concluded that the litigation-risk rationale was arbitrary and capricious because the Acting Secretary “should have—but did not—weigh DACA’s programmatic objectives as well as the reliance interests of DACA recipients.” ER.40. In these circumstances, reliance interests are not “an important aspect” of the decision whether to retain DACA. State Farm, 463 U.S. at 43. On its face, DACA confers no legitimate reliance interests. DACA made deferred action available for only two-year periods, which could “be terminated at any time” at the agency’s discretion. ER.151. When he announced DACA in 2012, President Obama explained that it was a “temporary stopgap measure,” not a “permanent fix.” Remarks by the President on Immigration (June 15, 2012), https://go.usa.gov/xnZFY. And he urged Congress to act “because these kids deserve to plan their lives in more than two-year increments.” Id. A purely discretionary policy that can be revoked at any time cannot create legally cognizable reliance interests—and certainly not beyond the stated duration (generally two years) of deferred-action grants. Nothing in the INA
7 Nor did the Acting Secretary “fail[] to consider an important aspect of the problem,” State Farm, 463 U.S. at 43, by not discussing the possibility of defending DACA on the procedural ground of laches. ER.40. That doctrine may provide a defense where a plaintiff’s unreasonable delay in bringing suit prejudiced the government. See Abbott Labs. v. Gardner, 387 U.S. 136, 155 (1967). The district court did not explain what prejudice the government might have established from Texas’s failure to bring suit earlier.
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prevents the Secretary of Homeland Security from changing her “national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). And any reliance was even less justified, of course, to the extent that DACA was unlawful.
At a minimum, the asserted reliance interests were too insubstantial to necessitate express consideration, because they plainly fail to overcome the substantial change in circumstances that arose as a result of the Supreme Court’s affirmance of the Fifth Circuit’s decision, which significantly increased the risk that DACA would be enjoined nationwide and thus drastically reduced the degree to which DACA recipients could rely on the continuation of what was already a purely discretionary non-enforcement policy. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016), on which the district court relied, is entirely inapposite. That case involved the Department of Labor’s interpretation of whether automotive service advisors were covered by a statutory exemption from the overtime provisions of the Fair Labor Standards Act. Unlike the policy at issue here, the one in Encino Motorcars concerned private parties’ substantive statutory rights, had been in place for thirty-three years, and was not subject to a significant risk of imminent judicial invalidation. Id. at 212627. The relevant industry stakeholders had therefore developed a strong and justified reliance interest that necessitated consideration under the APA.
In any event, the Acting Secretary’s decision was suitably respectful of the interests of existing DACA recipients. Based on her reasonable evaluation of the litigation risk posed by the imminent lawsuit against the DACA policy, the choice she
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faced was between a gradual, orderly, administrative wind-down of the policy, and the risk of an immediate, disruptive, court-imposed one. Her decision to phase out the policy over a two-and-a-half-year period—permitting a period of additional renewals and permitting renewed and existing grants of deferred action to expire by their terms—was, by far, the more humane choice.
3. The district court was on no firmer ground in rejecting the litigation-risk concern as a “post hoc rationalization” for the Acting Secretary’s decision. ER.43. In the court’s view, “[t]he Attorney General’s letter and the Acting Secretary’s memorandum can only be reasonably read as stating DACA was illegal and that, given that DACA must, therefore, be ended, the best course was ‘an orderly and efficient winddown process,’ rather than a potentially harsh shutdown in the Fifth Circuit.” ER.39.
But the court’s narrow reading of the Acting Secretary’s rationale is hardly the only one that “may reasonably be discerned” from the Acting Secretary’s memorandum. Bowman, 419 U.S. at 286. Indeed, that memorandum focused from beginning to end principally on litigation concerns, not the legality of DACA per se. The memorandum recounted in significant detail the litigation surrounding the DAPA and expanded DACA policies. ER. 125. It noted that the agency’s prior June 2017 decision to discontinue DAPA and expanded DACA was made after “considering the [government’s] likelihood of success on the merits of th[at] ongoing litigation.” ER.129. It described the subsequent letter from Texas and other States to the Attorney General notifying him of those States’ intention to amend the existing
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lawsuit to challenge the original DACA policy. Id. It quoted the Attorney General’s qualified statement that “it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Id. (emphasis added). And it concluded that, in light of the foregoing, and “[i]n the exercise of [her] authority in establishing national immigration policies and priorities” under 6 U.S.C. § 202(5), the Acting Secretary had decided merely that the DACA policy “should” be terminated and wound down in “an efficient and orderly fashion,” not that it “must” be, as the district court erroneously asserted. ER.129-30. Given all that, the district court indisputably erred in holding that the memorandum was not, at the very least, reasonably susceptible to the interpretation that the Acting Secretary’s decision was based on the risk that the government was not likely to succeed on the merits of the “imminent litigation.” ER.129.
The district court also posited that litigation risk could not have been a rationale for the Acting Secretary’s decision because, “once the Attorney General had determined that DACA was illegal, the Acting Secretary had to accept his ruling as ‘controlling.’ ” ER.39 (citing 8 U.S.C. § 1103(a)(1)). But even if the Acting Secretary were bound by the Attorney General’s legal determination as to DACA’s unlawfulness, she could and did conclude that an independent basis for winding down DACA is that the policy would be enmeshed in litigation and subject to a likely injunction even if courts ultimately rejected the Attorney General’s view. Indeed, the
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FDA’s non-enforcement policy in Chaney similarly relied on both enforcement discretion and a perceived lack of jurisdiction. 470 U.S. at 824.
4. In any event, the Acting Secretary’s decision is independently supported by her reasonable conclusion, informed by the Attorney General’s advice, that indefinitely continuing the DACA policy would itself have been unlawful. As detailed above, the Fifth Circuit had already concluded that DAPA and expanded DACA were procedurally and substantively invalid, in a decision that four Justices of the Supreme Court voted to affirm. See supra pp. 29-30. The Attorney General expressed his agreement with the conclusion reached by the Fifth Circuit in a decision that applies equally to the original DACA policy. See ER.176 (concluding that the DACA policy was “effectuated . . . without proper statutory authority and with no established enddate, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result”). It cannot be that the Acting Secretary’s decision to rescind the purely discretionary DACA non-enforcement policy on the basis of the Fifth Circuit’s decision, the Supreme Court’s equally divided affirmance, and the Attorney General’s opinion was the type of “clear error of judgment,” State Farm, 463 U.S. at 43, that would make it arbitrary and capricious under the APA.
The district court concluded that the Acting Secretary could not rely on an assessment of DACA’s legality unless it was correct as a matter of law. See ER.29 (“When agency action is based on a flawed legal premise, it may be set aside as ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
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law.’ ”) (citing Massachusetts v. EPA, 549 U.S. 497, 532 (2007)). Citing the Secretary’s broad discretion in “[e]stablishing national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), and DHS’s “long and recognized practice” of granting deferred action (along with work authorization and other benefits) on a programmatic basis, the court concluded that, in its view, DACA was lawful. ER.31. But the Fifth Circuit rejected those precise considerations when offered in support of DAPA and expanded DACA. See Texas, 809 F.3d at 183.
More fundamentally, the district court was wrong to conclude that the Acting Secretary’s discretionary decision to end a particular enforcement policy of doubtful legality must automatically be set aside if a court subsequently decides that the policy was lawful. ER.37-38. The court relied on the Supreme Court’s decision in Massachusetts v. EPA, supra, for that proposition. But in that case a provision of the Clean Air Act spoke directly to the agency decision at issue, and required EPA to regulate any air pollutant which the agency concluded endangered public health or welfare. See 42 U.S.C. § 7521(a)(1) (mandating that the EPA Administrator “shall” prescribe standards). The agency had “refused to comply with this clear statutory command” in part because it misunderstood its authority. 549 U.S. at 533. By contrast here, no one contends that the INA requires DHS to continue the DACA policy of deferred action. Rather, the DACA policy was created as a matter of DHS’s broad discretion to set enforcement priorities. After careful review, the Acting Secretary determined to rescind that discretionary policy based on concerns about its legality,
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and nothing in either the APA or INA authorizes setting aside her reasonable determination.
B. The DACA rescission did not violate equal protection. Plaintiffs have failed to state a claim that the DACA rescission violated equal protection. Their claim that the Acting Secretary’s enforcement decision was motivated by racial animus is foreclosed by the Supreme Court’s decision in AADC. 1. In AADC, the Supreme Court rejected a group of aliens’ attempt to defend against removal by asserting that the Government was discriminating against them based on their First Amendment activity. 525 U.S. at 488-92. Relying on its decisions in Armstrong, 517 U.S. at 463-65, and Wayte v. United States, 470 U.S. 598, 607-08 (1985), the Court began with the principle that “[e]ven in the criminal-law field, a selective prosecution claim is a rara avis.” AADC, 525 U.S. at 489. As the Court reaffirmed, “[b]ecause such claims invade a special province of the Executive—its prosecutorial discretion—we have emphasized that the standard for proving them is particularly demanding, requiring a criminal defendant to introduce ‘clear evidence’ displacing the presumption that a prosecutor has acted lawfully.” Id. The Supreme Court in AADC then held that an even more restrictive rule than Armstrong’s clear-evidence standard was required when the claim of selective enforcement arises in the immigration context, because the concerns raised by such claims are “greatly magnified.” AADC, 525 U.S. at 489-90. The Court observed that the “delay” associated with challenges to immigration enforcement decisions is more
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harmful because it “permit[s] and prolong[s] a continuing violation of United States law,” especially given that “[p]ostponing justifiable deportation (in the hope that the alien’s status will change . . . or simply with the object of extending the alien’s unlawful stay) is often the principal object of resistance to a deportation proceeding.” Id. at 490. The Court also recognized that heightened separation-of-powers concerns arise in this context because inquiring into the motives behind immigration enforcement entails “not merely the disclosure of normal domestic law enforcement priorities and techniques,” but also “the disclosure of foreign-policy objectives and [in some cases, like AADC itself,] foreign-intelligence products and techniques.” Id. at 490-91. Given all this, the Court dismissed “[t]he contention that a violation [of federal law] must be allowed to continue because it has been improperly selected” as “not powerfully appealing.” Id. at 491.
Accordingly, the Court held that, “as a general matter,” “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” AADC, 525 U.S. at 488. Although the Court did “not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the . . . considerations [against discriminatory-enforcement claims] can be overcome,” it also did not decide “[w]hether or not there be such exceptions.” Id. at 491.
2. A claim that a facially-neutral policy like the DACA rescission was motivated by racial animus is insufficient to overcome AADC’s general bar on
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discriminatory-motive challenges to immigration-enforcement decisions. See 525 U.S. at 491-92 (holding that even selectively targeting particular aliens on the basis of their First Amendment activity did not rise to the level of the possible exception for “outrageous” discrimination). Virtually any immigration policy is likely to have a disparate impact on aliens of some ethnicity, and thus would be vulnerable to a discriminatory-motive allegation from aliens merely seeking to continue their unlawful presence in this country. Even if all such claims were ultimately proven baseless, the very act of adjudicating them leads precisely to the delay and foreign policy concerns the Court described in AADC. See id. at 490.
Notably, neither plaintiffs nor the district court identified a single case holding that AADC’s possible exception for “outrageous” discrimination exists and was satisfied (and the government is not aware of such of a case). Instead, the district court, in a footnote, ignored AADC and distinguished Armstrong on the ground that “[p]laintiffs’ claims cannot fairly be characterized as selective-prosecution claims” because they do not “implicate the [Acting Secretary’s] prosecutorial discretion” to remove “one person rather than another,” as they instead concern her “decision to end a nationwide deferred-action program [allegedly] motivated by racial animus.” ER.59 n.3. That, however, is a distinction without a difference, because AADC’s rationale applies at least equally (if not more) to broad immigration enforcement policies as it does to individual enforcement decisions.
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3. At a minimum, if racial discriminatory-motive claims are cognizable in the immigration-enforcement context at all under AADC, they must meet the “particularly demanding” standard applicable in the criminal-enforcement context: plaintiffs must plausibly allege the existence of “‘clear evidence’” of “outrageous” discrimination, thus “displacing the presumption that a [federal enforcement official] has acted lawfully,” before the claim may proceed past the pleadings. AADC, 525 U.S. at 489, 491 (citing Armstrong, 517 U.S. at 463-65). This standard is extremely demanding, and plaintiffs have identified no case where a court has held it to be satisfied. Indeed, several courts of appeals rejected equal-protection challenges to a registration requirement for male immigrants from certain (predominantly Muslim) countries—which led to removal for those without lawful status—on the ground that “outrageous” discrimination had not been sufficiently demonstrated. See, e.g., Kandamar v. Gonzales, 464 F.3d 65, 73-74 (1st Cir. 2006); Hadayat v. Gonzalez, 458 F.3d 659, 664-65 (7th Cir 2006).
Rather than applying the AADC standard, the district court held that plaintiffs had stated a claim that the DACA rescission violated equal protection based on a much lesser showing. It concluded merely that their allegations regarding candidate Trump’s “campaign rhetoric” raised a “plausible inference that racial animus towards Mexicans and Latinos,” who “account for 93 percent of DACA recipients,” “was a motivating factor in the decision to end DACA.” ER.59, ER.61. The court believed
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that a “fact-intensive inquiry [was] needed to determine whether defendants acted with discriminatory intent.” Id. The court’s holding is flawed in myriad respects.
In relying on “campaign rhetoric,” the court disregarded the absence of any statement by the actual decisionmaker in this case—Acting Secretary Duke—that could give rise to any inference of animus. Acting Secretary Duke was the only government official with the legal authority to rescind a DHS policy that DHS had operated for the previous five years, 8 U.S.C. § 1103(a)—regardless of the (undisputed) involvement by the White House. For plaintiffs to succeed, it is the Acting Secretary’s decision that must be infected by discriminatory animus. Yet plaintiffs’ contention that the Acting Secretary’s decision was tainted by the President’s alleged bias does not even satisfy the ordinary pleading standards of Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009), much less the “clear evidence” standard of AADC and Armstrong. Contrary to the district court’s understanding, there are no factual issues to resolve.
Moreover, even taking the President’s statements on their own terms, such statements are insufficient. First, nationality, as opposed to ethnicity, is not an invidious classification for purposes of federal immigration law. Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008). And second, most of the statements did not refer to DACA, or indeed any official policy, since they occurred on the campaign trail and preceded the President’s inauguration and oath of office. See Washington v. Trump, 858 F.3d 1168, 1173 & n.4 (9th Cir. 2017) (Kozinski, J., dissenting from denial of
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rehearing en banc). Indeed, as the district court recognized, the few cited statements referring directly to DACA are, in fact, favorable to DACA recipients. ER.61.
Simply put, the statements relied on by the district court do not come close to plausibly alleging clear evidence of discriminatory motive. Indeed, it is utterly implausible that Acting Secretary Duke would have retained DACA if the nearly 700,000 aliens without lawful status were not predominantly Latino, especially given the questions about DACA’s legality. The equal-protection claim should be dismissed.
C. The implementation of the DACA rescission will not violate due process.
Plaintiffs failed to state a substantive due-process claim based on their assertion that the government has changed its policy regarding whether information provided by DACA recipients to USCIS will be shared with other DHS components for purposes of immigration enforcement proceedings. Plaintiffs did not allege any facts giving rise to a plausible inference that such a policy change has actually occurred— and DHS has made clear that its policy in fact has not changed. Nor have plaintiffs identified an improper deprivation of a protected interest, as required to state a substantive due-process claim.
1. The district court credited plaintiffs’ assertions that DHS has changed its information policy. ER.56. But those conclusory assertions are unsupported—and in fact contradicted—by documents referenced by plaintiffs, as well as other publicly
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available materials. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998).
When DACA was initially implemented, DHS published a “frequently asked questions” web page that included guidance covering DHS’s policy regarding the sharing of information provided to USCIS by DACA requestors. See ER.145. The guidance stated that information would be “protected from disclosure to ICE and [Customs and Border Protection (CBP)] for the purpose of immigration enforcement proceedings,” subject to exceptions where the criteria for issuance of a Notice to Appear are satisfied (for example, where national security, public safety, or significant criminal activity interests are implicated), and subject to the caveat that it “may be modified, superseded, or rescinded at any time.” ER.149; see also id. (explaining that information may be used for certain purposes other than removal); USCIS, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) (Nov. 7, 2011), https://go.usa.gov/xncPK (last visited Feb 13, 2018).
Nothing in the Acting Secretary’s Rescission Memorandum changes that approach—in fact, the memorandum makes no reference to information sharing at all. Plaintiffs point only to a questions-and-answers document issued with the memorandum, but that document simply confirms that DACA information “generally” “will not be proactively provided to ICE and CPB for the purpose of immigration enforcement proceedings.” ER.136. Far from demonstrating a change in policy, this document is entirely consistent with DHS’s existing information-sharing
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policy—which DHS reiterated in guidance it issued thereafter. DHS, USCIS, Frequently Asked Questions: Rejected DACA Requests Q5 (Dec. 27, 2017), https://www.uscis.gov/daca2017/mail-faqs (“This information-sharing policy has not changed in any way since it was first announced, including as a result of the Sept. 5, 2017 memo starting a wind-down of the DACA policy.”). Plaintiffs’ conclusory assertion that the government has changed its information-sharing policy is therefore unsupported—and in fact contradicted—by their factual allegations and publicly available documents.
2. In any event, plaintiffs’ allegations do not state a substantive due process violation. When a plaintiff alleges a substantive due process violation based on principles of “fundamental fairness,” the alleged conduct must effect a “government deprivation of life, liberty, or property,” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006) (quotation omitted), and must be “so egregious” and “outrageous” as to “shock the contemporary conscience,” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 850 (1998).
The district court held that the plaintiffs had alleged a “mutually explicit understanding, giving rise to a protected interest in the confidentiality of DACA recipients’ personal information,” ER.56, but the information-sharing policy does not give rise to such an interest. The DACA guidance could not have been clearer that the policy was entirely non-binding: it states that it does not confer any substantive entitlement and could be altered or rescinded at any time. ER.149 (stating that
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information-sharing policy 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”). In the face of this clear language, a subjective belief to the contrary cannot create a protected due process interest. “A person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a property right if that belief is not mutually held by the government.” Gerhart v. Lake County, 637 F.3d 1013, 1020-21 (9th Cir. 2011).
Finally, even if a due process interest did exist, plaintiffs have failed to show that DHS’s alleged change to its information-sharing policy shocks the conscience. Lewis, 523 U.S. at 847 n.8, 850. The information-sharing policy has always been subject to a number of exceptions providing for use in certain immigrationenforcement and non-removal contexts, and any hypothetical expansion of those uses would not be conscience-shocking, especially given that plaintiffs were given clear notice that the policy conferred no rights and could change. For this reason as well, plaintiffs fail to state a substantive due process claim with respect to DHS’s information-sharing policy. III. The District Court’s Nationwide Injunction Is Overbroad.
Even assuming the district court correctly concluded that plaintiffs’ substantive APA claim is reviewable and that the DACA rescission was likely arbitrary and capricious, the court still erred in enjoining the rescission of DACA on a “nationwide basis.” ER.46. The court’s injunction contravenes bedrock principles of Article III
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and equitable discretion by sweeping far more broadly than necessary to redress the plaintiffs’ cognizable injuries.
A. Injunctive relief must be limited to redressing plaintiffs’ cognizable injuries.
1. To establish Article III standing, a plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006). “[S]tanding is not dispensed in gross,” and the plaintiff must establish standing “separately for each form of relief sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017). As this Court has recognized, “our legal system does not automatically grant individual plaintiffs standing to act on behalf of all citizens similarly situated.” Zepeda v. U.S. Immigration & Naturalization Serv., 753 F.2d 719, 730 n.1 (9th Cir. 1983).
The same principles inform the Supreme Court’s repeated admonition that the standing requirements of Article III preclude a court from granting relief that is not directed to remedying the injury asserted by the plaintiff. Thus, for example, in Summers v. Earth Island Institute, 555 U.S. 488 (2009), the Court held that the plaintiffs lacked standing to challenge regulations after the parties had resolved the controversy regarding the regulations’ application to the project that had caused the plaintiffs’ injury. Noting that the plaintiffs’ “injury in fact with regard to that project ha[d] been remedied,” the Court held that to allow the plaintiffs to challenge the regulations
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“apart from any concrete application that threatens imminent harm to [their] interests” would “fly in the face of Article III’s injury-in-fact requirement.” Id. at 494; see also Lewis v. Casey, 518 U.S. 343, 357-59 (1996) (rejecting proposition that “once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court w[as] authorized to remedy all inadequacies in that administration,” because “[t]he remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established”).
This Court likewise has recognized the “elementary principle” that, absent class certification, plaintiffs are “not entitled to relief for people whom they do not represent.” Zepeda, 753 F.2d at 730 n.1. Were it otherwise, any individual plaintiff “could merely file an individual suit as a pseudo-private attorney general and enjoin the government in all cases.” Id. The Seventh Circuit also has squarely held that a district court may not “grant relief to non-parties” where an injunction limited to the party would provide complete relief because a broader injunction “exceed[s] the district judge’s powers under Article III of the Constitution.” McKenzie v. City of Chi., 118 F.3d 552, 555 & n.* (7th Cir. 1997).
2. Even apart from Article III’s requirements, fundamental principles of equity support the same rule. The “Supreme Court has cautioned that ‘injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs’ before the court.” Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979));
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see also Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). Thus, “[i]njunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification.” Haven Hospice, 638 F.3d at 664; see also Meinhold v. U.S. Dep’t of Def., 34 F.3d 1469, 1480 (9th Cir. 1994).
In Los Angeles Haven Hospice, this Court agreed with the district court that a regulation was facially invalid, but nonetheless vacated an injunction insofar as it barred the government from enforcing the regulation against entities other than the plaintiff. 638 F.3d at 665. The Court recognized that relief extending to parties not before the Court is authorized only “if such broad relief is necessary to give prevailing parties the relief to which they are entitled.” Id. at 664 (citing Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987)).
As this Court has also recognized, “nationwide injunctions ‘have a detrimental effect by foreclosing adjudication by a number of different courts and judges.’ ” Los Angeles Haven Hospice, 638 F.3d at 664 (quoting Califano, 442 U.S. at 702). Here, the same legal issues are currently pending in (among other cases) litigation that may soon be before the Second Circuit. See Nielsen v. Vidal, Order of Jan. 31, 2018, Case Nos. 18-122, 18-123 (holding petition for interlocutory appeal under 1292(b) in abeyance pending district court’s resolution of pending preliminary injunction motion); Vidal v. Nielsen, Case Nos. 16-4756, 17-5228, Dkt.No.254 (Feb. 13, 2018) (granting preliminary injunction for essentially the same reasons as the district court in this case). If this Court were to leave the nationwide injunction in place, then the plaintiffs
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in that case and all other DACA recipients within the Second Circuit would be covered by this injunction, even if that court were to hold that the DACA rescission is lawful.
Nationwide injunctions are further problematic for a related reason. They provide plaintiffs all the benefits of a class action without any of the burdens or obligations. Once a single plaintiff prevails, the district court issues the relief that might have been appropriate if it had certified a class of all affected parties. But insofar as the federal government prevails, it gains none of the benefits of prevailing in a class action and, in particular, cannot preclude other plaintiffs from filing suit to relitigate the same issues. Indeed, in this very case, the district court dismissed two State plaintiffs for lack of standing, ER.28, yet the resident DACA recipients those States sought to protect will still benefit from the injunction, essentially nullifying the court’s own standing holding.
3. The district court grappled with none of these Article III or equitable issues. Rather than analyzing the scope of relief necessary to address the injury alleged by plaintiffs before it, the court summarily stated that “Plaintiffs have established injury that reaches beyond the geographical bounds of the Northern District of California” because “[t]he problem affects every state and territory of the United States.” ER.47. But that rationale would hold true for any national policy subject to a facial challenge, leading to the improper and unfair results described above.
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This Court’s decision in Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017), is not to the contrary. There, recognizing that “[i]njunctive relief must be tailored to remedy the specific harms shown by the plaintiffs,” this Court upheld a nationwide injunction only because it deemed that necessary to give plaintiffs full relief based on its view that “the immigration laws of the United States should be enforced vigorously and uniformly.” Id. at 701. That rationale cuts the exact opposite way here. Deferred action is itself a departure from vigorous and uniform enforcement of the immigration laws. Accordingly, enjoining the rescission of DACA on a nationwide basis, rather than as limited to particular DACA recipients whose loss of DACA would cognizably injure plaintiffs, increases rather than lessens that departure.
Even more inapposite is Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (per curiam). There, this Court merely declined to stay a nationwide temporary restraining order, emphasizing both that it need not conclusively resolve the TRO’s proper geographic scope and that “the Government has not proposed a workable alternative form of the TRO that . . . that would protect the proprietary interests of the [plaintiff] States at issue here while nevertheless applying only within the States’ borders.” Id. at 1166-67. That case thus represents, at most, a tentative application of the principle that injunctive relief extending to third parties can be awarded when such relief is necessary to provide complete relief to the plaintiffs. See Bresgal, 843 F.2d at 1170-71 (“[A]n injunction is not necessarily made over-broad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a
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class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.”).
B. The injunction goes well beyond redressing plaintiffs’ cognizable injuries.
1. The district court’s nationwide injunction violates the requirements of Article III and equity. The injunction grants relief to thousands of DACA recipients who are not parties before the court and who do not need to be covered to provide plaintiffs here with complete relief. In particular, a proper injunction would be limited to DACA recipients who are named plaintiffs or validly represented by the union plaintiff, as well as any additional DACA recipients whose loss of DACA would impose cognizable injuries on the various entity plaintiffs.
2. Properly limiting the injunction in this manner would be particularly significant because the district court further erred in holding that the entity plaintiffs will suffer a cognizable injury from the DACA rescission. In particular, the court held that those plaintiffs will be injured in their capacities as employers of DACA recipients. ER.23-24. But that is not a judicially cognizable interest for purposes of challenging the DACA rescission.
To begin, the entity plaintiffs’ interests as employers do not even satisfy Article III. The decision to rescind the DACA policy does not directly regulate these parties by requiring them to do (or refrain from doing) anything. Instead, these plaintiffs complain of indirect injury flowing from the government’s enforcement decision
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concerning their employees. But it is settled law that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). The district court rejected the government’s reliance on Linda R.S., reasoning that the causal relationship between the nonprosecution decision and the asserted injury in Linda R.S. had been “speculative,” whereas the alleged harm here to the entity plaintiffs’ “proprietary interests” would be the “direct result” of the DACA rescission. ER.26. But in addition to the particular causation holding in Linda R.S., the Supreme Court relied on the more general proposition that, “in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Id. at 619. The entity plaintiffs thus simply do not have a judicially cognizable interest in the nonprosecution of their employees.
The entity plaintiffs’ interests as employers also fall outside the INA’s zone of interests. 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). Rather, it provides a cause of action only to a plaintiff “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. To be “aggrieved” in this sense, “the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute . . . in question.” Clarke, 479 U.S. at 396. Here, no provision of the INA even arguably protects the entity plaintiffs from bearing any incidental employment effects from their employees’ loss of
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deferred action. Cf. Federation for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897, 899 (D.C. Cir. 1996) (dismissing under zone-of-interests a suit challenging parole of aliens into this country, where plaintiffs relied on incidental effects of that policy on workers). To the contrary, DHS’s discretionary decision to grant deferred-action recipients the collateral benefit of employment authorization is a matter of regulatory grace rather than statutory mandate, 8 C.F.R. § 274a.12(c)(14), which underscores that employers lack a cognizable interest in challenging the INA’s purely discretionary decision whether to grant or rescind deferred action at all. By the district court’s contrary logic, every employer in the country would have standing to directly challenge any removal proceeding against any one of its employees. Although the zone-of-interests test may not “be especially demanding,” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012), it cannot be stretched beyond the bounds of reason.8
8 Similarly, the entity plaintiffs lack third-party standing, as employers or otherwise, to bring constitutional claims on behalf of DACA recipients. See Kowalski v. Tesmer, 543 U.S. 125, 134 (2004).
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CONCLUSION For the foregoing reasons, the district court’s preliminary injunction should be vacated and its order denying in part the government’s motion to dismiss should be reversed.
Respectfully submitted, CHAD A. READLER.
Acting Assistant Attorney General ALEX G. TSE
Acting United States Attorney HASHIM M. MOOPPAN
Deputy Assistant Attorney General
S/MARK B. STER.N ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000
February 2018
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STATEMENT OF RELATED CASES A petition for writ of certiorari before judgment is currently pending in the Supreme Court. See Department of Homeland Security v. Regents of the University of California, Case No. 17-1003. Counsel for appellants are not aware of any related cases, not consolidated here, pending in this Court as defined in Ninth Circuit Rule 28-2.6.

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CER.TIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 13,975 words. This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14point font, a proportionally spaced typeface.
s/ Mark B. Stern MARK B. STERN

Case: 18-15068, 02/13/2018, ID: 10762501, DktEntry: 31, Page 69 of 87
CER.TIFICATE OF SER.VICE I hereby certify that on February 13, 2018, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/Mark B. Stern MARK B. STERN

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ADDENDUM

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

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5 U.S.C. § 701 (a) This chapter applies, according to the provisions thereof, except to the extent that-(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. (b) For the purpose of this chapter-(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include-(A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia; (E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them; (F) courts martial and military commissions; (G) military authority exercised in the field in time of war or in occupied territory; or (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; subchapter II of chapter 471 of title 49; or sections 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix;1 and (2) “person”, “rule”, “order”, “license”, “sanction”, “relief”, and “agency action” have the meanings given them by section 551 of this title.
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6 U.S.C. § 202 The Secretary shall be responsible for the following: (1) Preventing the entry of terrorists and the instruments of terrorism into the United States. (2) Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States, including managing and coordinating those functions transferred to the Department at ports of entry. (3) Carrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the date on which the transfer of functions specified under section 251 of this title takes effect. (4) Establishing and administering rules, in accordance with section 236 of this title, governing the granting of visas or other forms of permission, including parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States. (5) Establishing national immigration enforcement policies and priorities. (6) Except as provided in part C of this subchapter, administering the customs laws of the United States. (7) Conducting the inspection and related administrative functions of the Department of Agriculture transferred to the Secretary of Homeland Security under section 231 of this title. (8) In carrying out the foregoing responsibilities, ensuring the speedy, orderly, and efficient flow of lawful traffic and commerce.
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8 U.S.C. § 1252
(a) Applicable provisions (1) General orders of removal Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed only by chapter 158 of Title 28, except as provided in subsection (b) and except that the court may not order the taking of additional evidence under section 2347(c) of such title. (2) Matters not subject to judicial review (A) Review relating to section 1225(b)(1) Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review-(i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) of this title, (ii) except as provided in subsection (e), a decision by the Attorney General to invoke the provisions of such section, (iii) the application of such section to individual aliens, including the determination made under section 1225(b)(1)(B) of this title, or (iv) except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of this title. (B) Denials of discretionary relief Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
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(C) Orders against criminal aliens Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title. (D) Judicial review of certain legal claims Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. (3) Treatment of certain decisions No alien shall have a right to appeal from a decision of an immigration judge which is based solely on a certification described in section 1229a(c)(1)(B) of this title. (4) Claims under the United Nations Convention Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, except as provided in subsection (e). (5) Exclusive means of review Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e). For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms “judicial review” and “jurisdiction to review” include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory).
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(b) Requirements for review of orders of removal With respect to review of an order of removal under subsection (a)(1), the following requirements apply: (1) Deadline The petition for review must be filed not later than 30 days after the date of the final order of removal. (2) Venue and forms The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. The record and briefs do not have to be printed. The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs. (3) Service (A) In general The respondent is the Attorney General. The petition shall be served on the Attorney General and on the officer or employee of the Service in charge of the Service district in which the final order of removal under section 1229a of this title was entered. (B) Stay of order Service of the petition on the officer or employee does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise. (C) Alien's brief The alien shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available, and may serve and file a reply brief not later than 14 days after service of the brief of the Attorney General, and the court may not extend these deadlines except upon motion for good cause shown. If an alien fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result. (4) Scope and standard for review Except as provided in paragraph (5)(B)-(A) the court of appeals shall decide the petition only on the administrative record on which the order of removal is based, (B) the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary, (C) a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law, and
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(D) the Attorney General's discretionary judgment whether to grant relief under section 1158(a) of this title shall be conclusive unless manifestly contrary to the law and an abuse of discretion.
No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 1158(b)(1)(B), 1229a(c)(4)(B), or 1231(b)(3)(C) of this title, unless the court finds, pursuant to subsection (b)(4)(B), that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable. (5) Treatment of nationality claims (A) Court determination if no issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim. (B) Transfer if issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of Title 28. (C) Limitation on determination The petitioner may have such nationality claim decided only as provided in this paragraph. (6) Consolidation with review of motions to reopen or reconsider When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order. (7) Challenge to validity of orders in certain criminal proceedings (A) In general If the validity of an order of removal has not been judicially decided, a defendant in a criminal proceeding charged with violating section 1253(a) of this title may challenge the validity of the order in the criminal proceeding only by filing a separate motion before trial. The district court, without a jury, shall decide the motion before trial.
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(B) Claims of United States nationality If the defendant claims in the motion to be a national of the United States and the district court finds that-(i) no genuine issue of material fact about the defendant's nationality is presented, the court shall decide the motion only on the administrative record on which the removal order is based and the administrative findings of fact are conclusive if supported by reasonable, substantial, and probative evidence on the record considered as a whole; or (ii) a genuine issue of material fact about the defendant's nationality is presented, the court shall hold a new hearing on the nationality claim and decide that claim as if an action had been brought under section 2201 of Title 28.
The defendant may have such nationality claim decided only as provided in this subparagraph. (C) Consequence of invalidation If the district court rules that the removal order is invalid, the court shall dismiss the indictment for violation of section 1253(a) of this title. The United States Government may appeal the dismissal to the court of appeals for the appropriate circuit within 30 days after the date of the dismissal. (D) Limitation on filing petitions for review The defendant in a criminal proceeding under section 1253(a) of this title may not file a petition for review under subsection (a) during the criminal proceeding. (8) Construction This subsection-(A) does not prevent the Attorney General, after a final order of removal has been issued, from detaining the alien under section 1231(a) of this title; (B) does not relieve the alien from complying with section 1231(a)(4) of this title and section 1253(g)1 of this title; and (C) does not require the Attorney General to defer removal of the alien. (9) Consolidation of questions for judicial review Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361
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or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. (c) Requirements for petition A petition for review or for habeas corpus of an order of removal-(1) shall attach a copy of such order, and (2) shall state whether a court has upheld the validity of the order, and, if so, shall state the name of the court, the date of the court's ruling, and the kind of proceeding. (d) Review of final orders A court may review a final order of removal only if-(1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order. (e) Judicial review of orders under section 1225(b)(1) (1) Limitations on relief Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may-(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection, or (B) certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized under a subsequent paragraph of this subsection. (2) Habeas corpus proceedings Judicial review of any determination made under section 1225(b)(1) of this title is available in habeas corpus proceedings, but shall be limited to determinations of-(A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title, such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 1225(b)(1)(C) of this title.
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(3) Challenges on validity of the system (A) In general Judicial review of determinations under section 1225(b) of this title and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of-(i) whether such section, or any regulation issued to implement such section, is constitutional; or (ii) whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law. (B) Deadlines for bringing actions Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of subparagraph (A) is first implemented. (C) Notice of appeal A notice of appeal of an order issued by the District Court under this paragraph may be filed not later than 30 days after the date of issuance of such order. (D) Expeditious consideration of cases It shall be the duty of the District Court, the Court of Appeals, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any case considered under this paragraph. (4) Decision In any case where the court determines that the petitioner-(A) is an alien who was not ordered removed under section 1225(b)(1) of this title, or (B) has demonstrated by a preponderance of the evidence that the alien is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title, the court may order no remedy or relief other than to require that the petitioner be provided a hearing in accordance with section 1229a of this title. Any alien who is provided a hearing under section 1229a of this title pursuant to this paragraph may thereafter obtain judicial review of any resulting final order of removal pursuant to subsection (a)(1). (5) Scope of inquiry In determining whether an alien has been ordered removed under section 1225(b)(1) of this title, the court's inquiry shall be limited to whether such an order in fact was
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issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal. (f) Limit on injunctive relief (1) In general Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. (2) Particular cases Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law. (g) Exclusive jurisdiction Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
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8 C.F.R. § 274a.12
(c) Aliens who must apply for employment authorization. An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. USCIS, in its discretion, may establish a specific validity period for an employment authorization document, which may include any period when an administrative appeal or judicial review of an application or petition is pending. (1) An alien spouse or unmarried dependent child; son or daughter of a foreign government official (A–1 or A–2) pursuant to 8 CFR 214.2(a)(2) and who presents an endorsement from an authorized representative of the Department of State; (2) An alien spouse or unmarried dependent son or daughter of an alien employee of the Coordination Council for North American Affairs (E–1) pursuant to § 214.2(e) of this chapter; (3) A nonimmigrant (F–1) student who: (i)(A) Is seeking pre-completion practical training pursuant to 8 CFR 214.2(f)(10)(ii)(A)(1) and (2); (B) Is seeking authorization to engage in up to 12 months of post-completion Optional Practical Training (OPT) pursuant to 8 CFR 214.2(f)(10)(ii)(A)(3); or (C) Is seeking a 24–month OPT extension pursuant to 8 CFR 214.2(f)(10)(ii)(C); (ii) Has been offered employment under the sponsorship of an international organization within the meaning of the International Organization Immunities Act (59 Stat. 669) and who presents a written certification from the international organization that the proposed employment is within the scope of the organization's sponsorship. The F–1 student must also present a Form I–20 ID or SEVIS Form I– 20 with employment page completed by DSO certifying eligibility for employment; or (iii) Is seeking employment because of severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has filed the Form I–20 ID and Form I–538 (for non–SEVIS schools), or SEVIS Form I–20 with employment page completed by the DSO certifying eligibility, and any other supporting materials such as affidavits which further detail the unforeseen economic circumstances that require the student to seek employment authorization. (4) An alien spouse or unmarried dependent child; son or daughter of a foreign government official (G–1, G–3 or G–4) pursuant to 8 CFR 214.2(g) and who presents an endorsement from an authorized representative of the Department of State;
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(5) An alien spouse or minor child of an exchange visitor (J–2) pursuant to § 214.2(j) of this chapter; (6) A nonimmigrant (M–1) student seeking employment for practical training pursuant to 8 CFR 214.2(m) following completion of studies. The alien may be employed only in an occupation or vocation directly related to his or her course of study as recommended by the endorsement of the designated school official on the I– 20 ID; (7) A dependent of an alien classified as NATO–1 through NATO–7 pursuant to § 214.2(n) of this chapter; (8) An alien who has filed a complete application for asylum or withholding of deportation or removal pursuant to 8 CFR part 208, whose application: (i) Has not been decided, and who is eligible to apply for employment authorization under § 208.7 of this chapter because the 150-day period set forth in that section has expired. Employment authorization may be granted according to the provisions of § 208.7 of this chapter in increments to be determined by the Commissioner and shall expire on a specified date; or (ii) Has been recommended for approval, but who has not yet received a grant of asylum or withholding or deportation or removal; (9) An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I–485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application. Upon meeting these conditions, the adjustment applicant need not file an application for employment authorization to continue employment during the period described in the preceding sentence; (10) An alien who has filed an application for suspension of deportation under section 244 of the Act (as it existed prior to April 1, 1997), cancellation of removal pursuant to section 240A of the Act, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Pub.L. 104–208 (110 Stat. 3009–625) (as amended by the Nicaraguan Adjustment and Central American Relief Act (NACARA)), title II of Pub.L. 105–100
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(111 Stat. 2160, 2193) and whose properly filed application has been accepted by the Service or EOIR; <Text of subsection (c)(11) effective until March 14, 2018.> (11) An alien paroled into the United States temporarily for emergency reasons or reasons deemed strictly in the public interest pursuant to § 212.5 of this chapter; <Text of subsection (c)(11) effective March 14, 2018.> (11) Except as provided in paragraphs (b)(37) and (c)(34) of this section and § 212.19(h)(4) of this chapter, an alien paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit pursuant to section 212(d)(5) of the Act. (12) An alien spouse of a long-term investor in the Commonwealth of the Northern Mariana Islands (E–2 CNMI Investor) other than an E–2 CNMI investor who obtained such status based upon a Foreign Retiree Investment Certificate, pursuant to 8 CFR 214.2(e)(23). An alien spouse of an E–2 CNMI Investor is eligible for employment in the CNMI only; (13) [Reserved] (14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment; (15) [Reserved] (16) Any alien who has filed an application for creation of record of lawful admission for permanent residence pursuant to part 249 of this chapter; (17) A nonimmigrant visitor for business (B–1) who: (i) Is a personal or domestic servant who is accompanying or following to join an employer who seeks admission into, or is already in, the United States as a nonimmigrant defined under sections 101(a)(15)(B), (E), (F), (H), (I), (J), (L) or section 214(e) of the Act. The personal or domestic servant shall have a residence abroad which he or she has no intention of abandoning and shall demonstrate at least one year's experience as a personal or domestic servant. The nonimmigrant's employer shall demonstrate that the employer/employee relationship has existed for at least one year prior to the employer's admission to the United States; or, if the employer/employee relationship existed for less than one year, that the employer has regularly employed (either year-round or seasonally) personal or domestic servants over a period of several years preceding the employer's admission to the United States;
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(ii) Is a domestic servant of a United States citizen accompanying or following to join his or her United States citizen employer who has a permanent home or is stationed in a foreign country, and who is visiting temporarily in the United States. The employer/employee relationship shall have existed prior to the commencement of the employer's visit to the United States; or (iii) Is an employee of a foreign airline engaged in international transportation of passengers freight, whose position with the foreign airline would otherwise entitle the employee to classification under section 101(a)(15)(E)(i) of the Immigration and Nationality Act, and who is precluded from such classification solely because the employee is not a national of the country of the airline's nationality or because there is no treaty of commerce and navigation in effect between the United States and the country of the airline's nationality. (18) An alien against whom a final order of deportation or removal exists and who is released on an order of supervision under the authority contained in section 241(a)(3) of the Act may be granted employment authorization in the discretion of the district director only if the alien cannot be removed due to the refusal of all countries designated by the alien or under section 241 of the Act to receive the alien, or because the removal of the alien is otherwise impracticable or contrary to the public interest. Additional factors which may be considered by the district director in adjudicating the application for employment authorization include, but are not limited to, the following: (i) The existence of economic necessity to be employed; (ii) The existence of a dependent spouse and/or children in the United States who rely on the alien for support; and (iii) The anticipated length of time before the alien can be removed from the United States. (19) An alien applying for Temporary Protected Status pursuant to section 244 of the Act shall apply for employment authorization only in accordance with the procedures set forth in part 244 of this chapter. (20) Any alien who has filed a completed legalization application pursuant to section 210 of the Act (and part 210 of this chapter). (21) A principal nonimmigrant witness or informant in S classification, and qualified dependent family members. (22) Any alien who has filed a completed legalization application pursuant to section 245A of the Act (and part 245a of this chapter). Employment authorization shall be granted in increments not exceeding 1 year during the period the application is
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pending (including any period when an administrative appeal is pending) and shall expire on a specified date. (23) [Reserved by 76 FR 53796] (24) An alien who has filed an application for adjustment pursuant to section 1104 of the LIFE Act, Public Law 106–553, and the provisions of 8 CFR part 245a, Subpart B of this chapter. (25) Any alien in T–2, T–3, T–4, T–5, or T–6 nonimmigrant status, pursuant to 8 CFR 214.11, for the period in that status, as evidenced by an employment authorization document issued by USCIS to the alien. (26) An H–4 nonimmigrant spouse of an H–1B nonimmigrant described as eligible for employment authorization in 8 CFR 214.2(h)(9)(iv). (27) to (33) [Reserved] <Text of subsection (c)(34) added by 82 FR 5289, effective March 14, 2018, as amended by 82 FR 31887.> (34) A spouse of an entrepreneur parolee described as eligible for employment authorization in § 212.19(h)(3) of this chapter. (35) An alien who is the principal beneficiary of a valid immigrant petition under section 203(b)(1), 203(b)(2) or 203(b)(3) of the Act described as eligible for employment authorization in 8 CFR 204.5(p). (36) A spouse or child of a principal beneficiary of a valid immigrant petition under section 203(b)(1), 203(b)(2) or 203(b)(3) of the Act described as eligible for employment authorization in 8 CFR 204.5(p).
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 Case: 18-15068, 03/13/2018, ID: 10797115, DktEntry: 43, Page 1 of 86

Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees-Cross-Appellants,

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellants-Cross-Appellees.
____________________

On Cross-Appeal from the United States District Court
for the Northern District of California
____________________

PRINCIPAL AND RESPONSE BRIEF OF THE STATES OF CALIFORNIA, MAINE, MARYLAND, AND MINNESOTA
____________________

JANET T. MILLS Attorney General of Maine Susan P. Herman Deputy Attorney General Attorneys for the State of Maine
BRIAN E. FROSH Attorney General of Maryland Steven M. Sullivan Solicitor General Attorneys for the State of Maryland
LORI SWANSON Attorney General of Minnesota Jacob Campion Assistant Attorney General Attorneys for the State of Minnesota
March 13, 2018

XAVIER BECERRA Attorney General of California Edward C. DuMont Solicitor General Michael J. Mongan Deputy Solicitor General Michael L. Newman Supervising Deputy Attorney General James F. Zahradka II Deputy Attorney General Samuel P. Siegel Associate Deputy Solicitor General CALIFORNIA DEPARTMENT OF JUSTICE 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102-3660 (415) 510-3920 michael.mongan@doj.ca.gov Attorneys for the State of California

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TABLE OF CONTENTS
Page
Introduction.................................................................................................... 1 Statement of jurisdiction ................................................................................ 3 Statement of the issues................................................................................... 3 Statement of the case ..................................................................................... 4
A. Deferred action .......................................................................... 4 B. The Deferred Action for Childhood Arrivals (DACA)
program ..................................................................................... 6 C. Defendants’ termination of DACA ........................................... 9 D. Procedural background............................................................ 10 Summary of argument ................................................................................. 14 Standard of review ....................................................................................... 17 Argument ..................................................................................................... 17 I. The decision to rescind DACA is subject to judicial review ............ 17 A. The decision is not “committed to agency discretion
by law” .................................................................................... 17 B. Section 1252(g) does not deprive this Court of
jurisdiction to review defendants’ termination of DACA ...... 27 C. The States have established standing ...................................... 32 II. The district court properly entered a preliminary injunction ............ 35 A. Plaintiffs are likely to establish that the decision to
rescind DACA was arbitrary, capricious, or contrary to law ....................................................................................... 36 1. The APA required defendants to provide a
reasoned explanation for their decision ........................ 36 2. The stated basis for defendants’ decision
does not satisfy the APA............................................... 38
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TABLE OF CONTENTS (continued)

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a. The rescission of DACA involved a marked change in the position of the Executive Branch................................................ 39
b. Defendants did not adequately explain their change in position............................................... 42
c. The decision is also based on a flawed legal premise................................................................ 49
d. Defendants failed to address the substantial reliance interests engendered by DACA ............ 51
3. Defendants’ alternative “litigation risk” rationale cannot sustain their decision ......................................... 53
B. The equities and the public interest favor the entry of a preliminary injunction ............................................................. 56
III. Plaintiffs stated a due process claim regarding the use of information provided by DACA recipients ....................................... 62
IV. Plaintiffs stated a claim that defendants violated the APA’s notice-and-comment requirement...................................................... 66
Conclusion ................................................................................................... 70
Statement of related cases............................................................................ 71
Certificate of compliance............................................................................. 72

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TABLE OF AUTHORITIES
Page
CASES Abdelhamid v. Ilchert
774 F.2d 1447 (9th Cir. 1985) ................................................................. 20
Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle 829 F.2d 933 (9th Cir. 1987) ................................................................... 24
All. for the Wild Rockies v. Cottrell 632 F.3d 1127 (9th Cir. 2011) ........................................................... 35, 59
American Textile Mfrs. Inst. v. Donovan 452 U.S. 490 (1981)................................................................................. 48
ANA Int’l, Inc. v. Way 393 F.3d 886 (9th Cir. 2004) ................................................................... 28
Anderson v. Suburban Teamsters of N. Ill. Pension Fund Bd. of Trs. 588 F.3d 641 (9th Cir. 2009) ................................................................... 57
Ariz. Dream Act Coal. v. Brewer 855 F.3d 957 (9th Cir. 2016) ............................................................ passim
Arpaio v. Obama 797 F.3d 11 (D.C. Cir. 2015)............................................................. 40, 41
Assiniboine & Sioux Tribes v. Bd. of Oil & Gas Conservation 792 F.2d 782 (9th Cir. 1986) ................................................................... 20
Batalla Vidal v. Duke ___ F. Supp. 3d ___, 2017 WL 5201116 (E.D.N.Y. Nov. 9, 2017).............................................................. 21, 28, 29
Batalla Vidal v. Nielsen 279 F. Supp. 3d 401 (E.D.N.Y. 2018) .............................................. passim
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TABLE OF AUTHORITIES (continued)

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Botezatu v. INS 195 F.3d 311 (7th Cir. 1999) ................................................................... 31
Bresgal v. Brock 843 F.2d 1163 (9th Cir. 1987) ........................................................... 61, 62
Califano v. Yamasaki 442 U.S. 682 (1979)........................................................................... 59, 60
Casa de Md. v. DHS ___ F. Supp. 3d ____, 2018 WL 1156769 (D. Md. Mar. 5, 2018) ........................................................... 21, 28, 49, 64
Citizens to Preserve Overton Park. Inc. v. Volpe 401 U.S. 402 (1971)........................................................................... 18, 37
Consumer Energy Council of Am. v. FERC 673 F.2d 425 (D.C. Cir. 1982)........................................................... 68, 69
Cosmetic Ideas, Inc. v. IAC/Interactivecorp. 606 F.3d 612 (9th Cir. 2010) ................................................................... 29
Crane v. Johnson 783 F.3d 244 (5th Cir. 2015) ................................................................... 47
Crowley Caribbean Transp., Inc. v. Peña 37 F.3d 671 (D.C. Cir. 1994)............................................................. 24, 26
Dep’t of Transp. v. Ass’n of Am. Railroads 135 S. Ct. 1225 (2015)............................................................................. 37
DHS v. Regents of the Univ. of Cal. ___ S. Ct. ____, 2018 WL 1037642 (2018) ............................................ 14
Encino Motorcars LLC v. Navarro 136 S. Ct. 2117 (2016)....................................................................... 51, 52

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TABLE OF AUTHORITIES (continued)

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FCC v. Fox Television Stations, Inc. 556 U.S. 502 (2009)..................................................................... 36, 51, 52
Franklin v. Massachusetts 505 U.S. 788 (1992)................................................................................. 37
Gerhart v. Lake Cty. 637 F.3d 1013 (9th Cir. 2011) ................................................................. 64
Hawaii v. Trump 878 F.3d 662 (9th Cir. 2017) ............................................................. 35, 60
Heckler v. Chaney 470 U.S. 821 (1985).......................................................................... passim
Hernandez v. Sessions 872 F.3d 976 (9th Cir. 2017) ................................................................... 17
ICC v. Bhd. of Locomotive Eng’rs. 482 U.S. 270 (1987)............................................................... 19, 21, 25, 26
In re GGM, P.C. 165 F.3d 1026 (5th Cir. 1999) ................................................................. 63
In re United States 138 S. Ct. 443 (2017)............................................................................... 10
In re United States 875 F.3d 1200 (9th Cir. 2017) ................................................................. 10
In re United States 877 F.3d 1080 (9th Cir. 2017) ................................................................. 10
INS v. St. Cyr 533 U.S. 289 (2001)................................................................................. 18

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TABLE OF AUTHORITIES (continued)

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Int’l Bhd. of Elec. Workers, Local Union No. 474 v. NLRB 814 F.2d 697 (D.C. Cir. 1987)........................................................... 49, 50
Lincoln v. Vigil 508 U.S. 182 (1993)......................................................... 17, 18, 19, 21, 44
Linda R.S. v. Richard D. 410 U.S. 614 (1973)........................................................................... 33, 34
Los Angeles Haven Hospice, Inc. v. Sebelius 638 F.3d 644 (9th Cir. 2011) ................................................................... 61
M.R. v. Dreyfus 697 F.3d 706 (9th Cir. 2012) ................................................................... 59
Mada-Luna v. Fitzpatrick 813 F.2d 1006 (9th Cir. 1987) .......................................................... passim
Marsh v. Cty. of San Diego 680 F.3d 1148 (9th Cir. 2012) ........................................................... 16, 65
Massachusetts v. EPA 549 U.S. 497 (2007)................................................................................. 50
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak 567 U.S. 209 (2012)................................................................................. 34
McFarlin v. Conseco Servs., LLC 381 F.3d 1251 (11th Cir. 2004) ............................................................... 63
Meinhold v. U.S. Dep’t of Def. 34 F.3d 1469 (9th Cir. 1994) ................................................................... 61
Mont. Air Chapter No. 29 v. Fed. Labor Relations Auth. 898 F.2d 753 (9th Cir. 1990) ............................................................. 19, 27

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TABLE OF AUTHORITIES (continued)

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Morales de Soto v. Lynch 824 F.3d 822 (9th Cir. 2016) ................................................................... 22
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. 463 U.S. 29 (1983)............................................................................. 36, 37
Municipality of Anchorage v. United States 980 F.2d 1320 (9th Cir. 1992) ................................................................. 67
Nat’l Treasury Emps. Union v. Horner 854 F.2d 490 (D.C. Cir. 1988)................................................................. 22
Neil v. Biggers 409 U.S. 188 (1972)................................................................................. 45
New York v. United States 505 U.S. 144 (1992)................................................................................. 38
Newman v. Apfel 223 F.3d 937 (9th Cir. 2000) ................................................................... 37
Noel v. Chapman 508 F.2d 1023 (2d Cir. 1975) .................................................................. 21
Organized Vill. of Kake v. USDA 795 F.3d 956 (9th Cir. 2015) ............................................................. 37, 54
Padilla v. Kentucky 559 U.S. 356 (2010)................................................................................. 65
Perry v. Sindermann 408 U.S. 593 (1972)........................................................................... 64, 65
Pinnacle Armor, Inc. v. United States 648 F.3d 708 (9th Cir. 2011) ................................................................... 18

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TABLE OF AUTHORITIES (continued)

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Pit River Tribe v. U.S. Forest Serv. 615 F.3d 1069 (9th Cir. 2010) ................................................................. 41
Price v. City of Stockton 390 F.3d 1105 (9th Cir. 2004) ................................................................. 62
Public Citizen, Inc. v. USNRC 940 F.2d 679 (D.C. Cir. 1991)................................................................. 67
Reno v. Am.-Arab Anti-Discrimination Comm. 525 U.S. 471 (1999).......................................................................... passim
Robbins v. Reagan 780 F.2d 37 (D.C. Cir. 1985)................................................. 18, 19, 22, 23
Safe Air for Everyone v. EPA 488 F.3d 1088 (9th Cir. 2007) ................................................................. 50
SEC v. Chenery Corp. 318 U.S. 80 (1943)............................................................................. 38, 50
SEC v. Colello 139 F.3d 674 (9th Cir. 1998) ................................................................... 17
Sierra Club v. Whitman 268 F.3d 898 (9th Cir. 2001) ................................................................... 20
Starr v. Baca 652 F.3d 1202 (9th Cir. 2011) ................................................................. 63
Summers v. Earth Island Inst. 555 U.S. 488 (2009)................................................................................. 59
Texas v. United States 809 F.3d 134 (5th Cir. 2015) ............................................................ passim

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TABLE OF AUTHORITIES (continued)

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Texas v. United States 86 F. Supp. 3d 591 (S.D. Tex. 2015)................................................... 8, 45
Traynor v. Turnage 485 U.S. 535 (1988)................................................................................. 17
Trump v. Int’l Refugee Assistance Project 137 S. Ct. 2080 (2017)........................................................... 35, 45, 55, 60
United States v. Texas 136 S. Ct. 2271 (2016)................................................................... 8, 45, 47
Vasquez v. Aviles 639 F. App’x 898 (3d Cir. 2016) ............................................................. 31
Washington v. Trump 847 F.3d 1151 (9th Cir. 2017) ..................................................... 33, 60, 61
Williams Gas Processing-Gulf Coast Co., L.P. v. FERC 475 F.3d 319 (D.C. Cir. 2006)..................................................... 41, 42, 49
Winter v. Nat’l Res. Def. Council, Inc. 555 U.S. 7 (2008)..................................................................................... 35
Wong v. United States 373 F.3d 952 (9th Cir. 2004) ............................................................. 29, 30
Zepeda v. INS 753 F.2d 719 (9th Cir. 1983) ................................................................... 62

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TABLE OF AUTHORITIES (continued)

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STATUTES
5 U.S.C. § 553 .............................................................................................. 3, 17, 69 § 553(b)(3)(A) ................................................................................... 44, 66 § 701(a)(2) ........................................................................................ passim § 702 ........................................................................................................ 18 § 706(2)(A) .............................................................................. 3, 15, 36, 49 § 706(2)(D) .............................................................................................. 66
6 U.S.C. § 202(5).......................................................................................... 4, 40, 43
8 U.S.C. § 1103(a) .................................................................................................. 40 § 1103(a)(1) ......................................................................................... 4, 43 § 1103(a)(3) ............................................................................................... 4 § 1154(a)(1)(D)(i)(II)................................................................................. 5 § 1227(d)(2) ............................................................................................... 5 § 1229a(e) .................................................................................................. 5 § 1252 ...................................................................................................... 31 § 1252(a)(2)(B) ........................................................................................ 31 § 1252(b)(9) ....................................................................................... 31, 32 § 1252(g)........................................................................................... passim § 1324a(a) ................................................................................................ 34 § 1324a(h)(3) ........................................................................................... 34
28 U.S.C. § 1292(a)(1) ............................................................................................... 3 § 1292(b)........................................................................................ 3, 14, 63
49 U.S.C. § 30301 note .............................................................................................. 5
USA PATRIOT Act, Pub. L. No. 107-56, § 423(b)(1), 115 Stat. 272, 361 ..................................................................................................... 5

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TABLE OF AUTHORITIES (continued)

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REGULATIONS
8 C.F.R. § 214.14(d)(3) ............................................................................................ 5 § 274a.12(c)(14) .............................................................................. 4, 5, 34
28 C.F.R. § 1100.35(b)(2) .......................................................................................... 5
COURT RULES
Federal Rules of Appellate Procedure Rule 5(b)(1) ............................................................................................. 63
Federal Rules of Civil Procedure Rule 60(b) ................................................................................................ 26
OTHER AUTHORITIES
6 Gordon et al., Immigration Law and Procedure § 72.03[2][h] (1998) .............................................................................. 4, 5
CBS News, Transcript of AP Interview with Trump, Apr. 24, 2017, https://www.cbsnews.com/news/transcript-of-apinterview-with-trump/................................................................................ 8
Nakamura et al., Justices Decline to Hear Case on DACA, Wash. Post, Feb. 27, 2018, at A1 ............................................................ 39
USCIS, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012-2017 (September 30), https://go.usa.gov/xnSGf .............................................. 53

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TABLE OF AUTHORITIES (continued)

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USCIS, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status 2012-2016 (September 30), https://go.usa.gov/xnSGG............................................. 53
USCIS, Guidance on Rejected DACA Requests, https://go.usa.gov/xnSFj .......................................................................... 66

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INTRODUCTION The Deferred Action for Childhood Arrivals (DACA) program has been in place for more than five years. Similar to other programs adopted by presidential administrations of both parties over the past six decades, it provides a channel and framework for individualized deferred action decisions for a defined category of potential applicants. Under DACA, nearly three-quarters of a million young people—who came to this Nation as children and have abided by its laws—have received individual grants of provisional protection from removal as well as work authorization and other benefits. Until recently, the United States had consistently defended the legality of this program. No court has ever held it unlawful. In September 2017, the federal defendants in this case issued a memorandum abruptly rescinding DACA. They offered a one-sentence explanation, asserting that DACA was so clearly unlawful that they had no choice but to terminate it. They failed to acknowledge that this assertion was a marked departure from the prior positions of the agency and the United States; to address any of the considerations that the agency had previously invoked in defending the legality of the program; or to discuss the reliance interests that had developed around the program since 2012. Instead they sought to shift responsibility for their action to the courts, arguing that prior, inconclusive litigation about a different program made it “clear” that DACA had to end. ER 130.
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The district court acted within its discretion in granting a preliminary injunction preventing full implementation of defendants’ decision while it is tested in the courts. To ensure public accountability and facilitate judicial review, the Administrative Procedure Act requires agencies to give reasoned explanations for their actions—and, in particular, to acknowledge when they are changing a longstanding position and explain why. The unelaborated and incorrect legal conclusion defendants chose to offer as their sole reason for terminating DACA does not satisfy these requirements, and plaintiffs are therefore likely to succeed on their claim that this decision violated the APA. Defendants do not (and could not) dispute the district court’s finding that the equities tilt sharply in favor of provisional relief. The injunction is carefully tailored to partially preserve the status quo. It allows individuals who already received grants of deferred action under DACA to apply for renewal, while permitting defendants to continue to exercise their enforcement discretion on a case-by-case basis. And given the nationwide scope of the DACA program, and the general need for uniformity in matters related to immigration policy, it was proper for the court to order nationwide relief.
In addition, the district court correctly held that plaintiffs’ claims were reviewable, and that plaintiffs had stated a claim that defendants violated due process by changing the policy governing their use of the sensitive information
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provided by DACA recipients. But the district court erred in dismissing plaintiffs’ claim alleging that, under the circumstances, the decision to end DACA should have been made through a notice-and-comment rulemaking process.
STATEMENT OF JURISDICTION The States agree with defendants that this Court has jurisdiction over defendants’ appeals of the preliminary injunction under 28 U.S.C. § 1292(a)(1), and that it has jurisdiction over the appeals of the issues certified by the district court under 28 U.S.C. § 1292(b).
STATEMENT OF THE ISSUES 1. Whether review of plaintiffs’ claims is barred by 5 U.S.C. § 701(a)(2) or 8 U.S.C. § 1252(g). 2. Whether the district court abused its discretion by entering a preliminary injunction partially preserving the status quo based on its conclusion that plaintiffs are likely to succeed on their claim that the termination of DACA was arbitrary, capricious, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(A). 3. Whether plaintiffs stated a claim that changes to the federal government’s policies regarding the use of information provided by DACA recipients violate due process. 4. Whether plaintiffs stated a claim that the rescission of DACA should have been accomplished through notice-and-comment rulemaking under 5 U.S.C. § 553.
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STATEMENT OF THE CASE A. Deferred Action Congress has charged the Secretary of the Department of Homeland Security (DHS) with “establishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). It has authorized her to administer and enforce all laws relating to immigration and naturalization, 8 U.S.C. § 1103(a)(1), and to “establish such regulations; . . . issue such instructions; and perform such other acts as [she] deems necessary for carrying out [her] authority,” id. § 1103(a)(3). “As part of this authority, it is well settled that the Secretary can exercise deferred action.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 967 (9th Cir. 2016) (Brewer), petition for cert. filed (U.S. Mar. 29, 2017) (No. 16-1180). Deferred action involves a provisional decision by the Executive Branch that “no action will thereafter be taken to proceed against an apparently deportable alien.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999) (AADC) (quoting 6 Gordon et al., Immigration Law and Procedure § 72.03[2][h] (1998)). The Secretary may grant deferred action “for humanitarian reasons or simply for [her] own convenience.” Id. It is “an act of administrative convenience to the government which gives some cases lower priority.” 8 C.F.R. § 274a.12(c)(14).
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Although this “commendable” practice initially “developed without express statutory authorization,” AADC, 525 U.S. at 484 (quoting 6 Gordon et al., supra, at § 72.03[2][h]), it has since been recognized by Congress and by federal regulations. The Immigration and Nationality Act (INA) “expressly provides for deferred action as a form of relief that can be granted at the Executive’s discretion.” Brewer, 855 F.3d at 967 (discussing 8 U.S.C. §§ 1154(a)(1)(D)(i)(II), 1227(d)(2), 1229a(e)); see also 49 U.S.C. § 30301 note; USA PATRIOT Act, Pub. L. No. 107-56, § 423(b)(1), 115 Stat. 272, 361. Federal regulations allow recipients of deferred action to apply for work authorization and receive other benefits. See 8 C.F.R. § 274a.12(c)(14) (work authorization); id. § 214.14(d)(3) (no accrual of “unlawful presence” for purposes of re-entry bars); 28 C.F.R. § 1100.35(b)(2) (similar). The courts, too, have recognized that deferred action is a “regular practice.” AADC, 525 U.S. at 484.
Consistent with this “well settled” practice, the Executive has periodically granted deferred action on a programmatic basis “to different groups of noncitizens present in the United States.” Brewer, 855 F.3d at 967, 968 n.2. The Administrations of Presidents Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, George H.W. Bush, Clinton, George W. Bush, and Obama all granted deferred action or similar forms of discretionary relief to large groups of
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individuals in defined categories. See generally id. at 968 n.2; SER 265-266. Collectively, millions of people have received relief.
B. The Deferred Action for Childhood Arrivals (DACA) Program Created in 2012, DACA provides a framework for making individualized deferred action decisions for “certain young people who were brought to this country as children and know only this country as home.” ER 141. The memorandum creating DACA directed that, to be eligible for deferred action under this program, an individual must have come to the United States under the age of 16; must have continuously resided here between 2007 and 2012; must be under the age of 30; must meet certain education or military service requirements; and must not have been convicted of a felony, a significant misdemeanor, or multiple misdemeanors, or otherwise pose a threat to national security or public safety. Id. It emphasized that requests for deferred action were “to be decided on a case by case basis” as part of the “exercise of prosecutorial discretion.” ER 142. Individuals who are granted deferred action under DACA receive protection from removal for renewable two-year periods. ER 142. They also obtain work authorization, may apply for permission to travel outside the country (known as “advance parole”), and enjoy other associated benefits. ER 8-9. By September 2017, there were nearly 700,000 active DACA recipients nationwide, with an average age of just under 24 years old. ER 9. More than 90 percent of DACA
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recipients are employed, and 45 percent are in school. Id. DACA has allowed these individuals to contribute lawfully to national and local economies, increasing tax revenue by billions of dollars. See SER 359; D.Ct. Dkt. 111 at 14.1
Since DACA’s inception, there has been no successful legal challenge to the program. In the context of several unsuccessful challenges, the federal government defended the legality of the program, including before this Court. See, e.g., Brief for United States at 1, Brewer, 855 F.3d 957 (9th Cir. 2017) (No. 15-15307) (filed Aug. 28, 2015). The Office of Legal Counsel (OLC) at the federal Department of Justice likewise concluded that a general program such as DACA was legally sound so long as immigration officials “retained discretion to evaluate each application on an individualized basis.” SER 243 n.8.
A separate program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), was the subject of litigation that resulted in a preliminary injunction. DAPA was announced in 2014 but never actually implemented. It would have applied to adults who, among other things, had been in the United States since 2010, were the parents of citizens or lawful permanent residents, and otherwise were not enforcement priorities. ER 269-273. A district court granted a preliminary injunction in a suit filed by Texas and other States.
1 Citations to the district court docket are to No. 17-cv-5211. 7

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See Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015). A divided panel of the Fifth Circuit affirmed that preliminary injunction, see Texas v. United States, 809 F.3d 134 (2015), and the Supreme Court affirmed the Fifth Circuit’s judgment by a four-four vote, see United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).
The federal government operated the DACA program throughout the litigation over DAPA and it continued DACA despite the preliminary injunction suspending implementation of DAPA. After the change in federal administrations in January 2017, the Trump Administration kept DACA in place and continued to accept new and renewal applications for deferred action under the program. A February 2017 memorandum from then-DHS Secretary John Kelly rescinded other immigration policies, but expressly left DACA intact. ER 170. Another memorandum from Secretary Kelly in June 2017 rescinded DAPA, but again explicitly did not disturb DACA. D.Ct. Dkt 64-1 at 235-236. Secretary Kelly separately described “DACA status” as a “commitment . . . by the government towards the DACA person.” SER 1334. And President Trump agreed that it would “be the policy of [his] administration to allow the dreamers [i.e., DACA recipients] to stay.” SER 1346; see https://www.cbsnews.com/news/transcript-ofap-interview-with-trump/ (last visited Mar. 10, 2018).
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C. Defendants’ Termination of DACA On June 29, 2017, the Texas Attorney General and others wrote to Attorney General Sessions indicating that if the administration did not “phase out the DACA program” by September 5, Texas would amend its complaint in the DAPA proceedings (which remained pending) to include a challenge to DACA. ER 275. On September 4, Attorney General Sessions sent a one-page letter to the Acting Secretary of DHS, Elaine Duke. ER 176. The letter advised that DHS “should rescind” DACA because it “was an unconstitutional exercise of authority by the Executive Branch” and “has the same legal and constitutional defects that the courts recognized as to DAPA.” Id. The next day, the Attorney General announced the termination of DACA at a press conference. See SER 1354. He reiterated the new legal positions asserted in his letter, and also characterized DACA as “contribut[ing] to a surge of unaccompanied minors on the southern border” and “den[ying] jobs to hundreds of thousands of Americans.” Id. Also on September 5, Acting Secretary Duke issued a memorandum formally rescinding DACA. ER 126-132. The memorandum offered a one-sentence explanation for the decision: “Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing [DAPA] litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated.” ER 130. The Acting Secretary instructed DHS to
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stop accepting new DACA applications and to accept renewal applications only until October 5, and only from individuals whose current deferred-action status would expire on or before March 5, 2018. Id. She also stated that DHS would no longer approve any “applications for advance parole under standards associated with the DACA program[.]” ER 131.
D. Procedural Background On September 11, 2017, the States filed this suit (ER 88), which was later related to four other cases. Collectively, the complaints alleged (among other things) that defendants’ termination of DACA was arbitrary, capricious, or otherwise not in accordance with law, in violation of the APA; that the decision was procedurally deficient because it was not made through a notice-and-comment rulemaking process; and that changes to policies regarding information use violated the Due Process Clause of the Fifth Amendment. See, e.g., ER 119-123. On November 1, defendants moved to dismiss and plaintiffs moved for provisional relief.2
2 During the district court proceedings, defendants sought mandamus relief, in both this Court and the Supreme Court, regarding a district court order requiring them to produce a complete administrative record. This court denied mandamus. See In re United States, 875 F.3d 1200, 1205 (9th Cir. 2017). The Supreme Court declined to rule on defendants’ substantive arguments, but vacated this Court’s judgment with procedural instructions. See In re United States, 138 S. Ct. 443, 445 (2017); see also In re United States, 877 F.3d 1080 (9th Cir. 2017). The district court has complied with those directives, and has stayed defendants’ obligation to complete
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On January 9, the district court largely denied defendants’ Rule 12(b)(1) motion to dismiss on threshold grounds and granted a limited preliminary injunction. ER 48. The court first rejected defendants’ argument that the decision to rescind DACA was “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). It concluded that “there is law to apply” in this case, because the “main, if not exclusive, rationale for ending DACA was its supposed illegality.” ER 21. And it reasoned that the decision had none of the characteristics of unreviewable non-enforcement actions described in Heckler v. Chaney, 470 U.S. 821 (1985). ER 18-21. The court also rejected defendants’ argument that 8 U.S.C. § 1252(g) stripped it of jurisdiction to hear the case, concluding that the decision at issue here was not one of the “three discrete actions” that Section 1252(g) covers. AADC, 525 U.S. at 482; see ER 21-23.
Turning to plaintiffs’ request for provisional relief, the court determined that plaintiffs were likely to succeed on their claim that the decision to rescind DACA was arbitrary, capricious, or not in accordance with law. It first considered defendants’ stated explanation that they rescinded DACA because it was unlawful. ER 29. After reviewing the deep historical and legal pedigree of deferred action
the record until after these appellate proceedings are completed. D.Ct. Dkt. 266 at 12. To date, defendants have not produced any administrative record supporting their decision to terminate DACA other than the 14 publicly available documents they originally proffered in October 2017.
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programs (ER 29-33), the court concluded that plaintiffs were likely to establish “that the rescission was based on a flawed legal premise and must be set aside” (ER 38). Although “the main ground given by the Attorney General for illegality was the Fifth Circuit’s decision in the DAPA litigation” (ER 35), the Fifth Circuit recognized that there were important differences between DAPA and DACA (ER 36), and its decision “was not a death knell for DACA” (ER 37).
Next, the district court addressed the alternative rationale advanced by defendants’ counsel for the decision to rescind DACA: that it was “a reasonable judgment call involving management of litigation risk and agency resources.” ER 38. The court concluded that this was a post hoc rationale (ER 39), and that, in any event, it did not satisfy the APA’s requirement that an agency must give a reasoned explanation for its actions (ER 39-43).
The remaining factors of the preliminary injunction test weighed in favor of provisional relief. ER 43-46. The court found that plaintiffs had “clearly demonstrated that they are likely to suffer serious irreparable harm absent an injunction.” ER 43. Individual plaintiffs would lose their work authorization and suffer other hardships. Id. The States and other entity plaintiffs would “face irreparable harm as they begin to lose valuable students and employees in whom they have invested,” a loss that would “have a detrimental impact on their organization interests, economic output, public health, and safety.” Id. And the
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public interest would be harmed for similar reasons. ER 45-46. Those harms substantially outweighed any hardship asserted by defendants, especially in light of the President’s expressions of support for the policy. Id.
The court therefore entered a preliminary injunction partially preserving the status quo. As to individuals who had already received deferred action, it required petitioners “to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments.” ER 46. It made clear, however, that the government need not process new applications from individuals who have never before received deferred action; that the “advance parole” feature of DACA “need not be continued for the time being for anyone”; and that defendants “may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.” Id. It also emphasized that DHS may “proceed[] to remove any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed.” Id. Defendants announced on January 13 that they would comply with the injunction. See AOB 11 n.2. They have not sought a stay of the injunction in any court.
On January 12, the court granted in part and denied in part defendants’ motion to dismiss under Rule 12(b)(6). ER 62. Among other things, it denied the
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motion with respect to plaintiffs’ substantive APA claim (ER 51) and the claim that changes to information-sharing policies violated due process (ER 55-57), but granted the motion as to the claim that the rescission of DACA should have been accomplished through notice-and-comment rulemaking (ER 51-53).
The district court certified a number of issues for interlocutory appeal under 28 U.S.C. § 1292(b). ER 48-49, 62-63. On January 16, defendants filed a notice of appeal in the district court (ER 357-358), as well as a petition for permission to appeal in this Court regarding certain certified issues. Plaintiffs filed their own petitions for permission to appeal on January 22. None of the petitions was opposed. This Court granted all of the petitions, consolidated those appeals with the pending appeals of the preliminary injunction, expedited the case, and set a consolidated briefing schedule.3
SUMMARY OF ARGUMENT 1. Defendants’ decision to terminate DACA, based on the asserted conclusion that the program is clearly unlawful, is subject to judicial review. It is not “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), both because there are judicially manageable standards to review the assertion that DACA
3 While these appeals were proceeding, defendants returned to the Supreme Court, this time to file a petition for certiorari before judgment. The Supreme Court denied that petition on February 26. DHS v. Regents of the Univ. of Cal., ___ S. Ct. ____, 2018 WL 1037642 (2018).
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exceeds defendants’ statutory and constitutional authority, and because the decision does not fall into any category of agency action that courts have traditionally viewed as presumptively unreviewable. See Chaney, 470 U.S. at 830833. Nor is review barred by 8 U.S.C. § 1252(g), which applies only to three discrete actions in individual removal proceedings. See AADC, 525 U.S. at 482. None of those actions is at issue here.
2. The district court properly entered a preliminary injunction partially restoring the status quo. Plaintiffs are likely to prevail on their claim that defendants’ abrupt termination of DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). For purposes of transparency and public accountability, the APA requires agencies to give a reasoned (and genuine) explanation for their actions. This requirement is not satisfied by the explanation defendants gave here: a one-sentence assertion that DACA is so clearly unlawful that it must be terminated. That assertion is a marked and unexplained departure from a position the United States repeatedly and successfully defended in the past, and on which hundreds of thousands of young people and their employers have relied. It is also premised on a flawed legal conclusion, which itself is a basis for holding the action invalid. The INA gives the Secretary of DHS broad authority to set immigration enforcement policies and priorities; presidential administrations of both parties have correctly viewed that
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authority as including the power to establish programs like DACA, which guide the exercise of deferred action and similar forms of enforcement discretion.
Equitable considerations weigh heavily in favor of a preliminary injunction. Absent an injunction, plaintiffs and hundreds of thousands of others would have suffered irreparable injury as DACA recipients lost their protected status, their work authorizations, and their ability to contribute lawfully to our economy. Defendants do not identify any concrete harm inflicted on them by the injunction. Indeed, defendants do not even address the district court’s balancing of the equities. In light of the nationwide harm inflicted by defendants’ action and the need for a uniform immigration policy, it was also appropriate for the district court to grant nationwide relief.
3. The district court correctly refused to dismiss plaintiffs’ due process claim regarding changes defendants made to their policy governing the use of DACA recipients’ personal information. That policy change departs from a mutual understanding about the federal government’s commitment to protecting this sensitive information. Under the circumstances, it amounts to a broken promise that “‘shock[s] the conscience’ and ‘offend[s] the community’s sense of fair play and decency.’” Marsh v. Cty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012).
4. The district court did err, however, in dismissing plaintiffs’ claim that the decision to rescind DACA should have been made through a notice-and-comment
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rulemaking process. See 5 U.S.C. § 553. Unlike the 2012 memorandum establishing DACA, which provided guidance on how officials should exercise existing discretion while preserving their flexibility to make individualized determinations, the 2017 memorandum adopted a categorical legal determination that the DACA program was unlawful. The agency has made clear that it intends to be bound by that new legal position, and a substantive rule of that sort may only be adopted by following notice-and-comment procedures. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1014 (9th Cir. 1987).
STANDARD OF REVIEW This Court applies the abuse of discretion standard to a district court’s grant of a preliminary injunction, reviewing findings of fact for clear error and legal conclusions de novo. Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017). It reviews a district court’s rulings on a motion to dismiss de novo. SEC v. Colello, 139 F.3d 674, 675 (9th Cir. 1998).
ARGUMENT I. THE DECISION TO RESCIND DACA IS SUBJECT TO JUDICIAL REVIEW
A. The Decision is Not “Committed to Agency Discretion By Law” The district court correctly held that review is not barred by 5 U.S.C. § 701(a)(2). Consistent with “‘the strong presumption that Congress intends judicial review of administrative action,’” Traynor v. Turnage, 485 U.S. 535, 542 (1988), the APA “embod[ies] a ‘basic presumption of judicial review,’” Lincoln v.
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Vigil, 508 U.S. 182, 190 (1993); see 5 U.S.C. § 702.4 Section 701(a)(2) recognizes a “very narrow exception” to that presumption, for “‘agency action [that] is committed to agency discretion by law.’” Citizens to Preserve Overton Park. Inc. v. Volpe, 401 U.S. 402, 410 (1971). It is only “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., and where “a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” Chaney, 470 U.S. at 830; see Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011) (courts may “look to ‘regulations, established agency policies, or judicial decisions’ for a meaningful standard to review”).
In a typical case, then, the application of Section 701(a)(2) turns on whether the agency has overcome the “strong presumption” of reviewability, such as by establishing an absence of judicially manageable standards that leaves the courts with no “meaningful role to play in reviewing [the] agency action.” Robbins v. Reagan, 780 F.2d 37, 44, 46 (D.C. Cir. 1985) (per curiam). But there is a “shift in the presumption,” id. at 44, if the action falls within one of the select “categories of administrative decisions that courts traditionally have regarded as committed to agency discretion,” and as to which courts “have long been hesitant to intrude,”
4 The “strong presumption” of reviewability applies in the immigration context, as elsewhere. E.g., INS v. St. Cyr, 533 U.S. 289, 298 (2001).
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Vigil, 508 U.S. at 191, 192 (internal quotation marks omitted). Traditionally unreviewable actions, such as an agency’s decision not to take enforcement action, are “presumptively unreviewable.” Chaney, 470 U.S. at 832. That special treatment is premised on the understanding that Congress “did not intend to alter” the “‘common law’ of judicial review of agency action” that existed before the APA. Id.; see ICC v. Bhd. of Locomotive Eng’rs., 482 U.S. 270, 282 (1987) (BLE). Such actions may still be reviewed in appropriate circumstances, however, including if an agency bases a non-enforcement decision on the erroneous belief that it lacks jurisdiction. Mont. Air Chapter No. 29 v. Fed. Labor Relations Auth., 898 F.2d 753, 756 (9th Cir. 1990); see also Chaney, 470 U.S. at 833 n.4.
1. The decision to terminate DACA is plainly reviewable under the typical approach. Indeed, defendants appear to have retreated from their prior argument that “there is . . . no ‘law to apply’ here.” Defts.’ Pet. for Permission to Appeal (Pet.) 13; see AOB 15-25; infra n.5. And sensibly so. As the district court held, “there is law to apply” in this case because “the rationale for ending DACA was its supposed illegality.” ER 21.
The “question of whether there exists law to apply focuses on the particular allegations” in a complaint, Robbins, 780 F.2d at 47, and must be answered “on a case-by-case basis,” Mada-Luna, 813 F.2d at 1015. Review is barred by Section 701(a)(2) “only when the agency action of which plaintiff complains fails to raise a
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legal issue which can be reviewed by the court with reference to statutory standards and legislative intent.” Abdelhamid v. Ilchert, 774 F.2d 1447, 1449 (9th Cir. 1985). Here, defendants chose to frame their decision to terminate DACA as one that was compelled by law. ER 130, 176. They insist that they lacked discretion to maintain DACA, because the program was “unlawful” and beyond DHS’s authority under the INA. E.g., AOB 38. There is no absence of judicially manageable standards by which to assess plaintiffs’ APA challenge to that decision. To the contrary, questions related to defendants’ conclusion that DACA clearly exceeded their authority are well suited to review by the courts. ER 21; cf. Assiniboine & Sioux Tribes v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 791792 (9th Cir. 1986).
2. Defendants thus rely entirely on the argument that the decision to end DACA is a type of agency action “that ‘traditionally’ [has] been regarded as unsuitable for judicial review.” AOB 15-16. Courts generally conduct a retrospective analysis to see if a category of agency action is traditionally unreviewable. In Chaney, for example, the Supreme Court reviewed the “long history” of administrative discretion regarding non-enforcement decisions, citing cases going back to the nineteenth century. Sierra Club v. Whitman, 268 F.3d 898, 902 (9th Cir. 2001); see Chaney, 470 U.S. at 831. In holding that an agency’s refusal to reconsider a decision on grounds of material error was unreviewable in
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BLE, the Court pointed to “a similar tradition of nonreviewability,” 482 U.S. at 282, including decades of case law, see id. at 280; cf. Vigil, 508 U.S. at 192-193.
Here, defendants have not identified any settled practice of treating as unreviewable an agency’s decision to terminate a broad program setting guidelines for the exercise of a discretionary authority—particularly when the termination is based solely on an assertion that the program is unlawful. To the contrary, the courts that have examined the precise question raised here have held that this type of decision is reviewable. See ER 18-21; Batalla Vidal v. Duke, ___ F. Supp. 3d ___, 2017 WL 5201116, at *10 (E.D.N.Y. Nov. 9, 2017) (Batalla Vidal I) (courts may review the decision to rescind DACA “in light of, among other sources, the text of the INA and other statutes, the history of the use of deferred action by immigration authorities, and the OLC Opinion”); Casa de Md. v. DHS, ___ F. Supp. 3d ____, 2018 WL 1156769, at *7-*8 (D. Md. Mar. 5, 2018) (similar); see also Texas, 809 F.3d at 167-168 (decision to adopt DAPA was reviewable); Noel v. Chapman, 508 F.2d 1023, 1029 (2d Cir. 1975) (rescission of policy allowing officials to suspend voluntary departure dates was reviewable).
Defendants fare no better in arguing (at 16-17) that their termination of DACA fits within the category of decisions “not to undertake certain enforcement
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actions,” which were recognized as presumptively unreviewable in Chaney. 470
U.S. at 831. None of the considerations that Chaney relied on applies here.5
First, a decision to strip hundreds of thousands of people of protection from
removal, of work authorization, and of other benefits, is not at all like “the decision
of a prosecutor in the Executive Branch not to indict” in a particular case. Chaney,
470 U.S. at 832. A “major policy decision,” such as defendants’ termination of an
established framework regarding deferred action decisions for a defined category
of individuals, is “quite different from day-to-day agency nonenforcement
decisions.” Nat’l Treasury Emps. Union v. Horner, 854 F.2d 490, 496 (D.C. Cir.
1988); see Robbins, 780 F.2d at 47 (no similarity “between a prosecutor’s decision
not to indict and an agency’s decision to rescind a commitment”).6
5 For that reason, Chaney’s discussion of factors that can rebut the presumption that non-enforcement actions are unreviewable, see 470 U.S. at 831-835, is not directly relevant here. See AOB 23-24. 6 Defendants invoke (at 18-19) a footnote in Morales de Soto v. Lynch, 824 F.3d 822, 827 n.4 (9th Cir. 2016) for the argument that an agency’s rescission of a nonenforcement policy is unreviewable in the same way as its “adopt[ion of] a nonenforcement policy.” AOB 18. But the Court’s analysis turned on the conclusion that “there [was] ‘no law to apply’” in that case because the petitioner merely sought to force the agency to re-weigh its “discretionary decision to reinstate a prior removal order” in light of new memoranda regarding prosecutorial discretion. Morales, 824 F.3d at 827 & n.4; but see id. at 827-828 (such a decision might be reviewable under different circumstances). Morales does not establish that decisions to rescind “a non-enforcement policy” are categorically or presumptively unreviewable under Chaney. Cf. Mada-Luna, 813 F.2d at 1011 & n.4 (ultimate denial of deferred action status to an individual not reviewable).
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Second, defendants’ suggestion (at 16-17) that this decision involves no exercise of the agency’s “coercive power,” Chaney, 470 U.S. at 832 (emphasis omitted), is not plausible. Defendants have left no ambiguity as to the coercive consequences of their decision. They have told Congress that undocumented immigrants “should be uncomfortable” and “need to be worried” (ER 116), and have announced that DACA recipients should “use the time remaining on their work authorizations to prepare for and arrange their departure from the United States” (ER 83). Defendants’ decision exposes nearly three-quarters of a million people to the possibility of proceedings intended to remove them from this country. Regardless of whether that decision “technically implicate[s] liberty and property interests,” it will undoubtedly “exert much more direct influence on the” affected population than an agency’s one-time decision not to institute a particular enforcement action. Robbins, 780 F.2d at 47.
Moreover, Chaney relied on this consideration because the absence of an exercise of coercive power generally leaves no “focus for judicial review” of decisions not to enforce. Chaney, 470 U.S. at 832. While courts “often are called upon to” consider the concrete facts and circumstances involved in enforcing a statute against a particular individual, id., judicial review of a decision not to enforce is more likely to involve “a focusless evaluation of agency policy and priorities—a role for which courts are not suited,” Robbins, 780 F.2d at 47. That
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concern is absent when an agency has established a concrete deferred-action program for a specific population containing detailed criteria—and then terminated that program based on the asserted conclusion that it exceeds the agency’s statutory and constitutional authority. Such a decision is eminently suitable for focused judicial review. See ER 21.
Third, as framed by defendants, this decision did not “involv[e] a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise,” such as how best to direct agency resources and what activities suit the agency’s policy goals. Chaney, 470 U.S. at 831. Defendants instead asserted that their decision to terminate DACA was legally compelled. ER 130, 176.7 As a more general matter, broad policies regarding the exercise of prosecutorial discretion (or deferred action) are “abstracted from the particular combination of facts the agency would encounter in individual enforcement proceedings,” and are less likely to involve “the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision.” Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676-677 (D.C. Cir. 1994).
7 This case is thus quite different from Alaska Fish and Wildlife Federation and Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 935 (9th Cir. 1987), which involved a challenge to an agency decision not to enforce based on “[p]olitical and geographical considerations” about what enforcement strategy would be most effective. See AOB 21.
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Defendants argue that the stated basis for their decision is irrelevant, because the fact “that an ‘agency gives a “reviewable” reason for otherwise unreviewable action’ does not mean that ‘the action becomes reviewable.’” AOB 23 (quoting BLE, 482 U.S. at 283). That argument misunderstands the principle on which defendants rely. In BLE, the Supreme Court noted that an action that has already been found to fall within a “tradition of nonreviewability” does not become reviewable merely because the stated reason for the action would be reviewable in a different context. 482 U.S. at 282; see id. at 283. For example, “the refusal to prosecute cannot be the subject of judicial review” even if the stated reason for a particular decision is “that the law will not sustain a conviction.” Id. at 283. But when dealing with a type of decision for which no tradition of unreviewability has been established—such as the one at issue here—the fact that the agency made the decision in a way that is subject to judicially manageable standards of review is of central relevance in determining whether Section 701(a)(2) applies. Supra p. 18.
Indeed, the analysis in BLE actually underscores why judicial review of defendants’ termination of DACA is appropriate. In addition to evidence of tradition, the Supreme Court relied on practical considerations in holding that an agency’s refusal to re-open a prior proceeding based on allegations of new evidence or changed circumstances is reviewable, whereas a refusal to re-open based on a renewed argument that the underlying decision was erroneous is not.
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See BLE, 482 U.S. at 278-279. Courts are adept at reviewing whether new evidence or circumstances provide a basis for reconsideration, see id. at 278, and “the petitioner will have been deprived of all opportunity for judicial consideration” if such review is unavailable, id. at 279; cf. Fed. R. Civ. P. 60(b). In contrast, review of a denial of reconsideration based on allegations of material error “is simply not workable” in the typical case, because “the vast majority of” such denials are “made without statement of reasons,” BLE, 482 U.S. at 283; and treating such a denial as unreviewable does not disadvantage the petitioner in the same way, because the allegations could have been brought to the court through a timely appeal from the original order, id. at 279.
Those functional considerations weigh in favor of review in this case. The kind of broad policy decision at issue here will often be accompanied by a reviewable statement of the agency’s reasons. Cf. Crowley Caribbean Transp., 37 F.3d at 677 (“[A]n agency will generally present a clearer (and more easily reviewable) statement of its reasons for acting when formally articulating a broadly applicable enforcement policy[.]”). And the plaintiffs here had no previous opportunity to raise their present claims, and would have no other opportunity to seek judicial review if Section 701(a)(2) applied.
Finally, defendants profess concern that if a chief prosecutor publicly announces a policy of not enforcing criminal laws against certain offenders, and
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her successor rescinds that policy on the ground that it is legally invalid, the district court’s reasoning could allow drug offenders to seek judicial review of the rescission. AOB 24-25. But the district court was not addressing a policy regarding criminal prosecutions, which would need to be analyzed in light of the separate history and tradition regarding the Executive Branch’s prerogatives in that area. See, e.g., Chaney, 470 U.S. at 832. As to a non-enforcement policy adopted by an agency in a context similar to this one, it is not clear why requiring some reasoned explanation of the decision to terminate it would impose any “untenable intrusion.” AOB 24. If that explanation demonstrated that the termination was based on truly discretionary considerations, the decision might very well be unreviewable. If the decision were based on an asserted conclusion that the original policy exceeded the agency’s statutory or constitutional authority, there would be no obvious reason why a court could not effectively review and either validate or dispel that asserted legal concern. Such a decision would be analogous to an agency’s refusal to institute enforcement “proceedings based solely on the belief that it lacks jurisdiction,” Chaney, 470 U.S. at 833 n.4, which this Court has recognized to be reviewable, see Mont. Air Chapter No. 29, 898 F.2d at 756.
B. Section 1252(g) Does Not Deprive this Court of Jurisdiction to Review Defendants’ Termination of DACA
Defendants also contend that plaintiffs’ claims are barred by 8 U.S.C. § 1252(g), which directs that “no court shall have jurisdiction to hear any cause or
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claim by or on behalf of any alien arising from the decision or action by the [Secretary] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” A “‘jurisdictional bar is not to be expanded beyond its precise language,’” and “the narrower construction of ” such a “provision is favored over the broader one.” ANA Int’l, Inc. v. Way, 393 F.3d 886, 891 (9th Cir. 2004). Here, the district court correctly held that Section 1252(g) does not deprive the federal courts of jurisdiction to review plaintiffs’ challenge to the termination of DACA. ER 21-22; see Batalla Vidal I, 2017 WL 5201116, at *12-*13 (same); Casa de Md., 2018 WL 1156769, at *7-*8 (same); see also Texas, 809 F.3d at 164 (similar).
Section 1252(g) applies only to a “cause or claim by or on behalf of an[] alien.” It does not apply to claims brought by other persons or entities on their own behalf, such as the States’ claims here. That is one reason why the Fifth Circuit held that Section 1252(g) did not apply to the state suit challenging the DAPA policy: “the states [were] not bringing a ‘cause or claim by or on behalf of any alien’—they assert[ed] their own right to the APA’s procedural protections.” Texas, 809 F.3d at 164; see also Batalla Vidal I, 2017 WL 5201116, at *13
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(similar). Despite embracing the Texas decision in other respects, defendants do not even address this aspect of the decision.8
In any event, Section 1252(g) does not apply to the type of claim at issue here. Consistent with the statutory text and the strong presumption favoring review, courts “have narrowly construed § 1252(g).” Wong v. United States, 373 F.3d 952, 964 (9th Cir. 2004). It does not “cover[] the universe of deportation claims.” AADC, 525 U.S. at 482. Instead, it “applies only to [the] three discrete actions” enumerated by Congress: the “‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Id.; see Wong, 373 F.3d at 963-965. Defendants’ decision to terminate the DACA program is none of these. See ER 22.
Defendants argue that the decision to rescind DACA is “an initial ‘action’ in the agency’s ‘commence[ment of] proceedings’ against aliens.” AOB 26. That argument is foreclosed by AADC, which made clear that the narrow phrasing of Section 1252(g) is not “a shorthand way of referring to all claims arising from deportation proceedings.” 525 U.S. at 482. The provision does not apply to the “many other decisions or actions that may be part of the deportation process,”
8 This Court “‘may affirm the district court on any ground supported by the record, even if the ground is not relied on by the district court.’” Cosmetic Ideas, Inc. v. IAC/Interactivecorp., 606 F.3d 612, 615 (9th Cir. 2010).
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including those preceding the commencement of removal proceedings, such as “the decisions to open an investigation” or “to surveil the suspected violator.” Id. This Court, too, has recognized that “§ 1252(g) does not bar review of the actions that occurred prior to any decision to ‘commence proceedings.’” Wong, 373 F.3d at 965.
Defendants also highlight (at 25-26) AADC’s observation that Section 1252(g) “seems clearly designed to” address deferred action decisions, 525 U.S. at 485, but they ignore the context of that statement. The Supreme Court discussed deferred action in explaining why Congress made special provisions for the three “discrete acts” listed in Section 1252(g), “which represent the initiation or prosecution of various stages in the deportation process.” Id. at 483. At each of those stages, the “Executive has discretion to abandon the endeavor” by engaging in the practice “known as ‘deferred action,’” and individuals had sometimes sought judicial review of specific “‘no deferred action’” decisions made during their removal proceedings. Id. at 483-484, 485. From that historical experience, the Court inferred that Section 1252(g) was intended to “give some measure of protection” to such decisions. Id. at 485. Nothing about that discussion suggests that Section 1252(g) bars plaintiffs from challenging defendants’ decision to terminate a general policy about the exercise of authority with respect to deferred
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action—a decision occurring before the commencement of removal proceedings in any particular case.9
Nor is defendants’ interpretation supported by other provisions in Section 1252. AOB 26-27. Defendants note that Section 1252(b)(9), which the Supreme Court has described as an “unmistakable ‘zipper’ clause,” AADC, 525 U.S. at 483, “channels into the review of final removal orders all questions of law or fact arising from any action taken to remove an alien,” AOB 26. Far from evidencing an intent to foreclose judicial review under the circumstances here, the breadth of Section 1252(b)(9) illustrates that Congress was “familiar with the normal manner of imposing” a “general jurisdictional limitation,” AADC, 525 U.S. at 482, but chose not to do so with § 1252(g), see id.10
What is more, defendants do not explain how the claims presented in this case could ever be effectively adjudicated if, as they contend, such claims may only be raised in the context of “review of a final order of removal.” AOB 26. Defendants’ understanding of the law would apparently leave the States and other
9 For that reason, the district court correctly distinguished Vasquez v. Aviles, 639 F. App’x 898, 901 (3d Cir. 2016), and Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999), both of which “stemmed from already-commenced deportation or removal proceedings.” ER 22 (emphasis omitted); see AOB 26. 10 Section 1252(a)(2)(B), also invoked by defendants (at 26-27), applies only to certain specific denials of discretionary relief, not to broad challenges to decisions about general deferred action policies.
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plaintiff entities, who are not parties to a “proceeding brought to remove an alien from the United States,” 8 U.S.C. § 1252(b)(9), with no forum in which to raise their claims. Even as to individuals, it is not clear that the courts of appeals would be able to resolve the type of broad challenge presented here in the context of reviewing a final order of removal. It is the position of the United States that “deferred action does not . . . provide any defense to removal” and that even “[a]n individual with deferred action remains removable at any time.” Opp. to Mot. for Class Certification, Inland Empire v. Nielsen, No. 17-cv-2048 (C.D. Cal. Feb. 1, 2018) Dkt. 53 at 9. If an individual raised a challenge to the rescission of DACA in a petition for review of a final order of removal, the United States would presumably argue that such a claim, even if valid, would provide no basis for individual relief.
C. The States Have Established Standing Defendants do not identify standing as one of the issues presented (AOB 4), and they did not list it as one of the controlling questions of law on which they sought permission to appeal (Pet. 1). In contending that the district court erred in granting a nationwide preliminary injunction, however, they argue that the interests of the States and other entity plaintiffs “do not even satisfy Article III” and “fall outside the INA’s zone of interests.” AOB 54, 55. To the extent those arguments are properly before the Court, they are incorrect.
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As to Article III standing, the district court concluded that the States will suffer injuries that are directly traceable to the decision to terminate DACA— including in their capacities as proprietors of universities and public health programs and as employers of DACA recipients who will lose their work authorization. ER 23-25; see ER 94-104. Defendants’ only response (at 54-55) is that the States’ interests as employers do not satisfy Article III in light of Linda R.S. v. Richard D., 410 U.S. 614 (1973). That case held that a plaintiff could not seek to enjoin a district attorney from declining to prosecute fathers for failing to support their children, because the plaintiff had not shown a “direct nexus” between her injury (her lack of child support) and the decision not to prosecute. Id. at 618-619. Here, the States and other entity plaintiffs have established that the decision to terminate DACA will directly harm their interests by, among other things, stripping their employees of work authorization. ER 26.11 Although Linda R.S. observed that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another,” 410 U.S. at 619, that was not a basis for the Court’s holding; in any event, that principle does not apply to a suit brought by States that does not involve criminal prosecutions. And defendants yet again fail
11 Because of those direct injuries, the Court need not consider defendants’ arguments about third-party standing. AOB 56 n.8. In any event, this Court recently recognized third-party standing under similar circumstances. See Washington v. Trump, 847 F.3d 1151, 1160-1161 (9th Cir. 2017).
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to acknowledge that the Fifth Circuit considered the same argument in Texas, and concluded that Linda R.S. was not a barrier to state standing. Texas, 809 F.3d at 154 & n.50; see also id. at 154 (“[T]he states are entitled to ‘special solicitude’ in the standing inquiry.”).
The States’ APA claims also satisfy the zone-of-interests requirement.12 That requirement is not “‘especially demanding,’” and “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.’” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). That is not the case here. See ER 27-28. Among other things, the INA contains detailed provisions regarding work authorization. See, e.g., 8 U.S.C. § 1324a(a), (h)(3); see also 8 C.F.R. § 274a.12(c)(14). And the interests asserted by the States include those as employers of DACA recipients. See ER 93-103. The States have invested time and resources in hiring and training these employees and would be harmed if they lost their work authorization. Defendants’ termination of DACA also impairs the
12 The district court held that the facts alleged by California and Maryland regarding their APA claims satisfied the zone-of-interest requirement, but the facts alleged by Maine and Minnesota did not. ER 27-28. It granted Maine and Minnesota leave to amend their allegations, which they intend to do. See D.Ct. Dkt. 267.
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States’ interests in ensuring that students can enroll and participate in their educational institutions (ER 95, 100, 102-103), interests that this Court has recognized as falling within the INA’s zone of interests. See Hawaii v. Trump, 878 F.3d 662, 682 (9th Cir. 2017), cert. granted (U.S. Jan. 19, 2018) (No. 17-965) (relying on State’s interests in student- and employment-based visa petitions). II. THE DISTRICT COURT PROPERLY ENTERED A PRELIMINARY
INJUNCTION To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). An injunction may also issue “where the likelihood of success is such that ‘serious questions going to the merits [are] raised and the balance of hardships tips sharply in [plaintiff’s] favor.’” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Crafting a preliminary injunction is “an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017). The tailored preliminary injunction entered by the district court here, which partially preserves the status quo as to individuals who had already received deferred action under DACA, was well within the court’s discretion.
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A. Plaintiffs Are Likely to Establish That the Decision to Rescind DACA Was Arbitrary, Capricious, or Contrary to Law
The APA prohibits agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The district court correctly held that plaintiffs are likely to succeed on their claim that the decision to terminate DACA, as framed in the Acting Secretary’s September 5 rescission memorandum, violated that requirement. ER 29-43.
1. The APA required defendants to provide a reasoned explanation for their decision
Section 706(2)(A) requires an agency to “articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). That explanation must be “based on consideration of the relevant factors,” and may not “fail[] to consider an important aspect of the problem.” Id. at 42, 43. Where an agency departs from its prior position, it must supply a “reasoned analysis for the change”—including by “display[ing] awareness that it is changing position,” “show[ing] that there are good reasons for the new policy,” and explaining why it chose to disregard any “serious reliance interests” engendered by the prior policy. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514, 515 (2009).
Defendants assert that “nothing in the INA requires any aspect of the DACA policy,” and argue that they should not have to “provide a robust explanation” for
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rescinding DACA. AOB 29. Those arguments misunderstand the governing legal framework. Everyone appreciates that “[e]lections have policy consequences.” Organized Vill. of Kake v. USDA, 795 F.3d 956, 967 (9th Cir. 2015) (en banc). New federal administrations may change policies—but they must do so within the constraints of federal law. See id. at 966-970. Even where an action is conceivably “within the responsible agency’s authority,” it is invalid if “the agency gave the wrong reasons for, or failed to adequately explain, its decision.” Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 408 (E.D.N.Y. 2018) (Batalla Vidal II ) (citing State Farm, 463 U.S. at 42-43, 48-56 and Overton Park, 401 U.S. at 416, 420). So whether or not defendants chose to give a “robust” explanation for terminating this substantial program, they were required to give one that was sufficiently reasoned to satisfy the APA.
The APA’s reasoned-explanation requirement serves important functions in our democratic system. It helps to hold agencies “accountable to the public.” Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). This “political accountability” is “the very premise of administrative discretion in all its forms.” Newman v. Apfel, 223 F.3d 937, 943 (9th Cir. 2000). Requiring federal agencies to explain why they take actions prevents them from “wield[ing] power without owning up to the consequences.” Dep’t of Transp. v. Ass’n of Am. Railroads, 135 S. Ct. 1225, 1234 (2015) (Alito, J., concurring). It allows voters to assess whether
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they agree with the reasons for government action and to exercise their franchise accordingly. Cf. New York v. United States, 505 U.S. 144, 168-169 (1992) (political accountability is diminished when officials who “devised the regulatory program” are “insulated from the electoral ramifications of their decision”); SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (Chenery I ) (“‘The administrative process will best be vindicated by clarity in its exercise.’”). Just as the federal government may not escape political accountability by dragooning state or local officials into implementing a federal policy, so too the Executive Branch may not escape responsibility for a policy decision by failing to explain its actions, or by passing them off as compelled by Congress, the Constitution, or the courts.
2. The stated basis for defendants’ decision does not satisfy the APA
In this case, the Acting Secretary provided the public and the courts with a single sentence explaining the decision to rescind DACA: “Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing [DAPA] litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 5, 2012 DACA program should be terminated.” ER 130. Under the circumstances, this unelaborated explanation is inadequate to sustain the decision to terminate DACA.
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a. The rescission of DACA involved a marked change in the position of the Executive Branch
The one-sentence rationale for ending DACA reflects a purported conclusion that the program was so “clear[ly]” unlawful that it could not be continued. ER 130; see AOB 38 (Acting Secretary concluded “that indefinitely continuing the DACA policy would itself have been unlawful”).13 The memorandum does not acknowledge, however, that this conclusion was a 180-degree change in agency position.
Until very recently, the United States consistently (and successfully) took the position that DACA was lawful. Before the program was announced, the Office of Legal Counsel orally advised “that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis.” SER 243 n.8. The memorandum creating DACA accordingly directed that “requests for relief pursuant to this memorandum are to be decided on a case by case basis,” as “part of th[e] exercise of prosecutorial discretion.” ER 142. In August 2015—months after the order granting a preliminary injunction in the DAPA litigation—the United States told this Court that “DACA is a valid exercise of the Secretary’s broad authority and discretion to
13 See also, e.g., Nakamura et al., Justices Decline to Hear Case on DACA, Wash. Post, Feb. 27, 2018, at A1 (reporting White House statement that DACA is “clearly unlawful”).
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set policies for enforcing the immigration laws, which includes according deferred action and work authorization to certain aliens who, in light of real-world resource constraints and weighty humanitarian concerns, warrant deferral rather than removal.” Brief for United States at 1, Brewer, 855 F.3d 957. It took the same position before the D.C. Circuit in another brief filed after DAPA was preliminarily enjoined. See Brief for United States at 46, Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) (No. 14-5325) (filed Mar. 2, 2015).
Even in the DAPA litigation, the United States reiterated its position that DACA was lawful—including in the Supreme Court after the Fifth Circuit’s affirmance of the preliminary injunction. See, e.g., Brief for United States at 45, 50, 59-60, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674) (filed Mar. 1, 2016). Those briefs demonstrated that DACA and similar programs have “deep historical roots” and that federal law provides DHS with “ample authority” to adopt them. Id. at 16; see id. at 42-60 (discussing, among other things, 6 U.S.C. § 202(5) and 8 U.S.C. § 1103(a)). They explained why the adoption of a deferredaction policy “is exempt from the APA’s notice-and-comment requirements because it is a general statement of policy regarding how DHS will exercise its enforcement discretion under the INA.” Id. at 65; see id. at 65-73. And they addressed why the creation of such a policy is consistent with the Take Care
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Clause, because “the Secretary is faithfully executing the weighty and complex task of administering and enforcing the INA.” Id. at 17; see id. at 73-76.
After the Supreme Court affirmed the DAPA preliminary injunction, DHS continued the DACA program—including by soliciting, accepting, and processing hundreds of thousands of new and renewal applications for deferred action from qualifying individuals. That continued operation of the program extended through the last seven months of the Obama Administration and into the first seven months of the Trump Administration. On two occasions since the change of administrations, the Secretary of DHS rescinded other immigration policies, but pointedly kept DACA in place. See supra p. 8. In continuing to operate DACA, defendants presumably believed they were “follow[ing] the law,” Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1082 (9th Cir. 2010), or at least not clearly violating it.
The September 2017 conclusion by the Acting Secretary and the Attorney General that DACA was so clearly unlawful that it had to be terminated thus represented a sharp departure from the prior positions taken by the United States. Of course, agencies and administrations can change their minds. But when doing so involves agency action, the APA requires that they provide an adequate explanation, advancing the goals of transparency and accountability. See, e.g., Williams Gas Processing-Gulf Coast Co., L.P. v. FERC, 475 F.3d 319, 322, 328-
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329 (D.C. Cir. 2006) (unexplained change in agency’s interpretation of statute was arbitrary and capricious).
b. Defendants did not adequately explain their change in position
Here, the only considerations cited to explain the agency’s new legal position are the one-page letter from Attorney General Sessions and the rulings in the DAPA litigation. ER 130. Neither of those considerations establishes that DACA is clearly unlawful or adequately explains why the agency reversed course.
The Attorney General’s letter asserts that DACA is “an unconstitutional exercise of authority by the Executive Branch” and “has the same legal and constitutional defects that the courts recognized as to DAPA.” ER 176. As to the suggestion of statutory invalidity, the letter cites the opinions in the DAPA litigation, but does not explain why the rulings in those opinions control the legality of DACA—or why defendants had abandoned their view that those rulings were incorrect. As to the assertion of constitutional invalidity, the letter offers no explanation at all. It appears to rest on the understanding that the Fifth Circuit and the Southern District of Texas recognized “constitutional defects” in DAPA. Id. But that is “flatly incorrect”: “Both courts expressly declined to reach the plaintiffs’ constitutional claim that DAPA violated the Take Care Clause of the
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U.S. Constitution or the separation of powers.” Batalla Vidal II, 279 F. Supp. 3d at
427 (internal citations omitted).14
Because the Attorney General’s letter offers no reasoned explanation for the
conclusion that DACA is clearly unlawful, this case comes down to whether the
Acting Secretary’s cursory reference to rulings in the Texas litigation satisfies the
APA’s reasoned-explanation requirement. It does not. Nothing in the Acting
Secretary’s memorandum or the proffered administrative record responds to the
considerations—previously relied on by the United States, see supra pp. 39-41—
establishing that a program such as DACA is within existing agency authority.
Those include:
 As a substantive matter, DACA falls within the Secretary’s broad authority under the INA to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), and to carry out the “administration and enforcement of” the INA “and all other law relating to the immigration and naturalization of aliens,” 8 U.S.C. § 1103(a)(1). See Brewer, 855 F.3d at 968 (“[T]he exercise of prosecutorial discretion in deferred action flows from the authority conferred on the Secretary by the INA.”). The practice of deferred action is so well established that it has repeatedly been recognized by federal statutes, regulations, and court decisions. See ER 30-33; supra pp. 4-5.
14 The Attorney General further muddied the waters the day after he sent the letter, when he (not the Acting Secretary) announced the rescission of DACA, in a statement strongly suggesting that the decision was motivated by policy views regarding the program’s supposed effects on public safety and the economy. See SER 1354. If that was true, then DHS was required to acknowledge as much, and to provide a record explaining and supporting those views.
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 As a historical matter, the federal government has established policies to guide and channel decisions about deferred action (and similar forms of enforcement discretion) since the 1950s, often on a programmatic basis applying to large groups of immigrants. See ER 5-6; Brewer, 855 F.3d at 968 n.2; supra pp. 5-6.
 As a procedural matter, the APA’s notice-and-comment requirements do not apply to “general statements of policy.” 5 U.S.C. § 553(b)(3)(A). Such statements include guidance that “advise[s] the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Vigil, 508 U.S. at 197 (internal quotation marks omitted). The 2012 memorandum establishing DACA merely “set[s] forth how” DHS agents should “exercise . . . discretion” on a “case by case basis.” ER 141, 142.
These considerations led the district court to conclude that further review of DACA would likely lead to a “hold[ing] that DACA was and remains a lawful exercise of authority by DHS.” ER 38; see also Batalla Vidal II, 279 F. Supp. 3d at 425-426. The Acting Secretary and the Attorney General did not address any of them.
As the Acting Secretary’s memorandum notes, a divided panel of the Fifth Circuit took a different view of these considerations when assessing the likelihood that a challenge to the separate DAPA program would succeed on the merits, and the Supreme Court affirmed the Fifth Circuit’s judgment by a four-four vote. But an interlocutory decision by a single court of appeals does not conclusively resolve the legality of a federal program—let alone that of a different program not directly
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before the court.15 Nor does the Supreme Court’s non-precedential affirmance of a judgment sustaining a preliminary injunction. See Neil v. Biggers, 409 U.S. 188, 192 (1972) (affirmance by an equally divided court “not entitled to precedential weight”). Such an affirmance could have been based on any number of factors, including deference to the lower courts’ balancing of equitable factors in an interlocutory posture. See, e.g., Int’l Refugee Assistance Project, 137 S. Ct. at 2087.
Moreover, much of the reasoning of the majority opinion in Texas would not apply in the same way to the DACA program. For example, the Fifth Circuit noted that the INA contained “an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status,” and concluded that DAPA was substantively unlawful because it was inconsistent with that statutory scheme. Texas, 809 F.3d at 179; see also id. at 186. There is no
15 Defendants repeatedly emphasize that the district court injunction at issue in Texas applied to “expanded DACA” (i.e., a 2014 decision to broaden eligibility criteria for DACA and expand the period of deferred action from two to three years). AOB 1, 14, 29, 30-33, 36, 38-39. That expanded program was distinct from the original DACA policy, which was “unchallenged” in the Texas litigation. Brief for United States at 45, Texas, 136 S. Ct. 2271; see Texas, 86 F. Supp. 3d at 606. In any event, the Fifth Circuit’s opinion contained no analysis specific to the “expanded DACA” program. It merely noted that it was including that program in the term “DAPA.” Texas, 809 F.3d at 147 n.11.
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similar statutory process for the individuals who are eligible for DACA.16 The Fifth Circuit also suggested that the number of people potentially eligible for DAPA—4.3 million—suggested administrative overreach. See id. at 181. Substantially fewer people were eligible for DACA. See id. at 174 n.138. Indeed, the population covered by DACA is much smaller than that covered by the nonstatutory Family Fairness Program under Presidents Reagan and George H.W. Bush, which “ultimately provided immigration relief to approximately 1.5 million people.” ER 5; see Brewer, 855 F.3d at 968 n.2. While the Fifth Circuit certainly recognized some similarities between DACA and DAPA, it ultimately “concluded only that the INA does not grant the Secretary discretion to grant deferred action and lawful presence on a class-wide basis to 4.3 million otherwise removable aliens.” Texas, 809 F.3d at 186 n.202.
In other respects, the reasoning of the Fifth Circuit majority was simply incorrect. For example, the majority’s analysis of the notice-and-comment issue turned on purported “evidence from DACA’s implementation that DAPA’s discretionary language was pretextual.” Texas, 809 F.3d at 173. That “evidence”
16 Defendants argue that this statutory pathway to legal status for people eligible for DAPA made DAPA more consistent with the INA than DACA. AOB 32. That is not how the Fifth Circuit saw things. Its conclusion that DAPA was “foreclosed” turned on the “careful plan” Congress had adopted for “how parents may derive an immigration classification on the basis of their child’s status.” Texas, 809 F.3d at 186.
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does not withstand scrutiny. It includes the fact that “only about 5% of the 723,000 applications accepted for evaluation had been denied.” Id. at 172. But a low rejection rate is “unsurprising given the self-selecting nature of the program.” Id. at 210 (King, J., dissenting). Only “those highly likely to receive deferred action will apply,” since unsuccessful “applicants would risk revealing their immigration status and other identifying information to authorities, thereby risking removal (and the loss of a sizeable fee).” Id.; see also Batalla Vidal II, 279 F. Supp. 3d at 425. The court also relied on a declaration from the president of the union representing USCIS employees, see Texas, 809 F.3d at 172, even though a competing declaration from the head of the USCIS service centers at issue “created a factual dispute warranting an evidentiary hearing,” id. at 213 (King, J., dissenting); cf. Crane v. Johnson, 783 F.3d 244, 254-255 (5th Cir. 2015) (original DACA policy “clear[ly]” directs agents to “exercise their discretion . . . on a caseby-case basis”).
In addition, as the United States previously explained, the Fifth Circuit’s substantive analysis “seriously misconstrued immigration law” and ignored decades of settled practice. Brief for United States at 13, Texas, 136 S. Ct. 2271; see id. at 42-64. For example, the Fifth Circuit held that Congress had “directly addressed the precise question” at issue there and foreclosed a policy like DAPA. Texas, 809 F.3d at 179 (internal quotation marks omitted). But it did not “identify
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any express statutory provision barring DHS from exercising its discretion in this manner.” Brief for United States at 61, Texas, 136 S. Ct. 2271. And the Fifth Circuit’s reading of the INA was “untenable” in light of the long history of deferred action policies, which were always viewed as legitimate “exercises of the general vesting power that Congress bestowed in Section 1103.” Id.
Neither the Acting Secretary’s memorandum, nor the Attorney General’s letter, nor anything else in the proffered administrative record, acknowledges or addresses the many reasons why Texas does not control the question of DACA’s legality. Defendants belatedly offer pages of arguments in their appellate brief explaining why they now think the Fifth Circuit’s decision about DAPA doomed the separate DACA program. See AOB 2, 29-30, 31-34. But the “post hoc rationalizations of the agency or the parties to this litigation cannot serve as a sufficient predicate for agency action.” American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 539 (1981).
Defendants counter that the APA did not require the “Acting Secretary to provide the equivalent of a bench memo setting out the subsidiary legal arguments” underlying her stated conclusion that DACA was clearly unlawful. AOB 31. Perhaps not; but accepting that proposition does not excuse the agency from its obligation to provide some reasoned rationale for its abrupt change in position, including a reasonably discernible explanation why it was abandoning the
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position that DACA was within its statutory and constitutional authority. Such an explanation is necessary for the agency to be held accountable—by both the public and the courts—for its actions. The Acting Secretary’s memorandum did not provide one, and “[a]rbitrary and capricious review strictly prohibits [courts] from upholding agency action based only on [their] best guess as to what reasoning truly motivated it.” Williams Gas, 475 F.3d at 328-329.
c. The decision is also based on a flawed legal premise As two district courts have now held, defendants’ assertion that DACA is clearly unlawful is not just unexplained, it is legally flawed. The program fits comfortably within DHS’s authority under the INA and was promulgated in a manner that satisfied procedural requirements. See ER 29-38; Batalla Vidal II, 279 F. Supp. 3d at 420-427; cf. Brewer, 855 F.3d at 976 (“[T]he INA is replete with provisions that confer prosecutorial discretion on the Executive to establish its own enforcement priorities.”). Defendants contend (at 39) that the district court erred in concluding that an “agency action [that] is based on a flawed legal premise . . . may be set aside” under Section 706(2)(A). ER 29; cf. Casa de Md., 2018 WL 1156769, at *9. But it is settled law that an agency action based “‘not on the agency’s own judgment but on an erroneous view of the law’” must be set aside, even if the agency might be able to take the same action “in the exercise of its discretion.” Int’l Bhd. of
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Elec. Workers, Local Union No. 474 v. NLRB, 814 F.2d 697, 708 (D.C. Cir. 1987); see also Chenery I, 318 U.S. at 94 (“[A]n order may not stand if the agency has misconceived the law.”); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101-1102 (9th Cir. 2007) (agency determination based on “legally erroneous” conclusion is “‘arbitrary, capricious, or otherwise not in accordance with law’ for the purposes of our review”).17
So defendants are not correct that the decision to terminate DACA must survive APA review regardless of the fact that it was expressly and exclusively based on a stated legal rationale that the district court concluded (and this Court should conclude) was incorrect. And even if this Court viewed DHS’s authority to continue DACA as a more debatable question than the district court did, that would not excuse defendants’ failure to explain in a reasoned manner why they abandoned the Executive Branch’s longstanding position that DACA was lawful, in favor of a new and unelaborated assertion that the program is clearly unlawful.
d. Defendants failed to address the substantial reliance interests engendered by DACA
The inadequacy of defendants’ explanation for terminating DACA becomes particularly apparent when considered in light of the reliance interests at stake. See
17 Defendants’ only argument on this front is to distinguish Massachusetts v. EPA, 549 U.S. 497 (2007), on its facts. See AOB 39-40. They do not address Chenery I or Safe Air for Everyone, which the district court also cited for this venerable principle.
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ER 40. If an agency changes existing policies, it “must be cognizant that longstanding policies may have engendered serious reliance interests,” and must demonstrate that it has taken those interests “into account.” Encino Motorcars LLC v. Navarro, 136 S. Ct. 2117, 2125-2126 (2016) (quoting Fox Television, 556 U.S. at 515) (internal quotation marks omitted). Here, there is no discussion of reliance interests in the rescission memorandum or the administrative record.
Defendants reason that “reliance interests [were] not ‘an important aspect’ of the decision whether to retain DACA.” AOB 34. But hundreds of thousands of young people have organized their lives around this program. They have paid “a hefty fee” ($465) and provided the federal government with “substantial personal information” in order to apply for deferred action status. ER 20. Those who received deferred action have made important life decisions in reliance on their new status and the opportunity to renew it, such as by enrolling in undergraduate and graduate programs, taking out student loans, beginning careers, buying homes, and starting families. See generally D.Ct. Dkt. 111 at 7-8, 14-15, 21-22. The States and other employers of DACA recipients have also relied on the program and its renewable grants of protected status, including by investing time and resources into training employees who are authorized to work here only because they have deferred action. See, e.g., id. at 22; ER 96-97, 100. These decisions were undoubtedly informed by the repeated representations—from the highest
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levels of the Executive Branch in successive administrations—that DACA is a valid and lawful program. See, e.g., SER 1334 (March 2017 statement of Secretary Kelly describing DACA as a “commitment . . . by the government towards the DACA person”). Defendants characterize these reliance interests as “insubstantial” when compared to the interests of car dealers in not paying overtime to service advisors. AOB 35 (discussing Encino Motorcars). It was not unreasonable for the district court to disagree with that characterization. See ER 40-42.
Defendants also argue that “DACA confers no legitimate reliance interests” because it was “available for only two-year periods, which could ‘be terminated at any time’ at the agency’s discretion.” AOB 34 (quoting ER 151). Agencies frequently have latitude to alter policies on which individuals and entities have relied. See, e.g., Encino Motorcars, 136 S. Ct. at 2125. Legitimate reliance interests can nonetheless build up around such a policy, and those interests underscore the need for the agency to give a reasoned explanation for the change. See id. at 2126; Fox Television, 556 U.S. at 515-516. Finally, defendants assert that the reliance interests of DACA recipients did not “necessitate express consideration” in light of the “change in circumstances that arose as a result of the Supreme Court’s affirmance of the Fifth Circuit’s decision.” AOB 35. But their own data show that they processed and approved more than 400,000 new and
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renewal applications for deferred action under DACA after that affirmance and before their abrupt decision to terminate the program. See https://go.usa.gov/ xnSGf; https://go.usa.gov/xnSGG (USCIS statistics).
3. Defendants’ alternative “litigation risk” rationale cannot sustain their decision
In this litigation, defendants have downplayed the rescission memorandum’s assertion that DACA is unlawful (AOB 38-40), focusing instead on a “litigationrisk rationale” for terminating DACA (AOB 29-38). Both courts that have closely examined the memorandum and the proffered administrative record have correctly found this to be a post hoc rationalization. ER 38; Batalla Vidal II, 279 F. Supp. 3d at 429-430. Defendants disagree, describing the memorandum as rescinding DACA “based on [a] clearly expressed concern that [DACA] would be enmeshed in litigation and likely enjoined nationwide.” AOB 13-14. That description is not accompanied by a citation, however, and understandably so—no clear expression of this concern can be found anywhere in the seven-page memorandum. See ER 126-132. Defendants also argue that the memorandum “focused from beginning to end principally on litigation concerns, not the legality of DACA per se.” AOB 36. But that argument rests almost entirely on a series of quotations from the neutral “Background” section of the memorandum, which do not address the Acting Secretary’s rationale. See ER 127-129. A factual description of past events in “the litigation surrounding the DAPA” program (AOB
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36), for example, does not indicate even to an attentive reader that the Acting Secretary terminated DACA based on a “litigation-risk” rationale.
And even if the decision could fairly be characterized as one based on an assessment of litigation risk, it could not be sustained on that basis. See ER 40-43; Batalla Vidal II, 279 F. Supp. 3d at 430-433. As this Court recently recognized, a bare assertion of litigation risk will rarely be sufficient to justify changing an agency’s position. In Organized Village of Kake, an agency sought to explain its decision to grant an exemption to the “Roadless Rule” (which limits road construction and timber harvesting in national forests) by referencing “litigation over the last two years.” 795 F.3d at 967 (internal quotation marks omitted). That rationale was arbitrary and capricious because the agency “could not have rationally expected that the Tongass Exemption would . . . have brought certainty” to the matter; indeed, the exemption “predictably led to [another] lawsuit.” Id. at 970. The same is true here.
Moreover, while the Acting Secretary’s memorandum notes that Texas had threatened to amend its lawsuit to add a challenge to DACA (ER 129), there is no indication in the memorandum or the proffered administrative record that the agency conducted a reasoned assessment of that threat. Such an assessment would have had to consider the availability of possible defenses, both procedural and on the merits, against the threatened suit. For example, it would have considered
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whether it really was “likely” that the courts would issue and affirm a nationwide preliminary injunction against DACA (AOB 14)—in the context of a suit brought by States that had waited more than five years to challenge the program, and after hundreds of thousands of young people had received deferred action and entered the workforce as a result of the program. Cf. ER 40 (discussing possible laches defense); Int’l Refugee Assistance Project, 137 S. Ct. at 2087 (availability of provisional relief often depends “as much on the equities of a given case as the substance of the legal issues it presents”).
Any rational explanation for terminating DACA based on threatened litigation also would have balanced that threat against the costs to be inflicted on individual DACA recipients, the federal government, the States, and the overall economy by abandoning a policy that has allowed nearly three-quarters of a million people to obtain work authorization and other benefits. See ER 40. But the 14-document administrative record produced by defendants is bereft of any indication that the agency balanced the perceived litigation threat against any “competing policy considerations.” Id.
Defendants’ only response is that it was “suitably respectful of the interests of existing DACA recipients” and “by far, the more humane choice” to wind down DACA rather than risk the possibility of an injunction being entered against the program. AOB 35, 36. Perhaps humanity is in the eye of the beholder, but the
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requirements of the APA are not. It may well be that defendants “can end the DACA program.” Batalla Vidal II, 279 F. Supp. 3d at 408. They must, however, follow the requisite procedures and offer a candid and rational explanation for doing so. See supra pp. 36-38. The APA does not allow them to avoid public accountability and meaningful review with a one-sentence explanation that attempts to shift responsibility for this momentous decision from current policymakers to the courts.18
B. The Equities and the Public Interest Favor the Entry of a Preliminary Injunction
As the district court held, the remaining factors of the Winter test weigh heavily in favor of provisional relief. ER 43-46. The district court accordingly entered a preliminary injunction partially preserving the status quo, only for those who had already applied for and received deferred action under DACA. ER 46. The injunction preserves DHS’s pre-existing ability to exercise discretion on an individualized basis for each person who applies for renewal, and to proceed to remove anyone, at any time, on any lawful ground. Id. Tellingly, defendants do not advance any criticism of the district court’s balancing of the equitable factors governing issuance of a preliminary injunction. By choosing not to challenge the district court’s conclusion that the balance of the equities favors a preliminary
18 For all these reasons, the district court also correctly denied defendants’ motion to dismiss with respect to plaintiffs’ substantive APA claim. ER 51.
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injunction under Winter (and under the alternative, “sliding-scale” test (ER 46 n.19)), defendants have forfeited any such argument. See, e.g., Anderson v. Suburban Teamsters of N. Ill. Pension Fund Bd. of Trs., 588 F.3d 641, 649 n.4 (9th Cir. 2009).
1. As the district court found, plaintiffs “have clearly demonstrated that they are likely to suffer serious irreparable harm absent an injunction.” ER 43. The States employ and educate substantial numbers of DACA recipients (see, e.g., ER 95-96) and will “face irreparable harm as they begin to lose valuable students and employees in whom they have invested” (ER 43). That “loss of DACA recipients from the workforce will have a detrimental impact on their organization interests, economic output, public health, and safety.” Id. The other entity plaintiffs face similar prospects. Id. And the harm facing the individual plaintiffs (and other DACA recipients across the country) is even more severe. Without the injunction, thousands of DACA recipients would have lost their work authorization and deferred action status beginning in March 2018 (ER 44)—and thousands more the next month, and each succeeding month, until nearly three-quarters of a million young Americans would be shunted back into the shadows of our society. That would profoundly damage the individual plaintiffs, the States and the other entity plaintiffs, our communities, our educational institutions, our businesses, and the entire Nation. See ER 43-44.
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In contrast to the abundant evidence of harm that the plaintiffs and the public would suffer in the absence of provisional relief, the district court found no credible indication that a preliminary injunction would harm defendants. ER 4546. “The only hardship raised by defendants” before the district court was “interference with the agency’s judgment on how best to allocate its resources” and on “phasing out DACA.” ER 45. But it is difficult to credit this as an allegation of serious harm when defendants’ decision was putatively based not on any judgment about a preferred use of resources, but on a legal conclusion that the current policy was unlawful. Moreover, defendants themselves decided to leave DACA in place for the first seven months of the current administration, with the President proclaiming that the policy of his Administration would be “to allow the dreamers to stay.” Supra p. 8; see ER 45. Even in rescinding DACA, defendants chose to allow some recipients to continue to receive deferred action and associated benefits until 2020. See ER 130.
Indeed, the district court’s uncontroverted equitable findings established that “preliminary relief would also be appropriate” under the alternative sliding-scale approach to preliminary injunctions. ER 46 n.19. Where, as here, the “balance of hardships tips sharply in Plaintiffs’ favor, and the public interest favors a preliminary injunction,” a preliminary injunction is appropriate under the slidingscale approach if the “Plaintiffs have at least presented serious questions going to
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the merits of their” claims. M.R. v. Dreyfus, 697 F.3d 706, 733, 739 (9th Cir. 2012). For example, “a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits.” All. for the Wild Rockies, 632 F.3d at 1131. Again, defendants do not challenge the district court’s application of this standard.
2. Defendants do challenge the geographic scope of the district court’s injunction. See AOB 48-54. Despite their professed belief that it was “likely” and “inevitable” that the DACA program would have been “enjoined nationwide” if Texas had challenged it (AOB 14; D.Ct. Dkt. 204 at 1), they argue that the district court here “erred in enjoining the rescission of DACA on a ‘nationwide basis’” (AOB 48). In support of that argument, defendants primarily discuss Supreme Court precedent regarding the requirements for a plaintiff to establish Article III standing. AOB 49-50. But that discussion is misplaced; defendants do not dispute that there are plaintiffs in this case who have Article III standing, for whom “any concrete application” of the decision to rescind DACA “threatens imminent harm.” AOB 50 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009)); see ER 23.
Moreover, defendants neglect to mention the Supreme Court’s admonition that “the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Califano v.
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Yamasaki, 442 U.S. 682, 702 (1979). They also ignore that Court’s recent decision to leave two nationwide injunctions regarding President Trump’s second travel ban “in place with respect to respondents and those similarly situated” while appellate proceedings played out. See Int’l Refugee Assistance Project, 137 S. Ct. at 2087. And they do not address the reasoning of the Fifth Circuit’s Texas decision, which acknowledged the “power of a [district] court, in appropriate circumstances, to issue a nationwide injunction.” Texas, 809 F.3d at 188. As Texas recognized, see id. at 187-188, and as this Court recently affirmed, nationwide injunctive relief is particularly likely to be appropriate in the immigration context, given constitutional and statutory requirements for a uniform immigration policy and the concern that “piecemeal relief would fragment immigration policy.” Hawaii, 878 F.3d at 701; cf. Washington v. Trump, 847 F.3d 1151, 1166-1167 (9th Cir. 2017).
In important respects, this case is a far better candidate for a nationwide injunction than Texas was. The only credible evidence of harm before the district court in that case was Texas’s claim that it would have to spend several million dollars to provide driver’s licenses to immigrants if DAPA took effect. See 809 F.3d at 155, 186. Here, DACA recipients in all 50 States will lose their protected status and work authorization if defendants’ decision is implemented (SER 14801481), and the plaintiffs in this action include States from across the Nation, each of which will be harmed by the termination of DACA. A preliminary injunction
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limited to the geographic boundaries of the plaintiff entities would create a patchwork immigration policy, in which DACA recipients in certain States could apply for renewal, while those in other States could not. It is difficult to comprehend how such an order would “increase[]” uniformity, as defendants contend. AOB 53. And defendants do not even attempt to explain how such an injunction would be workable in view of the fact that DACA grantees are “free to move among the states.” Texas, 809 F.3d at 188; see Batalla Vidal II, 279 F. Supp. 3d at 437-438; cf. Washington, 847 F.3d at 1167.
Defendants instead invoke decisions from outside the immigration context holding that nationwide injunctions were inappropriate under the facts of particular cases. See Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664-665 (9th Cir. 2011); Meinhold v. U.S. Dep’t of Def., 34 F.3d 1469, 1480 (9th Cir. 1994). Those cases establish that a court may abuse its discretion by granting a nationwide injunction that “would not be in the public interest” in a suit brought by a single hospice company, Los Angeles Haven Hospice, Inc., 638 F.3d at 665, or by prohibiting a branch of the armed forces “from applying its regulations” to “all . . . military personnel” based on a suit seeking the reinstatement of a single petty officer, Meinhold, 34 F.3d at 1480. But there “is no general requirement that an injunction affect only the parties in the suit,” Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1987), as defendants suggest (AOB 50-51). And the provisional
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relief granted against defendants here is particularly appropriate in light of the nature of the violation, the need for a uniform immigration policy, and the nationwide harm that the public would suffer in the absence of such relief.19
Finally, defendants contend that the grant of provisional relief in this case “foreclos[es]” adjudication of similar issues in other courts. AOB 51. They acknowledge, however, that the Eastern District of New York continued to adjudicate these issues and granted its own provisional relief notwithstanding the issuance of the preliminary injunction in this case. Id. Nothing about the relief granted by the district court below prevents the parties to DACA suits in New York, Maryland, and elsewhere from pressing their claims and defenses and seeking prompt appellate review of trial court rulings. III. PLAINTIFFS STATED A DUE PROCESS CLAIM REGARDING THE USE OF
INFORMATION PROVIDED BY DACA RECIPIENTS Defendants contend that the district court erred by refusing to dismiss plaintiffs’ due process claim regarding changes to the policy governing the use of DACA recipients’ sensitive information. See AOB 45-48. The district court certified this issue for interlocutory appeal (ER 63), but defendants did not include
19 Defendants also cite Zepeda v. INS, 753 F.2d 719, 730 n.1 (9th Cir. 1983). See AOB 49. The “import of the rule underlying Zepeda is that an injunction cannot issue against an entity that is not a party to the suit.” Bresgal, 843 F.2d at 1170. That rule does not prohibit the Court from affirming an injunction issued against federal defendants who are parties to a suit—as it did in Bresgal. See id. at 11701171; see also Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004).
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it in their petition for permission to appeal before this Court (see Pet. 1), as required by the federal rules, see Fed. R. App. P. 5(b)(1) (“The petition must include the following: . . . (B) the question itself”). Review under 28 U.S.C. § 1292(b) is at the discretion of the court of appeals, and this Court may decline to consider the issue based on that omission alone. Cf. McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1263 (11th Cir. 2004); In re GGM, P.C., 165 F.3d 1026, 1032 (5th Cir. 1999). In any event, defendants’ arguments lack merit.
Plaintiffs have plausibly alleged that defendants changed their policies regarding the use of sensitive personal information. See generally Starr v. Baca, 652 F.3d 1202, 1217 (9th Cir. 2011) (plaintiffs need only “‘plausibly suggest an entitlement to relief’” and “raise a reasonable expectation that discovery will” lead to evidence supporting their allegations). Originally, DHS told applicants for deferred action that the information they provided would be “protected from disclosure to ICE and CBP for the purposes of immigration enforcement proceedings” except in two narrow circumstances. ER 114, 149. In 2016, thenSecretary of DHS Jeh Johnson acknowledged that “these representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be honored.” ER 108. Defendants changed course when they terminated DACA in September 2017. Outside of the two narrow circumstances already identified as bases for disclosure, they now state only that, “[g]enerally,
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information provided in DACA requests will not be proactively provided to other law enforcement entities[.]” ER 114 (emphasis added).
As the district court held, plaintiffs have adequately alleged that the federal government’s prior policy and representations established “a ‘mutually explicit understanding’ giving rise to a protected interest” in the confidential information. ER 56; see Gerhart v. Lake Cty., 637 F.3d 1013, 1020 (9th Cir. 2011) (citing Perry v. Sindermann, 408 U.S. 593, 601 (1972)). Defendants invited individuals to come forward and apply for protected status and other benefits, requiring them to provide sensitive personal information that defendants promised would be affirmatively safeguarded from disclosure. ER 105-109; cf. Casa de Md., 2018 WL 1156769, at *14-*15 (“find[ing] that the Government promised not to transfer or use the information gathered from Dreamers for immigration enforcement”). And plaintiffs “clearly alleged that DHS changed its information-sharing policy such that now, rather than affirmatively protecting DACA recipients’ information from disclosure, the government will only refrain from ‘proactively’ providing their information for purposes of immigration enforcement proceedings.” ER 56. In light of that abrupt change, the reliance interests surrounding the prior mutual understanding about confidentiality, and the profoundly harmful consequences that could result from the policy change, the district court correctly held that plaintiffs have plausibly alleged a “broken promise” that “‘shock[s] the conscience and
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offend[s] the community’s sense of fair play and decency.’” ER 57 (quoting Marsh, 680 F.3d at 1154); cf. Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (removal is a “particularly severe ‘penalty’”).
Defendants respond, on the one hand, that they were free to change the information-sharing policy, pointing to language in the original and modified policies stating that the policies “‘may be modified, superseded, or rescinded at any time.’” AOB 46. As the district court explained, however, that language is at least ambiguous. It is readily susceptible to the reading that it “allows the government to change its policy in connection with future applicants,” but not in connection with those who disclosed sensitive information while the original policy was in place. ER 56-57. In light of the surrounding circumstances, including defendants’ announcement that they have “consistently made clear that information provided by applicants will be collected and considered for the primary purpose of adjudicating their DACA requests and would be safeguarded from other immigration-related purposes” (SER 1330), the general reservation of rights does not defeat plaintiffs’ due process claim. See Perry, 408 U.S. at 602 (protected interest may be established “from ‘the promisor’s words and conduct in the light of the surrounding circumstances’”).
On the other hand, defendants argue that their policy has not changed. AOB 46-47. They point to another DHS website posted in December 2017—
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months after the States’ complaint was filed, and the day before defendants’ reply in support of their motion to dismiss was due—stating that the “informationsharing policy has not changed in any way since it was first announced[.]” AOB 47. But the language defendants cite does not restore the protections contained in the original policy. To the contrary, it reiterates the troubling terminology found in the new policy. See USCIS, Guidance on Rejected DACA Requests, https://go. usa.gov/xnSFj (repeating statement regarding not “proactively provid[ing]” information, rather than statement that information will be “protected from disclosure”). IV. PLAINTIFFS STATED A CLAIM THAT DEFENDANTS VIOLATED THE
APA’S NOTICE-AND-COMMENT REQUIREMENT Plaintiffs also alleged that defendants violated the APA because they rescinded DACA without providing the public with notice and an opportunity to comment on that decision. The district court dismissed that claim, concluding that the Acting Secretary’s 2017 memorandum was a “general statement[] of policy,” and was therefore exempt from those procedural requirements. ER 51; see 5 U.S.C. §§ 553(b)(3)(A), 706(2)(D). It further concluded “that because the original promulgation of the discretionary program did not require notice and comment, a return to the status quo ante also does not require notice and comment.” ER 52. Both conclusions are flawed.
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A general statement of policy, for which notice-and-comment procedures are not required, “merely provides guidance to agency officials in exercising their discretionary powers while preserving their flexibility and their opportunity to make ‘individualized determination[s.]’” Mada-Luna, 813 F.2d at 1013. In contrast, a directive that “‘narrowly limits administrative discretion’ or establishes a ‘binding norm’ . . . effectively replaces agency discretion with a new ‘binding rule of substantive law,’” and must go through notice-and-comment rulemaking proceedings. Id. at 1014 (emphasis omitted). The “ultimate issue” in deciding whether an agency statement is a policy statement or a substantive rule is “‘the agency’s intent to be bound.’” Municipality of Anchorage v. United States, 980 F.2d 1320, 1325 (9th Cir. 1992) (quoting Public Citizen, Inc. v. USNRC, 940 F.2d 679, 681-682 (D.C. Cir. 1991)).
The 2012 memorandum establishing DACA was a policy statement because it furnished agency officials with guidance about how to exercise their discretion in making deferred action decisions, while at the same time preserving their ability to deny requests for relief on a “case by case basis.” ER 142. The 2017 memorandum, in contrast, adopts the Attorney General’s categorical “legal determination” that DACA was unlawful. ER 129; see ER 130, 176; AOB 38. It establishes a new rule of substantive law for the agency: that DHS lacks the legal authority to create (or continue) deferred-action programs like DACA and DAPA.
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And it leaves no doubt that the agency intends to be bound by this substantive determination, by asserting that it is “clear that the . . . DACA program should be terminated”; by requiring agency officials to reject “all DACA initial requests” filed after September 5, 2017; and by providing that the agency will not approve “any new Form I-131 applications for advance parole under standards associated with the DACA program.” ER 130-131. The agency intends the 2017 memorandum to be “‘finally determinative of the issue[] . . . addressed.’” MadaLuna, 813 F.2d at 1014. Such a rule may only be adopted through notice-andcomment procedures. Id.
Even accepting defendants’ new position that they were required to go through the notice-and-comment process before adopting DACA in 2012 (AOB 29-30), that would not excuse them from following those procedures before terminating the policy. When an agency believes that an existing substantive rule was defectively promulgated, it still must conduct a notice-and-comment process to modify or repeal that rule. See Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 447 n.79 (D.C. Cir. 1982) (question whether original rule was defectively promulgated is itself “one worthy of notice and an opportunity to comment”). Otherwise, agencies could “circumvent the requirements of [Section] 553” any time they wanted to alter a rule, simply by asserting that the rule was “defective in some respect.” Id. That principle should apply whether the agency
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attempts to rescind a substantive rule that was “defectively promulgated” through a notice-and-comment process, see id., or seeks to rescind a substantive rule that it now believes should have been adopted through a notice-and-comment process in the first instance. Cf. Mada-Luna, 813 F.2d at 1017 n.12 (“[W]hen the government seeks to repeal a regulation, it is generally not bound for section 553 purposes by the way it classified that regulation at the time of its promulgation.”). Accordingly, regardless of what procedures were required to adopt DACA in the first place, plaintiffs stated a valid claim that the decision to terminate it had to be made using notice-and-comment procedures.
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CONCLUSION The order granting a preliminary injunction should be affirmed. The order

regarding defendants’ Rule 12(b)(6) motion to dismiss should be affirmed with

respect to the substantive APA claim and the due process claim regarding

information sharing, and reversed with respect to the notice-and-comment claim.

Respectfully submitted,

BRIAN E. FROSH Attorney General of Maryland Steven M. Sullivan Solicitor General Leah J. Tullin Assistant Attorney General 200 Saint Paul Place, 20th Floor Baltimore, MD 21202 (410) 576-6325 ssullivan@oag.state.md.us Attorneys for the State of Maryland
LORI SWANSON Attorney General of Minnesota Jacob Campion Assistant Attorney General 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 (651) 757-1136 jacob.campion@ag.state.mn.us Attorneys for the State of Minnesota
Dated: March 13, 2018

XAVIER BECERRA Attorney General of California Edward C. DuMont Solicitor General s/ Michael J. Mongan Michael J. Mongan Deputy Solicitor General Michael L. Newman Supervising Deputy Attorney General James F. Zahradka II Deputy Attorney General Samuel P. Siegel Associate Deputy Solicitor General 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102 (415) 510-3920 michael.mongan@doj.ca.gov Attorneys for the State of California
JANET T. MILLS Attorney General of Maine Susan P. Herman Deputy Attorney General 6 State House Station Augusta, ME 04333 (207) 626-8814 susan.herman@maine.gov Attorneys for the State of Maine

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STATEMENT OF RELATED CASES The States are not aware of any related cases, as defined by Ninth Circuit Rule 28-2.6, that are currently pending in this Court and are not already consolidated here.
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CERTIFICATE OF COMPLIANCE I certify that this brief complies with the requirements of Federal Rules of Appellate Procedure 32(a)(5)-(6) and Ninth Circuit Rule 28.1-1(c) because it uses a proportionately spaced Times New Roman font, has a typeface of 14 points, and contains 16,432 words.

Dated: March 13, 2018

s/ Michael J. Mongan

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CERTIFICATE OF SERVICE I certify that on March 13, 2018, I electronically filed the foregoing document with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all other participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: March 13, 2018

s/ Michael J. Mongan

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
Plaintiffs/Appellees v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants/Appellants _________________

On Appeal from the United States District Court for the Northern District of California, Honorable William H. Alsup, Presiding __________________

PRINCIPAL AND RESPONSE BRIEF OF APPELLEES THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, JANET NAPOLITANO,
AND CITY OF SAN JOSÉ __________________

Jeffrey M. Davidson Mónica Ramírez Almadani Erika Douglas David S. Watnick Breanna K. Jones COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, CA 94111-5356 (415) 591-6000

Robert A. Long Mark H. Lynch Alexander A. Berengaut Megan A. Crowley Ivano M. Ventresca COVINGTON & BURLING LLP One CityCenter 850 Tenth Avenue, NW Washington, DC 20001

Attorneys for Plaintiffs The Regents of the University of California, et al.

Justin T. Berger Brian Danitz COTCHETT, PITRE & MCCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 (650) 697-6000
Attorneys for Plaintiff City of San José

(ADDITIONAL COUNSEL LISTED ON SIGNATURE PAGE)

TABLE OF CONTENTS
INTRODUCTION ................................................................................ 1
STATEMENT OF THE ISSUES ......................................................... 4
STATEMENT OF THE CASE ............................................................ 4
A. Overview And History Of DACA.............................................. 4
1. History of deferred action. ............................................... 4 2. The establishment and benefits of DACA. ...................... 7 3. Defendants’ maintenance of and support for DACA. ..... 9 4. Defendants’ abrupt rescission of DACA. ...................... 10 5. The consequences of the rescission. .............................. 13
B. Procedural History.................................................................... 17
1. The district court proceedings. ....................................... 17 2. Proceedings in this Court. .............................................. 22
STANDARD OF REVIEW................................................................ 23
SUMMARY OF ARGUMENT.......................................................... 24
ARGUMENT...................................................................................... 30
I. Plaintiffs’ Claims Are Subject To Judicial Review. ................ 30
A. Section 1252(g) Does Not Bar Judicial Review. ........... 30
B. The Rescission Of DACA Is Not “Committed To Agency Discretion By Law.” ......................................... 33
1. The APA strongly favors judicial review of administrative actions. ......................................... 33
2. There is law to apply to plaintiffs’ claims challenging the DACA rescission. ........... 35
3. The rescission of DACA is reviewable, programmatic agency action................................ 37
II. The District Court’s Injunction Was Within Its Discretion. .... 43
i

A. Plaintiffs Are Likely To Succeed On Their APA Arbitrary-And-Capricious Claims. ................................ 44 1. The government’s “legality” rationale is arbitrary and capricious. ...................................... 46 2. The government’s post hoc “litigation risk” argument cannot support the decision to rescind DACA. ................................................................. 52 3. The government failed to consider reliance interests. ............................................................... 57 4. The government failed to consider alternative policies before rescinding DACA. ...................... 60 5. The government’s proffered rationales for the rescission are pretextual....................................... 62
C. The District Court Properly Enjoined Defendants From Proceeding With The Rescission ......................... 68 1. The injunction was appropriately tailored. .......... 69 2. The injunction is consistent with Article III........ 72
III. Plaintiffs’ APA Notice-And-Comment Claims Provide An Additional Basis To Affirm...................................................... 75 A. The Rescission Is A Substantive Rule. .......................... 75 B. The District Court Erred In Finding That The Rescission Did Not Require Notice-And-Comment Procedures. ..................................................................... 78
CONCLUSION................................................................................... 82
ii

TABLE OF AUTHORITIES
Cases
Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ...........................................................................31, 54
Alaska Fish & Wildlife Federation & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir. 1987) ....................................................................40
Alaska v. DOT, 868 F.2d 441 (D.C. Cir. 1989) .................................................................77
Alcaraz v. INS, 384 F.3d 1150 (9th Cir. 2004)..................................................................36
Am. Forest Res. Council v. Ashe, 946 F. Supp. 2d 1 (D.D.C. 2013) .............................................................81
Ariz. Dream Act Coal. v. Brewer, 2015 WL 5120846 (9th Cir. Aug. 1, 2015) ................................................9
ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059 (9th Cir. 2015)..................................................................34
Batalla Vidal v. Duke, 2017 WL 4737280 (E.D.N.Y. Oct. 19, 2017) ..........................................18
Batalla Vidal v. Duke, 2017 WL 5201116 (E.D.N.Y. Nov. 9, 2017) ...............................36, 37, 74
Batalla Vidal v. Nielson, 279 F. Supp. 3d 401 (E.D.N.Y. 2018)................................................18, 52
Benten v. Kessler, 799 F. Supp. 281 (E.D.N.Y. 1992)...........................................................81
Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144 (9th Cir. 2017)..................................................................24
iii

Bowen v. Massachusetts, 487 U.S. 879 (1988) ...........................................................................33, 51
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) .................................................................................45
Califano v. Yamasaki, 442 U.S. 682 (1979) .................................................................................71
Casa De Maryland v. DHS, 2018 WL 1156769 (D. Md. Mar. 5, 2018) .............................18, 37, 55, 56
Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000)..................................................................32
Chapman v. Cty. of Douglas, 107 U.S. 348 (1883) .................................................................................54
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ..........................................................................passim
City of Kansas City, Mo. v. HUD, 923 F.2d 188 (D.C. Cir. 1991) ...........................................................45, 46
Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987) .................................................................76
Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112 (9th Cir. 2009)..................................................................76
Consumer Energy Council v. FERC, 673 F.2d 425 (D.C. Cir. 1982) .................................................................81
Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015) ..............................................................50, 55
Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671 (D.C. Cir. 1994) .............................................................39, 41
De Beers Consol. Mines v. United States, 325 U.S. 212 (1945) ...........................................................................69, 70
iv

Earth Island Inst. v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007) ....................................................................70
Edison Elec. Inst. v. EPA, 996 F.2d 326 (D.C. Cir. 1993) .....................................................35, 41, 43
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ...........................................................27, 58, 59, 60
Envtl. Def. Fund, Inc. v. Alexander, 614 F.2d 474 (5th Cir. 1980) ....................................................................54
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ..........................................................................passim
Fortyune v. City of Lomita, 766 F.3d 1098 (9th Cir. 2014)..................................................................23
Franklin v. Massachusetts, 505 U.S. 788 (1992) .................................................................................44
Gen. Elec. Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002) .................................................................78
Gonzalez-Caraveo v. Sessions, 882 F.3d 885 (9th Cir. 2018) ..............................................................37, 39
Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989) .................................................................70
Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017) ........................................................69, 72, 74
Heartland Acad. Cmty. Church v. Waddle, 427 F.3d 525 (8th Cir. 2005) ....................................................................73
Heckler v. Chaney, 470 U.S. 821 (1985) ..........................................................................passim
Helping Hand Tools v. EPA, 848 F.3d 1185 (9th Cir. 2016)..................................................................49
v

Hernandez v. Hughes Missile Sys. Co., 362 F.3d 564 (9th Cir. 2004) ....................................................................63
Humane Soc’y of U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010)..................................................................52
ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987) (BLE).......................................................................42
INS v. St. Cyr, 533 U.S. 289 (2001) .................................................................................34
Int’l Longshoremen’s & Warehousemen’s Union v. Meese, 891 F.2d 1374 (9th Cir. 1989)..................................................................43
Jennings v. Rodriguez, No. 15-1204, slip op. (U.S. Feb. 27, 2018) ..............................................31
L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011) ....................................................................71
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970 (9th Cir. 1991) ..............................................................69, 72
Lincoln v. Vigil, 508 U.S. 182 (1993) .....................................................................34, 42, 79
Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015) .............................................................................34
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987)......................................................79, 81, 82
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) .................................................................................74
McKenzie v. City of Chicago, 118 F.3d 551 (7th Cir. 1997) ....................................................................71
McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988) ...............................................................77
vi

Meinhold v. DOD, 34 F.3d 1469 (9th Cir. 1994) ....................................................................71
Mendez-Gutierrez v. Ashcroft, 340 F.3d 865 (9th Cir. 2003) ....................................................................34
Mont. Air Chapter No. 29, Ass’n of Civilian Technicians, Inc. v. Fed. Labor Relations Auth., 898 F.2d 753 (9th Cir. 1990) ..................................................25, 35, 39, 40
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ............................................................................passim
Municipality of Anchorage v. United States, 980 F.2d 1320 (9th Cir. 1992)..................................................................76
Nat’l Treasury Emps. Union v. Horner, 854 F.2d 490 (D.C. Cir. 1988) ...........................................................20, 25
Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765 (D.C. Cir. 1992) .................................................................43
Negusie v. Holder, 555 U.S. 511 (2009) .................................................................................51
Neil v. Biggers, 409 U.S. 188 (1972) .................................................................................11
New England Coal. on Nuclear Pollution v. NRC, 727 F.2d 1127 (D.C. Cir. 1984) .........................................................45, 62
In re Nielsen, No. 17-3345, slip op. (2d Cir. Dec. 27, 2017)..........................................18
Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) ....................................................................53
OSG Bulk Ships, Inc. v. United States, 132 F.3d 808 (D.C. Cir. 1998) .................................................................41
United States ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977).............................................................80
vii

Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480 (9th Cir. 1995) ....................................................................73
Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005) ....................................................................75
Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199 (2015) .............................................................................58
Pinnacle Armor, Inc. v. United States, 648 F.3d 708 (9th Cir. 2011) ....................................................................31
Pollinator Stewardship Council v. EPA, 806 F.3d 520 (9th Cir. 2015) ....................................................................57
Pub. Citizen v. Heckler, 653 F. Supp. 1229 (D.D.C. 1986) ......................................................62, 63
Ramirez Medina v. DHS, 2017 WL 5176720 (W.D. Wash. Nov. 8, 2017) ......................................32
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ...........................................................................31, 47
Reno-Sparks Indian Colony v. EPA, 336 F.3d 899 (9th Cir. 2003) ....................................................................78
Robbins v. Reagan, 780 F.2d 37 (D.C. Cir. 1985) .......................................................36, 37, 40
Roe v. Anderson, 134 F.3d 1400 (9th Cir. 1998)..................................................................24
Runyon v. McCrary, 427 U.S. 160 (1976) .................................................................................73
Safe Air For Everyone v. EPA, 488 F.3d 1088 (9th Cir. 2007)..................................................................51
San Diego Air Sports Ctr., Inc. v. FAA, 887 F.2d 966 (9th Cir. 1989) ....................................................................75
viii

SEC v. Chenery Corp., 318 U.S. 80 (1943) .......................................................................45, 51, 52
Serrato v. Clark, 486 F.3d 560 (9th Cir. 2007) ....................................................................35
Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035 (9th Cir. 2010)..................................................................23
Singleton v. Wulff, 428 U.S. 106 (1976) .................................................................................73
Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152 (9th Cir. 2017)..................................................................23
Squaw Transit Co. v. United States, 574 F.2d 492 (10th Cir. 1978)..................................................................46
Texas v. United States, 787 F.3d 733 (5th Cir. 2015) ..............................................................54, 61
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) .............................................................passim
Texas v. United States, 86 F. Supp. 3d 591, 673 (S.D. Tex. 2015) ...............................................56
Thalheimer v. City of San Diego, 645 F.3d 1109 (9th Cir. 2011)..................................................................24
Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) .............................................................................69
United States v. Armstrong, 517 U.S. 456 (1996) .................................................................................42
United States v. Texas, 2016 WL 836758 (U.S. Mar. 1, 2016) ...............................................47, 52
Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998)..................................................................32
ix

Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017)............................................................72, 73
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .................................................................................57
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) .....................................................................................24
Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71 (2d Cir. 2006) .......................................................................45
Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442 (9th Cir. 1994) ......................................................................78
Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983) ....................................................................71
Statutes 5 U.S.C. § 551..........................................................................................75, 80 5 U.S.C. § 553................................................................................................79 5 U.S.C. § 701.........................................................................................passim 5 U.S.C. § 702................................................................................................33 5 U.S.C. § 706.........................................................................................passim 6 U.S.C. § 202............................................................................................5, 47 8 U.S.C. § 1101..............................................................................................74 8 U.S.C. § 1103..............................................................................................47 8 U.S.C. § 1151................................................................................................6 8 U.S.C. § 1154................................................................................................6 8 U.S.C. § 1182..........................................................................................8, 14 8 U.S.C. § 1227..........................................................................................6, 47 8 U.S.C. § 1252(g) ..................................................................................passim
x

8 U.S.C. § 1324a......................................................................................47, 75 Other Authorities 8 C.F.R. § 212.5(f).......................................................................................8, 9 8 C.F.R. § 274a.12(c)(14)..........................................................................8, 75
xi

INTRODUCTION The Deferred Action for Childhood Arrivals program was created in 2012 to provide young immigrants who were brought to the United States as children with the opportunity to live and work openly in this country without fear of arrest, detention, and deportation. Like the prior deferred action programs created by each presidential administration over the last 60 years, DACA stems from a determination that its beneficiaries are making valuable contributions to American society and should not be priorities for deportation. The program has profoundly improved the lives of hundreds of thousands of DACA recipients—who have relied on its protections to form families, start careers, and pursue degree programs—and has benefitted the communities in which they live, work, and study. Yet on September 5, 2017, the Department of Homeland Security suddenly terminated DACA, telling its beneficiaries that they should “prepare for and arrange their departure from the United States.” The Administrative Procedure Act requires agency actions like the rescission of DACA to be substantively reasonable and reasonably explained. So long as there is “law to apply,” the APA empowers the courts to set aside actions that are “arbitrary, capricious, or otherwise not in

accordance with law.” Substantive rules must also comply with notice-andcomment procedures designed to ensure reasonable deliberation.
The rescission of DACA is arbitrary and legally indefensible. It immediately plunged 690,000 young immigrants into confusion and fear, and threatens the estimated 200,000 U.S.-citizen children of DACA recipients with the terrifying prospect of their parents’ deportation. If allowed to take effect, the rescission would strip tens of thousands of DACA recipients each month of the right to lawfully work in the United States, forcing them to abandon promising careers as teachers, doctors, and soldiers. Schools such as the University of California would lose prized students, researchers, and teachers, and employers across the country would lose valued employees. The broader economy and the tax base would also suffer.
The government has not defended the rescission on policy grounds, nor does it deny its profoundly harmful consequences. Instead, it rests the rescission of DACA on a half-page letter from the Attorney General asserting that DACA “was effectuated . . . without proper statutory authority” and “was an unconstitutional exercise of authority by the Executive Branch.” But this statement lacks legal support and conflicts with the government’s own prior legal opinions and positions, as well as the consensus of the last eleven presidential administrations, Congress, and the
2

Supreme Court that deferred action programs are lawful exercises of enforcement discretion.
Thus, as the district court carefully and correctly held, the rescission was based on a mistake of law. Moreover, the government failed to consider factors essential to any rational decision to rescind a policy like DACA— namely, the consequences of the rescission, such as its effects on the hundreds of thousands of young people who have built their lives in reliance on its protections.
The government’s failure to provide a defensible rationale for its action suggests that it did not rescind DACA based on a good-faith determination that the program was unlawful. Instead, the evidence shows that the rescission of DACA was (1) based on demonstrably false assumptions about DACA’s effects on jobs, crime, and terrorism; and (2) implemented in order to use DACA recipients as human bargaining chips to trade for the administration’s immigration agenda, including a border wall and restrictions on legal immigration. But false assumptions and political hostage-taking do not satisfy the legal requirement that administrative action be “rational, neutral, and in accord with the agency’s proper understanding of its authority.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 536
3

(2009) (Kennedy, J., concurring). The district court’s rulings should be affirmed.
STATEMENT OF THE ISSUES 1. Whether 8 U.S.C. § 1252(g) or 5 U.S.C. § 701(a)(2) strips the courts of jurisdiction to review the rescission of DACA. 2. Whether the district court acted within its discretion in partially enjoining the rescission based on its findings that (a) plaintiffs would likely succeed in demonstrating that the rescission of DACA was substantively unreasonable under the Administrative Procedure Act, and (b) the irreparable harm, balance of equities, and public interest factors all favored an injunction. 3. Whether the rescission of DACA was a substantive rule required to undergo notice-and-comment rulemaking procedures.
STATEMENT OF THE CASE A. Overview And History Of DACA.
1. History of deferred action. There are approximately 11 million undocumented immigrants in the United States potentially subject to removal, but “[t]here simply are not enough resources to enforce all of the rules and regulations presently on the books.” SER1215. Moreover, in some circumstances, “application of the literal letter of the law would simply be unconscionable and would serve no
4

useful purpose.” Id. Accordingly, using their statutory authority to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), DHS and its predecessor agency have frequently exercised discretion not to remove otherwise removable immigrants. SER1330.
The need for consistency and administrative efficiency has led every presidential administration since 1956 to exercise this discretion programmatically—by identifying categories of immigrants as low priorities for removal. Beginning in 1956, President Eisenhower paroled into the United States foreign-born orphans who had been adopted by American citizens overseas, SER1224, as well as tens of thousands of Hungarian refugees after the unsuccessful Hungarian revolution, SER1226. The Eisenhower, Kennedy, Johnson, and Nixon Administrations paroled more than 600,000 Cubans into the United States through a series of discretionary programs. SER265. The Reagan and George H.W. Bush Administrations instituted, then expanded, the Family Fairness Program, which provided extended voluntary departure to approximately 1.5 million family members of immigrants who were in the process of legalizing their immigration status under the Immigration Reform and Control Act. SER239, 1228. The Clinton Administration established a deferred action program for individuals selfpetitioning for relief under the Violence Against Women Act of 1994.
5

SER1234. The George W. Bush Administration established a deferred action program in 2005 to grant temporary relief to thousands of foreign students who, because of Hurricane Katrina, could not satisfy the requirements of their student visas. SER1248. The history of these and many other deferred action programs is set out in more detail at SER265-66.
For decades, the legality of deferred action programs was commonly accepted, none were challenged in court, and Congress recognized and incorporated several of these deferred action programs in amendments to the Immigration and Nationality Act (INA).1 Virtually all of the prior programs ended either because their protections were codified by statute or regulation, or because the program was designed from the outset to address a temporary disruption (e.g., the program for foreign students affected by Hurricane Katrina). SER265-66. The rescission of DACA is the first time that the government has terminated a deferred action program and subjected longterm United States residents to deportation.
1 See, e.g., 8 U.S.C. § 1227(d)(2) (U visa and T visa applicants are eligible for “deferred action”); 8 U.S.C. § 1154(a)(1)(D)(i)(II) (petitioners under the Violence Against Women Act were eligible for “deferred action and work authorization”); 8 U.S.C. § 1151 note (certain immediate family members of certain U.S. citizens “shall be eligible for deferred action”).
6

2. The establishment and benefits of DACA. On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum establishing DACA (the “2012 DACA Memorandum”). ER140. Under DACA, “certain young people who were brought to this country as children and know only this country as home” are able to apply for discretionary relief from removal for renewable two-year periods. ER141. Applicants are eligible for DACA if they (1) came to the United States under the age of sixteen; (2) have continuously resided in the United States since June 15, 2007, and were present in the United States both on June 15, 2012, and on the date they requested DACA; (3) are in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the United States military or Coast Guard; (4) do not have a significant criminal record and are not a threat to national security or public safety; (5) were under the age of 31 as of June 15, 2012; and (6) do not have lawful immigration status. ER141-43, 145-46. DACA applicants are required to provide the government with sensitive personal information, submit to a rigorous background check, and pay a substantial application fee. SER1308-14, 1318-25, 1328. The government launched an extensive outreach campaign to promote DACA,
7

emphasizing that the information DACA applicants provided to the government would not be used in immigration enforcement proceedings absent special circumstances. ER134-36; SER1303, 1330.
Since 2012, nearly 800,000 young people have received deferred action under DACA. SER1480. During the period of their DACA grants, recipients cannot be arrested, detained, or removed solely on the basis of their undocumented status, and they no longer accrue “unlawful presence” for purposes of the INA’s bars on re-entry, see 8 U.S.C. § 1182(a)(9)(B)-(C). Like all beneficiaries of deferred action, DACA recipients are eligible to obtain employment authorization and social security numbers. See 8 C.F.R. § 274a.12(c)(14). The ability to lawfully work allows them to better support their families, pay for their educations, and pursue their chosen careers. SER1074-75. DACA recipients may also obtain “advance parole”— permission to travel abroad for humanitarian, educational, or employment purposes. See 8 C.F.R. § 212.5(f); ER161.
In addition to the benefits for its recipients, DACA has also conferred benefits on American society more broadly. DACA recipients have a 91 percent employment rate, and their average hourly wages have increased by 81 percent, often because of professional opportunities that take advantage of their educational achievements. SER1145, 1148. This has led to
8

corresponding increases in economic output and tax payments. SER449-50, 1150. An estimated 94 percent of DACA recipients report that because of DACA, they pursued educational opportunities previously unavailable to them, and 72 percent are pursuing a bachelor’s degree or higher. SER1152. Despite having lived in the United States an average of nearly 19 years, it was only after receiving DACA that 90 percent of recipients were first able to obtain a driver’s license. SER1154. Almost half of those who received drivers’ licenses volunteered to become organ donors. Id.
3. Defendants’ maintenance of and support for DACA. No court has ever held DACA unlawful. Until September 2017, the government consistently maintained that the program was legal. In a 2014 opinion, the Office of Legal Counsel memorialized its advice that DACA “would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis.” SER243 n.8. And the government argued in this Court that DACA was “a valid exercise of the Secretary’s broad authority and discretion to set policies for enforcing the immigration laws.” Br. of United States as Amicus Curiae in Support of Appellees, Ariz. Dream Act Coal. v. Brewer, 2015 WL 5120846, at *1 (9th Cir. Aug. 1, 2015).
9

Even after the change in administrations, Secretary of Homeland Security John Kelly in February 2017 specifically exempted DACA from the administration’s broad repeal of other immigration directives, ER168, and characterized “DACA status” as a “commitment . . . by the government towards the DACA person,” SER1334. President Trump himself emphasized that “dreamers should rest easy” and said that the “policy of [his] administration [is] to allow the dreamers to stay.” SER1346-47. Similarly, the President tweeted on September 14, 2017, “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!.....” ER45.
4. Defendants’ abrupt rescission of DACA. In June 2017, government officials, including Attorney General Sessions, began communicating with several state attorneys general who had previously challenged a separate deferred action program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). SER1442-43. Those discussions culminated in a June 29, 2017 letter from nine states to Attorney General Sessions, demanding that the government agree to “phase out the DACA program” by September 5, 2017, or else they
10

would seek to amend their earlier DAPA lawsuit to also challenge DACA. ER275.
On September 4, 2017, Attorney General Sessions sent a half-page letter to Acting Secretary of Homeland Security Elaine Duke advising that DHS “should” rescind DACA because it purportedly “was effectuated by the previous administration through executive action, without proper statutory authority,” and constituted an “unconstitutional exercise of authority by the Executive Branch.” ER176. The letter also stated summarily that DACA “has the same legal and constitutional defects” as the DAPA program, which had been preliminarily enjoined in Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (Texas II), aff’d by an equally divided court, 136 S. Ct. 2271 (2016). But the Texas opinion addressed only DAPA, not DACA.2 (Although the Fifth Circuit in Texas enjoined certain minor expansions of DACA that had been proposed in connection with DAPA—a slight lengthening of the period of the DACA grant and a relaxation of the eligibility requirements—the court provided no reasoning for that aspect of the injunction.)
2 The Supreme Court’s divided affirmance carried no precedential weight. See Neil v. Biggers, 409 U.S. 188, 192 (1972).
11

The morning after sending his letter to the Acting Secretary, Attorney General Sessions held a press conference announcing the rescission of DACA. He asserted that the program “is vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the DAPA program.” SER1353-55. In his press conference, Attorney General Sessions also stated, without support, that DACA had “denied jobs to hundreds of thousands of Americans” and increased the “risk of crime, violence and even terrorism.” SER1354. He also claimed that DACA “contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences.” SER1353. These claims were all false. The undisputed economic evidence shows that DACA has expanded the economy, and many DACA recipients have started businesses employing U.S. citizens. SER1463. The DACA population is defined to include only immigrants without significant criminal records who have been assessed not to pose a risk to public safety. SER223. And DACA by its terms is open only to a fixed group of individuals who had arrived in the United States prior to June 15, 2007—five years before the program was announced—and could not have been the cause of unaccompanied minors arriving at the southern border between 2012 and 2017.
12

After the Attorney General’s press conference, Acting Secretary Duke issued a memorandum formally rescinding DACA. ER125. The four-page memorandum summarizes the history of DAPA and DACA, briefly describes the Texas litigation, and mentions the Attorney General’s halfpage letter. The memorandum then provides just two sentences describing why the DACA program, benefiting 690,000 people, was being rescinded:
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum. ER130. The rescission memorandum instructed DHS to immediately stop accepting new DACA applications; to accept renewal applications only from individuals whose current deferred action would expire before March 5, 2018, and to accept such renewals only through October 5, 2017; and to immediately deny all pending and future advance parole applications. Id. These steps would cause DACA grants to expire on a rolling basis beginning on March 5, 2018. Id.
5. The consequences of the rescission. The rescission memorandum does not acknowledge or consider the benefits of DACA or the harm that the rescission will inflict on DACA’s
13

recipients, their families, schools, employers, and communities. ER125. In support of their motion for a preliminary injunction, plaintiffs made an overwhelming showing of these facts, see SER267-1202, which is summarized only briefly below.
Consequences for DACA recipients. Hundreds of thousands of DACA recipients face personal, professional, and economic losses as a result of the rescission. Without injunctive relief, each day beginning March 5, 2018, an average of more than one thousand individuals would begin to lose their DACA grants, ER45, and immediately become vulnerable to arrest, detention, and removal from the United States. If removed from the United States, many would be subject to a 10-year or permanent bar on reentry because they accrued periods of “unlawful presence” prior to the creation of DACA. See 8 U.S.C. § 1182(a)(9)(B)-(C).
If their work authorizations were permitted to expire, DACA recipients would no longer be legally employable in the United States. They would lose the jobs that support their families. See, e.g., SER546, 1068, 1112, 1150. They, and their families, would lose their employer-sponsored healthcare. SER714, 1087. The rescission already has damaged the health of DACA recipients by causing anxiety, depression, and fear. SER1476. The
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University of California has observed an increase in demand for mental health services, which it cannot fully meet. SER611-12, 894.
The rescission of DACA will inflict grave harm on recipients like Mitchell Santos-Toledo. Mitchell arrived in the United States from Mexico when he was two years old. SER1002. Mitchell’s DACA grant and work authorization enabled him to attend college and support himself and his family by working multiple jobs. SER1006. DACA also gave Mitchell the ability to obtain health insurance and a driver’s license, and to travel on an airplane for the first time using his new identification. SER1005-06. Mitchell graduated from the University of California, Berkeley, as his class commencement speaker with Highest Distinction, and is currently a firstyear student at Harvard Law School. SER1007. The rescission was announced just days after he took on large law school loans with the expectation that he could repay them by practicing law in the United States. SER1007-08. Without DACA, Mitchell will be unable to work as a lawyer in the United States, and he faces constant fear that the rescission of DACA will force him to leave the only country he knows. SER1002, 1008.
Consequences for families of DACA recipients. Approximately 26 percent of the 690,000 current DACA recipients have U.S.-citizen children, 17 percent have a U.S.-citizen spouse, and nearly 60 percent have a U.S.-
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citizen sibling. SER1155. Over 70 percent of DACA recipients support their families financially. SER1150. DHS’s statement that DACA recipients should “prepare for and arrange their departure from the United States,” SER1468, therefore presents DACA recipients with the decision whether to uproot their loved ones from their country of citizenship, where DACA recipients can no longer legally work to support them, or to leave them behind.
Consequences for employers and schools. Employers of DACA recipients, including the University of California and the City of San José, would lose skilled employees as a result of the rescission. The University faces the loss of research expertise, exchange of ideas, and cultural vitality that are central to their academic missions. See, e.g., SER290-91, 610, 614, 832-33, 1102. If DACA were rescinded, they would also lose their investments in time, financial aid, research funding, housing benefits, and other support for DACA students who can no longer continue their education. See, e.g., SER365, 832. Some DACA recipients have already decided to cancel their enrollment at the University of California because the rescission would foreclose their ability to work during and after their education. SER612-13.
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Consequences for the economy. DACA has benefited the economy by increasing DACA recipients’ earnings and growing the tax base. ER1454; SER359, 426, 449-51, 1149. As entrepreneurs and employees, DACA recipients have been achieving financial independence and purchasing cars and homes, creating additional economic activity and tax revenue for state and local governments. SER535, 1150, 1454. Over a ten-year period, it is estimated that the rescission will cost the country $215 billion in lost GDP and $60 billion in lost federal tax revenue. SER359.
B. Procedural History. 1. The district court proceedings.
The University of California, the City of San José, four states, a group of DACA recipients, and other plaintiffs brought actions in the Northern District of California alleging that the decision to rescind DACA was unlawful. ER69-268. Plaintiffs brought claims under the Administrative Procedure Act, alleging that the rescission was arbitrary and capricious and failed to follow the APA’s notice-and-comment rulemaking procedures. Certain plaintiffs also alleged that DACA’s rescission violated their substantive and procedural due process rights, the Equal Protection Clause, and principles of equitable estoppel. ER121-23, 192, 265-67. Similar challenges are now pending in the Eastern District of New York, the District
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of Maryland, and the District Court for the District of Columbia. See Batalla Vidal v. Nielson, 279 F. Supp. 3d 401 (E.D.N.Y. 2018) (enjoining rescission of DACA); Casa De Maryland v. DHS, 2018 WL 1156769, at *1-2 (D. Md. Mar. 5, 2018) (denying injunction); NAACP v. Trump, No. 17-cv-2325 (D.D.C.).
The parties agreed that the government would quickly produce the administrative record, which is the foundation of an APA case. SER20. Yet the government produced only 14 publicly-available documents totaling 256 pages. See SER2. This Court, and every court to review the administrative record, has concluded that it is incomplete. See, e.g., SER12-14; In re United States, 875 F.3d 1200, 1205-07 (9th Cir. 2017), cert. granted, judgment vacated, 138 S. Ct. 443 (2017); In re Nielsen, No. 17-3345, slip op. at 1 (2d Cir. Dec. 27, 2017); Batalla Vidal v. Duke, 2017 WL 4737280, at *1-5 (E.D.N.Y. Oct. 19, 2017). The record has not yet been completed because, on review of an earlier mandamus petition, the Supreme Court ordered the record issues to be deferred while the district court resolved the government’s threshold justiciability arguments, which are at issue in this appeal. See In re United States, 138 S. Ct. at 445.
Plaintiffs sought a preliminary injunction, and defendants moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
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On January 9, 2018, the district court granted plaintiffs’ motion for a preliminary injunction and denied the government’s Rule 12(b)(1) motion, finding that it possessed jurisdiction to decide plaintiffs’ APA claims. ER4649.
The court found that it had jurisdiction. It held that 8 U.S.C. § 1252(g), which bars judicial review of “the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders,” does not apply here, as “plaintiffs do not challenge any particular removal but, rather, challenge the abrupt end to a nationwide deferred-action and work-authorization program.” ER21. The court likewise found that, with the exception of two of the plaintiff states, all plaintiffs had standing to sue. ER23-28.
The court further held that the rescission did not implicate 5 U.S.C. § 701(a)(2), which exempts decisions “committed to agency discretion by law” from APA review. The court observed that the section 701(a)(2) exemption is “very narrow” and applies only “in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.” ER18 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)). The court found that there is “law to apply” here because the “main, if not exclusive” rationale for ending DACA was its
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alleged illegality. ER21. The court also explained that “major policy decisions” like DACA are not akin to the “day-to-day agency nonenforcement decisions” that might be immune from review. ER19 (quoting Nat’l Treasury Emps. Union v. Horner, 854 F.2d 490, 496 (D.C. Cir. 1988)).
Having confirmed its jurisdiction, the court granted plaintiffs’ motion for preliminary injunction. It held that plaintiffs had demonstrated a likelihood of success on the merits of their claim that the rescission was arbitrary and capricious, because the agency’s decision rested on the flawed legal premise that DACA was unlawful. ER29-43. The court found that DACA was within DHS’s authority to set enforcement priorities, reasoning that each element of the program is grounded in authority granted or recognized by Congress or the Supreme Court. ER29-33. The court explained that the government’s contrary conclusion relied on an untenable analogy to the separate DAPA program. ER33-37. Because the rescission of DACA was based on a flawed legal premise, the district court held that the rescission was likely arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706. Further, the court found that the government’s alternative rationale for the rescission—that DACA posed a risk of future litigation by certain state attorneys general—
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was an improper post hoc rationalization that in any event was substantively unreasonable under the APA. ER43.
The district court also held that plaintiffs had satisfied the remaining factors for injunctive relief, including that they would suffer irreparable harm absent the court’s intervention. ER43-45. It found that the government had identified no significant equities or public interest in opposition. Indeed, the President purports to support the DACA program. ER45.
The court issued a carefully tailored injunction, ordering the government to “allow[] DACA enrollees to renew their enrollments” under the terms applicable prior to the rescission. ER46-48. For each renewal application, the district court permitted the government to “take administrative steps to make sure fair discretion is exercised on an individualized basis.” ER46. The district court made clear that nothing in its order prohibited DHS “from proceeding to remove any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed.” Id. The court did not require DHS to process DACA applications from individuals who had not previously received deferred action. Id. Nor did it require DHS to permit DACA recipients to apply for advance parole. ER47. Although the court recognized that the issues it decided under Rule 12(b)(1) are
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reviewable on appeal of its preliminary injunction, it certified those issues for interlocutory appeal under 28 U.S.C. § 1292(b) “to avoid any problem concerning scope of review.” ER49.
On January 12, 2018, the district court issued a separate order granting in part and denying in part the government’s motion to dismiss under Rule 12(b)(6). ER50-63. That order sustained plaintiffs’ substantive APA and equal protection claims, but dismissed plaintiffs’ notice-andcomment APA claims among others. Id. On the notice-and-comment claims, the court reasoned that even though the rescission appeared to be substantive and thereby subject to notice and comment, because the original promulgation of DACA had not undergone notice-and-comment rulemaking, the rescission could not be subject to those procedures. ER53. The court again certified its rulings for interlocutory appeal under 28 U.S.C. § 1292(b). ER62-63.
2. Proceedings in this Court. On January 16, the government appealed the district court’s preliminary injunction order. ER67-68.3 The government also petitioned for interlocutory review of certain aspects of the district court’s orders granting
3 On January 18, 2018, the government also filed a petition for a writ of certiorari before judgment in the Supreme Court, asking to skip this Court’s review entirely. The petition was denied on February 26, 2018.
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in part and denying in part the government’s motion to dismiss. Plaintiffs did not oppose the government’s petition, and on January 22, 2018, crosspetitioned to certify the district court’s dismissal of their notice-andcomment claim. Other plaintiffs petitioned to certify the dismissal of their substantive due process claims. This Court granted all the petitions for interlocutory appeal, consolidated those appeals with the preliminary injunction appeal, and ordered expedited briefing. See No. 18-15128, Dkt. 1; No. 18-15133, Dkt. 1; No. 18-15134, Dkt. 1; No. 18-15068, Dkt. 21.
STANDARD OF REVIEW This Court reviews de novo the district court’s orders granting in part and denying in part the government’s motion to dismiss. Fortyune v. City of Lomita, 766 F.3d 1098, 1101 (9th Cir. 2014). The factual allegations in the complaints are taken as true and all reasonable inferences must be drawn in favor of the party opposing dismissal. Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1156-57 (9th Cir. 2017). A motion to dismiss under Rule 12(b)(6) may be granted only if the complaint lacks a cognizable legal theory or sufficient facts to show that the claim is plausible on its face. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). Where a motion to dismiss challenges subject matter jurisdiction under Rule 12(b)(1), the party invoking the federal court’s jurisdiction bears
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the burden of establishing jurisdiction. Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1151 (9th Cir. 2017).
This Court conducts only a “limited and deferential” abuse-ofdiscretion review of the district court’s decision to grant a preliminary injunction. Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011); Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998), aff’d sub nom. Saenz v. Roe, 526 U.S. 489 (1999). A preliminary injunction is warranted where the plaintiffs establish that (1) they are “likely to succeed on the merits,” (2) they are “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “the balance of equities” tips in their favor, and (4) an “injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
SUMMARY OF ARGUMENT 1. The district court correctly rejected the government’s threshold defenses. The district court properly held that plaintiffs’ claims are justiciable and within the court’s subject matter jurisdiction. Contrary to the government’s assertions, the jurisdiction-stripping provision in 8 U.S.C. § 1252(g) bars review only of a “decision or action” to “commence proceedings, adjudicate cases, or execute removal orders,” and does not preclude review of the wholesale rescission of the DACA program. By its
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plain text, the provision does not apply to this case, which involves none of those three “decision[s] or action[s].”
The restriction on review of actions “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), is also inapplicable. The APA strongly favors judicial review of administrative action; the section 701(a)(2) bar applies only in the “rare instances” where there is simply “no law to apply” and thus no basis for judicial review. Heckler v. Chaney, 470 U.S. 821, 830 (1985). Here, the entire foundation for agency action was a purported assessment of the legality of DACA. Moreover, abundant legal sources grounded the district court’s decision, including the DACA memorandum, the text of the INA, the precedents of prior deferred action programs, and an OLC legal opinion. In cases like this one involving a “major policy decision,” the courts have repeatedly held that judicial review is proper. Nat’l Treasury, 854 F.2d at 496-97; Mont. Air Chapter No. 29, Ass’n of Civilian Technicians, Inc. v. Fed. Labor Relations Auth., 898 F.2d 753, 756 (9th Cir. 1990).
2. The district court properly exercised its discretion to enjoin the rescission of DACA. The district court’s injunction is an appropriate exercise of discretion. The government does not dispute that the equities overwhelmingly favor the injunction and that the rescission will cause
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catastrophic and irreparable harm to DACA recipients, their families, employers, schools, and communities.
The district court also correctly found that plaintiffs have a strong likelihood of success on the merits of their APA claims. The APA demands that the basis for agency action be adequately disclosed and substantively reasonable. The government’s murky and unsupported two-sentence statement of the grounds for its action—that “taking into consideration” the DAPA litigation and the Attorney General’s half-page letter, “it is clear” that DACA should be terminated—fails these basic requirements.
To the extent the rescission is premised on a finding that DACA was an unlawful exercise of executive authority, as the Attorney General stated, it is premised on an error of law. As the district court correctly found, DACA is a lawful exercise of DHS’s statutory authority to establish national immigration enforcement policies and priorities, and closely resembles a half-century of similar deferred action programs that have been acknowledged by both Congress and the courts.
The government’s post hoc “litigation risk” rationale, which would authorize agencies to rescind vital programs based not on an actual judgment about the legal merits, but rather based on an asserted fear of litigation, is equally arbitrary. The government claims that the Texas DAPA litigation
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compelled the rescission of DACA, but the record contains no reasonable litigation risk assessment, which would have had to consider the distinctions between DAPA and DACA, the available defenses to any litigation over DACA’s legality, and modifications to the program that could have mitigated any litigation risk.
The arbitrariness of the rescission is also apparent from the government’s failure to consider, at all, the policy consequences of its actions. The government gave not a word of consideration to the interests of the 690,000 DACA recipients and their families, schools, and employers, who have deeply relied on DACA. It is a minimum requirement of rational decision-making that an agency reversing a well-established policy must at least give “a reasoned explanation . . . for disregarding facts and circumstances . . . engendered by the prior policy.” Fox, 556 U.S. at 515-16; see also id. at 536 (Kennedy, J., concurring); Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016). The government’s failure to consider the consequences of its actions, or ways to mitigate those consequences, renders the rescission unlawful.
The irregularity of the government’s decision-making process, the obvious defects in its analysis, and its shifting and contradictory positions suggest that the stated reasons for rescinding DACA are not the true reasons.
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The record suggests that two unstated motivations provide the actual basis for the rescission, neither of which can be defended. First, in announcing that DACA would be rescinded, Attorney General Sessions asserted that DACA had taken jobs from U.S. citizens and had contributed to crime, violence, and terrorism—specious assertions that were not included in the rescission memorandum. Second, it now appears that DHS rescinded DACA as part of a political strategy to hold DACA and its recipients hostage to exchange for legislative concessions such as a border wall and restrictions on legal immigration. These motivations demonstrate that the Acting Secretary’s stated reasons for the rescission are pretextual and therefore cannot support the agency’s action.
3. The scope of the district court’s injunction is reasonable. The district court properly enjoined defendants from proceeding with the rescission. The government claims that this is an improper “nationwide” injunction benefiting non-parties, but the scope of the injunction is appropriate to the violation the district court found. Federal courts undoubtedly may exercise their authority over defendants within their jurisdiction to order them to stop violating federal law, whether or not such an order has consequences for third parties. Moreover, in an APA case, the final remedy, indeed the only remedy, is for agency action to be “set aside.”
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It is only logical that any provisional remedies match the scope of the final remedies. In addition, under the circumstances of this case, where the University of California draws from a nationwide pool for its student body, and where DACA recipients are mobile, complete relief could not be afforded by a more limited injunction.
4. This Court can affirm on the additional ground that the rescission was procedurally improper. The district court’s injunction also can be sustained on the ground that the rescission was announced without undergoing the required notice-and-comment rulemaking procedures. The APA requires notice and comment for all “substantive” rules that bind the agency’s future conduct. Here, the rescission is substantive on its face—it requires that DACA applications and renewals be denied across the board, and it instructs that all current and future applications for advance parole be denied. Unlike DACA itself, which provides a framework guiding agency discretion but requires a discretionary judgment to be made in each case, the rescission eliminates agency discretion and mandates specific outcomes in individual cases.
The district court reasoned that the rescission of DACA need not undergo notice-and-comment rulemaking because DACA had been adopted without those procedures. But the adoption and rescission are not
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symmetrical. One is a non-binding exercise of discretion; the other is a mandatory abolition of discretion. Moreover, because the rescission of a rule is a new “rulemaking” for purposes of the APA, an arguable procedural defect in adopting DACA would not excuse the government from complying with the proper procedures before rescinding it.
The district court’s injunction should be affirmed, and the case remanded for further proceedings.
ARGUMENT I. Plaintiffs’ Claims Are Subject To Judicial Review.
At the threshold, the government contends that the rescission of DACA, no matter how lawless it may be, is immune from judicial review under 8 U.S.C. § 1252(g) and 5 U.S.C. § 701(a)(2). The district court correctly rejected these arguments.
A. Section 1252(g) Does Not Bar Judicial Review. Section 1252(g) provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g) (emphasis added). Like other jurisdiction-stripping provisions, section 1252(g) is construed narrowly: “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial
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review.” Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 718 (9th Cir. 2011) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140-41 (1967)).
The Supreme Court has held that section 1252(g) is strictly limited to a “‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders,’” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (AADC) (quoting 8 U.S.C. § 1252(g)) (emphasis omitted), and has rejected the government’s argument that section 1252(g) is “a sort of ‘zipper’ clause that says ‘no judicial review in deportation cases unless this section provides judicial review,’” id. Instead, the Court held that “[t]he provision applies only to [the] three discrete actions” specifically identified in the text. Id. With respect to the “many other decisions or actions that may be part of the deportation process,” the Court found that “[i]t is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.” Id; see also Jennings v. Rodriguez, No. 15-1204, slip op. at 10 (U.S. Feb. 27, 2018) (op. of Alito, J.) (“[W]e read the language [in section 1252(g)] to refer to just those three specific actions themselves.” (citing AADC, 525 U.S. at 482-83)).
Under AADC, section 1252(g) does not preclude review of even an individual deportation proceeding, other than at the particular procedural
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junctures mentioned in the text. Here, section 1252(g) has even less relevance. The parties to this brief are institutional and government plaintiffs that challenge the wholesale rescission of the DACA program, not a decision to “commence proceedings . . . against any alien,” as the government asserts. AOB26.
The district court’s ruling is thus consistent with an unbroken line of cases rejecting the government’s invocation of section 1252(g) to block challenges to enforcement policies. See, e.g., Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir. 2000) (concluding that section 1252(g) does not limit jurisdiction to grant injunctive relief in a class action challenging the INS’s advance parole policy).4 The government identifies no case applying section 1252(g) to bar review of a programmatic immigration policy decision, and this case should not be the first.
4 Accord Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998) (“By its terms, [section 1252(g)] does not prevent the district court from exercising jurisdiction over the plaintiffs’ due process claims [because such claims] constitute ‘general collateral challenges to unconstitutional practices and policies used by the agency.’”); Ramirez Medina v. DHS, 2017 WL 5176720, at *8 (W.D. Wash. Nov. 8, 2017) (concluding that section 1252(g) did not strip the court of jurisdiction over claim that defendants did not follow their own policies and procedures). Even the Fifth Circuit in Texas found that it had jurisdiction. See 809 F.3d at 164 (concluding that section 1252(g) did not apply to a challenge to the DAPA program).
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B. The Rescission Of DACA Is Not “Committed To Agency Discretion By Law.”
The district court also correctly rejected the government’s argument that the rescission is immunized from judicial review as an action “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).
1. The APA strongly favors judicial review of administrative actions.
The APA, enacted in 1946, is the “bill of rights for the new regulatory state.” George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557, 1678 (1996). The APA reconciled the tension between the expanding powers of the administrative state, on one hand, and the rights of those subjected to those powers, on the other, by imposing procedural requirements on agency decision-making and creating a robust process of judicial review. Thus, the APA “manifests a congressional intention that it cover a broad spectrum of administrative actions.” Bowen v. Massachusetts, 487 U.S. 879, 904 (1988) (citation omitted). The APA provides that any 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; see id. at § 704. The text and purpose of the APA give rise to a “strong presumption favoring judicial review of administrative
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action,” which the government “bears a heavy burden” to overcome. Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015). This presumption applies equally in the immigration context. See INS v. St. Cyr, 533 U.S. 289, 298-99 (2001) (applying “strong presumption in favor of judicial review of administration action” in immigration context).
Section 701(a)(2) removes jurisdiction over decisions “committed to agency discretion by law,” but this “very narrow” exception applies only in “rare instances.” Overton Park, 401 U.S. at 410. The provision does not imply that agency decisions involving an element of discretion are immune from judicial review, for the APA explicitly contemplates review for “abuse of discretion.” 5 U.S.C. § 706; ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1071 (9th Cir. 2015) (“Section 701(a)(2) . . . has never been thought to put all exercises of discretion beyond judicial review.”). Rather, the jurisdictional bar applies only where there is absolutely “no law to apply,” that is, where a court “would have no meaningful standard against which to judge the agency’s exercise of discretion.” Chaney, 470 U.S. at 830; Lincoln v. Vigil, 508 U.S. 182, 191 (1993).
Where there is any “law to apply”—such as “statutes, regulations, established agency policies, or judicial decisions that provide a meaningful standard against which to assess” agency action, Mendez-Gutierrez v.
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Ashcroft, 340 F.3d 865, 868 (9th Cir. 2003)—the courts are empowered to review agency action.
2. There is law to apply to plaintiffs’ claims challenging the DACA rescission.
The district court correctly concluded that section 701(a)(2) does not strip the courts of jurisdiction to review the rescission of DACA and that there was “law to apply.”5 Because the rescission rests on a legal determination—that DACA exceeded the Executive’s authority under the INA and the Constitution—the “law to apply” is the legal sources that purportedly informed the agency’s decision. See, e.g., Edison Elec. Inst. v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993) (holding agency’s “Enforcement Policy Statement” reviewable because its “interpretation has to do with the substantive requirements of the law”); Mont. Air, 898 F.2d at 757 (“Nothing in the Administrative Procedure Act . . . precludes review of a proper plaintiff’s timely challenge of an agency’s announcement of its interpretation of a statute.”). As the district court observed, the government’s
5 We focus here on the substantive APA claim that forms the basis for the injunction. Plaintiffs’ notice-and-comment claim, see Section III, infra, is plainly justiciable, because the relevant “law to apply” is found in the APA itself. Serrato v. Clark, 486 F.3d 560, 569 (9th Cir. 2007) (“An agency’s obligation to comply with the APA’s notice and comment provisions is an administrative requirement that must be fulfilled, notwithstanding whether an agency’s action is susceptible to judicial review.”).
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“main, if not exclusive, rationale for ending DACA was its supposed illegality,” the evaluation of which “is a quintessential role of the courts.” ER21.
The courts may also evaluate the rescission of DACA by reference to other legal sources, including “other statutes, the history of the use of deferred action by immigration authorities, and the OLC Opinion.” Batalla Vidal, 2017 WL 5201116, at *10; see also Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004) (concluding that the “various memoranda” used by the INS to implement an otherwise discretionary policy provided sufficient “law to apply”). Moreover, because the rescission is an agency’s termination of its own program, the DACA memorandum itself supplies a relevant benchmark in the analysis of whether the agency’s reversal of course was reasonable and reasonably explained. See Robbins v. Reagan, 780 F.2d 37, 47 (D.C. Cir. 1985) (“[r]escissions of prior obligations” are “clearly” reviewable); id. at 45 (“Once an agency has declared that a given course is the most effective way of implementing the statutory scheme, the courts are entitled to closely examine agency action that departs from this stated policy.”).
The government contends that there is “law to apply” only when statutory standards expressly “circumscrib[e] agency enforcement discretion,” AOB23, but this approach inverts the proper legal standard.
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There is a strong presumption of reviewability even where the applicable statute “grants broad discretion” and there are no “clear statutory guidelines.” Robbins, 780 F.2d at 45; see also Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 892 (9th Cir. 2018) (reviewing Board of Immigration Appeals’ action even though “there is no applicable statutory or regulatory language”). It is only where action is affirmatively “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), such that “the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised,” Robbins, 780 F.2d at 45, that the courts have been displaced.
3. The rescission of DACA is reviewable, programmatic agency action.
Notwithstanding the sources of law that the district court could and did apply, the government insists that the rescission is immune from judicial review—a position rejected by every court to consider the issue. See Batalla Vidal v. Duke, 2017 WL 5201116, at *9-10 (E.D.N.Y. Nov. 9, 2017); Casa De Maryland, 2018 WL 1156769, at *7. To support its expansive interpretation of section 701(a)(2), the government relies heavily on Heckler v. Chaney, in which the Supreme Court concluded that individual agency decisions not to initiate enforcement proceedings are “presumptively
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unreviewable.” 470 U.S. at 832. But properly understood, Chaney demonstrates why section 701(a)(2) does not preclude review in this case.
In Chaney, the Supreme Court considered FDA’s denial of a request from prison inmates to take enforcement action to preclude the use of certain drugs in human executions. Id. at 823-25, 830-33. The Supreme Court concluded that the FDA’s non-enforcement decision was non-justiciable, observing that “an agency decision not to enforce” usually is not governed by “judicially manageable standards.” Id. at 830-31. The Court explained that non-enforcement decisions (1) “often involve[] a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise,” id. at 831; (2) do not implicate the agency’s exercise of “coercive power over an individual’s liberty or property rights, and thus do[] not infringe upon areas that courts often are called to protect,” id. at 832; and (3) “share[] to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch,” id. None of these factors applies here.
First, the rescission did not involve the “complicated balancing of a number of factors” that rendered the non-enforcement decision in Chaney unreviewable. Contrary to the government’s suggestion, DHS never
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considered how its “resources are best spent” or how the rescission “fits [with] the agency’s overall policies.” AOB17. Instead, the agency’s decision appears to rest exclusively on the legal determination that DACA is unlawful, and does not reflect any balancing of any factors—let alone the “mingled assessments of fact, policy, and law that drive an individual enforcement decision.” Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676-77 (D.C. Cir. 1994); Gonzalez-Caraveo, 882 F.3d at 892 (reviewing agency action that “is not the sort of decision that ‘involves a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise’” (quoting Chaney, 470 U.S. at 831)).
Chaney itself acknowledged that review might be available where, as here, the agency’s decision was “based solely on the belief that it lacks jurisdiction” to act. 470 U.S. at 833 n.4. See also Mont. Air, 898 F.2d at 756 (“agency nonenforcement decisions are reviewable when they are based on a belief that the agency lacks jurisdiction”). Having failed to make any assessment of immigration policy or the effective use of agency resources, the government cannot defend the rescission based on phantom policy judgments that it never made.
Second, while Chaney reasoned that decisions declining to take enforcement action do not implicate the exercise of “coercive power over an
39

individual’s liberty or property rights, and thus do[] not infringe upon areas that courts often are called upon to protect,” 470 U.S. at 832 (emphasis omitted), the rescission is an affirmative act that revokes the availability of prosecutorial discretion and subjects hundreds of thousands of DACA recipients to the prospect of removal—an indisputable exercise of coercive state authority. See, e.g., Robbins, 780 F.2d at 47 (“[R]escissions of commitments, whether or not they technically implicate liberty and property interests as defined under the fifth and fourteenth amendments, exert much more direct influence on the individuals or entities to whom the repudiated commitments were made.”). As Chaney explained, “when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner.” 470 U.S. at 832.6
6 The government cites Alaska Fish & Wildlife Federation & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir. 1987), in which this Court concluded that a decision not to enforce certain laws with respect to subsistence hunting, like the non-enforcement decision in Chaney, was unreviewable. AOB21. See id. at 938 (“A decision not to enforce a law is generally committed to an agency’s absolute discretion.” (citing Chaney, 470 U.S. at 831-32)). If the Alaska Fish policy had been rescinded because the agency believed its policy was unlawful, that action—like the rescission—would have been subject to judicial review. Cf. Montana Air, 898 F.2d at 757.
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Third, the rescission is not an individualized enforcement decision that can be analogized to a prosecutor’s discretion not to indict. Unlike a one-off decision not to enforce or indict—a choice that has “traditionally been ‘committed to agency discretion,” id.—the rescission abolishes an entire program that will affect hundreds of thousands of individuals, families, and communities. Accordingly, courts applying Chaney consistently “distinguish[] between ‘an agency’s statement of a general enforcement policy’ and a ‘single-shot nonenforcement decision,’ the former being reviewable even though the latter may not be.” OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998) (first emphasis added); see also Edison Elec., 996 F.2d at 333 (reviewing EPA’s “Enforcement Policy Statement”). The categorical nature of the rescission—which prohibits all initial requests for DACA received after September 5, 2017, and all requests for DACA renewals received after October 5, 2017—further underscores that the agency’s decision was “abstracted from the particular combinations of facts the agency would encounter in individual enforcement proceedings.” Crowley, 37 F.3d at 677.7
7 The government maintains that if the rescission is reviewable, then a host of criminal charging policies will become reviewable. AOB24-25. But the enforcement of criminal statutes is fundamentally different from civil enforcement actions because criminal prosecutions implicate core functions
41

The Supreme Court’s decisions in ICC v. Brotherhood of Locomotive
Engineers, 482 U.S. 270 (1987) (BLE) and Lincoln v. Vigil, 508 U.S. at 182,
are straightforward applications of Chaney that cannot salvage the
government’s argument. Both cases involved an agency action that had been
“traditionally” unreviewable: the denial of a petition to reconsider based on
material error in BLE, 482 U.S. at 282, 284, and the allocation of a lump
sum appropriation in Lincoln, 508 U.S. at 192.8 Here, in contrast, there is no
tradition of treating as unreviewable an agency’s termination of an entire
of the Executive Branch governed by Article II of the Constitution, over which Congress and the courts have limited power to intrude. Cf. United States v. Armstrong, 517 U.S. 456, 464 (1996) (“The Attorney General and United States Attorneys retain ‘broad discretion’ to enforce the Nation’s criminal laws.” (citation omitted)). Moreover, the government’s hypothetical on this point—a chief prosecutor who adopts a policy of non-enforcement of low-level, nonviolent drug crimes, and then is replaced by a new chief prosecutor who revokes that policy and applies the drug laws against all offenders, AOB24-25—is inapposite. Suppose the first prosecutor not only adopted a policy of non-enforcement, but also (1) invited low-level, nonviolent drug offenders to register with her office and to provide sensitive information about their drug trafficking based on a promise that the information would not be used against them, and (2) offered valuable benefits to registrants comparable to the ability to obtain lawful employment. If such a program were revoked by a new prosecutor without a plausible explanation based on an erroneous legal determination, the revocation might well be subject to judicial review. 8 Similarly, BLE and Lincoln involved one-time decisions, not broad policy determinations: in BLE whether to deny the petition submitted in one case and in Lincoln whether to continue funding for a specific region. See Lincoln, 508 U.S. at 192; BLE, 482 U.S. at 282.
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program—particularly when that termination is based on the agency’s conclusion that the program exceeds the agency’s statutory and constitutional authority. Instead, courts reviewing programmatic decisions like the rescission routinely conclude that there is law to apply and that they have jurisdiction. See Edison, 996 F.2d at 333; Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765, 772-75 (D.C. Cir. 1992) (reviewing “a facial challenge” to enforcement regulations, rather than “a particular enforcement decision”); Int’l Longshoremen’s & Warehousemen’s Union v. Meese, 891 F.2d 1374, 1378-79 (9th Cir. 1989) (permitting judicial review of advisory opinion and policy statement because they were based on agency’s interpretation of its organic statute).
In short, the wholesale termination of a program does not fall within the Chaney presumption against reviewability. II. The District Court’s Injunction Was Within Its Discretion.
Having properly concluded that plaintiffs’ claims are justiciable, the district court acted within its discretion in issuing a preliminary injunction against the rescission of DACA. The government does not dispute that plaintiffs satisfy three of the four preliminary injunction factors: that (1) absent an injunction, the plaintiffs will suffer severe and irreparable harm; (2) the balance of equities favors the plaintiffs; and (3) an injunction is
43

in the public interest. The only factor the government does contest—the likelihood of success on the merits—likewise weighs strongly in favor of the district court’s injunction.
A. Plaintiffs Are Likely To Succeed On Their APA ArbitraryAnd-Capricious Claims.
The APA makes “federal agencies . . . accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). As the administrative state expanded after the New Deal, it threatened to create enormous and potentially unchecked executive power. Through the APA, Congress acted to ensure “that agencies follow constraints even as they exercise their powers.” Fox, 556 U.S. at 537 (Kennedy, J., concurring). Among these constraints “is the duty of agencies to find and formulate policies that can be justified by neutral principles and a reasoned explanation.” Id. To ensure that agencies comply with their duties, the APA empowers the Judiciary to conduct a “thorough, probing, in-depth review” of agency reasoning and a “searching and careful” inquiry into the factual underpinnings of agency decisions. Overton Park, 401 U.S. at 41516. The courts “shall” set aside any agency action that is “arbitrary,
44

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Agency action is arbitrary and capricious if, inter alia, it is (1) premised on a factual error, see Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); City of Kansas City, Mo. v. HUD, 923 F.2d 188, 194 (D.C. Cir. 1991); or (2) based upon an erroneous determination of law, SEC v. Chenery Corp., 318 U.S. 80, 94 (1943); Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 86-87 (2d Cir. 2006). In applying these standards, courts must rely solely on the agency’s contemporaneous justifications in the record, rather than any “post hoc rationalizations” advanced in litigation. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962).
Agency action must also be set aside where the agency fails to consider the relevant factors, including reasonable alternative policies, State Farm, 463 U.S. at 48, or where the agency abandons a prior policy without accounting for “serious reliance interests” engendered by that policy, Fox, 556 U.S. at 515. Finally, where an agency’s stated reasons for acting are not its true reasons, such pretextual decisions are patently arbitrary and capricious. See New England Coal. on Nuclear Pollution v. NRC, 727 F.2d
45

1127, 1130-31 (D.C. Cir. 1984); Squaw Transit Co. v. United States, 574 F.2d 492, 496 (10th Cir. 1978).
The rescission of DACA fails each of these requirements. 1. The government’s “legality” rationale is arbitrary and capricious.
The Sessions letter states that DACA “should” be rescinded because it has “the same legal and constitutional defects that the courts recognized as to DAPA.” ER176. To the extent this is the rationale for rescinding DACA, it is simply incorrect. No court has ever held that any deferred action program, let alone DACA, is “unconstitutional.” The Texas II case did not address any constitutional arguments. See 809 F.3d at 170-86. Because no “courts recognized” any “constitutional defects as to DAPA,” the government’s factual error is itself a sufficient reason to conclude that plaintiffs are likely to succeed on the merits. See State Farm, 463 U.S. at 43 (action is arbitrary and capricious when agency offers “an explanation for its decision that runs counter to the evidence before the agency”); City of Kansas City, Mo., 923 F.2d at 194 (“Agency action based on a factual premise that is flatly contradicted by the agency’s own record does not constitute reasoned administrative decisionmaking, and cannot survive review under the arbitrary and capricious standard.”).
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The Attorney General’s letter is also wrong to assert that DACA is illegal on non-constitutional grounds. DACA was a lawful exercise of DHS’s statutory authority to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), to carry out the “administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens,” 8 U.S.C. § 1103(a)(1), and to authorize aliens to obtain lawful employment, 8 U.S.C. § 1324a(h)(3). Both the Supreme Court, see AADC, 525 U.S. at 483-85, and Congress, see, e.g., 8 U.S.C. §§ 1227(d)(2), 1154(a)(1)(D)(i)(II), have recognized deferred action as a valid fixture of our immigration enforcement system. The Office of Legal Counsel concluded in an opinion binding on the executive branch that DACA is legal, SER243, and the Department of Justice has routinely argued that such deferred action programs are lawful, see, e.g., Br. of United States, United States v. Texas, 2016 WL 836758, at *42-64 (U.S. Mar. 1, 2016) (“Executive officials have regularly exercised . . . discretion by issuing policies for deferring action (or exercising similar forms of discretion) on the basis of aliens’ membership in defined categories.”).
The Fifth Circuit’s decision in Texas II is not to the contrary. Texas II addressed DAPA, not DACA, and the two programs are factually and legally
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distinct. See 809 F.3d at 146.9 The Fifth Circuit criticized DAPA, a program authorizing deferred action for parents of U.S. citizens and permanent residents, as offering virtually automatic lawful immigration status to a population of approximately 4 million immigrants, contrary to the INA’s established processes for that population to obtain such status. The Fifth Circuit therefore held DAPA was a legislative-type rule that conflicted with congressional policy. Id. at 170-86 (“[T]he 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 court further held, based on its provisional analysis of the DACA program, that DAPA was not likely to be implemented as a truly discretionary program, and therefore was a substantive rule that must be submitted to notice-and-comment rulemaking. Id. at 170.
The Sessions letter does not address crucial distinctions between DAPA and DACA. DAPA was vulnerable to challenge because the DAPA population already had a pathway to lawful immigration status under the INA, and the Fifth Circuit viewed DAPA as unlawfully circumventing the
9 The Fifth Circuit decision in Texas had the effect of enjoining elements of DAPA that incrementally expanded DACA, but the opinion contains no analysis of “expanded DACA” standing alone.
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congressionally prescribed procedure. See 809 F.3d at 179 (noting the “intricate process for” the DAPA population “to derive a lawful immigration classification from their children’s immigration status”). The DACA population, by contrast, consists of individuals who, by definition, were not offered a path to lawful status through the INA.10 ER33-34. Additionally, the broad sweep of DAPA, reaching nearly 40 percent of undocumented immigrants, heightens the concern that it might supplant congressional policy. DACA, by contrast, is available to less than 10 percent of undocumented immigrants. See Texas, 809 F.3d at 174, n.138.
The Fifth Circuit also found that DAPA was not likely to be implemented on a truly discretionary basis, based on a contested and provisional review of statistics related to the DACA program. Texas II, 809 F.3d at 211. Its analysis does not withstand scrutiny. DACA is a straightforward exercise of enforcement discretion. ER141-42 (instructing DHS officials to take deferred action under the policy only “on an individual” and “case by case basis,” and to give “consideration . . . to the individual circumstances of each case”). A panel of the Fifth Circuit had
10 The suggestion in the government’s brief that congressional silence foreclosed DACA, AOB32, inverts settled administrative law principles, which allow agencies to fill in gaps created by congressional silence. See Helping Hand Tools v. EPA, 848 F.3d 1185, 1199 (9th Cir. 2016).
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already held that, under DACA, immigration enforcement agents must “exercise their discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis.” Crane v. Johnson, 783 F.3d 244, 254-55 (5th Cir. 2015). And the factual record before the Texas II court confirmed that “deferred action under DACA is a . . . casespecific process that necessarily involves the exercise of the agency’s discretion”; identified “several instances of discretionary denials” proving DACA is no rubber stamp; and noted “that approximately 200,000 requests for additional evidence had been made upon receipt of DACA applications.” 809 F.3d at 175.11
To be sure, most DACA applications are granted, but that is entirely consistent with the nature of the program, as the Fifth Circuit recognized: “DACA involved issuing benefits to self-selecting applicants, and persons who expected to be denied relief would seem unlikely to apply,” and “[e]ligibility for DACA was restricted to a younger and less numerous population, which suggests that DACA applicants are less likely to have
11 In any hypothetical challenge to DACA, the government would have been able to present a more detailed factual record due to improvements in agency recordkeeping. See id. at 211 (King, J., dissenting) (“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.”).
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backgrounds that would warrant a discretionary denial.” Id. at 174. The fact that discretion has typically been exercised in favor of DACA applicants does not mean that there is no discretion to exercise.
In short, defendants’ decision to rescind DACA was based on an error of law and therefore was “not in accordance with law” for purposes of APA review. 5 U.S.C. § 706(2)(A). Mistakes of law are a classic basis for overturning agency action. See, e.g., Chenery, 318 U.S. at 94 (“[I]f the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law.”); Massachusetts, 549 U.S. at 532-34 (setting aside an EPA decision premised on misinterpretation of its legal authority);12 Negusie v. Holder, 555 U.S. 511, 516 (2009) (remanding for agency to “confront the same question free of [its] mistaken legal premise”); Safe Air For Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007) (agency action based on “legally erroneous” conclusion is “‘arbitrary, capricious, or otherwise not in accordance with law’”).
12 Defendants claim that Massachusetts requires that a statute must affirmatively mandate some contrary agency action before an agency action premised on legal error may be set aside. AOB39-40. But Massachusetts imposes no such condition; whether or not the EPA was obligated to regulate new vehicle emissions, its fundamental mistake was in wrongly concluding that it lacked the authority to do so. Id. at 528.
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2. The government’s post hoc “litigation risk” argument cannot support the decision to rescind DACA.
In its brief, the government appears to contend that it rescinded DACA not because of a legal conclusion per se, but rather because DACA presented unacceptable “litigation risk” in light of United States v. Texas. AOB29-30. This justification is absent from the Sessions letter, which opines that DACA is unlawful, and absent from the rescission memorandum, which provides no clear rationale at all. See ER126-31, 176; Batalla Vidal, 279 F. Supp. 3d at 429 (“[T]he Attorney General’s statement that . . . ‘it is likely that potentially imminent litigation would yield similar results with respect to DACA’ . . . is too thin a reed to bear the weight of Defendants’ ‘litigation risk’ argument.”). The government’s reliance on an unarticulated rationale for the rescission, by itself, renders its action unlawful. See Chenery, 318 U.S. at 87 (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”); Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1050 (9th Cir. 2010) (“post hoc explanations serve only to underscore the absence of an adequate explanation in the administrative record itself”).
The government’s “litigation risk” rationale also fails on its own terms. Judicial review of agency action—i.e., “litigation risk”—is a fundamental feature of both the APA and the Constitution. To permit
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agencies to rest their decisions solely on a concern that someone might bring a court challenge would effectively abolish meaningful judicial review. Consistent with this basic principle, this Court has set aside agency action premised on an assertion of litigation risk where, as here, the agency merely “traded one lawsuit for another.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 970 (9th Cir. 2015). Even the drafter of the rescission memorandum acknowledged in his deposition that because agencies regularly confront litigation, acting solely on the basis of “litigation risk” is the “craziest policy you could ever have.” SER1378.
Moreover, the administrative record contains no rational assessment of litigation risk, which would have needed to address, among other factors, the likelihood of litigation, the available defenses, the range and severity of possible outcomes, and the alternatives short of rescinding DACA that could have minimized the purported risk.
The administrative record addresses none of these considerations. The government never evaluated, for example, whether the Texas plaintiffs would have followed through on their threatened challenge to DACA. Nor did it consider that any challenge to DACA would have faced a powerful laches defense. Laches applies where a plaintiff has “slept upon his rights . . . , and especially if the delay has been prejudicial to the defendant,
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or to the rights of other persons.” Chapman v. Cty. of Douglas, 107 U.S.
348, 355 (1883); see Abbott Labs. v. Gardner, 387 U.S. 136, 155 (1967)
(laches as a defense to APA claims). By waiting more than five years to
challenge DACA, and pursuing only a challenge to the later-arising DAPA
program, the Texas plaintiffs slept on any rights they had, to the obvious
prejudice of DACA recipients who had relied on the program.13 Potential
deportation, family separation, and job loss—after recipients’ lengthy
reliance on DACA—are precisely the sorts of circumstances that would have
supported an equitable laches defense to a requested injunction.
The government similarly failed to consider the even division on the
Fifth Circuit even with respect to the legality of DAPA, diminishing the risk
from a hypothetical Fifth Circuit DACA case.14 Nor did it consider the Fifth
Circuit’s holding in another case that the DACA program was a
(presumptively lawful) program of “discretion in deciding to grant deferred
13 Defendants suggest that a laches defense would not be available to the government in a challenge to DACA because the government, as opposed to DACA recipients themselves, could not claim prejudice from Texas’s delay. See AOB34. But when the government seeks to invoke laches, it may argue prejudice to third parties and the public interest. See Chapman, 107 U.S. at 355; Envtl. Def. Fund, Inc. v. Alexander, 614 F.2d 474, 480 (5th Cir. 1980).
14 Of the four Fifth Circuit judges to evaluate the legality of DAPA in the Texas litigation, two would have upheld the legality of DAPA. See Texas II, 809 F.3d at 188-219 (King, J., dissenting); Texas v. United States, 787 F.3d 733, 769-84 (5th Cir. 2015) (Texas I) (Higginson, J., dissenting).
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action” that would be “exercised on a case-by-case basis.” Crane, 783 F.3d at 254-55.
Even assuming a degree of “litigation risk” from the Texas case, defendants’ actions cannot withstand scrutiny. To the extent the government’s concern is that the Fifth Circuit might have permanently enjoined DACA after “protracted litigation,” AOB29, that outcome could not possibly justify the rescission of the program. How could the risk that a court would, eventually, set aside DACA justify a policy choice that would guarantee the rescission of DACA? To the extent the government is referring to a supposed risk of an “abrupt, complete, and court-ordered end to DACA,” as it did in the district court, Opp. to PI Br. 12 (D. Ct. Dkt. 204 at 22), that concern is even less supportable. The Texas plaintiffs had not even threatened such a result. Instead, they requested only that DHS “phase out the DACA program,” disclaimed any suggestion that the government should “immediately rescind DACA [ ] permits that have already been issued,” and threatened only that the “the complaint in [Texas] will be amended to challenge . . . the DACA program.” ER275-76.15
15 Among other errors, the Maryland district court in Casa de Maryland erred in failing to conduct a “thorough, probing, in-depth review,” Overton Park, 401 U.S. at 415-16, of the government’s purported “litigation risk”
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Furthermore, the injunction against DAPA did not reasonably foretell an injunction against DACA. The Texas plaintiffs would not have been able to establish a likelihood of success on the merits because, as set forth above, DACA was a lawful exercise of DHS’s prosecutorial discretion. And the irreparable harm, balance of hardships, and public interest factors would have swung decisively against an injunction. Central to the Texas court’s injunction of the DAPA program was its conclusion that “legalizing the presence of millions of people [through DAPA] is a ‘virtually irreversible’ action once taken.” Texas v. United States, 86 F. Supp. 3d 591, 673 (S.D. Tex. 2015). If DAPA were to go into effect, the court reasoned that it would be “difficult or even impossible for anyone to ‘unscramble the egg.’” Id. Those concerns would point in the opposite direction in a challenge to DACA, where the court would be asked to reverse what it had just deemed “virtually irreversible.” See id. Unlike DAPA, which was being reviewed prior to implementation, DACA has been in effect for five years and has engendered profound reliance by nearly 700,000 people.
Finally, the rescission cannot be seen as a reasonable response to the “risk” of an injunction. No injunction issued by a court of equity could have
rationale before granting summary judgment to the government on the plaintiffs’ APA claims. See 2018 WL 1156769, *8-10.
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been more abrupt or cruel than the government’s shutdown of DACA, which immediately banned overseas travel, allowed no exceptions or discretion, and instructed DACA recipients to “prepare for and arrange their departure from the United States.” SER1468; see Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (“The essence of equity jurisdiction has been the power of the [court] to do equity and to mould each decree to the necessities of the particular case.”); Pollinator Stewardship Council v. EPA, 806 F.3d 520, 532 (9th Cir. 2015) (remanding without vacating rule and explaining that “[w]hen determining whether to leave an agency action in place on remand, we weigh the seriousness of the agency’s errors against the disruptive consequences of an interim change that may itself be changed”).
3. The government failed to consider reliance interests. The arbitrariness of the rescission is also clear from the government’s failure to evaluate the policy consequences of its action. Agency action can withstand judicial review only if the administrative record reflects that the agency considered all “the relevant factors.” State Farm, 463 U.S. at 42-43. Where the government, rather than creating new policy, is reversing a prior policy that “has engendered serious reliance interests,” it must offer an even “more detailed justification than what would suffice for a new policy created on a blank slate.” Fox, 556 U.S. at 515. In such cases, it is a minimum
57

requirement of rational decision-making that the agency give “a reasoned explanation . . . for disregarding facts and circumstances . . . engendered by the prior policy.” Id. at 516; see also id. at 536 (Kennedy, J., concurring); Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015); Encino Motorcars, 136 S. Ct. at 2126. If the agency does not adequately address its “change in position and the significant reliance interests involved,” id., the agency action must be set aside.
As the district court correctly recognized, the government failed to account—at all—for the reliance interests DACA has engendered. Over the last five-and-a-half years, DACA recipients have made profound life choices in reliance on the program. They have chosen careers, enrolled in degree programs, opened businesses, purchased homes, and even started families— all in reliance on the government’s promise that they could seek renewals to remain in the United States and work here legally. See, e.g., SER483-84, 1008, 1147-49, 1155. Educational institutions and employers have likewise relied on that promise, admitting, hiring, and training DACA recipients with the understanding those recipients would be allowed to live and work in the United States. SER425, 832.
The government has never contested that DACA has in fact engendered profound, widespread reliance. Defendants themselves
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encouraged such reliance and have noted that DACA involves “representations made by the U.S. government, upon which DACA applicants most assuredly relied.” SER1330-31. Although the government now asserts that “DACA confers no legitimate reliance interests,” AOB34, even this administration has referred to the program as a “commitment . . . by the government towards the DACA person.” SER1334. The government has further induced reliance by maintaining DACA for more than five years, passing on earlier opportunities to rescind it, see, e.g., SER7, and by making repeated public statements supporting the program and expressing an intention to maintain it, see, e.g., ER45 (quoting statements of President Trump expressing support for DACA).
The government asserts that because DACA was a discretionary program that could be rescinded, the reliance interests of DACA recipients were “too insubstantial to necessitate express consideration.” AOB34-35. This assertion—that the government need not consider the lives of 690,000 beneficiaries before exposing them to exile from the United States and separation from their U.S.-citizen spouses and children—is untenable. An agency decision can be revoked if the agency articulates an acceptable basis and follows the appropriate procedure; that does not mean the prior decision did not induce reliance. For example, Encino Motorcars involved whether
59

certain car dealership personnel were subject to the wage-and-hour requirements of the Fair Labor Standards Act. 136 S. Ct. 2124. The agency clearly had discretion to change its legal interpretation of the FLSA, but that discretion did not eliminate the need to account for reliance interests engendered by its prior interpretation. Id. at 2126-27 (“it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy”); ER43.
The government seeks to distinguish Encino Motorcars on the ground that the prior policy in that case had been in place longer and implicated whether a “substantive” statute would apply to the plaintiffs. AOB35. But these factors were not the basis for the holding. With due respect to the reliance interests of the car dealerships in Encino Motorcars, the reliance interests here are among the most vital and deeply-rooted imaginable. The rescission of DACA subverted all of them without any “express consideration,” AOB34-35, and is therefore arbitrary and capricious.
4. The government failed to consider alternative policies before rescinding DACA.
As the district court recognized, the rescission was also untenable because it contained no evaluation of alternative policies, short of rescission, that might have mitigated any of the program’s alleged infirmities. Rational
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decision-making requires that when an agency adopts a policy, it must consider and rule out potential alternative policies. See State Farm, 463 U.S. at 48. Here, the government failed to consider alternative implementations of DACA that would have obviated its supposed legal vulnerabilities. The Fifth Circuit in Texas I deemed DAPA unlawful because it lacked specific features, including in-person interviews of applicants and consideration of applications at DHS field offices rather than service centers, that would ensure that deferred action was being granted on a truly discretionary— rather than mandatory—basis. See 787 F.3d at 765 (“routing DAPA applications through service centers instead of field officers . . . created an application process that bypasses traditional in-person investigatory interviews”).
An obvious alternative to rescinding DACA altogether, then, would be to adjust the features the Fifth Circuit had found problematic in the DAPA case. For example, DHS could process applications at DHS field offices rather than service centers, and conduct in-person interviews. If DACA were deemed insufficiently discretionary, officials responsible for processing and evaluating DACA applications could be afforded greater independence, and could be permitted to consider more flexible criteria in choosing to grant or deny an application. See Texas II, 809 F.3d at 174-75.
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Yet the government failed to consider these obvious alternative policies. For
this reason as well, the rescission is arbitrary and capricious. See State Farm,
463 U.S. at 48 (“At the very least this alternative way of achieving the
objectives of the Act should have been addressed and adequate reasons
given for its abandonment.”).
5. The government’s proffered rationales for the rescission are pretextual.
Agency action cannot stand if the stated reasons for acting are not the
true reasons. See Pub. Citizen v. Heckler, 653 F. Supp. 1229, 1237 (D.D.C.
1986); see also New England Coal. on Nuclear Pollution, 727 F.2d at 1130-
31 (agency action arbitrary and capricious where agency’s stated reason is
inconsistent with action taken). Here, the logical flaws, inconsistencies, and
contradictions of the government’s position underscore that something else
is going on:
• In rescinding DACA, the Acting Secretary relied on the false claim that DAPA had been adjudged unconstitutional. See supra Section II.A.1.
• The day of the rescission, the President stated that he would “revisit” the rescission of DACA if Congress did not address it. SER1382. But if the rationale for the rescission were a genuine belief that DACA was unlawful or presented unacceptable “litigation risk,” there would be no basis to “revisit” the issue. See also January 24 Statement of President Trump (“I certainly have the right to [extend DACA] if I want.”), available at goo.gl/poYLyJ.
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• On October 18, 2017, the Attorney General testified to Congress that DACA could be legal under the Texas case if it were implemented “on an individualized basis.” SER1387. Yet the administrative record contains no consideration of the policy alternative of implementing DACA on a more individualized basis.
• The Senior Counselor to the Acting Secretary of DHS, who drafted the memorandum rescinding DACA, testified that an agency policy of acting on the basis of litigation threats would be the “craziest policy you could ever have” because “[y]ou could never do anything if you were always worried about being sued.” SER1378.
• The government has asserted a series of defenses in this litigation that, if successful, would have equally applied to eliminate litigation risk from a lawsuit in Texas. For example, the government has asserted in this litigation that: deferred action decisions are exempt from review under 5 U.S.C. § 701(a)(2) and 8 U.S.C. § 1252(g); the APA’s notice-and-comment requirements do not apply to deferred action programs; the state plaintiffs do not have standing; and a “nationwide injunction” is not permissible relief. The government cannot plausibly assert, on the one hand, that DACA presented unmanageable litigation risk, while also asserting, on the other, that there are valid defenses to such litigation.
These contradictions indicate that defendants’ decision to rescind
DACA may not have been based on a view that the program is unlawful or
presents untenable litigation risk. See Pub. Citizen, 653 F. Supp. at 1237
(“For an agency to say one thing . . . and do another . . . is the essence of
arbitrary action. It indicates that the Secretary’s stated reason may very well
be pretextual.”) (citation omitted); Hernandez v. Hughes Missile Sys. Co.,
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362 F.3d 564, 569 (9th Cir. 2004) (conflicting explanations may serve as evidence of pretext).
The evidence points to what may be the true motivations for the rescission. First, the Attorney General stated at his press conference announcing the rescission that DACA had “denied jobs to hundreds of thousands of Americans” and contributed to terrorism, crime, and unaccompanied minors at the southern border. SER1354. These concerns were not mentioned in the Acting Secretary’s rescission memorandum and the lack of factual support for them may have caused the government to offer a different formal rationale for the action. SER1354-55.
Second, it appears that the rescission is part of a political strategy to use DACA recipients as a bargaining chip in order to secure support for the administration’s priorities—such as a border wall and restrictions on legal immigration—from members of Congress who support DACA and who would not otherwise support the administration’s immigration agenda. On October 8, 2017, President Trump sent a letter to Congressional leaders setting forth the “Immigration Principles and Policies” that he said “must be included as part of any legislation addressing the status of [DACA] recipients.” SER1417. These “Principles and Policies” included “a long list
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of hard-line immigration measures,” including funding for a border wall. SER1431.
The President’s subsequent statements confirm this legislative strategy. See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Dec. 29, 2017, 5:16 AM), https://goo.gl/aZ19im (“The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our Country at all cost!”); Donald J. Trump (@realDonaldTrump), Twitter (Jan. 23, 2018, 8:07 PM), https://goo.gl/Zz46iq (“[I]f there is no Wall, there is no DACA.”); Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2018, 6:36 AM), https://goo.gl/BpvHV6 (“Any deal on DACA that does not include STRONG border security and the desperately needed WALL is a total waste of time.”). These statements were made in the context of recent legislative debates over government spending bills, reflecting that defendants’ goal in rescinding DACA was to create a legislative bargaining chip. See, e.g., Louis Nelson, Politico, Trump to Schumer: ‘If there is no wall, there is no DACA’, Jan. 24, 2018, https://goo.gl/p7gouu.
The government’s failure to disclose its true motives for rescinding DACA renders the agency action unlawful.
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* * * For the foregoing reasons, the district court correctly held that plaintiffs have a strong likelihood of success on the merits. B. The Remaining Factors Overwhelmingly Support The
Injunction. The government does not dispute that without an injunction, plaintiffs will suffer vast and irreparable harm. If the rescission of DACA were allowed to take effect, tens of thousands of DACA recipients each month would immediately become vulnerable to deportation, which, because of the INA’s re-entry bars, will in many cases be tantamount to permanent exile from the United States. The collateral consequences for the families of DACA recipients—including their approximately 200,000 U.S.-citizen children—would be equally traumatic. See, e.g., SER576-80, 788-89. Were DACA grants to expire, recipients would also lose work authorization, stripping them of the ability to provide for themselves and their families. See, e.g., SER1150, 1459, 1112, 1068 (“I still help my mom pay rent and bills. If I lose DACA, I will not be able to have a stable job or a high enough income to support my mom. We will go back to living month to month, struggling to make ends meet.”). The loss of work authorization would drive DACA recipients into the underground economy, decimating their earnings and harming the economy and tax base. SER358. Many would
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be forced to abandon professional degree programs and lose their ability to practice their chosen professions. See, e.g., SER558, 648, 698, 1008.
The entity plaintiffs, like the University of California, would likewise suffer irreparable harm, losing the extraordinary contributions of their DACA-recipient employees and students, upon whom considerable institutional resources have been spent. See, e.g., SER365, 613, 832. For the University of California, the loss of DACA students would diminish the vibrancy of its classrooms and impair its ability to achieve its core educational mission. SER831 (“[T]he University seeks to ‘achieve diversity among its student bodies and among its employees’” and “allows ‘students and faculty [to] learn to interact effectively with each other, preparing them to participate in an increasingly complex and pluralistic society.’”). Cities and states would suffer harm to their public health and public safety programs, as DACA recipients and their families lose employer-sponsored healthcare and shy from approaching law enforcement in light of the risk of deportation. SER417, 492-93, 507.
The final two elements of the preliminary injunction test—the balance of the equities and the public interest—are equally compelling. The government does not dispute that the balance of hardships and the public interest weigh in favor of the preliminary injunction ordered by the district
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court. Indeed, the government itself has repeatedly expressed support for DACA and indicated that the program is in the public interest. See, e.g., ER45 (“On this point, we seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended.”). The record overwhelmingly demonstrates that the public interests in economic activity, tax receipts, public health, and education will all be damaged if the rescission is permitted to proceed. See supra Statement, section A.5.
By contrast, there is no threat to the public interest from the injunction. The DACA population by definition includes only individuals without significant criminal records who are not a threat to public safety, ER141, and the district court’s order provides that the government may still “remove any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed.” ER46.
C. The District Court Properly Enjoined Defendants From Proceeding With The Rescission.
The government argues that the district court erred in entering a preliminary injunction on a “nationwide” basis, contending that the injunction improperly grants relief to non-parties. AOB50. Because “[a] district court has considerable discretion in fashioning suitable relief and
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defining the terms of an injunction,” this Court’s review of the government’s argument “is correspondingly narrow.” Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991).
1. The injunction was appropriately tailored. The government’s argument fails at the outset because the district court’s preliminary injunction does not provide relief to particular plaintiffs, but rather requires the government defendants—all of them parties properly subject to the district court’s jurisdiction—to refrain from an illegal programmatic action. See De Beers Consol. Mines v. United States, 325 U.S. 212, 219, 221 (1945) (if “the court has obtained jurisdiction of the persons of the defendants . . . if service of the defendants is properly obtained, and if the complaint states a cause of action, no one questions the jurisdiction of the District Court to enter an appropriate injunction against future conduct violative of the [law]”). This Court and others have repeatedly endorsed the authority of federal courts to issue injunctions preventing federal defendants from violating the law, even when the consequences of such injunctions reach beyond the borders of the forum state. See, e.g., id.; Lamb-Weston, 941 F.2d at 974; Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (leaving in place injunction applicable nationwide “with respect to respondents and those similarly situated”); Hawaii v. Trump, 878 F.3d
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662, 701-02 (9th Cir. 2017) (affirming temporary restraining order uniformly applicable to the government, nationwide), cert. granted, 2018 WL 324357 (U.S. Jan. 19, 2018).
In an APA case, an injunction preventing an agency from taking unlawful programmatic action is especially appropriate. The ultimate remedy under the APA is for the administrative action to be “set aside.” 5 U.S.C. § 706(2)(A); Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989); see also Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir. 2007) (“The nationwide injunction . . . is compelled by the text of the Administrative Procedure Act”), rev’d in part on other grounds sub nom. Summers v. Earth Island Inst., 555 U.S. 488 (2009). Thus, upon a finding that agency action is unlawful, “the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” Harmon, 878 F.2d at 495 n.21. Because a final judgment in an APA case results in the agency action being set aside, it is appropriate for provisional relief to match that scope. See De Beers, 325 U.S. at 220 (“A preliminary injunction is always appropriate to grant intermediate relief of the same character as that which may be granted finally.”); Texas II, 809 F.3d at 170-88 (affirming “nationwide” preliminary injunction after holding that plaintiffs were likely to succeed on APA claims).
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Furthermore, the injunction issued by the district court was necessary
to “provide complete relief to the plaintiff before the court.” L.A. Haven
Hospice, Inc. v. Sebelius, 638 F.3d 644, 649 (9th Cir. 2011); see also
Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (injunction’s scope “is
dictated by the extent of the violation established, not by the geographical
extent of the plaintiff class”).16 For example, the University of California
educates individuals from across the United States, and it seeks to recruit the
best staff and students from a nationwide, indeed worldwide, talent pool. See
SER350, 603, 609, 812-813, 831.
The deportation of a prospective student from Texas, a staff member
from Florida, or a potential conference participant from Pennsylvania harms
the University of California. Moreover, staff and students regularly travel
across state lines for both personal and professional purposes; absent a
uniform injunction, individuals who rely on DACA protection might become
16 The unique remedies available under the APA renders inapposite the various cases the government cites suggesting that courts generally may not grant relief to non-parties. See Zepeda v. INS, 753 F.2d 719, 722 (9th Cir. 1983) (no APA claims at issue); McKenzie v. City of Chicago, 118 F.3d 551, 554 (7th Cir. 1997) (same); Meinhold v. DOD, 34 F.3d 1469, 1472 (9th Cir. 1994) (same). In Haven Hospice, this Court ruled that a “nationwide injunction” was not appropriate relief for an individual plaintiff challenging the application of a Medicare reimbursement cap, 638 F.3d at 649, but there, the plaintiff conceded it would have obtained complete relief without a “nationwide injunction.” Id. at 665.
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vulnerable to deportation when they leave California (or a University of California campus) to visit family, conduct research, or attend a conference. SER698, 832, 1013, 1112. As in Overton Park, where the plaintiffs were harmed by the overall effect of the agency action—the proposed construction of a freeway through a park—complete relief here can only be afforded by an injunction that will also benefit non-parties. By contrast, an injunction that stopped at the California border would not “be tailored to remedy the specific harm alleged” by the University. Lamb-Weston, 941 F.2d at 974. Furthermore, much like the injunction at issue in Hawaii, the uniform injunction entered by the district court here ensures that “the immigration laws of the United States [will] be enforced vigorously and uniformly.” 878 F.3d at 701 (emphasis omitted).
As in other cases, the government “has not proposed a workable alternative” to a uniform injunction “that would protect the proprietary interests” of the University of California. Washington, 847 F.3d at 1167. The government’s failure to propose any alternative injunction renders it unable to maintain that the district court’s injunction was an abuse of discretion.
2. The injunction is consistent with Article III. The government further suggests that the district court’s injunction violates Article III principles because the University of California and the
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other entity plaintiffs lack standing to sue in their capacities “as employers.” AOB54-56. But the University is not suing solely in its capacity as an employer. It is suing based both on its proprietary interests as an educational institution and on behalf of its students.
The University’s proprietary interests in maintaining enrollment of DACA recipients, retaining and attracting research assistants, instructors, and collaborators, and safeguarding its academic reputation, SER599-601, amply support its standing to sue on its own behalf. See Washington v. Trump, 847 F.3d 1151, 1160 (9th Cir. 2017). The University also has thirdparty standing to assert the interests of its estimated 1700 DACA students. SER366. See also, e.g., Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487-88 (9th Cir. 1995) (college had standing to assert the rights of its students, who were being preventing from attending school); Heartland Acad. Cmty. Church v. Waddle, 427 F.3d 525, 533 (8th Cir. 2005) (school had standing to assert rights of removed students); Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976); see also Washington, 847 F.3d at 1160.17
17 Here, the University’s students are hindered in their ability to bring claims on their own behalf because the rescission has placed DACA students in fear of arrest and deportation if they come forward. SER610-11; see Singleton v. Wulff, 428 U.S. 106, 117-18 (1976) (allowing physicians to bring suit to assert patients’ abortion rights where there was a reasonable concern about the loss of privacy from pursuing litigation).
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The district court also correctly concluded that the entity plaintiffs— as employers of DACA recipients who would lose their work authorization—have Article III standing, as they would suffer injuries fairly traceable to the rescission of DACA, including loss of investment in hiring and training, and reduced productivity due to decreased employee morale. ER23-24.
Contrary to the government’s footnote suggestion, AOB56 n.8, the University and the City of San José likewise have statutory standing to bring APA claims pursuant to the “zone of interests” test, which forecloses suit only when “interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot be reasonably assumed that Congress intended to permit the suit.” Batalla Vidal, 2017 WL 5201116, at *20 (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012)).
The interests that support the University’s Article III standing fall comfortably within the zone identified in the INA’s education-related provisions. See, e.g., 8 U.S.C. § 1101(a)(15)(J) (student visas). This Court has recognized these provisions as placing universities within the INA’s zone of interests. See Hawaii, 878 F.3d at 682. The University and City of San José’s interests as employers also plainly satisfy the zone of interests
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test, as the INA itself contains explicit provisions placing work authorization at the center of relevant interests. See, e.g., ER27-28; see also 8 U.S.C. § 1324a(a), (h)(3); 8 C.F.R. § 274a.12(c)(14) (work authorization for deferred action recipients). III. Plaintiffs’ APA Notice-And-Comment Claims Provide An
Additional Basis To Affirm. The Acting Secretary’s decision was subject to the APA’s notice-andcomment rulemaking requirements. The district court’s preliminary injunction can be sustained on this alternative basis, and the district court should not have dismissed plaintiffs’ notice-and-comment claim. A. The Rescission Is A Substantive Rule. The APA requires agencies seeking to promulgate or repeal a “substantive” rule to engage in notice and comment rulemaking. San Diego Air Sports Ctr., Inc. v. FAA, 887 F.2d 966, 971 (9th Cir. 1989); see also 5 U.S.C. § 551(5). Rules that are promulgated without notice and comment generally are vacated without further inquiry. See, e.g., Paulsen v. Daniels, 413 F.3d 999, 1003-04 (9th Cir. 2005) (concluding that agency “plainly violated the APA” by promulgating a rule that barred category of prisoners from relief without notice). A rule is substantive, and therefore subject to notice and comment, if it “narrowly limits administrative discretion” or establishes a “binding
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norm” such that “upon application one need only determine whether a given case is within the rule’s criterion.” Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th Cir. 2009). The “critical factor” in evaluating whether an agency action is substantive is “the extent to which the challenged [action] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” Municipality of Anchorage v. United States, 980 F.2d 1320, 1324 (9th Cir. 1992).
The rescission of DACA is a substantive rule because it binds DHS and limits its discretion. See Colwell, 558 F.3d at 1124; Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 948 (D.C. Cir. 1987) (“cabining of an agency’s prosecutorial discretion can in fact rise to the level of a substantive, legislative rule”). Prior to the rescission, DHS officials had discretion to grant DACA protection, work authorization, and advance parole to applicants who met the program criteria. See ER6-9. But after the rescission, DHS officials were required to reject new DACA applications, applications for advance parole, and renewal applications with expirations outside a specified date range. See ER12-13. Unlike DACA, which provided for the exercise of individual discretion in every case, ER141, the rescission makes no exceptions for case-by-case determinations. See, e.g., ER130 (stating that
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DHS will “reject all DACA renewal requests and associated applications for Employment Authorization Documents”). By adopting an across-the-board rule barring DACA recipients from renewing their deferred action and precluding new potential DACA recipients from obtaining deferred action, DHS promulgated a substantive rule.
The rescission is couched in unequivocal, mandatory language, requiring that DHS “[w]ill reject” all initial requests for deferred action; “[w]ill reject” all renewal requests received after October 5, 2017; “[w]ill administratively close” pending requests for advance parole by DACA recipients; and “will not approve” any such requests based on DACA going forward. ER131. Though “retain[ed]” enforcement discretion, wholly apart from the DACA program, may still exist to defer action in individual cases, AOB6, the use of discretion within the parameters of the DACA program has been abolished. This sort of “mandatory, definitive language” is a “powerful, even potentially dispositive, factor” in identifying a substantive rule. McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1320-21 (D.C. Cir. 1988) (“The use of the word ‘will’ suggests the rigor of a rule, not the pliancy of a policy.”); Alaska v. DOT, 868 F.2d 441, 447 (D.C. Cir. 1989) (concluding that agency order was a substantive rule in part due to “mandatory language cabining DOT’s enforcement discretion”).
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The rescission is also a substantive rule because it “effect[ed] a change in existing law or policy.” Reno-Sparks Indian Colony v. EPA, 336 F.3d 899, 909 (9th Cir. 2003). DHS has now concluded that it lacks authority to confer a type of deferred action that it had previously found to be permissible. See Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 449 (9th Cir. 1994) (holding agency promulgated substantive rule when it “eliminated [a statutory] right for a class of tenants”); Gen. Elec. Co. v. EPA, 290 F.3d 377, 382-83 (D.C. Cir. 2002) (“If a document expresses a change in substantive law or policy (that is not an interpretation) which the agency intends to make binding, . . . the agency . . . must observe the APA’s legislative rulemaking procedures.”). In abandoning the government’s own Office of Legal Counsel opinion and fifty years of precedent in favor of the Attorney General’s half-page letter stating that DACA was tainted by “legal and constitutional defects,” SER259, the government made a change in law and policy that requires notice and comment.
B. The District Court Erred In Finding That The Rescission Did Not Require Notice-And-Comment Procedures.
The district court acknowledged the rescission’s mandatory phrasing and its “categorical[]” elimination of advance parole for DACA recipients, ER53, but nonetheless dismissed plaintiffs’ procedural APA claims. Rather than analyzing whether the rescission was “substantive,” the court reasoned
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instead that because DACA did not go through notice and comment when it was created, it need not undergo notice and comment to be rescinded. This logic is flawed for two reasons.
First, the district court’s reasoning rests on a faulty parallelism between the creation of DACA and its rescission. Establishment of DACA— like the establishment of other deferred action programs—was an “exercise of prosecutorial discretion.” ER142. DACA was a non-binding policy that allowed the agency discretion to follow its guidelines, or not, in any particular case. It therefore fell within the statutory exemption from the notice and comment requirement for general statements of policy. See 5 U.S.C. § 553(b)(3)(A); Vigil, 508 U.S. at 197 (general statements of policy include “statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power”). Although DACA sets out a series of eligibility criteria, once those criteria are satisfied, DHS retains discretion to grant or deny any particular DACA application. See ER142 (“USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, for individuals who meet [the specified criteria].”); Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1017 (9th Cir. 1987) (policies that “allow for great agency latitude and discretion” are general statements of policy).
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The rescission of DACA, by contrast, requires a set of mandatory actions that leave no room for officials to exercise discretion: new DACA applications must be denied; renewal applications must be denied; and advance parole applications must be rejected. Thus, in any particular case, the rescission prescribes precisely what must be done. DACA and its rescission are not parallel.18 Indeed, in very similar circumstances, a court found that a blanket rescission of a deferred action program required notice and comment where “[t]he effect of the [revocation] was to remove the discretion of” agency officials. See United States ex rel. Parco v. Morris, 426 F. Supp. 976, 980-81, 983-86 (E.D. Pa. 1977) (Becker, J.).
Second, even if DACA should have undergone notice and comment when it was created, an agency still may not rescind a program merely because of an arguable defect in its promulgation. Under the APA, “repealing a rule” is a “rule making” proceeding, on equal footing with the promulgation of a rule, that must comply with APA procedures. See 5 U.S.C. § 551(5). The courts have regularly held that the notice-and-comment requirements apply to terminations of rules, even when the rules “were
18 The fact that the government may continue to grant deferred action on the basis of other criteria in no way renders the rescission exempt from the APA’s notice-and-comment procedures, as the agency’s discretion to grant deferred action on the basis of the DACA criteria has been eliminated.
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defective in some respect” when first announced. Consumer Energy Council v. FERC, 673 F.2d 425, 447 n.79 (D.C. Cir. 1982); accord Benten v. Kessler, 799 F. Supp. 281, 289 (E.D.N.Y. 1992) (“The fact that the inception of a program was procedurally faulty or without specific congressional authorization . . . has no effect on the applicability of the notice and comment requirement to its termination.”); Am. Forest Res. Council v. Ashe, 946 F. Supp. 2d 1, 26 (D.D.C. 2013) (“[O]rdinarily an agency rule may not be repealed unless certain procedures, including public notice and comment, are followed, and [ ] this is true even where the rule at issue may be defective.”). Rightfully so—a rule benefiting hundreds of thousands of people should not be vulnerable to precipitous repeal merely because it contains an arguable procedural defect that went unchallenged when it was first created.
In rejecting plaintiffs’ notice-and-comment claim, the district court relied heavily on this Court’s decision in Mada-Luna, 813 F.2d at 1017 n.12. But that case specifically declined to decide the government’s contention that a rule “can always be repealed in the same manner it was promulgated.” Id. The policy at issue in Mada-Luna, a deferred-action “Operating Instruction,” was a policy statement that was not subject to notice-andcomment requirements because it, like DACA, unmistakably vested officials
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with discretion. Id. at 1017 (policy “leaves the [ ] director free to consider the individual facts in each case”). The rescission of DACA is different; it uses mandatory language to establish blanket requirements that leave no room for discretion in evaluating particular deferred action requests.
The district court should have denied the government’s motion to dismiss plaintiffs’ notice-and-comment claims, and those claims provide an additional basis for upholding the injunction.
CONCLUSION The Court should affirm the district court’s decision to grant a preliminary injunction, affirm the district court’s orders to the extent they deny the government’s motion to dismiss, and reverse the district court’s dismissal of plaintiffs’ APA notice-and-comment claims.
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Respectfully submitted,

Justin T. Berger Brian Danitz Tamarah Prevost COTCHETT, PITRE & MCCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 (650) 697-6000
Attorneys for Plaintiff City of San José

s/ Jeffrey M. Davidson Jeffrey M. Davidson Mónica Ramírez Almadani Erika Douglas David S. Watnick Breanna K. Jones COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, CA 94111 (415) 591-6000 jdavidson@cov.com

Robert A. Long Mark H. Lynch Alexander A. Berengaut Megan A. Crowley Ivano M. Ventresca COVINGTON & BURLING LLP One CityCenter 850 Tenth Avenue, NW Washington, DC 20001 (202) 662-6000

Attorneys for Plaintiffs The Regents of the University of California and Janet Napolitano, in her official capacity as President of the University of California

STATEMENT OF RELATED CASES This proceeding is a consolidated case arising out of (a) the government’s appeal of the district court’s preliminary injunction, Regents of the University of California v. United States of America, et al., Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072; (b) plaintiffs’ petitions for interlocutory review of elements of the district court’s ruling on the government’s motion to dismiss, Case Nos. 18-15128, 18-15133, 18-15134; and (c) the government’s petition for interlocutory review of different elements of that order, Case No. 18-80004. This Court also previously heard a petition for writ of mandamus against the district court order regarding the administrative record in this case. In re United States of America, et al., Case No. 17-72917.

CERTIFICATE OF COMPLIANCE I certify that this brief complies with the requirements of Ninth Circuit Rules 28.1-1(c) and 32-2(b), and the requirements of Federal Rules of Appellate Procedure 32(a)(5) and 32(a)(6), because it is filed by separately represented parties, is proportionately spaced serif font, has a typeface of 14 points, and contains 17,746 words. Dated: March 13, 2018
s/ Jeffrey M. Davidson

CERTIFICATE OF SERVICE I certify that on March 13, 2018, I electronically filed the foregoing document with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Dated: March 13, 2018
s/ Jeffrey M. Davidson

ADDENDUM
5 U.S.C. § 551................................................................................................................................. 1 5 U.S.C. § 553................................................................................................................................. 4

5 U.S.C. § 551
For the purpose of this subchapter--
(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include--
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United States;
(D) the government of the District of Columbia; or except as to the requirements of section 552 of this title--
(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field in time of war or in occupied territory; or (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; subchapter II of chapter 471 of title 49; or sections 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix;
(2) “person” includes an individual, partnership, corporation, association, or public or private organization other than an agency;
(3) “party” includes a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted by an agency as a party for limited purposes;
(4) “rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing;
(5) “rule making” means agency process for formulating, amending, or repealing a rule;
ADDENDUM - 1

(6) “order” means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing;
(7) “adjudication” means agency process for the formulation of an order;
(8) “license” includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission;
(9) “licensing” includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license;
(10) “sanction” includes the whole or a part of an agency--
(A) prohibition, requirement, limitation, or other condition affecting the freedom of a person;
(B) withholding of relief;
(C) imposition of penalty or fine;
(D) destruction, taking, seizure, or withholding of property;
(E) assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees;
(F) requirement, revocation, or suspension of a license; or
(G) taking other compulsory or restrictive action;
(11) “relief” includes the whole or a part of an agency--
(A) grant of money, assistance, license, authority, exemption, exception, privilege, or remedy;
(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or
(C) taking of other action on the application or petition of, and beneficial to, a person;
(12) “agency proceeding” means an agency process as defined by paragraphs (5), (7), and (9) of this section;
ADDENDUM - 2

(13) “agency action” includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act; and (14) “ex parte communication” means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter.
ADDENDUM - 3

5 U.S.C. § 553
(a) This section applies, according to the provisions thereof, except to the extent that there is involved--
(1) a military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.
(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall 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.
Except when notice or hearing is required by statute, this subsection does not apply-
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except--
(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;
ADDENDUM - 4

(2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.
ADDENDUM - 5

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL., Plaintiffs-Appellees-Cross-Appellants, v.
U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., Defendants-Appellants-Cross-Appellees.

On Appeal From The United States District Court For The Northern District Of California
PRINCIPAL AND RESPONSE BRIEF FOR THE GARCIA AND COUNTY OF SANTA CLARA PLAINTIFFS

NICOLE A. SAHARSKY MATTHEW S. ROZEN HALEY S. MORRISSON GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 (202) 955-8500
MARK D. ROSENBAUM JUDY LONDON PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 (213) 385-2977

THEODORE J. BOUTROUS, JR. ETHAN D. DETTMER KIRSTEN GALLER JONATHAN N. SOLEIMANI KELSEY J. HELLAND GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7000

Counsel for Plaintiffs Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez,
and Jirayut Latthivongskorn

(Additional Parties and Counsel Listed on Next Page)

LUIS CORTES ROMERO BARRERA LEGAL GROUP, PLLC 19309 68th Avenue South, Suite R102 Kent, WA 98032 (253) 872-4730

LAURENCE H. TRIBE HARVARD LAW SCHOOL* 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767

ERWIN CHEMERINSKY UNIVERSITY OF CALIFORNIA, BERKELEY SCHOOL OF LAW* 215 Boalt Hall Berkeley, CA 94720 (510) 642-6483

LEAH M. LITMAN UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW* 401 East Peltason Drive Irvine, CA 92697 (949) 824-7722

Additional Counsel for Plaintiffs Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and Jirayut Latthivongskorn

*Affiliation for identification purposes only

STACEY M. LEYTON ERIC P. BROWN ANDREW KUSHNER ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151
Counsel for Plaintiffs County of Santa Clara and Service Employees International Union Local 521

JAMES R. WILLIAMS GRETA S. HANSEN LAURA S. TRICE MARCELO QUIÑONES OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110 (408) 299-5900
Counsel for Plaintiff County of Santa Clara

TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
STATEMENT OF JURISDICTION..........................................................................3
CONSTITUTIONAL AND STATUTORY AUTHORITIES...................................4
ISSUES PRESENTED...............................................................................................4
STATEMENT OF THE CASE..................................................................................5
I. DEFERRED ACTION AND THE ESTABLISHMENT OF DACA .................................................................................................... 5
II. THE GOVERNMENT’S ABRUPT DECISION TO RESCIND THE DACA PROGRAM....................................................8
III. PROCEDURAL HISTORY OF THESE CASES...............................11
SUMMARY OF THE ARGUMENT ......................................................................15
STANDARD OF REVIEW .....................................................................................18
ARGUMENT ...........................................................................................................19
I. THE GOVERNMENT’S DECISION TO END THE DACA PROGRAM IS JUDICIALLY REVIEWABLE .................................19 A. The APA Does Not Bar Judicial Review..................................19 B. The INA Does Not Bar Judicial Review ..................................24
II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ENTERING THE PRELIMINARY INJUNCTION .....................................................................................28 A. Plaintiffs Indisputably Face Irreparable Injury In The Absence Of An Injunction, And The Injunction Is In The Public Interest ...........................................................................28

B. Plaintiffs Have Demonstrated A Likelihood Of Success On The Merits Of Their APA Claim ........................................29 1. The rescission rests on the flawed legal premise that DACA is unlawful ...................................................29 2. The government’s post hoc “litigation risk” justification is arbitrary and capricious ..........................38
C. A Nationwide Injunction Is Appropriate In This Case.............43 III. THE DISTRICT COURT DID NOT ERR IN DENYING
THE GOVERNMENT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ......................................................46 A. Plaintiffs Have Stated A Plausible Equal Protection
Claim .........................................................................................46 B. Plaintiffs Have Stated A Substantive Due Process Claim
Based On The Government’s Change In Its InformationSharing Policy ...........................................................................53 IV. THE DISTRICT COURT ERRED IN DISMISSING TWO OF PLAINTIFFS’ CLAIMS ...............................................................58 A. Plaintiffs Have Stated A Plausible Due Process Claim Based On The Rescission Of DACA........................................58 B. Plaintiffs Have Stated A Plausible APA Notice-AndComment Claim ........................................................................66 CONCLUSION ........................................................................................................69 STATEMENT OF RELATED CASES
CERTIFICATE OF SERVICE
CERTIFICATE OF COMPLIANCE
ADDENDUM
ii

TABLE OF AUTHORITIES

Cases

Page(s)

All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ................................................................16, 28, 29

Am. Forest Resource Council v. Ashe, 946 F. Supp. 2d 1 (D.D.C. 2013)........................................................................69

Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343 (D.C. Cir. 2014)..........................................................................32

Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000)..........................................................................64

Arce v. Douglas, 793 F.3d 968 (9th Cir. 2015) ..................................................................47, 48, 51

Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014) ............................................................................31

Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017) ..............................................................................30

Arizona v. United States, 567 U.S. 387 (2012)............................................................................................30

Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014)......................................................................37

Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001) ..............................................................................57

Asarco v. EPA, 616 F.2d 1153 (9th Cir. 1980) ............................................................................44

Ashcroft v. Iqbal, 556 U.S. 662 (2009)............................................................................................18

Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493 (9th Cir. 2016) ..............................................................................47

iii

Aziz v. Trump, 234 F. Supp. 3d 724 (E.D. Va. 2017) .................................................................51
Barahona-Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001) ............................................................................25
Batalla Vidal v. Duke, 2017 WL 5201116 (E.D.N.Y. Nov. 9, 2017) ................ 21, 35, 36, 37, 39, 41, 45
Bell v. Burson, 402 U.S. 535 (1971)............................................................................................65
Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999) ..............................................................................27
Bowrin v. U.S. INS, 194 F.3d 483 (4th Cir. 1999) ..............................................................................27
Bowsher v. Synar, 478 U.S. 714 (1986)............................................................................................46
Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987) ............................................................................43
Burlington Truck Lines v. United States, 371 U.S. 156 (1962)............................................................................................38
Califano v. Yamasaki, 442 U.S. 682 (1979)............................................................................................43
Casa de Maryland v. U.S. Dep’t of Homeland Sec., 2018 WL 1156769 (D. Md. Mar. 5, 2018) .........................................................51
Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000) ............................................................................25
Chehazeh v. Att’y Gen. of U.S., 666 F.3d 118 (3d Cir. 2012) ...............................................................................27
Chrysler Corp. v. Brown, 441 U.S. 281 (1979)............................................................................................36
iv

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)............................................................................................19
Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987)............................................................................68
Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112 (9th Cir. 2009) ................................................................36, 66, 68
Consumer Energy Council v. FERC, 673 F.2d 425 (D.C. Cir. 1982)............................................................................69
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990)............................................................................................33
Cox v. Louisiana, 379 U.S. 559 (1965)............................................................................................57
Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994)..............................................................................22
Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998)............................................................................................56
Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406 (1977)............................................................................................43
De La Cruz v. Tormey, 582 F.2d 45 (9th Cir. 1978) ................................................................................47
DeNieva v. Reyes, 966 F.2d 480 (9th Cir. 1992) ..............................................................................60
DHS v. Regents of Univ. of Cal., 2018 WL 1037642 (S. Ct. Feb. 26, 2018) ..........................................................15
Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) ..............................................................................18
Earth Island Inst. v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007) ..............................................................................44
v

Edison Elec. Inst. v. EPA, 996 F.2d 326 (D.C. Cir. 1993)............................................................................23
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016)............................................................................32, 41, 42
Engquist v. Or. Dep’t of Agric., 478 F.3d 985 (9th Cir. 2007) ..............................................................................60
EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014)........................................................................................35
Fornalik v. Perryman, 223 F.3d 523 (7th Cir. 2000) ..............................................................................27
Garcia v. Att’y Gen. of U.S., 553 F.3d 724 (3d Cir. 2009) ...............................................................................25
Garza-Moreno v. Gonzales, 489 F.3d 239 (6th Cir. 2007) ..............................................................................27
Geneva Towers Tenants Org. v. Federated Mortg. Inv’rs, 504 F.2d 483 (9th Cir. 1974) ..............................................................................61
Gerhart v. Lake Cty., 637 F.3d 1013 (9th Cir. 2011) ............................................................................55
Gunasekera v. Irwin, 551 F.3d 461 (6th Cir. 2009) ..................................................................63, 64, 66
Heckler v. Chaney, 470 U.S. 821 (1985)..........................................................................19, 20, 21, 23
Hernandez v. Texas, 347 U.S. 475 (1954)............................................................................................50
ICC v. Bhd of Locomotive Eng’rs, 482 U.S. 270 (1987)............................................................................................23
INS v. St. Cyr, 533 U.S. 289 (2001)................................................................................19, 24, 25
vi

Int’l Refugee Assistance Project v. Trump, --- F.3d ---, 2018 WL 894413 (4th Cir. Feb. 15, 2018)......................................50
Itaeva v. INS, 314 F.3d 1238 (10th Cir. 2003) ..........................................................................25
Jean v. Nelson, 711 F.2d 1455 (11th Cir. 1983) ..........................................................................52
Kenney v. Glickman, 96 F.3d 1118 (8th Cir. 1996) ..............................................................................23
Koon v. United States, 518 U.S. 81 (1996)..............................................................................................33
Lewis v. Casey, 518 U.S. 343 (1996)......................................................................................16, 46
Lincoln v. Vigil, 508 U.S. 182 (1993)............................................................................................23
Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014) ........................................................................53, 60
Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011) ..............................................................................46
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990)............................................................................................44
Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015)..................................................................................15, 19
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) ............................................................................68
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025 (9th Cir. 2008) ............................................................................56
Marsh v. Cty. of San Diego, 680 F.3d 1148 (9th Cir. 2012) ......................................................................56, 57
vii

Massachusetts v. EPA, 549 U.S. 497 (2007)............................................................................................33
Mendez-Gutierrez v. Ashcroft, 340 F.3d 865 (9th Cir. 2003) ..............................................................................20
Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544 (D.C. Cir. 2015)............................................................................40
Michigan v. EPA, 135 S. Ct. 2699 (2015)........................................................................................41
Morales de Soto v. Lynch, 824 F.3d 822 (9th Cir. 2016) ..............................................................................22
Morrissey v. Brewer, 408 U.S. 471 (1972)......................................................................................59, 66
Motor Vehicle Mfrs. Ass’n. of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)............................................................................38, 39, 41, 43
Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003) ..............................................................................65
Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998)..............................................................43, 44, 45
Nat’l Treasury Employees Union v. Cornelius, 617 F. Supp. 365 (D.D.C. 1985).........................................................................69
Newman v. Sathyavaglswaran, 287 F.3d 786 (9th Cir. 2002) ..............................................................................64
Nozzi v. Hous. Auth. of L.A., 806 F.3d 1178 (9th Cir. 2015) ......................................................................54, 60
Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) ..............................................................................40
Orloff v. Cleland, 708 F.2d 372 (9th Cir. 1983) ........................................................................62, 63
viii

Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142 (9th Cir. 2013) ............................................................................49
Padilla v. Kentucky, 559 U.S. 356 (2010)............................................................................................58
United States ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977).................................................................67, 68
Perry v. Sindermann, 408 U.S. 593 (1972)................................................................................54, 60, 63
Peterson v. Highland Music, Inc., 140 F.3d 1313 (9th Cir. 1998) ............................................................................57
Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985)............................................................................33
Puri v. Khalsa, 844 F.3d 1152 (9th Cir. 2017) ............................................................................18
Raley v. Ohio, 360 U.S. 423 (1959)............................................................................................57
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)............................................................. 16, 24, 25, 26, 30, 52
Richardson v. Town of Eastover, 922 F.2d 1152 (4th Cir. 1991) ............................................................................60
Robbins v. Reagan, 780 F.2d 37 (D.C. Cir. 1985)..............................................................................22
Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985) ............................................................................65
Sabhari v. Reno, 197 F.3d 938 (8th Cir. 1999) ..............................................................................27
Sampson v. United States, 533 F.2d 499 (9th Cir. 1976) ..............................................................................36
ix

Scenic Am., Inc. v. U. S. Dep’t of Transp., 836 F.3d 42 (D.C. Cir. 2016)..............................................................................64
Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d 640 (D.C. Cir. 1998)............................................................................33
SEC v. Chenery Corp., 318 U.S. 80 (1943)........................................................................................32, 33
SEC v. Chenery Corp., 332 U.S. 194 (1947)......................................................................................32, 38
Sinai v. New England Tel. & Tel. Co., 3 F.3d 471 (1st Cir. 1993)...................................................................................50
Skinner v. Switzer, 562 U.S. 521 (2011)............................................................................................18
Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) ............................................................................65
Stauch v. City of Columbia Heights, 212 F.3d 425 (8th Cir. 2000) ........................................................................60, 62
Tecza v. Univ. of San Francisco, 532 F. App’x 667 (9th Cir. 2013) .......................................................................66
Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015)........................................................................................30
Texas v. United States, 809 F.3d 134 (5th Cir. 2016) ............................................... 23, 25, 34, 35, 36, 45
Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex.) .............................................................................9
United States v. Armstrong, 517 U.S. 456 (1996)............................................................................................52
United States v. Bollinger Shipyards, Inc., 775 F.3d 255 (5th Cir. 2014) ..............................................................................59
x

United States v. Ross, 848 F.3d 1129 (D.C. Cir. 2017)..........................................................................33
Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014)........................................................................................43
Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016) ........................................................................27
Verlo v. Martinez, 820 F.3d 1113 (10th Cir. 2016) ....................................................................64, 65
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)................................................................................47, 48, 52
Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013) ..............................................................................21
Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000) ............................................................................60
Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ............................................................................25
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ................................................................45, 50, 51
Webster v. Doe, 486 U.S. 592 (1988)............................................................................................52
Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56 (9th Cir. 1994) ................................................................53, 60, 62, 66
Wilkinson v. Austin, 545 U.S. 209 (2005)............................................................................................59
Wong v. United States, 373 F.3d 952 (9th Cir. 2004) ........................................................................26, 53
Zadvydas v. Davis, 533 U.S. 678 (2001)............................................................................................50
xi

Statutes 5 U.S.C. § 553..........................................................................................................11 5 U.S.C. § 701(a)(2)...................................................................................2, 4, 15, 19 5 U.S.C. § 702..........................................................................................................19 5 U.S.C. § 706(2)(A)..........................................................................1, 11, 12, 29, 44 6 U.S.C. § 202(5) ...........................................................................................5, 29, 34 8 U.S.C. § 1103(a)(1)...............................................................................................34 8 U.S.C. § 1103(a)(3)...............................................................................................29 8 U.S.C. § 1182(a)(9)(B)(ii) ....................................................................................31 8 U.S.C. § 1182(d)(5)(A) .........................................................................................31 8 U.S.C. § 1227(d)(2)...............................................................................................30 8 U.S.C. § 1252(g) ...................................................... 2, 4, 12, 15, 16, 24, 25, 26, 27 8 U.S.C. § 1324a(h)(3).............................................................................................31 28 U.S.C. § 1292(a)(1)...............................................................................................3 28 U.S.C. § 1292(b) ...................................................................................................3 28 U.S.C. § 1331........................................................................................................3 REAL ID Act of 2005, Pub. L. No. 109-13, § 201(c)(2)(B)(viii), 119
Stat. 302 (2005)...................................................................................................30 Regulations
8 C.F.R. § 212.5(f) ...................................................................................................31 8 C.F.R. § 214.14(d)(3)............................................................................................31 8 C.F.R. § 274a.12(c)(14) ........................................................................................31 28 C.F.R. § 1100.35(b)(2)........................................................................................31
xii

INTRODUCTION This case is about whether 700,000 young people who came to the United States as undocumented children and have lived their entire lives here will be threatened with removal because the government terminated the Deferred Action for Childhood Arrivals (DACA) program. Since 2012, the government has encouraged these individuals, known as “Dreamers,” to come out of the shadows and apply for DACA in exchange for presumptively renewable two-year periods of deferred action and work authorization. The program has been an unqualified success. Hundreds of thousands of young people have obtained deferred action under the program and have relied on the government’s promises. DACA recipients have served in the military; furthered their educations; opened businesses; become teachers, social workers, lawyers, and medical professionals; and contributed to their communities and our Nation in countless ways. In September 2017, the government abruptly reversed course, announcing that it would terminate the DACA program and would reject renewal requests for those with statuses expiring after March 5, 2018. Plaintiffs challenged this decision on statutory, constitutional, and equitable grounds. The district court determined that plaintiffs are likely to succeed on their claim that the rescission was arbitrary and capricious in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), and that the balance of hardships sharply favors plaintiffs. It therefore
1

issued a preliminary injunction to protect the hundreds of thousands of current DACA recipients pending a final decision on the merits. The court also rejected the government’s arguments that no court can review the decision to rescind DACA and denied the government’s motion to dismiss most of plaintiffs’ claims.
The government now asks this Court to dissolve the district court’s preliminary injunction and largely reverse its rulings about the sufficiency of the pleadings. This Court should reject that invitation. The government is wrong to say that 5 U.S.C. § 701(a)(2) and 8 U.S.C. § 1252(g) bar judicial review of its decision to end a longstanding program protecting 700,000 people from removal. And the government has not established that the district court abused its broad discretion in entering the preliminary injunction. Plaintiffs are likely to succeed on their APA claim because neither of the government’s proffered justifications for rescinding DACA (DACA’s alleged unlawfulness and “litigation risk”) withstand scrutiny. And the government does not dispute that DACA recipients would be seriously and irreparably harmed without the injunction—especially now that the March 5 deadline has passed and the government would not process DACA renewals but for the injunction.
Finally, the government cannot show that the district court erred in refusing to dismiss plaintiffs’ equal protection and due process claims on the pleadings.
2

Plaintiffs cross-appeal on two narrow grounds related to the sufficiency of the pleadings. The district court erred in dismissing plaintiffs’ claim that the rescission impermissibly deprives DACA recipients of property and liberty interests protected by the Due Process Clause and their claim that the decision to rescind DACA is procedurally defective because it failed to follow the notice-and-comment procedures required by the APA. Plaintiffs have plausibly alleged such claims and they are legally well-grounded.
This Court should affirm the district court’s order granting the preliminary injunction and denying the motion to dismiss, and reverse the portion of the order granting the government’s motion to dismiss.
STATEMENT OF JURISDICTION The district court had federal-question jurisdiction under 28 U.S.C. § 1331. This Court has jurisdiction over the appeal of the preliminary injunction under 28 U.S.C. § 1292(a)(1) and over appeals from the orders addressing defendants’ motions to dismiss under 28 U.S.C. § 1292(b). The district court entered an order granting plaintiffs’ motion for a preliminary injunction and denying the government’s motion to dismiss for lack of jurisdiction on January 9, 2018, and an order granting in part and denying in part the government’s motion to dismiss for failure to state a claim on January 12, 2018. The district court certified its orders for interlocutory appeal. See ER.48-49, 62-63. On
3

January 16, 2018, the government filed a notice of appeal of the preliminaryinjunction order and a petition for interlocutory review of the motion-to-dismiss orders. On January 22, 2018, plaintiffs filed petitions for interlocutory review of the motion-to-dismiss order. On January 25, 2018, this Court accepted the appeals and petitions for interlocutory review. C.A. No. 18-15068, Dkt. 2.
CONSTITUTIONAL AND STATUTORY AUTHORITIES All pertinent constitutional and statutory authorities appear in the Addendum to this brief.
ISSUES PRESENTED 1. Whether either the APA, 5 U.S.C. § 701(a)(2), or the INA, 8 U.S.C. § 1252(g), precludes judicial review of the government’s decision to terminate the DACA program. 2. Whether the district court abused its discretion in entering a preliminary injunction, based on its findings that plaintiffs are likely to succeed on their claim that the decision to end DACA was arbitrary and capricious in violation of the APA and that the equities strongly favor granting preliminary-injunctive relief. 3. Whether plaintiffs sufficiently stated a claim that the government’s decision to rescind DACA violates the Equal Protection Clause because it was motivated by discriminatory intent.
4

4. Whether plaintiffs sufficiently stated a claim that the government’s change in policy regarding protection of DACA applicants’ personal information violates the Due Process Clause.
5. Whether plaintiffs sufficiently stated a claim that the government’s rescission of DACA violates the Due Process Clause because it impermissibly deprives them of their protected interest in renewal of their DACA status and its attendant benefits.
6. Whether plaintiffs sufficiently stated a claim that the rescission of DACA violates the APA because the government failed to follow notice-andcomment procedures, and if so, whether this Court should affirm the preliminary injunction on the alternative ground that plaintiffs are likely to prevail on that claim.
STATEMENT OF THE CASE I. DEFERRED ACTION AND THE ESTABLISHMENT OF DACA
For more than 60 years, the Department of Homeland Security (DHS) and its predecessor, the Immigration and Naturalization Service (INS), have allowed individuals without lawful status to remain in the United States through deferred action. SER.240. Deferred action is an exercise of the Executive’s authority to “[e]stablish[] national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). DHS and the INS have exercised this discretion on a programmatic basis, adopting 17 different deferred-action programs in the past 62 years. See SER.26566. These programs recognize that “there simply are not enough resources to enforce
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all of the rules and regulations presently on the books,” and that “[i]n some situations, application of the literal letter of the law would simply be unconscionable and would serve no useful purpose.” SER.1215.
In 2012, Secretary of Homeland Security Janet Napolitano established the DACA program. SER.223-25. She explained that the agency’s exercise of “prosecutorial discretion” to permit individuals who met the specified criteria to remain in the United States was “especially justified” because these “productive young people” had “already contributed to our country in significant ways” and “lack the intent to violate the law.” SER.223-24. She adopted the DACA program to “ensure that [the government’s] enforcement resources are not expended on these low priority cases.” SER.223.
Under DACA, undocumented individuals who were brought to the United States as children and met the specified criteria could apply for deferred action for an initial period of two years, which could be renewed. SER.223-25. To apply for DACA, individuals were required to disclose personal information, submit to a rigorous background check, and pay a considerable fee. ER.203-04. Once approved, a DACA recipient could obtain work authorization and a social security number, open a bank or credit card account, purchase a home or car, and obtain tuition benefits and health insurance. ER.205-06.
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The government promoted the DACA program through an extensive outreach campaign, repeatedly promising that information submitted to the government “is protected from disclosure” to immigration enforcement agencies—U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP)— except in special circumstances. ER.206-09, 227, 243, 250. The government also consistently and publicly represented that DACA recipients presumptively would be able to renew their status if they continued to satisfy conditions of their enrollment. ER.204-06, 243, 249-50. These representations were integral to the success of the program and the government understood them as such. ER.204-05, 243, 249-50.
More than 700,000 individuals have received deferred action under DACA, enabling them to live and work in this country without fear of deportation. ER.210, 214-18, 227. The Dreamers have relied on the promise of DACA to pursue higher education, make financial commitments, open businesses and hire employees, start families, and make many other life-changing decisions. ER.206. The impact of DACA on Latino communities has been especially profound, because Latinos account for 93 percent of approved DACA applications. ER.219, 232, 245.
The six individual plaintiffs here—Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and Jirayut Latthivongskorn—relied on DACA to commit to careers as lawyers, medical professionals, and teachers; to build their homes and families; and to contribute to
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their communities. ER.210-19. Without DACA, they will lose their careers, revert to a life in the shadows, and face the constant threat of deportation and separation from their families. ER.199-201, 227-28.
The government has recognized the program’s transformative impact on DACA recipients and their families and communities. In December 2016, DHS Secretary Jeh Johnson observed that DACA enabled hundreds of thousands of young people “to enroll in colleges and universities, complete their education, start businesses that help improve our economy, and give back to our communities as teachers, medical professionals, engineers, and entrepreneurs—all on the books.” ER.206. Recognizing that DACA recipients risk deportation by identifying themselves to the government to obtain deferred action, Secretary Johnson told them that “representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be honored.” ER.208. II. THE GOVERNMENT’S ABRUPT DECISION TO RESCIND THE
DACA PROGRAM The Trump administration originally committed to continue the DACA program. In March 2017, DHS Secretary John Kelly stated that DACA embodies a “commitment ... by the government towards ... Dreamer[s].” ER.209. In April 2017, the President personally assured the Dreamers that they could “rest easy” because the “policy of [his] administration [is] to allow the dreamers to stay.” Id.
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On September 4, 2017, the government abruptly reversed course. The
Attorney General sent a one-page letter to Acting DHS Secretary Elaine Duke.
SER.259. The letter’s explanation for rescinding the DACA program was quite
brief:
DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch. The related Deferred Action for Patents of Americans and Lawful Permanent Residents (DAPA) policy was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of multiple legal grounds and then by the Supreme Court by an equally divided vote. See Texas v. United States, 86 F. Supp. 3d 591, 669-70 (S.D. Tex.), aff’d, 809 F.3d 134, 171-86 (5th Cir. 2016), aff’d by equally divided Court, 136 S. Ct. 2271 (2016). Then-Secretary of Homeland Security John Kelly rescinded the DAPA policy in June. Because the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.
Id. The Attorney General gave essentially one reason for rescinding DACA—that
it is “unconstitutional” because the Fifth Circuit had enjoined a different deferred-
action program, DAPA, on “multiple legal grounds” (none of which, in fact, were
constitutional grounds), and the Supreme Court had affirmed. The following day,
the Attorney General announced the decision to end DACA. He gave the same
conclusory justification as in his letter: The DACA program “is vulnerable to the
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same legal and constitutional challenges that [the Fifth Circuit] recognized with respect to the DAPA program” in the Texas case. SER.1354-1355.
Acting Secretary Duke issued a memorandum rescinding DACA. SER.26064; ER.225-26. The memorandum cited only the “Supreme Court’s and the Fifth Circuit’s rulings in the ongoing [DAPA] litigation, and the September 4, 2017 letter from the Attorney General.” SER.263; ER.130. The memorandum neither analyzed any purported litigation risks nor weighed defending DACA and its widespread benefits against the consequences that rescinding it would have on the hundreds of thousands of DACA recipients, their families, employers, communities, and the economy. The memorandum instructed DHS to stop approving new DACA applications and to allow individuals’ DACA status to expire beginning March 5, 2018. SER.263; ER.130.
In addition to rescinding the program, DHS walked back its promises about protecting the personal information of DACA recipients. Rather than pledging to “protect” that information from disclosure to ICE and CBP, DHS said only that it would not “proactively provid[e] [the information] to ICE and CBP for the purpose of immigration enforcement proceedings.” ER.208, 227, 261.
Although the President originally promised to support the Dreamers, ER.209, he expressly took responsibility for the decision to rescind DACA, ER.226, and later candidly admitted that the rescission was used to make Dreamers a bargaining chip
10

in his effort to secure unrelated changes to the immigration laws, ER.44 n.18 (“[T]here can be no DACA without the desperately needed WALL at the Southern Border.”). And the President’s decision to rescind DACA also must be understood in light of his many statements denigrating non-citizens, especially Mexicans and Latinos. For example, during his first campaign speech, President Trump characterized Mexican immigrants as criminals and “rapists.” ER.220, 265. He later defended those remarks as “100 percent correct.” ER.220. He tweeted that “[d]ruggies, drug dealers, rapists and killers are coming across the southern border,” and asked, “When will the U.S. get smart and stop this travesty?” ER.220. These and many similar statements are the President’s response to, and cultivation of, antiMexican and Latino animus among his supporters. ER.219-23; see also ER.265-66. III. PROCEDURAL HISTORY OF THESE CASES
Plaintiffs filed five related lawsuits challenging the rescission. Plaintiffs contend, inter alia, that DACA’s rescission (1) is unlawful under the APA because it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A); (2) violates the APA’s notice-and-comment rulemaking requirement, 5 U.S.C. § 553; (3) denies DACA recipients equal protection of the laws; and (4) impermissibly deprives them of constitutionally protected interests in the confidentiality of personal information submitted with their DACA applications and in their ability to renew their DACA status. ER.13-16.
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The district court denied the government’s motion to dismiss for lack of jurisdiction and granted preliminary-injunctive relief. ER.1-49. The court rejected the government’s arguments that the decision to end DACA is unreviewable. ER.1823. The court held that the decision is not “committed to agency discretion by law” under the APA because it is a “major policy decision[]” based on the agency’s “interpretation of the INA”—a “quintessential[ly]” reviewable legal question for which “there is law to apply.” ER.19-21. The court also held that 8 U.S.C. § 1252(g) does not bar judicial review, ER.21-23, because that provision applies only to the “three discrete decisions or actions named” in the statute—decisions to “commence proceedings, adjudicate cases, or execute removal orders against any alien,” 8 U.S.C. § 1252(g)—and the rescission is none of those. Rather, it is an “across-the-board cancellation of a nationwide program” done “prior to the commencement of any removal proceedings.” ER.21.
The district court entered a preliminary injunction based on its initial assessment of the merits and its balancing of the equities. ER.28-48. The court found plaintiffs likely to succeed on their claims that DACA’s rescission is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), because neither of the government’s claimed reasons for ending DACA withstood scrutiny.
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First, the district court rejected the view that DACA is unlawful, because that view is “based on the flawed legal premise that the agency lacked authority to implement DACA.” ER.29. The court found that DACA is a permissible exercise of the Executive’s immigration enforcement authority because each feature of the program is “anchored in authority granted or recognized by Congress or the Supreme Court.” ER.29-30. The court noted that “the government [had] ma[de] no effort” in this litigation “to challenge any of the ... reasons why DACA was and remains within the authority of the agency,” ER.33; all it did was cite the Texas decision, which the district court distinguished on multiple grounds, ER.35-36.
Second, the district court rejected the government’s post hoc rationalization that “litigation risk” justified DACA’s termination. ER.38-43. The court explained that the Attorney General’s stated reason for ending DACA was his belief that it is unlawful, and the Acting Secretary’s memorandum relied on that determination, without “consider[ing] whether defending the program in court would (or would not) be worth the litigation risk.” ER.39. In fact, the court concluded, the agency never assessed litigation risks or weighed them against “DACA’s programmatic objectives” and DACA recipients’ “reliance interests.” ER.40. In the court’s view, the agency’s about-face without a reasoned explanation was a paradigmatic example of arbitrary and capricious agency action. ER.41-42.
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The district court then concluded that the equities “sharply” favor a preliminary injunction. ER.43-46 & n.19. The government “d[id] not dispute” that plaintiffs will face irreparable injury absent injunctive relief. ER.44. And the “public interest will be served by DACA’s continuation,” because the rescission “would tear authorized workers from our nation’s economy and would prejudice their being able to support themselves and their families.” ER.45. The preliminary injunction directs the government “to maintain the DACA program” as it was prerescission, except that the government may deny new applications and foreign travel requests. ER.46. The government also may exercise its discretion “on an individualized basis for each renewal application” and may “remove any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed.” Id.
The district court denied in part and granted in part the government’s motion to dismiss for failure to state a claim. ER.50-63. The court concluded that plaintiffs sufficiently pleaded that the rescission violates equal protection because plaintiffs alleged “that the rescission had a disproportionate impact on Latinos and Mexican nationals” and that President Trump had made repeated statements evidencing racial animus, which suggested that the rescission was motivated by discriminatory intent. ER.59-61. The court also determined that plaintiffs sufficiently pleaded that the government violated due process because its change in policy to reduce protection
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for DACA applicants’ personal information was “fundamentally unfair.” ER.53, 5557.
But the court dismissed plaintiffs’ claim that rescinding DACA violated plaintiffs’ due process right to renewal, reasoning that plaintiffs “fail[ed] to make the threshold showing that they have a protected interest in the continuation of DACA” or “the renewal of benefits thereunder.” ER.53, 55. The court also dismissed plaintiffs’ claim that the rescission violated the APA’s notice-andcomment requirement, explaining that the rescission memorandum is a “general statement of policy,” not a rulemaking. ER.51-53.
The government appealed the preliminary-injunction order to this Court. With permission from the district court and this Court, the parties filed interlocutory appeals of the motion-to-dismiss order. This Court consolidated the appeals.1
SUMMARY OF THE ARGUMENT 1. The district court correctly concluded that the decision to terminate DACA is subject to judicial review. Neither the APA, 5 U.S.C. § 701(a)(2), nor the INA, 8 U.S.C. § 1252(g), overcome the “strong presumption favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015). The decision to terminate DACA is not a matter “committed to agency
1 In the meantime, the government filed a petition for a writ of certiorari before judgment in the Supreme Court, and the Court denied the petition. DHS v. Regents of Univ. of Cal., 2018 WL 1037642 (S. Ct. Feb. 26, 2018).
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discretion by law,” 5 U.S.C. § 701(a)(2), because the text of the INA, Supreme Court authority, and historic agency practice provide law to apply to evaluate the government’s decision.
Section 1252(g) also does not bar judicial review, because it applies only to the “three discrete actions named in the statute,” Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 482, 487 (1999) (AADC)—decisions to “commence proceedings, adjudicate cases, or execute removal orders against any alien”—and this case involves none of those. Rather, the decision to end DACA— and take away the myriad benefits deferred action confers, such as work authorization—is precisely the type of programmatic, policy decision that this Court and other courts have repeatedly recognized is outside Section 1252(g)’s narrow reach.
2. The district court did not abuse its discretion in granting the preliminary injunction to maintain the DACA program. Because all agree that the balance of hardships plainly favors maintaining DACA while this case proceeds, plaintiffs need only raise “serious questions” on the merits. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Plaintiffs have done that and more. As the district court explained, plaintiffs are likely to succeed on the merits of their argument that the rescission was arbitrary and capricious because the government’s two justifications for the rescission—DACA’s purported unlawfulness and the need
16

to avoid “litigation risks”—do not hold up. And the court’s remedy—a nationwide injunction—is appropriate here, because the rescission’s “systemwide impact” warrants a “systemwide remedy,” Lewis v. Casey, 518 U.S. 343, 359 (1996), and because a more limited injunction would undermine uniform implementation of the immigration laws.
3. The district court correctly concluded that plaintiffs’ complaints state a plausible equal protection claim. Plaintiffs’ detailed allegations evidence the President’s discriminatory intent, raising an inference that the rescission was motivated by the President’s discriminatory animus, which he continues to demonstrate through tweets, speeches, and other public statements.
4. The district court also correctly determined that plaintiffs’ complaints sufficiently allege that the government’s change in its information-sharing policy is so fundamentally arbitrary and unfair that it violates due process. The government’s argument that it has not changed its information-sharing policy and its reliance on an ambiguous caveat regarding potential future modifications do not overcome plaintiffs’ allegations, which must be taken as true at this juncture.
5. The district court erred in dismissing plaintiffs’ other due process claim, because plaintiffs sufficiently pleaded that the rescission impermissibly deprives them of protected liberty and property interests in the renewal of their DACA status. The court should have credited plaintiffs’ well-pleaded allegations that they and the
17

government shared an understanding that DACA recipients could continuously renew their benefits so long as they met certain criteria.
6. Finally, the district court erred in dismissing plaintiffs’ notice-andcomment claim. The court wrongly concluded that if DACA could be adopted without notice-and-comment rulemaking, it could be rescinded without it, too. But the memorandum adopting DACA was exempt from this requirement because it was an announcement of how the agency would exercise its enforcement discretion. The rescission, by contrast, constrains agency discretion, and so the notice-and-comment process was required.
STANDARD OF REVIEW The district court’s decision to grant a preliminary injunction is reviewed for abuse of discretion, and it “should be set aside only if the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.” Doe v. Kelly, 878 F.3d 710, 719 (9th Cir. 2017). This Court reviews the district court’s legal determinations de novo. Puri v. Khalsa, 844 F.3d 1152, 1157 (9th Cir. 2017). The Court also reviews the district court’s decision on a motion to dismiss for failure to state a claim de novo. Id. To state a claim, a complaint need only plead facts sufficient to show that a claim is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The question is “‘not whether
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[plaintiffs] will ultimately prevail,” “but whether [the] complaint [is] sufficient to cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 529-30 (2011).
ARGUMENT I. THE GOVERNMENT’S DECISION TO END THE DACA PROGRAM
IS JUDICIALLY REVIEWABLE A. The APA Does Not Bar Judicial Review The APA provides that agency action generally is reviewable: “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. There is a “strong presumption favoring judicial review of administrative action,” Mach Mining, 135 S. Ct. at 1651, especially in the immigration context, see INS v. St. Cyr, 533 U.S. 289, 298 (2001). That presumption is overcome where “agency action is committed to agency discretion by law,” 5 U.S.C. § 701(a)(2). The exception for actions committed to agency discretion by law is “a very narrow exception” that comes into play only where “there is no law to apply,” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977), meaning that “a court would have no judicially manageable standards … for judging how and when an agency should exercise its discretion,” Heckler v. Chaney, 470 U.S. 821, 830 (1985).
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Here, the district court correctly determined that “there is law to apply,” ER.21, because the Acting Secretary’s stated justification for rescinding DACA—a belief that the program is unlawful—is precisely the type of legal question that courts can and regularly do adjudicate. That question can be answered by reference to the text and structure of the INA, the Executive’s broad discretion over immigration matters and long history of using deferred action, and the Supreme Court’s analysis of the appropriateness of deferred action. ER.29-33. These “statutes, regulations, established agency policies, [and] judicial decisions … provide a meaningful standard against which to assess” the agency’s action. Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 868 (9th Cir. 2003). Indeed, the government’s two proffered reasons for ending the program—its supposed illegality and litigation risk—rely on the premise that courts can review DACA’s legality.
This case does not involve “a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Chaney, 470 U.S. at 831. Contrary to the government’s suggestion, the agency never assessed “how the agency’s resources are best spent and how the [decision to end DACA] fits with the agency’s overall policies.” U.S. Br. 17. The agency did not identify, let alone balance, any factors—it just concluded that DACA is unlawful. If the federal courts cannot review that purely legal question, it is difficult to know what (in the government’s view) they are allowed to review.
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The government asserts that the rescission is unreviewable because it is like a decision not to undertake an enforcement action and such decisions generally are unreviewable. U.S. Br. 16-17 (citing Chaney, 470 U.S. at 831). That is wrong: The government took an action to eliminate a longstanding agency program upon which hundreds of thousands of people have relied. See Villa-Anguiano v. Holder, 727 F.3d 873, 881 n.9 (9th Cir. 2013) (Chaney’s language about a decision not to take enforcement action is inapplicable to cases where “an agency has taken or is proposing to take action”). “The decision to rescind DACA is unlike the nonenforcement decision at issue in Chaney,” Batalla Vidal v. Duke, 2017 WL 5201116, at *10-11 (E.D.N.Y. Nov. 9, 2017), because here¸ plaintiffs are not seeking to compel the government to take action it refused to take. Rather, they seek to enjoin action the government did take—the termination of DACA. ER.19-20.
That is precisely the distinction the Supreme Court made in Chaney: The Court contrasted “affirmative act[s]” with non-enforcement decisions, explaining 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.” 470 U.S. at 831-32. By contrast, “when an agency does act to enforce, that action itself provides a focus for judicial review.” Id. at 832. The decision to rescind DACA is an affirmative, “coercive” government
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action. Because of it, hundreds of thousands of people will lose their deferred action status and its many attendant benefits.2
A policy reversal that upsets the status quo is presumptively reviewable under the APA. See Robbins v. Reagan, 780 F.2d 37, 47 (D.C. Cir. 1985). Because the government’s “rescissions of [its] commitments” exert “direct influence on the individuals or entities to whom the repudiated commitments were made,” courts should not be precluded from reviewing them. Id. That is why it was appropriate for the district court to consider DACA recipients’ reliance interests in assessing reviewability: Those interests underscore the nature of the agency decision here— an action ending a program, which “bears no resemblance to an agency decision not to regulate something never before regulated,” as in Chaney. ER.20-21.
The decision to terminate DACA was a broad, programmatic decision. The courts of appeals have repeatedly recognized that “an agency’s statement of a general enforcement policy may be reviewable for legal sufficiency,” even if the “decision to decline enforcement in the context of an individual case” is unreviewable. See Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C.
2 The government also relies (U.S. Br. 18-19) on Morales de Soto v. Lynch, 824 F.3d 822 (9th Cir. 2016), to argue that affirmative agency actions are unreviewable. But that decision’s brief discussion of Chaney was dicta, and the court did not even mention (let alone rely on) Section 701(a)(2). See id. at 827 n.4.
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Cir. 1994); see also, e.g., Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996) (“Chaney applies to individual, case-by-case determinations of when to enforce existing regulations rather than permanent policies or standards.”); Edison Elec. Inst. v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993) (review appropriate where agency’s “interpretation has to do with the substantive requirements of the law”).3 For that reason, the Fifth Circuit concluded in Texas that the decision to adopt the DAPA program was judicially reviewable. See 809 F.3d at 169.4
Finally, relying on ICC v. Bhd of Locomotive Eng’rs, 482 U.S. 270, 283 (1987), the government contends (U.S. Br. 23) that an unreviewable agency action does not become reviewable because the government provides a “reviewable” reason. That case, like Chaney, involved attempted review of agency inaction— namely, decisions not to reconsider or clarify prior orders. 482 U.S. at 277. And the Supreme Court found a “tradition of nonreviewability” of refusals to reconsider
3 The government argues (U.S. Br. 19) that Chaney was a “categorica[l]” decision not to enforce the drug laws against manufacturers of lethal-injection drugs. But the FDA in Chaney had not affirmatively announced a general policy embodying its enforcement priorities; rather, it declined to take action in response to petitions in individual cases. See 470 U.S. at 823.
4 Lincoln v. Vigil, 508 U.S. 182 (1993), is not to the contrary. The programmatic decision there—how to spend funds from a lump-sum appropriation—was one for which there was no “meaningful standard” to judge whether the agency appropriately spent its funds. Id. at 191, 193. That is not true of the rescission, which rested on a purely legal conclusion.
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agency orders. Id. at 282. But there is no such tradition of nonreviewability of agency action—especially not for a programmatic decision such as the one here.
B. The INA Does Not Bar Judicial Review The government also relies on 8 U.S.C. § 1252(g), but that provision is inapplicable by its terms. Consistent with the “strong presumption in favor of judicial review of administrative action,” St. Cyr, 533 U.S. at 298, Section 1252(g) is a “narrow” provision that eliminates judicial review over only three enumerated immigration actions: those that “commence proceedings, adjudicate cases, or execute removal orders.” AADC, 525 U.S. at 482, 487 (quoting 8 U.S.C. § 1252(g)). The Supreme Court has analyzed that provision and emphatically held that “the provision applies only” to those “three discrete actions.” Id. This is not a case involving any of the three actions listed in Section 1252(g). ER.22. The decision to end DACA does not commence or adjudicate any particular non-citizen’s immigration case or execute any removal order. Rather, it ended a nationwide program that allowed certain qualifying non-citizens to remain in the United States. That action itself did not commence removal proceedings; rather, it removed an impediment to later removal proceedings in individual cases. In an unbroken line of cases, the federal courts of appeals have recognized that Section 1252(g) has no application to programmatic challenges like the one at issue here. For example, this Court has held that Section 1252(g) “does not remove
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federal jurisdiction to grant injunctive relief to classes of aliens challenging deportation procedures.” Barahona-Gomez v. Reno, 236 F.3d 1115, 1121 (9th Cir. 2001); see also Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir. 2000) (en banc); Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998). Other courts of appeal have likewise refused to apply Section 1252(g) to legal or policy challenges to immigration procedures. See Garcia v. Att’y Gen. of U.S., 553 F.3d 724, 729 (3d Cir. 2009) (plaintiff was “not challenging the discretionary decision to commence proceedings, but [the] very authority to commence those proceedings after the limitation period has expired”); Itaeva v. INS, 314 F.3d 1238, 1241 (10th Cir. 2003) (legal question whether “suspension of deportation is unavailable” under Visa Waiver Program). Indeed, in Texas, the Fifth Circuit held that Section 1252(g) did not apply to certain States’ programmatic challenge to DAPA. 809 F.3d at 164. If DAPA is reviewable, then surely the decision to rescind DACA is reviewable.
The government relies (U.S. Br. 25-26) on the Supreme Court’s statement in AADC that Section 1252(g) seems “designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations.” 525 U.S. at 485. But the Court was referring to individual decisions not to grant deferred action after removal proceedings had commenced, see id. at 463, not programmatic challenges to a policy potentially leading to removal proceedings. See id. at 482; see also St. Cyr, 533 U.S. at 311 n.34 (Section 1252(g) “not relevant to” question
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whether federal courts had jurisdiction to review Attorney General’s interpretation that individual was statutorily ineligible for waiver of deportation). It would strain credulity to read AADC to preclude judicial review here, because the whole point of that decision was that Section 1252(g) must be applied “narrow[ly]” to only the three “discrete acts” listed in the statute. 525 U.S. at 482, 487.
Next, the government contends (U.S. Br. 26) that the decision to terminate DACA fits within Section 1252(g) because it is an “action” along the way to a potential, later “commence[ment] of proceedings” against an individual. This “action” argument is inconsistent with the government’s APA argument, see pp. 2022, supra, and it was squarely rejected in AADC. In light of the provision’s text, history, and purposes, the Supreme Court found it “implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.” 525 U.S. at 482. And the government’s reading of Section 1252(g) cannot be correct, because it would make the other provisions in Section 1252 that bar judicial review (see U.S. Br. 26-27) “entirely redundant.” AADC, 525 U.S. at 483.
In accordance with AADC, the courts of appeals have uniformly rejected attempts to expand Section 1252(g)’s scope. For example, this Court has held that “§ 1252(g) does not bar review of the actions that occurred prior to any decision to ‘commence proceedings’ ” or “execute [] removal order[s].” Wong v. United States,
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373 F.3d 952, 965 (9th Cir. 2004). The other courts of appeals have followed suit. See, e.g., Chehazeh v. Att’y Gen. of U.S., 666 F.3d 118, 134-35 (3d Cir. 2012) (no bar to challenge to BIA decision to reopen proceedings); Garza-Moreno v. Gonzales, 489 F.3d 239, 242 n.2 (6th Cir. 2007) (no bar to challenge to denial of administrative closure); Fornalik v. Perryman, 223 F.3d 523, 531-32 (7th Cir. 2000) (Section 1252(g) applicable “only where the alien’s well-pleaded complaint is based on one of [the statute’s] three listed factors”); Sabhari v. Reno, 197 F.3d 938, 942 (8th Cir. 1999) (Section 1252(g) “has nothing to do” with challenge regarding petition for adjustment of status); Bowrin v. U.S. INS, 194 F.3d 483, 488 (4th Cir. 1999) (per curiam) (reading AADC “to hold that § 1252(g) does not apply to agency interpretations of statutes[,] as these decisions do not fall into any of the three categories enumerated in § 1252(g)”).
The cases upon which the government relies are inapposite, because they arise where the government has already commenced removal proceedings against a particular individual. U.S. Br. 26 (citing Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016), and Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999)). The government cites no case where Section 1252(g) barred a challenge by plaintiffs against whom the government has not commenced proceedings, let alone a case involving a challenge to an immigration policy. The Court should not accept the government’s tortured reading of Section 1252(g).
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II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ENTERING THE PRELIMINARY INJUNCTION A preliminary injunction is warranted when plaintiffs establish that (1) they
are “likely to succeed on the merits”; (2) they are “likely to suffer irreparable harm in the absence of preliminary relief ”; (3) “the balance of equities” tips in their favor; and (4) an “injunction is in the public interest.” Cottrell, 632 F.3d at 1131. Under this Court’s “sliding scale approach,” “a stronger showing of one element may offset a weaker showing of another.” Id. Accordingly, if the “hardship balance tips sharply toward the plaintiff[s],” then the plaintiffs need only show “serious questions going to the merits.” Id. at 1131-32.
A. Plaintiffs Indisputably Face Irreparable Injury In The Absence Of An Injunction, And The Injunction Is In The Public Interest
The district court found, and the government does not dispute, that “the balance of hardships tips sharply in plaintiffs’ favor.” ER.46 n.19. Plaintiffs— especially the individual DACA recipients—unquestionably would face serious, irreparable harm if DACA were to expire during the pendency of this litigation. ER.43-44. By contrast, preserving the status quo by maintaining DACA for current DACA recipients—all of whom have been rigorously vetted to ensure they pose no threat to national security or public safety—harms no one, and the government does not argue otherwise. ER.45-46. The government likewise does not take issue with the district court’s conclusion that temporary injunctive relief is
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in the public interest, because terminating DACA will have destabilizing effects on communities and families and on the Nation’s economy. ER.45.
B. Plaintiffs Have Demonstrated A Likelihood Of Success On The Merits Of Their APA Claim
Although plaintiffs need only raise “serious questions” about whether the government acted lawfully in rescinding DACA, Cottrell, 632 F.3d at 1132, they have gone farther, establishing that they are likely to succeed on their claim that the rescission is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), because neither of the government’s proffered justifications holds water. ER.43, 46 n.19.
1. The rescission rests on the flawed legal premise that DACA is unlawful
The Acting Secretary said that she was terminating DACA because, in her view, continuing the program would be unlawful. ER.129-30. Because the Secretary never justified that view—and in fact it is wrong—the rescission is arbitrary and capricious. ER.29.
a. DACA is a lawful exercise of DHS’s discretionary authority over immigration and its statutory authority under the INA. DACA’s central feature— deferred action—is a permissible exercise of DHS’s authority to “[e]stablis[h] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), and take all actions necessary for that purpose, 8 U.S.C. § 1103(a)(3). “As part of this
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authority, it is well settled that the Secretary can exercise deferred action, a form of prosecutorial discretion whereby [DHS] declines to pursue the removal of a person unlawfully present in the United States.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 967 (9th Cir. 2017) (Brewer II). The Supreme Court has recognized that deferred action is “a regular practice” that the government may exercise “for humanitarian reasons or simply for [its] own convenience.” AADC, 525 U.S. at 48384 n.8; see Arizona v. United States, 567 U.S. 387, 396 (2012) (DHS’s “broad discretion” in this area is a “principal feature of the removal system”). The government concedes, as it must, that it “may exercise discretion to forbear from seeking the removal of an alien for a designated period.” U.S. Br. 6.
The government’s authority in this area is underscored by its regular practice of granting deferred action and similar forms of discretionary relief on a programmatic basis over the past 60 years. See supra, pp. 5-6. The largest of these policies, the “Family Fairness” policy, accorded “indefinite voluntary departure” to undocumented spouses and children of aliens with legalized status, potentially encompassing 1.5 million people. ER.5. Congress has “accepted and ratified” the practice of granting deferred action, Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015), in multiple provisions of the INA. E.g., 8 U.S.C. § 1227(d)(2) (denial of administrative stay “shall not preclude the alien from applying for … deferred action”); REAL ID Act of 2005,
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Pub. L. No. 109-13, § 201(c)(2)(B)(viii), 119 Stat. 302 (2005) (permitting participating States to issue driver’s licenses to aliens with “approved deferred action status”).
During the renewable, two-year period of deferred action under DACA, recipients may obtain work authorization; do not accrue “unlawful presence” for purposes of re-entry; and may apply for advance parole to travel overseas and return to the United States. ER.32. As the district court explained, “each [of these] feature[s] of the DACA program is anchored in authority granted or recognized by Congress or the Supreme Court.” ER.30; see ER.32; Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1059, 1062 (9th Cir. 2014) (Brewer I). For example, the INA permits employers to hire any alien who is “authorized to be so employed” either by the INA “or by the Attorney General,” 8 U.S.C. § 1324a(h)(3), and DHS has permissibly interpreted that provision to mean that any “alien who has been granted deferred action” is eligible for work authorization, 8 C.F.R. § 274a.12(c)(14). The INA also exempts from the bar on re-entry non-citizens who have remained in the United States because their presence has been “authorized by the Attorney General,” 8 U.S.C. § 1182(a)(9)(B)(ii), such as during a period of deferred action, 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2). And regulations allow recipients of deferred action to apply for advance parole to travel overseas and return to the United States. 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R.
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§ 212.5(f). Critically, the administration has not amended any of these regulations or questioned their validity.
b. The Acting Secretary’s decision was arbitrary and capricious because she failed to adequately justify the decision to terminate DACA. Under the APA, the government must “clearly disclos[e] and adequately sustai[n]” its reasoning, SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (Chenery I ), “with such clarity as to be understandable,” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (Chenery II ). And because the conclusion that DACA is unlawful is contrary to the government’s longstanding position that deferred-action programs (including DACA itself) are permissible, the agency was required to “provide a reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016).
The only legal analysis the Acting Secretary provided was a citation to the Fifth Circuit’s decision about the DAPA program in Texas and the Attorney General’s conclusory statement that DACA “has the same … defects” as DAPA. ER.129. That threadbare “conclusory statemen[t]” falls well short of the statement of reasoned analysis the APA requires. Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014). And the President undermined any suggestion that the administration believed DACA was unlawful when he suggested that he might “revisit the issue” of DACA—i.e., potentially revive the program—at a later time. See http://twitter.com/realDonaldTrump/status/905228667336499200. In this
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litigation as well, the government has failed to offer any full-throated defense of the Acting Secretary’s conclusion that DACA is unlawful. All the government says (U.S. Br. 31, 39-40) is that the conclusion is “reasonable.”
Under the APA, however, a “reasonable” but wrong legal analysis cannot sustain agency action. “[A]n order may not stand if the agency has misconceived the law.” Chenery I, 318 U.S. at 94; see Massachusetts v. EPA, 549 U.S. 497, 533 (2007) (setting aside agency order that “ignore[d] the statutory text”). That is true even if, as the government contends (U.S. Br. 39-40), rescinding DACA was within its statutory authority. Just as a judicial decision based on “an erroneous view of the law” is “necessarily” an abuse of discretion, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); see Koon v. United States, 518 U.S. 81, 100 (1996), an agency action that is otherwise “permissible as an exercise of discretion … cannot be sustained ‘where it is based not on the agency’s own judgment but on an erroneous view of the law,’ ” Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d 640, 646 (D.C. Cir. 1998) (quoting Prill v. NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985)). In particular, when “a statute grants an agency discretion but the agency erroneously believes it is bound to a specific decision,” the agency’s decision cannot be upheld “as an exercise of the discretion that the agency disavows.” United States v. Ross, 848 F.3d 1129, 1134 (D.C. Cir. 2017). That is precisely what happened here: DHS claims that it had no discretion and had to rescind DACA because it was unlawful.
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c. The government “makes no effort” to explain why DACA actually is unlawful. ER.33. For example, while the government describes Texas’s holding that DAPA conflicts with the INA (U.S. Br. 30), it cites only INA provisions that support deferred action and similar relief (id. at 35, 37 (citing 6 U.S.C. § 202(5) and 8 U.S.C. § 1103(a)(1))). Further, although the Attorney General said he found “constitutional defects” in DACA, ER.129, the government has not identified any relevant constitutional provisions. Moreover, the Fifth Circuit’s decision in Texas is not binding on this Court, and the government does not even attempt to argue that this Court should adopt it. Indeed, in the district court, the government walked away from the Fifth Circuit’s holding that DAPA was procedurally defective, Texas, 809 F.3d at 178, instead telling the court that “INS deferred-action directives” are “policy statements exempt from notice and comment,” Dkt. 204 at 26-27.
In any event, the Fifth Circuit’s decision about DAPA does not establish that DACA is unlawful. DAPA was a never-implemented deferred-action program that would have affected up to 4.3 million individuals. Texas, 809 F.3d at 147-48. The Fifth Circuit itself recognized that “DAPA and DACA are not identical” and that “any extrapolation from DACA [to DAPA] must be done carefully.” Id. at 173-74. As the district court explained, neither of the Fifth Circuit’s holdings—that DAPA likely was substantively unlawful because it conflicted with the INA and
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procedurally unlawful because it was not adopted through notice-and-comment
rulemaking, id. at 178, 186—calls into question DACA’s lawfulness.
With respect to the first holding, the Fifth Circuit determined that granting
deferred action to alien parents of citizens and lawful permanent residents—a feature
of DAPA but not DACA—conflicted with the INA because the INA already gave
those individuals a way to obtain a lawful immigration status based on their children.
Texas, 809 F.3d at 179-80. DACA “has no such analogue in the INA,” because the
INA does not provide any pathway to lawful presence for the Dreamers. ER.37.5
The government points to the Fifth Circuit’s statement that other provisions of the
INA “confe[r] eligibility for ‘discretionary relief.’ ” U.S. Br. 30 (quoting Texas, 809
F.3d at 179). But those provisions show Congress’s intent to “ratif [y] the Executive
Branch’s longstanding historical practice” of deferred action, not to limit that
preexisting practice. Batalla Vidal, 2018 WL 834074, at *16 (emphasis added).6
5 The government now argues (U.S. Br. 32) that the INA’s silence on this point makes DACA “more inconsistent with the INA,” but that is not what the Fifth Circuit held, see Texas, 809 F.3d at 186, and Congress’s silence as to childhood arrivals leaves the government free to interpret its broad authority under 6 U.S.C. § 202(5) to set immigration enforcement priorities, EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1604 (2014).
6 Congress’s failure to pass the DREAM Act does not limit the agency’s ability to use deferred action. That Act was not a deferred-action program; instead, it would have given the Dreamers a pathway to permanent residency. ER.33-34. Congress’s failure to act left the status quo intact—a status quo where the agency can use, and often has used, deferred action.
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The Fifth Circuit also thought DAPA was “unreasonable” because it covered 4.3 million people—more than one-third of the people unlawfully present in the United States. Texas, 809 F.3d at 148, 181-82. DACA, by contrast, “is open to far fewer individuals than DAPA would have been.” Batalla Vidal, 2018 WL 834074, at *16. Finally, DAPA was challenged before it took effect, whereas DACA has been in place for over five years. Thus any legal challenge to DACA necessarily would have to overcome the significant reliance interests that have developed over those years, as well as the doctrine of laches. ER.40.7
The Fifth Circuit’s second holding—that DAPA was procedurally unlawful because it was adopted without notice-and-comment rulemaking, 809 F.3d at 178— does not undermine DACA. The memorandum adopting DACA was a “general statement of policy,” not a substantive rule, and so it was not subject to notice-andcomment rulemaking. Batalla Vidal, 2018 WL 834074, at *14-15. Compare Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th Cir. 2009) (“substantive” rule that “narrowly limits administrative discretion” or establishes a “binding norm” is a rule requiring notice and comment), with Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) (“[g]eneral statements of policy … issued by
7 The government is wrong to say that laches applies only where “unreasonable delay in bringing suit prejudice[s] the government” (U.S. Br. 34 n.7); it also applies when an untimely delay in bringing suit affects “third parties’ rights,” Sampson v. United States, 533 F.2d 499, 501 n.2 (9th Cir. 1976).
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an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power” are exempt from notice and comment).
The government conceded below that “INS deferred-action directives” are “policy statements exempt from notice and comment,” Dkt. 204 at 26-27, and the DACA memorandum is no exception. Even without the memorandum, the agency could grant deferred-action requests without notice and comment, because those are individual adjudications. The memorandum merely announced to the public “how … DHS would exercise its prosecutorial discretion” in those individual adjudications, just as DHS and the INS have done for every deferred-action or similar policy. Batalla Vidal, 2018 WL 834074, at *15. By its own terms, the memorandum itself “confer[red] no substantive right” and did not purport to bind the agency; instead, it stated that the agency would process applications “on a case by case basis.” ER.142-43. And agency employees actually exercised discretion in adjudicating DACA applications. ER.34-35; see Batalla Vidal, 2018 WL 834074, at *15; Arpaio v. Obama, 27 F. Supp. 3d 185, 209 n.13 (D.D.C. 2014), aff’d, 797 F.3d 11 (D.C. Cir. 2015). The agency conferred rights—protected by due process— by exercising its discretion in adjudicating individual applications, not by announcing its intentions in the memorandum.
d. The government’s failure to defend the rescission memorandum’s principal justification underscores that plaintiffs are likely to prevail under the APA.
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The government failed to make any argument in the district court that DACA is unlawful, instead simply claiming litigation risk. See Dkt. 204, at 10-11, 14-21. And the government’s concession that deferred-action directives are exempt from notice-and-comment rulemaking forecloses any argument that DACA was procedurally unlawful.
2. The government’s post hoc “litigation risk” justification is arbitrary and capricious
Although the rescission memorandum said that the reason for terminating DACA was that the program is unlawful, the government has made a different argument in this litigation—that DACA’s rescission was justified by “litigation risks.” U.S. Br. 29. The district court correctly deemed that justification a post hoc rationalization and recognized that it is arbitrary and capricious. ER.38-43.
a. It is well-settled that courts “may not accept appellate counsel’s post hoc rationalizations for agency action.” Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962). Instead, APA review is limited to the “grounds invoked by the agency.” Chenery II, 332 U.S. at 196. “[A]n agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor Vehicle Mfrs. Ass’n. of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983).
The government’s litigation-risks rationale is a “classic post hoc rationalization” because it appears “[n]owhere in the administrative record.” ER.39. As two district courts have recognized, the reason “actually given” by the Attorney
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General and the Acting Secretary was “DACA’s purported illegality”; neither the Attorney General nor the agency ever “consider[ed] whether defending the program in court would (or would not) be worth the litigation risk.” Id.; see Batalla Vidal, 2108 WL 834074, at *18-19. Although the rescission memorandum mentioned possible litigation challenging DACA, it never identified any “risks” posed by this litigation that the government would avoid by rescinding DACA. The government now suggests (U.S. Br. 35-36) the decision was motivated by a concern that a “courtimposed” end to the program would be more “immediate” and “disruptive” than an “administrative wind-down.” But the rescission memorandum “offers absolutely no indication that [the government] considered these impacts,” and no one reading the memorandum would “have guessed that [the government] made [its] decision for this reason.” Batalla Vidal, 2108 WL 834074, at *18-20. The memorandum’s statement that DACA should be terminated in “an efficient and orderly fashion” (U.S. Br. 37) was not a reason for terminating DACA; it was a statement of how the Acting Secretary planned to end the program.
b. In any event, the government’s litigation-risks rationale does not withstand scrutiny. The rescission memorandum did not even assess the risks of litigation. The memorandum merely cited the Attorney General’s belief that DACA likely would be enjoined because DAPA had been enjoined in Texas because DACA “has the same legal and constitutional defects that the courts recognized as to
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DAPA.” ER.129. Neither the Acting Secretary nor the Attorney General ever considered the “differences between DAPA and DACA that might have led to a different result” in any litigation than in Texas. ER.39-40; see pp. 34-37, supra. Nor did they consider whether the very reviewability arguments they make in this appeal would preclude review of DACA. And the litigation-risks rationale makes little sense, because no one would think that a decision to rescind DACA—a longstanding program currently affecting nearly 700,000 people—would go unchallenged in court, and it did not. “At most, the [government] deliberately traded one lawsuit for another.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 970 (9th Cir. 2015) (rejecting as arbitrary rationale for rule that it would “ ‘reduc[e] the potential for conflicts’ ” in litigation). The government cannot engage in “rescission by concession”—abandoning a rule in the face of litigation—since otherwise “the doctrine requiring agencies to give reasons before they rescind rules would be a dead letter.” Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 557 (D.C. Cir. 2015).
The government now asserts that the Attorney General could assess litigation risks without even “setting out the [relevant] legal arguments” or “evaluat[ing] … the likelihood of [their] success.” U.S. Br. 31. But the APA requires more: The government must “consider … the relevant factors” before acting. State Farm, 463 U.S. at 30-31. That was not done here. And any assessment of the government’s litigation risks was necessarily skewed by the Attorney General’s mistaken belief
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about DACA’s lawfulness and by his misreading of the decision in Texas. The Attorney General took the view that in Texas, the courts had found “constitutional defects … as to DAPA.” ER.129. But that is “flatly incorrect”; both the district court and the Fifth Circuit in Texas “expressly declined to reach the plaintiffs’ constitutional claim.” Batalla Vidal, 2018 WL 834074, at *17 (emphasis added).
c. The litigation-risks rationale also fails because the government did not weigh any perceived litigation risks against countervailing interests that would have warranted defending DACA. ER.40-42. “[R]easonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions.” Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015). That is especially true where, as here, an agency changes positions: The “agency must be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’ ” Encino Motorcars, 136 S. Ct. at 2126.
Here, the government never considered “the disruption a rescission would have on the lives of DACA recipients, let alone their families, employers and employees, schools and communities.” ER.41-42. Since 2012, over 700,000 DACA recipients, including the individual plaintiffs here, have relied on the availability of DACA to advance their education, serve in the U.S. military, start businesses, have families, and make many other life-changing decisions. SER.1470-72. They have made significant contributions to their employers and educational institutions, who
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have made decisions and investments based on the expectation that DACA recipients would continue to work or study in the United States. SER.1476-78. The rescission memorandum never mentions these reliance interests. Nor does it consider the significant cost to the economy—an approximately $215 billion loss over the next two years if the decision to rescind DACA stands. SER.359.
The government’s assertion that these significant and very real consequences are “too insubstantial” for the Acting Secretary to even consider (U.S. Br. 35) is both wrong and cruel. Even if a program may be “revoked at any time,” that does not diminish reliance interests on the program. ER.40. As the Supreme Court explained in Encino Motorcars, the Department of Labor could abandon its interpretation of a statutory exemption from the overtime provisions of the Fair Labor Standards Act, but only if it appropriately accounted for the reliance interests engendered by its prior position. 136 S. Ct. at 2125. Here, DACA recipients’ reliance interests are even stronger because the government assured them that they could presumptively renew their status and that it would protect their personal information. See infra, at pp. 53-66. Even if DACA recipients had no reason to expect renewals, the vast effects of ending the program would readily qualify as an “important aspect” of the decision that the government failed to consider. State Farm, 463 U.S. at 43.
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C. A Nationwide Injunction Is Appropriate In This Case The government created a nationwide emergency by rescinding DACA, yet it complains (U.S. Br. 48-56) that the district court’s nationwide injunction was not properly tailored to remedy this wrong. The government is incorrect. This Court has long recognized that “[t]here is no general requirement that an injunction affect only the parties in the suit” and that “there is no bar against … nationwide relief … when it is appropriate.” Bresgal v. Brock, 843 F.2d 1163, 116970 (9th Cir. 1987) (citing Califano v. Yamasaki, 442 U.S. 682, 702-03 (1979)). It is “the extent of the [relevant] violation”—not the “geographical scope” of the plaintiffs—that dictates the appropriate “scope of injunctive relief.” Yamasaki, 442 U.S. at 705. Thus, where “there has been a systemwide impact[,] [there] may … be a systemwide remedy.” Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 420 (1977); see also Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2449 (2014) (“invalid” agency action struck down on its face). These principles apply with special force in the administrative law context, where the “ordinary result” of an order finding agency rules to be unlawful is that the rules “are vacated—not that their application to the individual petitioners is proscribed.” Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998). The Supreme Court itself has recognized that a successful APA challenge by one “adversely affected” individual can affect an “entire” agency
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program. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 890 n.2 (1990). In those cases, a “nationwide injunction … is compelled by the text of the [APA],” which provides that an unlawful agency action shall be “ ‘set aside’ ” rather than enjoined as to the individual plaintiffs. Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)), aff’d in part, rev’d in part on other grounds by Summers v. Earth Island Inst., 555 U.S. 488 (2009). The government is wrong to say (U.S. Br. 50) that an injunction must be strictly limited to the parties before the court; courts often set aside unlawful agency action in its entirety. See, e.g., Asarco v. EPA, 616 F.2d 1153, 1162 (9th Cir. 1980) (vacating a Clean Air Act rule).
Here, the district court correctly concluded that a nationwide injunction is appropriate. The government’s rescission of DACA is an agency action of “broad applicability,” so that a plaintiff who establishes an APA violation “may obtain ‘programmatic’ relief that affects the rights of parties not before the court.” Nat’l Min. Ass’n, 145 F.3d at 1409 (citation omitted). The district court recognized as much, finding that the rescission’s harms “reach[] beyond the geographical bounds of the Northern District of California” and into “every state and territory of the United States.” ER.47. The remedy for unlawful agency action of such “broad applicability” cannot “simply [be] that the court forbids its application to a particular individual.” Nat’l Min. Ass’n, 145 F.3d at 1409 (citation omitted).
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Practical considerations also support nationwide relief in this case. “[A]n injunction issued here only as to the plaintiff[s]” could “cause all others [equally] affected by the [rescission] … to file separate actions for [similar] relief.” Nat’l Min. Ass’n, 145 F.3d at 1409. Without a nationwide injunction, there likely will be “a flood of duplicative litigation.” Id. As the Fifth Circuit noted in the Texas case, “a geographically-limited injunction” does not make sense in this context because “beneficiaries would be free to move among states.” 809 F.3d at 188. A partial injunction would sow widespread administrative confusion and “detract[] from the integrated scheme of [immigration] regulation created by Congress.” Id. (citation omitted); see also Washington v. Trump, 847 F.3d 1151, 1166-67 (9th Cir. 2017) (noting the “constitutional and statutory requirement for uniform immigration law and policy”). The district court here is not out on a limb in ordering nationwide preliminary-injunctive relief. Another district court entered the same relief as a remedy for DACA’s unlawful rescission, see Batalla Vidal, 2018 WL 834074, at *25, and the Fifth Circuit affirmed the nationwide injunction with respect to DAPA, see Texas, 809 F.3d at 188.
The principles invoked by the government (U.S. Br. 49-53) support the injunction here. The district court did limit injunctive relief to the policy or provision “that produced the injury in fact that the plaintiff has established.” Lewis, 518 U.S. at 357, 360. Unlike in Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644,
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665 (9th Cir. 2011), where this Court vacated a nationwide injunction that would
have “significantly disrupt[ed] the administration of the Medicare program” and
“create[ed] great uncertainty for the government,” here, a narrower injunction would
“result in administrative confusion,” ER.48, and would disserve “the public
interest,” Haven Hospice, 638 F.3d at 665.8
III. THE DISTRICT COURT DID NOT ERR IN DENYING THE GOVERNMENT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
A. Plaintiffs Have Stated A Plausible Equal Protection Claim
1. Plaintiffs have stated a straightforward equal protection claim: The
administration’s decision to rescind DACA was motivated by animus against
Latinos, who comprise the vast majority of DACA recipients. To adequately plead
such a claim, a plaintiff must plausibly allege “that a discriminatory reason more
8 The government also challenges the injunction on the ground that the County of Santa Clara plaintiffs lack standing. U.S. Br. 54-56. But the government has conceded that the individual plaintiffs and the union have standing to challenge DACA’s rescission. This Court need not go further. See Bowsher v. Synar, 478 U.S. 714, 721 (1986) (standing of one plaintiff in consolidated cases satisfies Article III). In any event, the district court rightly concluded that the County of Santa Clara has Article III and statutory standing in its proprietary capacity as an employer of many DACA recipients. ER.23-24. The County has expended significant resources hiring and training its DACA recipient employees, ER.25152, and if those employees lose their work authorization, the County will need to expend significant resources to cover their responsibilities, conduct searches for their replacements, and train new employees (if replacements can be found). ER.252-53. These concrete injuries, which result directly from DACA’s rescission, confer both Article III and statutory standing, for the reasons explained in the States’ brief. See States Resp. Br. Secs. I.C and II.B.
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likely than not motivated the defendant and that the defendant’s actions adversely affected the plaintiff in some way.” Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 504 (9th Cir. 2016); see Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977); De La Cruz v. Tormey, 582 F.2d 45, 58 (9th Cir. 1978). A plaintiff does not have to allege “that the discriminatory purpose was the sole purpose of the challenged action, but only that it was a ‘motivating factor.’ ” Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015). In assessing whether a defendant acted with discriminatory purpose, courts may consider “the impact of the official action and whether it bears more heavily on one race than another” and “the historical background of the decision.” Id. (citing Arlington Heights, 429 U.S. at 266).
Plaintiffs’ allegations, which are construed in the light most favorable to plaintiffs at this stage of the litigation, are plainly plausible. The Garcia complaint, for instance, alleges that the rescission bears more heavily on “individuals of Mexican heritage, and Latinos … [who] together account for 93 percent of approved DACA applications” and that the ultimate decision-maker—President Trump—has made many statements demonstrating discriminatory animus against Latinos. ER.219, 232; see also ER.265-66. President Trump’s longstanding “pattern of bias against Mexicans and Latinos” began before he was elected. ER.219-21, 265-66. Among other things, he characterized Mexican immigrants as “rapists,” “killers,”
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and criminals, including in the speech launching his presidential campaign. ER.21921, 265-66. He continued to make those discriminatory statements once he became President. Just weeks before the rescission, for example, President Trump called undocumented immigrants “animals” who bring “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking.” ER.222, 265.
Plaintiffs have also sufficiently alleged that the government’s stated reason for the rescission was a pretext for discriminatory animus. ER.209, 224-26, 232, 260-61, 266. Plaintiffs pointed to irregularities and inconsistencies in “[t]he specific sequence of events leading up to the challenged decision” and the “relevant . . . administrative history,” as well as “the defendant’s departures from its normal procedures or substantive conclusions”—all of which are factors the court can consider in determining whether plaintiffs stated an equal protection claim. Arce, 793 F.3d at 977 (citing Arlington Heights, 429 U.S. at 266). For example, the Garcia complaint alleges that although various members of the Trump administration (including the President himself) initially told “[t]he dreamers [to] rest easy” because they were committed to DACA, ER.209; see p. 8, supra; they then abruptly reversed course, with little explanation and no consideration of the impact of the rescission on DACA recipients, ER.209, 224-26, 232. That about-face bolsters the claim of pretext.
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Taken together, these allegations state a plausible equal protection claim, and, on remand, the government will bear the burden of showing a compelling state interest to justify the rescission.
2. The government attempts (U.S. Br. 41-44) to pick apart plaintiffs’ allegations, but it identify no reason that the district court erred. First, the government argues that the complaints fail to allege that the Acting Secretary herself was motivated by racial animus. But the Garcia plaintiffs allege that President Trump was motivated by discriminatory animus and that he “directed the decision to end the program.” ER.61; see p. 10, supra (President expressly took responsibility for ending DACA). The Acting Secretary reported to the President, and that is sufficient to allege the necessary discriminatory animus. See Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1163 n.26 (9th Cir. 2013) (discriminatory intent of City Council could be inferred from “angry comments from citizens” attending public meetings).
As to President Trump’s statements, the government argues (U.S. Br. 44-45) that they are “insufficient” because they are purportedly based on “nationality, as opposed to ethnicity” and because they did not specifically refer to DACA. The government does not, and cannot, dispute that the statements reflect the President’s racial animus—it just says they do not concern the exact right kind of animus. It is as if the government forgets that the Executive’s broad authority over immigration
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is subject to constitutional constraints. But it is. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 695 (2001). The Constitution does not permit targeting of individuals in this way, even if “national origin” is used as a smokescreen for other protected characteristics. See Int’l Refugee Assistance Project v. Trump, --- F.3d ---, 2018 WL 894413, at *15-16 (4th Cir. Feb. 15, 2018) (considering President’s statements of animus in the context of his “Muslim Ban” Executive Order); Washington, 847 F.3d at 1167 (same).
And, in any event, the President’s statements are not limited to national origin. Plaintiffs allege that his “statements and actions reflect a pattern of bias” against not just Mexican nationals, but all “Latinos,” ER.219, 265, and Hispanics and Latinos constitute an ethnic group for constitutional purposes, see, e.g., Hernandez v. Texas, 347 U.S. 475, 479-80 (1954). National origin is relevant to race discrimination where a country’s residents are predominantly of one ethnicity. See, e.g., Sinai v. New England Tel. & Tel. Co., 3 F.3d 471, 474 (1st Cir. 1993).
It does not matter that the President has occasionally made statements to reassure DACA recipients. Because “officials … seldom, if ever, announce ... that they are pursuing a particular course of action because of their desire to discriminate against a racial minority,” courts consider “whether they have ‘camouflaged’ their intent.” Arce, 793 F.3d at 978. Plaintiffs have sufficiently alleged that the President’s purportedly reassuring statements amount to “camouflage.” After those
50

statements, the President continued to voice animus against Latinos, calling them “animals.” ER.222. And after pardoning Maricopa County Sheriff Joseph Arpaio, who had been held in criminal contempt for intentionally disobeying a federal court order to cease unconstitutionally targeting Latinos, the President praised the Sheriff as an “American patriot” and suggested that he was “convicted for doing his job.” Id.; ER.265-66. These statements raise a plausible inference that racial animus was a motivating factor for the rescission, and no more is required at the pleading stage. ER.60-61.
Finally, the government argues (U.S. Br. 43) that the President’s pre-election statements of animus cannot support an equal protection claim challenging the President’s conduct once in office. But it cites no authority for that position, and multiple courts have rejected it. See, e.g., Washington, 847 F.3d at 1167 (President’s pre-election statements regarding a “Muslim ban” raised “serious allegations and presented significant constitutional questions”); Aziz v. Trump, 234 F. Supp. 3d 724, 736 (E.D. Va. 2017) (same). And sadly, the President has continued to make these statements after taking office. Nor should this Court limit its analysis to statements in the administrative record, rather than the pleadings, see Casa de Maryland v. U.S. Dep’t of Homeland Sec., 2018 WL 1156769, at *10-12 (D. Md. Mar. 5, 2018) (taking that approach); constitutional claims are not limited to the administrative record, see Webster v. Doe, 486 U.S. 592, 604-05 (1988).
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3. The government cannot ignore the significance of the President’s many statements displaying racial animus. So instead, it attempts to recast plaintiffs’ claim as one for selective prosecution. U.S. Br. 40-42 (citing United States v. Armstrong, 517 U.S. 456 (1996), and AADC, 525 U.S. 471). But plaintiffs’ well-pleaded complaints do not allege such claims. Plaintiffs are not alleging that they, individually, are being impermissibly targeted for removal (much less criminal prosecution) or are victims of selective enforcement. Instead, they claim that the government decided to rescind an entire government program based on racial animus. The concerns that motivated the Supreme Court’s holding in AADC—that selective prosecution claims interfere with “prosecutorial discretion” and obstruct and “[p]ostpon[e] justifiable deportation,” 525 U.S. at 489—do not apply here because plaintiffs are not seeking a defense to deportation but are challenging a policy as a whole. It is well-established that the government cannot make such programmatic decisions for racially discriminatory reasons. See Arlington Heights, 429 U.S. at 265-66; Jean v. Nelson, 711 F.2d 1455, 1485-93 (11th Cir. 1983) (reversing dismissal of claim alleging that immigration policy was enforced against Haitians in a discriminatory manner and applying Arlington Heights factors). If the government were correct that this is a selective-prosecution case, then nearly any programmatic decision would be as well, because programmatic decisions ultimately affect individuals.
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Indeed, this Court has already rejected the government’s efforts to apply AADC outside of its particular context. In Wong, the government invoked AADC when a plaintiff “allege[d] that the INS officials denied her various immigration benefits because of her membership in a protected class.” 373 F.3d at 970. This Court rejected that argument, explaining that the plaintiff’s claims “cannot fairly be characterized as selective prosecution claims at all” because they “do not implicate the Attorney General’s prosecutorial discretion” to choose to deport one particular individual or another. Id. at 970. The same is true here.
B. Plaintiffs Have Stated A Substantive Due Process Claim Based On The Government’s Change In Its Information-Sharing Policy
The district court correctly denied the government’s motion to dismiss plaintiffs’ substantive due process claims based on the government’s change to its policy concerning the use of DACA applicants’ personal information.
1. The Due Process Clause “protect[s] every person within the nation’s borders”—including those “whose presence in this country is unlawful, involuntary, or transitory”—from “deprivation of life, liberty or property without due process of law.” Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc). “A threshold requirement” of a due process claim “is the plaintiff’s showing of a liberty or property interest protected by the Constitution.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994). Protected property interests “include anything to which a plaintiff has a ‘legitimate claim of entitlement.’ ” Nozzi
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v. Hous. Auth. of L.A., 806 F.3d 1178, 1191 (9th Cir. 2015). A “legitimate claim of entitlement” is created and defined “by existing rules or understandings that stem from an independent source,” such as those that “secure certain benefits.” Id. This independent source may be a statute, a regulation, “explicit contractual provisions,” “implied” agreements, or “rules or mutually explicit understandings.” Perry v. Sindermann, 408 U.S. 593, 601-02 (1972).
Plaintiffs have sufficiently alleged that the government’s repeated promises to “protect[] [DACA applicants’ personal information] from disclosure to ICE and CBP” give rise to a protected property interest because they reflect a mutually explicit understanding that the government would honor those promises. ER.20708, 227. As DHS has acknowledged, “[s]ince DACA was announced,” the agency “has consistently made clear that information provided by applicants ... will not later be used for immigration enforcement purposes except where it is independently determined that a case involves a national security or public safety threat, criminal activity, fraud, or limited other circumstances.” ER.207; see also ER.243, 250. Both USCIS’s official instructions for the DACA application and its online DACA FAQs provided the same assurances. ER.207-08, 261.
As Secretary Johnson recognized, “DACA applicants most assuredly relied” upon “these representations” and the government’s “consistent practice.” ER.207 This is not a mere “subjective belief ” that the government can discount, U.S. Br. 48
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(citing Gerhart v. Lake Cty., 637 F.3d 1013 (9th Cir. 2011)), because plaintiffs have alleged “a mutual understanding” (id. at 1020-21) that must be taken as true at the pleading stage. And the government’s submission blinks reality: The government’s assurances persuaded hundreds of thousands of Dreamers to come out of the shadows and apply for DACA. ER.206-08, 210-12, 214-16, 218, 243, 250, 261-63.
The government disclaims any reliance on these statements because the DACA FAQs state that the “information-sharing policy may be ‘modified, superseded, or rescinded at any time.’ ” U.S. Br. 47-48. But that language “simply allows the government to change its policy in connection with future applicants,” ER.56-57 (emphasis added), not to renege on promises made to prior applicants. At most, the government’s disagreement with the meaning of the language in the FAQs presents a fact question, which “cannot be resolved on the pleadings.” ER.57. And even if plaintiffs were wrong about this language, the Court still has the government’s other, repeated “represent[ations] to applicants, Congress, and the general public” that it would protect applicants’ information. ER.207. The government’s assurances that DACA applicants’ personal information would be affirmatively protected from disclosure to ICE and CBP therefore give rise to a constitutionally protected interest.
2. Plaintiffs have also sufficiently alleged that by changing its policy to say only that this sensitive information “will not be proactively provided to ICE and
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CBP, ” ER.227, 261, the government has violated plaintiffs’ due process rights because its actions are fundamentally unfair, Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 850 (1998), “shock the conscience,” and “offend the community’s sense of fair play and decency.” Marsh v. Cty. of San Diego, 680 F.3d 1148, 1155 (9th Cir. 2012).
The government’s first response (U.S. Br. 45-47) is that its policy in fact has not changed. But, as plaintiffs have alleged, online FAQs about DACA’s rescission show that the government has “backtrack[ed]” on its “prior repeated assurances” on the confidentiality of DACA applicants’ sensitive information. ER.227, 261. Now, according to these FAQs, DHS says only that the information “will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings.” ER.227, 261. That is a real difference to the hundreds of thousands of DACA applicants who fear deportation. The government’s contrary assertions cannot overcome plaintiffs’ allegations, which must be construed in plaintiffs’ favor. See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).9 And the government’s assertions fall flat in light of President Trump’s
9 The government also invokes various “publicly available materials,” U.S. Br. 4647, but that “extraneous evidence should not be considered in ruling on a motion to dismiss,” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001), especially where, as here, the government’s sources postdate the complaint and were never presented to the district court, see Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998).
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executive order directing all agencies to “ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” ER.226.
The government’s change in its policy about use of DACA applicants’ information for immigration enforcement actions “shock[s] the conscience” and “offend[s] the community’s sense of fair play and decency.” Marsh, 680 F.3d at 1155; see ER.206, 228, 230-31, 243, 250, 261-63. As alleged, the government’s revised policy puts plaintiffs at risk for detention, arrest, and deportation— essentially punishing them for applying for DACA relief that the government itself encouraged. ER.228, 261-63. That type of bait-and-switch, with such profound consequences for DACA applicants, is fundamentally unfair under the Due Process Clause, which forbids such tactics. See Raley v. Ohio, 360 U.S. 423, 437-39 (1959) (prosecuting someone for conduct that state officials advised was legal violated due process); Cox v. Louisiana, 379 U.S. 559, 568-71 (1965) (“convicting a citizen for exercising a privilege which the State had clearly told him was available to him” violates due process).
The government dismisses these “potentially profound consequences” as too insignificant to implicate due process. ER.57. But if the government uses DACA applicants’ information against them for enforcement purposes, the likely
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consequence for many, and the palpable threat to all, is deportation—a “particularly severe” sanction akin to criminal prosecution. Padilla v. Kentucky, 559 U.S. 356, 365 (2010). Inducing DACA applicants to provide information that will assist in their deportation from the only country they know as home is shocking conduct, the type that courts should intervene to stop. That shock is not minimized simply because the government’s policy warned applicants in advance that their information could be used in certain limited circumstances. Applicants accepted those limited, acknowledged risks when they applied for DACA. They did not accept the risk that the government would abandon the other assurances that were “crucial” to “induc[ing] [them] to apply for DACA.” ER.243. IV. THE DISTRICT COURT ERRED IN DISMISSING TWO OF
PLAINTIFFS’ CLAIMS While the district court gave careful consideration to the important issues discussed above, it incorrectly dismissed two of plaintiffs’ claims on the pleadings. See ER 51-55. A. Plaintiffs Have Stated A Plausible Due Process Claim Based On
The Rescission Of DACA Plaintiffs alleged that DACA recipients have a legitimate claim of entitlement to the ability to renew their status and to receive DACA’s benefits so long as they meet the program’s criteria. ER.229-30; see also ER.262 (County has protected interest in employment relationships and County programs benefiting County
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residents). Those allegations sufficiently implicate plaintiffs’ constitutionally protected liberty and property interests. The district court disagreed on this threshold question, ER.54, but its decision reflects a fundamental misconstruction of plaintiffs’ allegations and an improper “weighing” of those allegations at the pleading stage. United States v. Bollinger Shipyards, Inc., 775 F.3d 255, 262 (5th Cir. 2014).
Constitutionally protected liberty interests “may arise from the Constitution itself” or “from an expectation or interest created by [governmental] laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Though the DACA memorandum itself grants no rights, each discretionary decision to grant deferred action under DACA conveyed constitutionally protected liberty and property interests on the recipient by “enabl[ing] [the recipient] to do a wide range of things open to [citizens,] … [such as] be[ing] gainfully employed and [being] free to be with family and friends and to form the other enduring attachments of normal life.” Morrissey v. Brewer, 408 U.S. 471, 482 (1972). DACA thus implicates numerous core liberty interests, including freedom from government custody or detention, Lopez-Valenzuela, 770 F.3d at 781; the right to live with and care for family members, Wallis v. Spencer, 202 F.3d 1126, 1136, 1141 (9th Cir. 2000); the right to practice a chosen profession, Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 997–98 (9th Cir. 2007); and the right to travel internationally, DeNieva v. Reyes, 966 F.2d 480, 485 (9th Cir. 1992).
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Crucially, this Court and other courts of appeals have held that one may have a constitutionally protected interest in the renewal or retention of state-created benefits where, for example, the person seeking renewal “need only meet [a set of] objective criteria to qualify,” Stauch v. City of Columbia Heights, 212 F.3d 425, 430 (8th Cir. 2000), or there are “substantive limitation[s] on the discretion” of officials empowered with revoking such benefits, Wedges/Ledges, 24 F.3d at 64 (“protectable property interest in retaining” existing licenses); see also Nozzi, 806 F.3d at 1193 (protected property interest in “stable and renewable Section 8 benefits”). And—as is especially relevant here—an “entitlement to [such] renewal may be implied ... from policies, practices, and understandings.” Richardson v. Town of Eastover, 922 F.2d 1152, 1157 (4th Cir. 1991). Where a plaintiff has plausibly alleged a “legitimate claim of entitlement” to the ongoing receipt of benefits, he “must be given an opportunity to prove the legitimacy of his claim of such entitlement in light of ‘the policies and practices’” of the program. Sindermann, 408 U.S. at 603; see also Geneva Towers Tenants Org. v. Federated Mortg. Inv’rs, 504 F.2d 483, 489 (9th Cir. 1974).
Plaintiffs have alleged that the rescission violates their constitutionally protected property and liberty interests in “the ability to seek renewal of their DACA status[] as long as they continue to play by the rules and meet the program’s nondiscretionary criteria for renewal.” ER.230; see also ER.243. The “2012 DACA
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Memorandum explicitly directs that DACA be ‘subject to renewal,’ ” and DHS accordingly “established a straightforward renewal process” that “does not require DACA recipients to meet all of the initial criteria” but only “three basic criteria.” ER.204. These “policies and procedures, and the representations of numerous government officials, created a clear and reasonable expectation” that DACA recipients “would be entitled to continuously renew their DACA status so long as they stayed out of trouble and played by the rules.” ER.205; see also ER.249-50.
Plaintiffs’ allegations are all the more plausible when viewed in the context of DACA’s rollout and operation. Eligible DACA recipients were understandably reluctant to come out of the shadows. ER.206. The ability to renew DACA was “one of the main benefits used to induce Dreamers to step forward, subject themselves to a rigorous background investigation, and share sensitive personal information with the government.” ER.204; see also ER.243, 250. The government consistently represented that applicants could apply for renewal and would presumptively receive renewal if they met certain basic requirements. ER.204-05, 243, 250. Statements by public officials characterizing DACA as a “commitment” that “must continue to be honored” further evidence a collective recognition that DACA was a promise on which Dreamers could reasonably rely. ER.206-09. Under these circumstances, plaintiffs have sufficiently pleaded a protected interest in presumptive renewal of their DACA status and retention of their benefits so long as
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they meet the eligibility criteria. E.g., Stauch, 212 F.3d at 430; Wedges/Ledges, 24 F.3d at 64.
Indeed, this Court has expressly recognized that there may be a protected interest in the continued receipt of a benefit even where, as here, the benefit has an “initial expiration date.” Orloff v. Cleland, 708 F.2d 372, 377 (9th Cir. 1983). In Orloff, this Court held that a government employee may have a “de facto property interest” in “continued [government] employment”—beyond an “apparent [contractual] expiration date”—where “prior treatment” of the employee and similarly situated colleagues created a mutual “understanding” of such continued employment. Id. at 377. The district court was thus wrong to conclude that because “all existing DACA recipients will receive deferred action through the end of their two-year terms,” the rescission “acts only prospectively” and does not impact “extant benefits.” ER.54-55 (emphasis omitted). The ability to renew is an extant benefit, Stauch, 212 F.3d at 430, and the rescission indisputably revokes it.
In addition to the protected interests created by the government’s “nondiscretionary criteria for renewal” of DACA, ER.229-30, plaintiffs have alleged that such interests were created based on the actual treatment of DACA recipients and implementation of the program. Orloff, 708 F.2d at 377 (citing Sindermann, 408 U.S. at 593). The Sixth Circuit’s decision in Gunasekera v. Irwin, 551 F.3d 461 (6th Cir. 2009), is instructive on this point. The court there held that a state
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university professor sufficiently pleaded a property interest in his “Graduate Faculty status” where development of a “common practice and understanding” gave him “a legitimate claim to [the] status so long as he met [four stated criteria].” Gunasekera, 551 F.3d at 468-69. In reversing the lower court’s Rule 12(b)(6) dismissal, the court explained that because the professor’s “custom-based argument … does not turn on the language” of the “university guidelines,” the claim survived even if the criteria did not facially “restrain[] [decision-makers’] discretion.” Id. (emphasis added).
Here, similarly, even if plaintiffs had not alleged that the government applied “nondiscretionary criteria for renewal,” ER.229-30, USCIS data cited in the Garcia complaint shows that more than 99 percent of adjudicated DACA renewal applications were approved. See USCIS, Form I-821D Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012-2017 (Mar. 31, 2017) (cited in ER.219). This, along with plaintiffs’ other allegations, sufficiently alleges a “common practice and understanding” giving plaintiffs “a legitimate claim to [DACA renewal] so long as [they] met the stated conditions.” Gunasekera, 551 F.3d at 468. Indeed, Dreamers like plaintiffs only exited the shadows and took out “student loans, accepted job offers, moved to new cities, started businesses, bought homes and cars, and made numerous other life changing decisions” because of the mutual expectation that they
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would receive more than two years of protection under DACA. ER.198. The district court erred in holding otherwise. ER.54.
Certain language in the DACA FAQs—such as the assertion that USCIS “retain[ed] the ultimate discretion to determine whether deferred action [was] appropriate in any given case even if the guidelines [were] met,” ER.54 (citing DACA FAQs)—does not disturb plaintiffs’ legitimate claim of entitlement. Courts routinely decline to credit such “boilerplate” language. E.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000); see also Scenic Am., Inc. v. U. S. Dep’t of Transp., 836 F.3d 42, 56 (D.C. Cir. 2016). The identification of constitutionally protected interests “turns on the substance of the interest recognized, not the name given that interest by the state.” Newman v. Sathyavaglswaran, 287 F.3d 786, 797 (9th Cir. 2002) (finding protected property interest despite state’s “labeling of the interests” otherwise). Thus, the effect of the government’s boilerplate language depends on “weigh[ing] [its statement] against the evidence of its actual practice,” Verlo v. Martinez, 820 F.3d 1113, 1147 (10th Cir. 2016)—a fact issue that cannot be resolved on a motion to dismiss, id.; see Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“complaint survives a motion to dismiss” where “there are two alternative explanations, … both of which are plausible”).
To be clear: Plaintiffs’ claim is not premised on any right to the initial discretionary grant of deferred action, but rather on the protected liberty and property
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interests that flow from the initial grant of DACA, including—crucially—its
presumptive renewal. ER.205-06, 229-30, 243-54, 262. Even though the initial
grant of DACA was discretionary, both the government and DACA recipients
understood that DACA status, once granted, was renewable so long as recipients met
specified criteria. ER.202-05, 207, 229-30, 243-44.10 Those interests cannot be
taken away willy-nilly. See, e.g., Bell v. Burson, 402 U.S. 535, 539 (1971) (“Once
[driver’s] licenses are issued, ... their continued possession may become essential in
the pursuit of a livelihood,” and they cannot “be taken away without” due process.);
Morrissey, 408 U.S. at 482 (due process implicated where parolees “relied on at least
an implicit promise that parole [would] be revoked only if [they] failed to live up to
the parole conditions”). So although the government had discretion in creating the
DACA program and granting individuals benefits in the first instance, plaintiffs
10 The principal authorities the district court relied upon are inapposite. See ER.5354. The plaintiff in Romeiro de Silva v. Smith had not been granted deferred action at all, and that case addressed a far different exercise of prosecutorial discretion, one where agency decision-makers had “unfettered discretion.” 773 F.2d 1021, 1024 (9th Cir. 1985). Munoz v. Ashcroft rejected a claim by an undocumented immigrant that the length of his stay in the United States gave him a right to remain. 339 F.3d 950, 954 (9th Cir. 2003). Here, by contrast, the government established and vigorously promoted DACA, offering vulnerable young people permission to live and work in the United States if they disclosed personal information, paid a considerable fee, passed a background check, and were admitted to the program. Hundreds of thousands of individuals accepted this quid pro quo and made life-changing decisions in reliance on it.
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sufficiently alleged that they had a mutual understanding with the government that gave them a legitimate claim of entitlement to renewal of DACA. See Gunasekera, 551 F.3d at 468; Wedges/Ledges, 24 F.3d at 63 (“narrow [] criterion” created a protected property interest).11
B. Plaintiffs Have Stated A Plausible APA Notice-And-Comment Claim
The district court also erred in dismissing plaintiffs’ claims that the rescission is invalid under the APA because it was not adopted through notice-and-comment rulemaking.12 A rule is “substantive”—and must be adopted through notice and comment—if it “narrowly limits administrative discretion” or establishes a “binding norm” that “so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule’s criterion.” Colwell, 558 F.3d at 1124. The rescission is a substantive rule because, unlike DACA itself, it binds DHS by prohibiting it from issuing DACA renewals or granting advance parole requests under DACA, with no exception for case-by-case determinations.
11 Because the lower court did not consider plaintiffs’ allegations that the rescission shocks the conscience, this Court should “reverse … [and] remand to the district court for its consideration of [that element] in the first instance.” Tecza v. Univ. of San Francisco, 532 F. App’x 667, 669 (9th Cir. 2013).
12 Because the County of Santa Clara and union plaintiffs did not bring notice-andcomment claims, they do not join in this argument.
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The district court’s contrary ruling conflicts with the only other decision to address an Executive Branch decision to terminate a deferred-action program without undergoing notice-and-comment rulemaking. In that case, the government rescinded a program that granted “extended voluntary departure” to nonimmigrants who had sought, but not received, “Third Preference” visas based on exceptional ability in the arts and sciences. United States ex rel. Parco v. Morris, 426 F. Supp. 976, 979-80 (E.D. Pa. 1977). A federal court held that the rescission was ineffective because the agency did not comply with the APA’s notice-and-comment procedures, even though the original policy was never published in the Federal Register. Id. at 983-86 & n.8. Because the rescission in Parco “left no discretion” for the agency to consider requests for deferred action, ER.52, it was “in reality a flat rule of eligibility” requiring notice and comment. 426 F. Supp. at 984-85.
The district court’s attempts to distinguish Parco only underscore its similarity to this case. The key fact in Parco—that “after repeal of the regulation, [discretion would be exercised] unfavorably in each … case,” ER.52—is present here. As a result of the rescission, DACA recipients will be categorically denied relief under the program. And here, as in Parco (id.), the rescission will be the sole reason why many DACA recipients are denied relief that they otherwise would have been granted. The district court attempted to distinguish Parco because there, “ ‘discretion’ was exercised favorably in all cases of a certain kind,” id. (quoting
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Parco, 426 F. Supp. at 984), whereas here, DACA applications were sometimes denied. But that just shows that DACA itself is a discretionary program that could be adopted without notice-and-comment rulemaking; it does not answer the question whether terminating the DACA program “narrowly limits administrative discretion” and therefore requires notice-and-comment procedures. Colwell, 558 F.3d at 1124.
The district court wrongly equated adopting DACA and rescinding DACA. ER.3. Whereas granting deferred action under DACA was an exercise of discretion that did not require notice-and-comment rulemaking, the rescission could only be adopted through notice and comment because it forbids that discretion. See Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 948 (D.C. Cir. 1987) (“cabining of an agency’s prosecutorial discretion can in fact rise to the level of a substantive, legislative rule”). That principle also distinguishes Mada-Luna v. Fitzpatrick, where this Court held that notice-and-comment procedures were not required because the agency merely replaced one nonbinding policy statement with another one that left field agents “ ‘free to consider the individual facts’ in each case.” 813 F.2d 1006, 1017 (9th Cir. 1987).
Further, plaintiffs’ notice-and-comment challenge to the rescission would still be valid even if DACA itself were also subject to the same notice-and-comment requirements. Agencies must use notice-and-comment procedures when repealing a substantive rule “even where the rule at issue may be defective.” Am. Forest
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Resource Council v. Ashe, 946 F. Supp. 2d 1, 26 (D.D.C. 2013). A substantive rule adopted without notice-and-comment rulemaking may be subject to timely challenge, but it is not “void ab initio,” and therefore it cannot simply “be deleted without more ado.” Nat’l Treasury Employees Union v. Cornelius, 617 F. Supp. 365, 371 (D.D.C. 1985). Otherwise, an agency could “circumvent the requirements of [notice and comment] merely by confessing that the regulations were defective in some respect and asserting that modification or repeal without notice and comment was necessary to correct the situation.” Consumer Energy Council v. FERC, 673 F.2d 425, 447 n.79 (D.C. Cir. 1982).
This Court should follow Parco and reverse the district court’s dismissal here. For the same reasons, it should hold that plaintiffs are likely to succeed on their notice-and-comment claim and affirm the injunction on that additional ground.
CONCLUSION The district court’s orders granting a preliminary injunction and denying in part the government’s motion to dismiss should be affirmed and its order granting in part the motion to dismiss should be reversed.
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Dated: March 13, 2018

Respectfully submitted,

NICOLE A. SAHARSKY MATTHEW S. ROZEN HALEY S. MORRISSON GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 (202) 955-8500
MARK D. ROSENBAUM JUDY LONDON PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 (213) 385-2977
LUIS CORTES ROMERO BARRERA LEGAL GROUP, PLLC 19309 68th Avenue South, Suite R102 Kent, WA 98032 (253) 872-4730
ERWIN CHEMERINSKY UNIVERSITY OF CALIFORNIA, BERKELEY SCHOOL OF LAW* 215 Boalt Hall Berkeley, CA 94720 (510) 642-6483

s/ Theodore J. Boutrous, Jr. THEODORE J. BOUTROUS, JR. ETHAN D. DETTMER KIRSTEN GALLER JONATHAN N. SOLEIMANI KELSEY J. HELLAND GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7000
LAURENCE H. TRIBE HARVARD LAW SCHOOL* 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767
LEAH M. LITMAN UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW* 401 E. Peltason Drive Irvine, CA 92697 (949) 824-7722

Attorneys for Plaintiffs Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and
Jirayut Latthivongskorn
*Affiliation for identification purposes only

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STACEY M. LEYTON ERIC P. BROWN ANDREW KUSHNER ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151
Counsel for Plaintiffs County of Santa Clara and Service Employees International Union Local 521

JAMES R. WILLIAMS GRETA S. HANSEN LAURA S. TRICE MARCELO QUIÑONES OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110 (408) 299-5900
Counsel for Plaintiff County of Santa Clara

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STATEMENT OF RELATED CASES This consolidated appeal arises out of (a) the government’s appeal of the district court’s preliminary-injunction order, see Case Nos. 18-15068 (9th Cir. Jan. 16, 2018), 18-15069 (9th Cir. Jan. 16, 2018), 18-15070 (9th Cir. Jan. 16, 2018), 1815071 (9th Cir. Jan. 16, 2018), and 18-15072 (9th Cir. Jan. 16, 2018); (b) the government’s interlocutory appeal of the district court’s partial denial of the government’s motion to dismiss, see Case No. 18-15128 (9th Cir. Jan. 25, 2018); and (c) plaintiffs’ interlocutory appeals of the district court’s partial grant of the government’s motion to dismiss, see Case Nos. 18-15133 (9th Cir. Jan. 25, 2018) and 18-15134 (9th Cir. Jan. 25, 2018). This Court also previously heard a petition for writ of mandamus filed by the government and directed against the district court order regarding completion of the administrative record in this case. See In re United States of America, et al., Case No. 17-72917 (9th Cir. Oct. 20, 2017).

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on March 13, 2018. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.
s/ Theodore J. Boutrous, Jr. Theodore J. Boutrous, Jr.

Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 18-15068
Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief. I certify that (check appropriate option):

This brief complies with the length limits permitted by Ninth Circuit Rule 28.1-1.

The brief is 16,245 words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a

single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a

longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P.

32(a)(5) and (6).

This brief complies with the longer length limit authorized by court order dated

The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2

(a) and is

words or

pages, excluding the portions exempted by Fed. R. App. P. 32

(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2

(c)(2) or (3) and is

words or

pages, excluding the portions exempted by Fed. R.

App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and

(6).

This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or Unrepresented Litigant

s/

Theodore

J.

Boutrous,

Jr.

("s/" plus typed name is acceptable for electronically-filed documents)

Date Mar 13, 2018
(Rev.12/1/16)

ADDENDUM
U.S. Const. amend. V................................................................................................................... A1 U.S. Const. amend. XIV, § 1 ....................................................................................................... A2 5 U.S.C § 553............................................................................................................................... A3 5 U.S.C § 701............................................................................................................................... A4 5 U.S.C. § 706.............................................................................................................................. A5 6 U.S.C. § 202.............................................................................................................................. A6 8 U.S.C. § 1103............................................................................................................................ A7 8 U.S.C. § 1182............................................................................................................................ A8 8 U.S.C. § 1227.......................................................................................................................... A10 8 U.S.C. § 1252.......................................................................................................................... A11 8 U.S.C. § 1324a ........................................................................................................................ A19 REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231........................................................ A20 8 C.F.R. § 274a.12 ..................................................................................................................... A22 28 C.F.R. § 1100.35 ................................................................................................................... A23

U.S. Const. amend. V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
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U.S. Const. amend. XIV, § 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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5 U.S.C § 553
(a) This section applies, according to the provisions thereof, except to the extent that there is involved--
(1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall 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. Except when notice or hearing is required by statute, this subsection does not apply--
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except-(1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.
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5 U.S.C § 701
(a) This chapter applies, according to the provisions thereof, except to the extent that--
(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. (b) For the purpose of this chapter-(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include--
(A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia; (E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them; (F) courts martial and military commissions; (G) military authority exercised in the field in time of war or in occupied territory; or (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; subchapter II of chapter 471 of title 49; or sections 1884, 18911902, and former section 1641(b)(2), of title 50, appendix; and (2) “person”, “rule”, “order”, “license”, “sanction”, “relief”, and “agency action” have the meanings given them by section 551 of this title.
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5 U.S.C. § 706 To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
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6 U.S.C. § 202
The Secretary shall be responsible for the following: (1) Preventing the entry of terrorists and the instruments of terrorism into the United States. (2) Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States, including managing and coordinating those functions transferred to the Department at ports of entry. (3) Carrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the date on which the transfer of functions specified under section 251 of this title takes effect. (4) Establishing and administering rules, in accordance with section 236 of this title, governing the granting of visas or other forms of permission, including parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States. (5) Establishing national immigration enforcement policies and priorities. (6) Except as provided in part C of this subchapter, administering the customs laws of the United States. (7) Conducting the inspection and related administrative functions of the Department of Agriculture transferred to the Secretary of Homeland Security under section 231 of this title. (8) In carrying out the foregoing responsibilities, ensuring the speedy, orderly, and efficient flow of lawful traffic and commerce.
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8 U.S.C. § 1103 (a) Secretary of Homeland Security
(1) The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling. (2) He shall have control, direction, and supervision of all employees and of all the files and records of the Service. (3) He 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.
* * *
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8 U.S.C. § 1182
(a) Classes of aliens ineligible for visas or admission Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
* * * (9) Aliens previously removed
(A) Certain aliens previously removed * * *
(B) Aliens unlawfully present (i) In general Any alien (other than an alien lawfully admitted for permanent residence) who-(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a(e) of this title) prior to the commencement of proceedings under section 1225(b)(1) of this title or section 1229a of this title, and again seeks admission within 3 years of the date of such alien’s departure or removal, or (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible. (ii) Construction of unlawful presence For purposes of this paragraph, 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. * * *
(d) Temporary admission of nonimmigrants * * *
(5)(A) The Attorney General may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien
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applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. (B) The Attorney General may not parole into the United States an alien who is a refugee unless the Attorney General determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee under section 1157 of this title.
* * *
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8 U.S.C. § 1227 * * *
(d) Administrative stay (1) 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.
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8 U.S.C. § 1252
(a) Applicable provisions (1) General orders of removal Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed only by chapter 158 of Title 28, except as provided in subsection (b) and except that the court may not order the taking of additional evidence under section 2347(c) of such title. (2) Matters not subject to judicial review (A) Review relating to section 1225(b)(1) Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review-(i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) of this title, (ii) except as provided in subsection (e), a decision by the Attorney General to invoke the provisions of such section, (iii) the application of such section to individual aliens, including the determination made under section 1225(b)(1)(B) of this title, or (iv) except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of this title. (B) Denials of discretionary relief Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the
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Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. (C) Orders against criminal aliens Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title. (D) Judicial review of certain legal claims Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. (3) Treatment of certain decisions No alien shall have a right to appeal from a decision of an immigration judge which is based solely on a certification described in section 1229a(c)(1)(B) of this title. (4) Claims under the United Nations Convention Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, except as provided in subsection (e). (5) Exclusive means of review Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e). For purposes of this chapter, in every provision that limits or eliminates
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judicial review or jurisdiction to review, the terms “judicial review” and “jurisdiction to review” include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory). (b) Requirements for review of orders of removal With respect to review of an order of removal under subsection (a)(1), the following requirements apply: (1) Deadline The petition for review must be filed not later than 30 days after the date of the final order of removal. (2) Venue and forms The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. The record and briefs do not have to be printed. The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs. (3) Service
(A) In general The respondent is the Attorney General. The petition shall be served on the Attorney General and on the officer or employee of the Service in charge of the Service district in which the final order of removal under section 1229a of this title was entered. (B) Stay of order Service of the petition on the officer or employee does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise. (C) Alien’s brief The alien shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available, and may serve and file a reply brief not later than 14 days after service of the brief of the Attorney General, and the court may not extend these deadlines except upon motion for good cause shown. If an alien fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result. (4) Scope and standard for review Except as provided in paragraph (5)(B)-(A) the court of appeals shall decide the petition only on the administrative record on which the order of removal is based,
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(B) the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary, (C) a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law, and (D) the Attorney General’s discretionary judgment whether to grant relief under section 1158(a) of this title shall be conclusive unless manifestly contrary to the law and an abuse of discretion. No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 1158(b)(1)(B), 1229a(c)(4)(B), or 1231(b)(3)(C) of this title, unless the court finds, pursuant to subsection (b)(4)(B), that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable. (5) Treatment of nationality claims (A) Court determination if no issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner’s nationality is presented, the court shall decide the nationality claim. (B) Transfer if issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner’s nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of Title 28. (C) Limitation on determination The petitioner may have such nationality claim decided only as provided in this paragraph. (6) Consolidation with review of motions to reopen or reconsider When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order. (7) Challenge to validity of orders in certain criminal proceedings (A) In general If the validity of an order of removal has not been judicially decided, a defendant in a criminal proceeding charged with violating section 1253(a) of this title may challenge the validity of the order in the criminal proceeding only by filing a separate motion before trial. The district court, without a jury, shall decide the motion before trial.
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(B) Claims of United States nationality If the defendant claims in the motion to be a national of the United States and the district court finds that--
(i) no genuine issue of material fact about the defendant’s nationality is presented, the court shall decide the motion only on the administrative record on which the removal order is based and the administrative findings of fact are conclusive if supported by reasonable, substantial, and probative evidence on the record considered as a whole; or (ii) a genuine issue of material fact about the defendant’s nationality is presented, the court shall hold a new hearing on the nationality claim and decide that claim as if an action had been brought under section 2201 of Title 28. The defendant may have such nationality claim decided only as provided in this subparagraph. (C) Consequence of invalidation If the district court rules that the removal order is invalid, the court shall dismiss the indictment for violation of section 1253(a) of this title. The United States Government may appeal the dismissal to the court of appeals for the appropriate circuit within 30 days after the date of the dismissal. (D) Limitation on filing petitions for review The defendant in a criminal proceeding under section 1253(a) of this title may not file a petition for review under subsection (a) during the criminal proceeding. (8) Construction This subsection-(A) does not prevent the Attorney General, after a final order of removal has been issued, from detaining the alien under section 1231(a) of this title; (B) does not relieve the alien from complying with section 1231(a)(4) of this title and section 1253(g)1 of this title; and (C) does not require the Attorney General to defer removal of the alien. (9) Consolidation of questions for judicial review Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other
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habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. (c) Requirements for petition A petition for review or for habeas corpus of an order of removal-(1) shall attach a copy of such order, and (2) shall state whether a court has upheld the validity of the order, and, if so, shall state the name of the court, the date of the court’s ruling, and the kind of proceeding. (d) Review of final orders A court may review a final order of removal only if-(1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order. (e) Judicial review of orders under section 1225(b)(1) (1) Limitations on relief Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may--
(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection, or (B) certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized under a subsequent paragraph of this subsection. (2) Habeas corpus proceedings Judicial review of any determination made under section 1225(b)(1) of this title is available in habeas corpus proceedings, but shall be limited to determinations of-(A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title, such status not having been terminated, and is entitled to such further inquiry
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as prescribed by the Attorney General pursuant to section 1225(b)(1)(C) of this title. (3) Challenges on validity of the system (A) In general Judicial review of determinations under section 1225(b) of this title and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of--
(i) whether such section, or any regulation issued to implement such section, is constitutional; or (ii) whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law. (B) Deadlines for bringing actions Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of subparagraph (A) is first implemented. (C) Notice of appeal A notice of appeal of an order issued by the District Court under this paragraph may be filed not later than 30 days after the date of issuance of such order. (D) Expeditious consideration of cases It shall be the duty of the District Court, the Court of Appeals, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any case considered under this paragraph. (4) Decision In any case where the court determines that the petitioner-(A) is an alien who was not ordered removed under section 1225(b)(1) of this title, or (B) has demonstrated by a preponderance of the evidence that the alien is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title, the court may order no remedy or relief other than to require that the petitioner be provided a hearing in accordance with section 1229a of this title. Any alien who is provided a hearing under section 1229a of this title pursuant to this
A17

paragraph may thereafter obtain judicial review of any resulting final order of removal pursuant to subsection (a)(1). (5) Scope of inquiry In determining whether an alien has been ordered removed under section 1225(b)(1) of this title, the court’s inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal. (f) Limit on injunctive relief (1) In general Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. (2) Particular cases Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law. (g) Exclusive jurisdiction Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
A18

8 U.S.C. § 1324a * * *
(h) Miscellaneous provisions (1) Documentation In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Attorney General shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement. (2) Preemption The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. (3) Definition of unauthorized alien 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.
A19

REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231
SEC. 202. MINIMUM DOCUMENT REQUIREMENTS AND ISSUANCE STANDARDS FOR FEDERAL RECOGNITION.
* * * (c) MINIMUM ISSUANCE STANDARDS.—
* * * (2) SPECIAL REQUIREMENTS.—
(A) IN GENERAL.—To meet the requirements of this section, a State shall comply with the minimum standards of this paragraph. (B) EVIDENCE OF LAWFUL STATUS.—A State shall require, before issuing a driver’s license or identification card to a person, valid documentary evidence that the person—
(i) is a citizen or national of the United States; (ii) is an alien lawfully admitted for permanent or temporary residence in the United States; (iii) has conditional permanent resident status in the United States; (iv) has an approved application for asylum in the United States or has entered into the United States in refugee status; (v) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States; (vi) has a pending application for asylum in the United States; (vii) has a pending or approved application for temporary protected status in the United States; (viii) has approved deferred action status; or (ix) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.
* * *
A20

8 C.F.R. § 214.14
* * * (d) Annual cap on U–1 nonimmigrant status—
(1) General. In accordance with section 214(p)(2) of the Act, 8 U.S.C. 1184(p)(2), the total number of aliens who may be issued a U–1 nonimmigrant visa or granted U–1 nonimmigrant status may not exceed 10,000 in any fiscal year. (2) Waiting list. All eligible petitioners who, due solely to the cap, are not granted U–1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U–1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U–1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. 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. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members. (3) Unlawful presence. During the time a petitioner for U nonimmigrant status who was granted deferred action or parole is on the waiting list, no accrual of unlawful presence under section 212(a)(9)(B) of the INA, 8 U.S.C. 1182(a)(9)(B), will result. However, a petitioner may be removed from the waiting list, and the deferred action or parole may be terminated at the discretion of USCIS.
* * *
A21

8 C.F.R. § 274a.12 * * *
(c) Aliens who must apply for employment authorization. An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. USCIS, in its discretion, may establish a specific validity period for an employment authorization document, which may include any period when an administrative appeal or judicial review of an application or petition is pending.
* * * (14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment;
* * *
A22

28 C.F.R. § 1100.35
(a) Federal law enforcement officials who encounter alien victims of severe forms of trafficking in persons who are potential witnesses to that trafficking may request that the Immigration and Naturalization Service (INS) grant the continued presence of such aliens in the United States. All law enforcement requests for continued presence must be submitted to the INS, Headquarters Office of Field Operations, in accordance with INS procedures. Each federal law enforcement agency will designate a headquarters office to administer submissions and coordinate with the INS on all requests for continued presence. The designated headquarters office will be responsible for meeting all reporting requirements contained in INS procedures for the processing and administering of the requests for continued presence in the United States of eligible aliens. (b) Upon receiving a request, the INS will determine the victim’s immigration status. When applicable and appropriate, the INS may then use a variety of statutory and administrative mechanisms to ensure the alien’s continued presence in the United States. The specific mechanism used will depend on the alien’s current status under the immigration laws and other relevant facts. These mechanisms may include parole, voluntary departure, stay of final order, section 107(c)(3)–based deferred action, or any other authorized form of continued presence, including applicable nonimmigrant visas.
(1) The alien’s continued presence in the United States under this subpart does not convey any immigration status or benefit apart from that already encompassed by the particular form of authorized continued presence granted. In most circumstances, victims granted continued presence will be eligible for temporary employment authorization. (2) The continued presence granted through any of the mechanisms described in this paragraph (b) will contain the terms normally associated with the particular type of authorized continued presence granted, including, but not limited to, duration of benefit, terms and procedures for receiving an extension, travel limitations, and employment authorization unless expressly waived in an individual approval. Aliens granted deferred action based upon section 107(c)(3) are considered to be present in the United States pursuant to a period of stay authorized by the Attorney General for purposes of INA sections 212(a)(9)(B)(I) and (C).
* * *
A23

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the Northern District of California
APPELLANTS’ RESPONSE AND REPLY BRIEF
CHAD A. READLER Acting Assistant Attorney General
ALEX G. TSE Acting United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

TABLE OF CONTENTS
Page
INTRODUCTION AND SUMMARY OF ARGUMENT..............................................1
I. The Acting Secretary’s Decision Is Not Subject to Judicial Review. ................4
A. The decision to rescind the DACA policy was a nonreviewable discretionary enforcement decision. ...............................................................4
B. The INA bars review of plaintiffs’ claims. ................................................14
II. On the Merits, the District Court Erred to the Extent That It Denied the Government’s Motion to Dismiss and Entered a Preliminary Injunction. ....... 19
A. The rescission of the DACA policy was not arbitrary and capricious. .......................................................................................................... 19
1. Plaintiffs fail to distinguish the Texas decisions’ invalidation of DAPA. ..............................................................................................21
2. Because the Texas decisions apply with equal force to DACA, the Acting Secretary reasonably rescinded DACA based on litigation risk.........................................................................24
3. Because the Texas decisions apply with equal force to DACA, the Acting Secretary also reasonably rescinded DACA based on concerns about its legality. ...................................27
4. Plaintiff’s additional arbitrary-and-capricious arguments are without merit.........................................................................................30
B. The DACA rescission did not violate equal protection.............................36
C. The implementation of the DACA rescission will not violate due process. ..............................................................................................................40
D. The district court’s nationwide injunction is overbroad............................43
III. On Plaintiffs’ Cross-Appeal, the District Court Should Be Affirmed to the Extent That It Granted the Government’s Motion to Dismiss. .................. 51

A. The DACA rescission did not require notice-and-comment rulemaking. ........................................................................................................ 51
B. The denial of DACA renewals does not violate substantive due process. ..............................................................................................................57
CONCLUSION ..................................................................................................................... 61 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
ii

TABLE OF AUTHORITIES

Cases:

Page(s)

Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir. 1987)..............................................................................................11

American Forest Res. Council v. Ashe, 946 F. Supp. 2d 1 (D.D.C. 2013) ......................................................................................56

Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343 (D.C. Cir. 2014) .................................................................................. 21, 32

Arizona Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017), cert. denied,
2018 WL 1369140 (Mar. 19, 2018) ...................................................................................29

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) .............................................................................................29

Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001)..............................................................................................51

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................................... 40, 41

Barahona-Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001)............................................................................................16

Batalla Vidal v. Nielsen, No. 16-cv-4756, 2018 WL 1532370 (E.D.N.Y. Mar. 29, 2018) ......................42, 51, 55

Board of Regents v. Roth, 408 U.S. 564 (1972) .............................................................................................................58

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (1974) ................................................................................................20, 25, 28

Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987)........................................................................ 44, 45, 46, 47

iii

Califano v. Yamasaki, 442 U.S. 682 (1979) .............................................................................................................45
Casa de Maryland v. DHS, No. 17-2942, 2018 WL 1156769 (D. Md. Mar. 5, 2018) ........................................ 20, 47
Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000)............................................................................................16
Chaney v. Heckler, 718 F.2d 1174 (D.C. Cir. 1983) .........................................................................................10
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .............................................................................................................52
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .............................................................................................................32
Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60 (D.C. Cir. 1987) .............................................................................................32
Consumer Energy Council of Am. v. FERC, 673 F.2d 425 (D.C. Cir. 1982) ...........................................................................................56
Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015)..............................................................................................29
Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) .................................................................................... 8, 9, 11
De Beers Consol. Mines v. United States, 325 U.S. 212 (1945) .............................................................................................................46
Doran v. Houle, 721 F.2d 1182 (9th Cir. 1983)............................................................................................42
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).........................................................................................................30
Edison Elec. Inst. v. EPA, 996 F.2d 326 (D.C. Cir. 1993) .............................................................................................8
iv

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ...................................................................................................... 21, 30
Gerhart v. Lake County, 637 F.3d 1013 (9th Cir. 2011)............................................................................................58
In re GGM, PC, 165 F.3d 1026 (5th Cir. 1999)............................................................................................41
Gonzales-Caraveo v. Sessions, 882 F.3d 885 (9th Cir. 2018)................................................................................................9
Heckler v. Chaney, 470 U.S. 821 (1985) .................................................................................1, 4, 5, 6, 7, 10, 13
ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987) ...................................................................................................... 2, 4, 7
International Longshoremen’s & Warehousemen’s Union v. Meese, 891 F.2d 1374 (9th Cir. 1989)............................................................................................11
International Longshoremen’s Ass’n v. National Mediation Bd., 785 F.2d 1098 (D.C. Cir. 1986) ...........................................................................................9
Jean v. Nelson, 711 F.2d 1455 (11th Cir. 1983)..........................................................................................37
Jennings v. Rodriguez , 138 S. Ct. 830 (2018) .................................................................................................... 17, 18
Kenney v. Glickman, 96 F.3d 1118 (8th Cir. 1996)..............................................................................................11
Kowalski v. Tesmer, 543 U.S. 125 (2004) .............................................................................................................50
Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004)..............................................................................................37
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970 (9th Cir. 1991)..............................................................................................46
v

Lincoln v. Vigil, 508 U.S. 182 (1993) ...................................................................................................... 10, 51
Linda R.S. v. Richard D., 410 U.S. 614 (1973) ...................................................................................................... 48, 49
Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011) ....................................................................................... 44, 46
Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990) .............................................................................................................49
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987)....................................................................3, 29, 52, 53, 55
Massachusetts v. EPA, 549 U.S. 497 (2007) .............................................................................................................49
McFarlin v. Conseco Servs., LLC, 381 F.3d 1251 (11th Cir. 2004)..........................................................................................41
Meinhold v. Department of Def., 34 F.3d 1469 (9th Cir. 1994)..............................................................................................44
Michigan v. EPA, 135 S. Ct. 2699 (2015).........................................................................................................31
Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753 (9th Cir 1990) ............................................................................................ 8, 9
Morales de Soto v. Lynch, 824 F.3d 822 (9th Cir. 2016).................................................................................12, 14, 54
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ........................................................................................... 19, 20, 31, 32
Municipality of Anchorage v. United States, 980 F.2d 1320 (9th Cir. 1992)............................................................................................54
National Treasury Emps. Union v. Cornelius, 617 F. Supp. 365 (D.D.C. 1985)........................................................................................56
vi

National Treasury Emps. Union v. Horner, 854 F.2d 490 (D.C. Cir. 1988) ...........................................................................................11
National Wildlife Fed’n v. EPA, 980 F.2d 765 (D.C. Cir. 1992) ...........................................................................................11
Noel v. Chapman, 508 F.2d 1023 (2d Cir. 1975) .............................................................................................11
Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015)..............................................................................................26
OSG Bulk Ships, Inc. v. United States, 132 F.3d 808 (D.C. Cir. 1998) ...........................................................................................11
Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33 (D.C. Cir. 1974) ...................................................................................... 51, 52
Pacific Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142 (9th Cir. 2013)............................................................................................38
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).........................................................................................................52
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) ...............................................................................................39
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ............................................................. 1, 6, 14, 15, 17, 18, 36, 37, 38
Robbins v. Reagan, 780 F.2d 37 (D.C. Cir. 1985) .............................................................................................14
Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985)...............................................................................53, 56, 59
San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014)..............................................................................................20
Serrato v. Clark, 486 F.3d 560 (9th Cir. 2007)................................................................................................6
vii

Syncor Int’l Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) .............................................................................................52
Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) ................................................................................22 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016)...........................................................................1, 22, 23, 29, 34, 55
Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) ...................................................................................................... 57, 58
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017).........................................................................................................43
Trizec Prop., Inc. v. U.S. Mineral Prods. Co., 974 F.2d 602 (5th Cir. 1992)..............................................................................................25
Trump v. International Refugee Assistance Project, 137 S. Ct. 2080 (2017).................................................................................................. 25, 45
United States v. Armstrong, 517 U.S. 456 (1996) ...................................................................................................... 36, 40
United States v. Carona, 660 F.3d 360 (9th Cir. 2011)..............................................................................................18
United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004)............................................................................................16
United States ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977) .....................................................................................55
Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013)..............................................................................................13
Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) .............................................................................................................37
Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001)..............................................................................................46
viii

Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998)............................................................................................16
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) .................................................................................................................25
Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996) .............................................................................................................40
Zepeda v. U.S. INS, 753 F.2d 719 (9th Cir. 1983)..............................................................................................46
Statutes: 5 U.S.C. § 553(b)-(c)................................................................................................................51 5 U.S.C. § 553(b)(3)(A) ...................................................................................................... 3, 51 5 U.S.C. § 701(a)(2) .............................................................................................................. 1, 4 5 U.S.C. § 705...........................................................................................................................46 6 U.S.C. § 202(5)......................................................................................................................24 8 U.S.C. § 1103(a)(1) ...............................................................................................................33 8 U.S.C. § 1252(b)......................................................................................................................1 8 U.S.C. § 1252(b)(9)...............................................................................................................15 8 U.S.C. § 1252(g)............................................................................................................. 15, 17 28 U.S.C. § 1292(b) .................................................................................................................40 Rule: Fed. R. App. P. 5(b)(1) ...........................................................................................................40
ix

Other Authorities: Remarks by the President on Immigration (June 15, 2012),
https://go.usa.gov/xnZFY ........................................................................................ 30, 58 Statement from President Trump (Sept. 5, 2017),
https://www.whitehouse.gov/the-press-office/2017/09/05/ statement-president-donald-j-trump ................................................................................. 35 USCIS, DHS, Frequently Asked Questions: Rejected DACA Requests Q5 (Dec. 27, 2017), https://www.uscis.gov/daca2017/mail-faqs.....................................42 U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act (1947) .....................................................................................51
x

INTRODUCTION AND SUMMARY OF ARGUMENT As the government’s opening brief demonstrated, the Acting Secretary’s decision to rescind the DACA policy is not subject to judicial review here. Under the Administrative Procedure Act (APA), the rescission is an enforcement decision that is traditionally committed to agency discretion, 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 830-32 (1985), and the Immigration and Nationality Act (INA) further provides that any review can take place only from a final removal order, 8 U.S.C. § 1252(b), (g); Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 485 (1999) (AADC). Moreover, as the government’s brief also demonstrated, the Acting Secretary’s decision was not arbitrary and capricious under the APA. Given that the INA prescribes no legal or factual determinations that must be made or even considered in adopting this purely discretionary enforcement decision, the Acting Secretary acted entirely reasonably in winding down the DACA policy in light of (1) the nationwide preliminary injunction against the closely related policies of DAPA and expanded DACA, see Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (per curiam), and (2) the Attorney General’s opinion that DACA likely would and should be legally invalidated as well. Plaintiffs primarily respond that the Acting Secretary’s decision is both reviewable and reversible because she committed a legal error in concluding that DACA was invalid. This argument is fundamentally flawed. To begin, even assuming that plaintiffs were properly characterizing the rationale of the Acting Secretary’s

discretionary enforcement decision, they fail to overcome the Supreme Court’s square holding that the fact that an “agency gives a ‘reviewable’ reason for otherwise unreviewable action” does not mean that “the action becomes reviewable.” ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (BLE) (emphasis added). Moreover, plaintiffs mischaracterize the Acting Secretary’s rationale. She did not rest on the judgment that DACA must be rescinded because it was in fact legally invalid, but rather explained her conclusion that DACA “should” be rescinded after considering both the Texas courts’ invalidation of materially indistinguishable policies and also the Attorney General’s opinion that DACA “likely” would and should be invalidated for the same reasons. ER.129-30. That rationale is a quintessential exercise of nonreviewable enforcement discretion, and it is eminently reasonable on the merits in any event. Plaintiffs’ contrary position severely interferes with Executive Branch enforcement prerogatives, and improperly requires the Department of Homeland Security (DHS) to disregard judicial decisions and continue affirmatively sanctioning an ongoing violation of federal law by nearly 700,000 aliens without lawful status.
Plaintiffs fare no better on their other claims. First, plaintiffs’ defense of the district court’s refusal to dismiss their equal-protection challenge to the DACA rescission effectively ignores the Supreme Court’s decision in AADC. Moreover, unable to identify the clear evidence of outrageous government conduct that is required (at a minimum) under AADC, plaintiffs instead primarily rely on comments that did not even concern DACA and were not even made by the Acting Secretary—
2

which is wholly inadequate even apart from AADC. Second, plaintiffs’ cross-appeals of the district court’s dismissal of their notice-and-comment challenge to the DACA rescission are foreclosed by both precedent and common sense. The APA exempts “general statements of policy” from notice and comment, 5 U.S.C. § 553(b)(A), and this type of reordering of deferred-action enforcement priorities readily qualifies, as this Court has already held in virtually identical circumstances, Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1016-17 (9th Cir. 1987). In any event, if DACA’s rescission required notice and comment, then DACA was void from the outset because it necessarily would have so required also. Third, with respect to both the due-process claims that were dismissed and those that were not, plaintiffs have no protected liberty or property interest in either the retention of DACA or the government’s information-sharing policy post-rescission. DACA expressly conferred no substantive rights and was revocable at any time, and plaintiffs regardless have failed to demonstrate any government conduct that would rise to the level of a substantivedue-process violation.
Finally, at a minimum, plaintiffs have failed to justify the gross overbreadth of the district court’s nationwide injunction. Although that injunction should be reversed and the case dismissed in full, the injunction at least should be limited to the particular DACA recipients who are named plaintiffs or validly represented by the union plaintiff.
3

ARGUMENT I. The Acting Secretary’s Decision Is Not Subject to Judicial
Review. A. The decision to rescind the DACA policy was a
nonreviewable discretionary enforcement decision. The Acting Secretary’s decision to wind down DACA is a classic example of an enforcement decision that is “committed to agency discretion by law” and thus not subject to judicial review under the APA. 5 U.S.C. § 701(a)(2). An agency’s decision whether to retain a policy of selective non-enforcement (like the decision whether to adopt such a policy in the first place) is “peculiarly within its expertise,” and, like “the decision of a prosecutor in the Executive Branch [whether or] not to indict,” is properly “regarded as the special province of the Executive Branch.” See Chaney, 470 U.S. at 832. Critically, such decisions “cannot be the subject of judicial review” even when the agency chooses to exercise its discretion based on legal analysis that would be “a ‘reviewable’ reason” in another context. BLE, 482 U.S. at 283. Plaintiffs’ efforts to distinguish Chaney and BLE all fail. 1. The government’s opening brief explained that the district court’s various grounds for distinguishing Chaney and BLE cannot be correct because they would apply equally to enforcement decisions that are indisputably nonreviewable, such as a prosecutor’s decision to rescind her predecessor’s non-enforcement policy of seeking drug treatment rather than criminal incarceration for low-level, non-violent drug users, based on her legal concerns that the policy fails to faithfully execute the laws
4

and provide equal treatment to defendants. Br. 25. Notably, plaintiffs do not dispute the hypothetical: they do not contend that such a change in policy would be judicially reviewable on the ground that reliance on a categorical legal rationale would provide “law to apply,” or on any other of the grounds advanced by the district court to distinguish Chaney and BLE.
Instead, plaintiffs try to distinguish the hypothetical on the distinct ground that “the enforcement of criminal statutes is fundamentally different from civil enforcement actions.” Regents.Br. 41 n.7; see States.Br. 26-27. But the Supreme Court rejected such a distinction in Chaney and AADC. In Chaney, the Court repeatedly analogized to criminal enforcement discretion in support of its holding concerning civil enforcement discretion. E.g., 470 U.S. at 831 (“This 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.” (emphasis added)); id. at 832 (comparing “an agency’s refusal to institute proceedings” with a prosecutor’s decision “not to indict”). And the Court did so notwithstanding a concurring opinion that criticized equating civil and criminal enforcement discretion. See id. at 847-49 (Marshall, J., concurring in the judgment) (arguing that “reliance on prosecutorial discretion, itself a fading talisman, to justify the unreviewability of agency inaction is inappropriate”). In AADC, moreover, the Court instructed that challenges to civil enforcement discretion in the
5

immigration context are more restricted than challenges to prosecutorial discretion, because they seek to maintain an ongoing violation of federal law. 525 U.S. at 489-91.
2. Just as plaintiffs fail to distinguish the government’s drug-prosecution hypothetical, they likewise fail to defend the various grounds the district court gave for why the Acting Secretary’s decision is reviewable notwithstanding Chaney and BLE.
a. Plaintiffs primarily emphasize various sources of law that they claim could be used to analyze the merits of the Acting Secretary’s rationale for rescinding DACA. States.Br. 19-20; Regents.Br. 35-36; Garcia.Br. 20. But in arguing there is “law to apply,” plaintiffs ignore the government’s explanation (Br. 23-25) of how Chaney and its progeny have articulated the test for overcoming the presumption against reviewability of enforcement discretion: namely, the alleged “law to apply” must “circumscribe agency enforcement discretion” and “provide[] meaningful standards for defining limits of that discretion.” Chaney, 470 U.S. at 834. That test is not satisfied for plaintiffs’ arbitrary-and-capricious claims, because it is undisputed that the INA did not restrict the Acting Secretary’s authority to rescind DACA.1
Nothing in Chaney supports plaintiffs’ suggestion that “legal sources that purportedly informed the agency’s decision,” Regents.Br. 35, provide a basis to review
1 By contrast, as the government has noted, plaintiffs’ constitutional claims are not precluded by § 701(a)(2). Br. 24 n.6. This Court has stated that notice-andcomment claims are also not precluded, Serrato v. Clark, 486 F.3d 560, 569 (9th Cir. 2007), though the government preserves its right to seek further review of that issue.
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an enforcement decision that was not limited by those legal sources because the agency merely chose to consider them in the exercise of its unconstrained discretion. Indeed, BLE made clear that enforcement decisions are not subject to review merely because an agency (or prosecutor) has chosen to invoke various sources of law to explain the manner in which it has exercised its nonreviewable discretion. 482 U.S. at 283. Plaintiffs’ sole response is to argue that BLE is limited to agency decisions that are traditionally unreviewable. States.Br. 25; Regents.Br. 42; Garcia.Br. 23-24. But as demonstrated in the government’s opening brief and below, broad programmatic exercises of enforcement discretion, such as the DACA rescission, are traditionally unreviewable, in part because there typically is no “law to apply” governing how the agency may exercise such discretion.
Plaintiffs also assert that the DACA rescission is reviewable because the Acting Secretary’s decision focused on legal considerations rather than a more general balancing of discretionary factors. States.Br. 24; Regents.Br. 38-39; Garcia.Br. 20. Contrary to plaintiffs’ suggestion, the Acting Secretary’s articulated rationale was not that she was legally compelled to rescind DACA, but rather that she should exercise her discretion to do so in light of significant concerns about litigation risk and legality. Infra p. 24; see also Chaney, 470 U.S. at 824-25 (noting that the FDA’s non-enforcement decision was based on both a perceived lack of jurisdiction and policy factors). Moreover, even if the Acting Secretary had concluded that her enforcement decision was legally required, plaintiffs’ argument that her decision would then be reviewable is
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little more than a repackaging of the line of inquiry foreclosed by BLE and Chaney. Where the agency has engaged in an exercise of enforcement discretion that is not constrained by law, a court may not review the agency’s decision under the APA, regardless of what factors the agency chooses to consider in making that decision, including embedded legal conclusions regarding its authority to act or not to act at all. As the D.C. Circuit has correctly recognized, BLE “squarely rejects” the proposition that “Chaney’s presumption of non-reviewability is inapplicable when the agency bases its refusal to enforce in an individual case solely on a legal interpretation without explicitly relying on its enforcement discretion.” Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671, 675-76 (D.C. Cir. 1994).
None of the cases cited by plaintiffs establish that there is “law to apply” here within the meaning of Chaney and BLE. Plaintiffs’ two primary cases involve the inapposite scenario of a nonreviewable enforcement decision that contains an embedded interpretation of the statute’s substantive commands that is separately reviewable. See Edison Elect. Inst. v. EPA, 996 F.2d 326, 331, 333 (D.C. Cir. 1993) (reviewable interpretation of the lawfulness of certain waste storage practices included in a nonreviewable decision deprioritizing such violations); Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753, 757-58 (9th Cir 1990) (reviewable interpretation of the scope of prohibited unfair labor practices included in a nonreviewable decision declining to issue a complaint). Here, by contrast, the Acting Secretary’s decision to rescind DACA did not directly interpret the INA’s provisions governing the primary conduct
8

of aliens or other parties (e.g., which crimes render an alien removable). Rather, it addressed, at most, the INA’s constraints on her enforcement discretion to maintain DACA.2
Even less apposite is Gonzales-Caraveo v. Sessions, 882 F.3d 885 (9th Cir. 2018). There, this Court merely held that it could review a certain type of procedural decision by the Board of Immigration Appeals both because such procedural rulings were different from “enforcement decisions” and because the Board itself had issued a binding opinion constraining its discretion in making such procedural rulings. Id. at 889, 891-92. Neither condition applies here.
b. Plaintiffs further urge that there is no tradition of nonreviewability for broad programmatic exercises of enforcement discretion that constitute major policy decisions. States.Br. 21-22; Regents.Br. 41, 43; Garcia.Br. 22-23. The government previously explained why the district court’s attempted distinction between “broad enforcement policies” and “individual enforcement decision[s],” ER.20, is not viable (Br. 19-21), and plaintiffs have failed to resuscitate it.
2 To be sure, Montana Air Chapter further held, relying on a D.C. Circuit opinion, that an agency’s nonenforcement decision itself became reviewable because it was “based solely on [the] belief that [the agency] lacks jurisdiction.” 898 F.2d at 756 (citing International Longshoremen’s Ass’n v. National Mediation Bd., 785 F.2d 1098, 1100 (D.C. Cir. 1986)). But the D.C. Circuit has since recognized that its 1986 opinion was abrogated by the Supreme Court’s later decision in BLE (which Montana Air Chapter failed to address). Crowley, 37 F.3d at 675-76. And in any event, the Acting Secretary here did not rely solely on a perceived lack of authority to retain DACA. Infra p. 24.
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Most importantly, plaintiffs’ argument is irreconcilable with Chaney itself. There, the D.C. Circuit had likewise tried to justify reviewing FDA’s non-enforcement decision by emphasizing that it was a “refus[al] to take action with regard to an entire category of allegedly prohibited activity,” Chaney v. Heckler, 718 F.2d 1174, 1191 n.45 (D.C. Cir. 1983). The Supreme Court nevertheless held that FDA’s categorical refusal “to interfere with this particular aspect of state criminal justice systems” was unreviewable, Chaney, 470 U.S. at 824-25. Plaintiffs’ suggestion that FDA had merely “declined to take action in response to petitions in individual cases,” Garcia.Br. 23 n.3, ignores our showing that the individual petitions had requested industry-wide relief (Br. 19).
Likewise, in Lincoln v. Vigil, 508 U.S. 182 (1993), the Supreme Court held that judicial review was unavailable for the Indian Health Service’s decision to discontinue a program that provided diagnostic and treatment services to disabled Indian children across the Southwest. Id. at 184, 188. Plaintiffs attempt to characterize the agency’s decision “whether to continue funding for a specific region” as involving a “one-time decision[ ]” rather than a “broad policy determination[ ],” Regents.Br. 42 n.8, but that ignores the sweeping policy implications of the agency’s decision to “reorder its priorities from serving a subgroup of beneficiaries to serving the broader class of all Indians nationwide,” Lincoln, 508 U.S. at 195.
Again, none of the cases cited by plaintiffs supports their position that discretionary enforcement decisions become reviewable if made at the wholesale
10

rather than retail level. Plaintiffs primarily rely on a line of cases where courts distinguished between “an agency’s statement of a general enforcement policy” and a “single-shot non-enforcement decision,” but that distinction was expressly based on the presumption that general policies are “more likely to be direct interpretations of the commands of the substantive statute.” Crowley, 37 F.3d at 676-77; see also OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998); Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996). As explained, the Acting Secretary’s decision here did not contain such an embedded interpretive rule, and this Court has applied Chaney to similar broad non-enforcement policies. Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 935, 938 (9th Cir. 1987) (holding nonreviewable a general, “written policy” that stated game laws would not be enforced during the closed season but did not provide any interpretation of the substantive requirements of those laws).
Plaintiffs’ remaining cases are even further afield. Most do not even involve challenges to enforcement discretion. International Longshoremen’s & Warehousemen’s Union v. Meese, 891 F.2d 1374, 1377 (9th Cir. 1989) (classification of alien employees under the INA); National Treasury Emps. Union v. Horner, 854 F.2d 490, 494 (D.C. Cir. 1988) (classification of job categories within the civil service); National Wildlife Fed’n v. EPA, 980 F.2d 765, 773 & n.3 (D.C. Cir. 1992) (allocation of regulatory authority between state and federal agencies, and statute constrained the latter in any event). And the last pre-dates Chaney. Noel v. Chapman, 508 F.2d 1023, 1029 (2d Cir. 1975).
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c. Plaintiffs also reprise the district court’s distinction between exercises of discretion that permit enforcement and those that prevent it. States.Br. 23; Regents.Br. 39-40; Garcia.Br. 21. But as the government explained (Br. 18-19), that distinction is foreclosed by Morales de Soto v. Lynch, 824 F.3d 822 (9th Cir. 2016). To recap, this Court held that, under Chaney, it could not review the decision of Immigration and Customs Enforcement (ICE) to reinstate a prior order of removal rather than to exercise its “prosecutorial discretion to initiate a new removal proceeding before an immigration judge,” even though that was a “decision to enforce” rather than a “decision not to enforce.” Id. at 825, 827 & n.4. The Garcia plaintiffs are simply wrong (Br. 22 n.2) that the Court’s discussion of Chaney was dicta, because it was an essential aspect of the Court’s reasoning supporting its holding that changes in ICE enforcement policies neither required nor permitted a remand to the agency. Morales de Soto, 824 F.3d at 827.
Plaintiffs relatedly assert that the rescission of DACA is an enforcement decision that should be judicially reviewable now because it involves an exercise of “coercive power” separate and apart from the final decision to remove a former DACA recipient, given that such recipients would be immediately “expose[d] . . . to the possibility of proceedings” to remove them. States.Br. 23; Regents.Br. 39-40; Garcia.Br. 21-22. But this argument proves far too much, because whenever the government announces an intent to enforce the law, those violating the law must contend with the looming prospect of enforcement. That is clearly not what the
12

Supreme Court had in mind when it distinguished a nonenforcement decision’s lack of “coercive power over an individual’s liberty or property rights.” Chaney, 470 U.S. at 832. Rather, the “action [that] provides a focus for judicial review” when agencies decide to enforce is the final agency action against the regulated party. See id.3
d. Plaintiffs finally argue that the Acting Secretary’s rescission of DACA should be judicially reviewable because DACA provided recipients with collateral benefits upon which they have come to rely. States.Br. 22; Garcia.Br. 22. The government already identified the flaws in this argument. Br. 21-22. For one thing, reliance interests do not justify judicial review of unreviewable acts, as demonstrated by the Supreme Court’s unanimous decision in Lincoln, which held that the decision to reallocate funds away from medical treatment services for disabled Indian children was not reviewable. For another, the potential consequences of lack of review do not alter the result, as demonstrated by Chaney, where prison inmates claimed that they would suffer a cruel and unusual death. Plaintiffs do not attempt to rebut either of these points based on controlling precedent.
Instead, plaintiffs rely on a statement in a D.C. Circuit case that courts can review “rescissions of commitments” by government actors because they “exert much more direct influence on the individuals or entities to whom the repudiated
3 Contrary to Plaintiffs’ suggestion (Garcia Br. 21), this Court did not hold otherwise in Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013). That case merely held that Chaney does not foreclose a due process claim that ICE exceeded its discretion in reinstating a final removal order. Id. at 881 n.9.
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commitments were made.” Robbins v. Reagan, 780 F.2d 37, 47 (D.C. Cir. 1985) (per curiam). But Robbins is doubly inapposite. To begin, DHS explicitly disavowed any commitment to retain DACA when it adopted the policy, emphasizing that it was conferring no substantive rights and could rescind the policy at any time. Infra p. 58; see also Morales de Soto, 824 F.3d at 827 (expressing doubt that memoranda containing similar language “can even be properly characterized as changes in agency policy” that might warrant remand for agency reconsideration). Moreover, the agency action at issue in Robbins was the alleged refusal to provide previously agreed-upon funding for renovations of a homeless shelter, which was not an exercise of enforcement discretion that triggered Chaney’s presumption of nonreviewability. 780 F.2d at 39-41, 46-49. As explained above, the Acting Secretary’s decision to rescind DACA does fall within that presumption, and plaintiffs have failed to rebut its application by identifying any statutory or regulatory constraint that can be applied to her discretionary decision under the APA.
B. The INA bars review of plaintiffs’ claims. As the Supreme Court explained in AADC, the INA itself is “designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.” See 525 U.S. at 485 & n.9. The INA affords such protection by channeling legal challenges to such decisions into review of
14

final removal orders, pursuant to two related provisions stripping district courts of jurisdiction: 8 U.S.C. § 1252(g) covers claims on behalf of aliens arising from an “action” “to commence proceedings” against them; and 8 U.S.C. § 1252(b)(9), an “unmistakable ‘zipper’ clause,” covers all questions of law or fact arising from any “action taken . . . to remove an alien,” see id.; AADC, 525 U.S. at 483. As the government has explained (Br. 25-26), the INA thus precludes the pre-removal challenge here to the Acting Secretary’s rescission of DACA. The rescission is a “‘no deferred action’ decision[ ]” of the sort the INA intended to protect, AADC, 525 U.S. at 485; it is an initial “action” that is an ingredient “to commence proceedings” for removal, 8 U.S.C. § 1252(g); and it was “taken” to enable “remov[al]” of aliens who are unlawfully in the country, id. § 1252(b)(9).
In response, plaintiffs emphasize (States.Br. 29-30; Regents.Br. 31-32; Garcia.Br. 24) the Supreme Court’s statement in AADC that section 1252(g) “applies only to three discrete actions,” which are the commencement of proceedings, adjudication of cases, and execution of removal orders. 525 U.S. at 482. That is true, but plaintiffs’ claims challenge one of those steps. Again, the decision to rescind a policy of forbearance from removal is itself an “action” that is an ingredient “to commence proceedings” for removal. 8 U.S.C. § 1252(g). To hold otherwise would undermine AADC ’s explicit admonition that section 1252(g) bars review of “no deferred action” decisions. See 525 U.S. at 485 & n.9.
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Plaintiffs also argue that jurisdiction is not precluded for “programmatic”
challenges to the actions covered by section 1252(g). Regents.Br. 32 & n.4; Garcia.Br.
25. But the cases cited stand for a proposition that is less sweeping and is inapposite
here. Namely, they hold that aliens may bring certain types of “collateral challenges”
to actions distinct from the three discretionary steps covered by section 1252(g), even
if part of the relief for such claims impedes the government’s ability to remove the
alien. See, e.g., Walters v. Reno, 145 F.3d 1032, 1051-52 (9th Cir. 1998) (due-process
challenge to procedures for finding an alien guilty of document fraud, which renders
the alien removable).4 Again, by contrast, plaintiffs’ challenge to the Acting Secretary’s
discretionary rescission of forbearance from removal cannot fairly be characterized as
“collateral” to a challenge to discretionary action to commence removal.
The State plaintiffs further assert that their suit is not “on behalf of any alien”
and therefore does not fall within the scope of section 1252(g). Br. 28-29. But non-
alien plaintiffs cannot end-run the INA’s reticulated review scheme governing the
removal of aliens. Suits by States to block the general rescission of a deferred action
policy pose an even greater threat to “‘no deferred action’ decisions and similar
4 See also Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1141-42, 1145, 1150 (9th Cir. 2000) (en banc) (statutory challenge to interpretation of requirements for naturalization); Barahona-Gomez v. Reno, 236 F.3d 1115, 1117-21 (9th Cir. 2001) (various challenges to a directive restricting how immigration judges resolved cases after the decision had been made to adjudicate removal); cf. United States v. Hovsepian, 359 F.3d 1144, 1155-56 (9th Cir. 2004) (en banc) (allowing district court to “consider a purely legal question” concerning the alien’s substantive removability that “does not challenge the [government’s] discretionary authority” to commence removal).
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discretionary determinations” than suits brought by individual aliens. AADC, 525 U.S. at 485. Moreover, given that the State plaintiffs’ standing rests on the alleged harm imposed by the rescission on individual DACA recipients with whom they have employment relationships, see infra p. 48, the States’ claims here are indisputably “on behalf of [those individual] alien[s],” 8 U.S.C. § 1252(g), especially since any relief should be limited to those particular aliens, see infra p. 48. As for the States’ objection (Br. 31-32) that they themselves cannot obtain review of DACA’s rescission by challenging final removal orders against former DACA recipients, that gets matters backwards: it is precisely because the States do not have a cognizable interest under the INA in challenging the removal of third-party aliens, see infra pp. 48-50, that the States cannot be allowed to challenge actions to commence removal that the aliens themselves cannot challenge due to section 1252(g).
Finally, the Supreme Court’s recent decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), does not counsel a different result. The plurality opinion there did describe AADC as having interpreted section 1252(g) not “to sweep in any claim that can technically be said to ‘arise from’ the three listed actions of the Attorney General,” but instead as having “read the language to refer to just those three specific actions themselves.” Id. at 841. But the opinion was merely emphasizing that the plaintiffs there fell outside of AADC ’s interpretation of section 1252(g) because they were challenging only the conditions and length of detention ancillary to the removal process—in other words, “[they were] not asking for review of an order of removal;
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they [were] not challenging the decision to detain them in the first place or to seek removal; and they [were] not even challenging any part of the process by which their removability will be determined.” Id. Here, by contrast, the legal questions at issue arise from a challenge to an ingredient to commencement of removal—the rescission of deferred-action forbearance from removal—and review is therefore barred under section 1252(g) and AADC. Id. at 841 n.3.
Moreover, Jennings underscores the fact that plaintiffs have failed to explain why section 1252(b)(9), which channels all legal and factual questions “arising from any action taken or proceeding brought to remove an alien” into final removal orders, does not also bar their claims. Under both the plurality’s and concurrence’s interpretation of section 1252(b)(9), see 138 S. Ct. at 841 (plurality op.); id. at 852 (Thomas, J., concurring in the judgment), plaintiffs’ claims in this case “aris[e] from” an “action taken” in the removal process. Contrary to plaintiffs’ suggestion (Garcia.Br. 26), it is not impermissibly redundant that sections 1252(g) and 1252(b)(9) both bar their claims, given that the latter is an “unmistakable ‘zipper’ clause.” AADC, 525 U.S. at 483. Plaintiffs fail to demonstrate that either provision would be “entirely redundant” under the government’s interpretation, see id., and the canon against superfluity “does not prevent more than one provision of a statute from applying in a particular instance,” United States v. Carona, 660 F.3d 360, 368 (9th Cir. 2011).
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II. On the Merits, the District Court Erred to the Extent That It Denied the Government’s Motion to Dismiss and Entered a Preliminary Injunction. As the government’s opening brief demonstrated, the district court erred in
denying the motion to dismiss with respect to plaintiffs’ claims that the rescission of DACA was arbitrary and capricious as well as an equal-protection violation, and that the implementation of the rescission violates substantive due process based on an alleged change in the government’s information-sharing policy. And because the preliminary injunction against the rescission rests on the arbitrary-and-capricious claim that fails as a matter of law, the injunction must be vacated. At a minimum, though, the injunction must be vacated given its gross overbreadth. Plaintiffs fail to refute any of these points.
A. The rescission of the DACA policy was not arbitrary and capricious.
As a threshold matter, plaintiffs’ articulation of the APA standard of review (States.Br. 36-37; Regents.Br. 44-46) fails to grapple with the nature of the DACA rescission decision, which was not subject to any statutory or regulatory constraints and thus did not require any particular legal, factual, or evidentiary basis. For such a decision, the fundamental principle that the arbitrary-and-capricious standard is “narrow” and does not permit a court “to substitute its judgment” for the agency’s “rational” decision, Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983), applies with particular force. Likewise, it would be especially
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improper to require the Acting Secretary to spell out her subsidiary legal reasoning, so long as her “path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974); see San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 999 (9th Cir. 2014) (even very brief explanation is adequate). And the Acting Secretary necessarily had wide latitude to determine what the “important aspect[s] of the problem” were that she needed to consider. State Farm, 463 U.S. at 43.
To overcome the Acting Secretary’s broad discretion, plaintiffs portray her decision as resting solely on a conclusion that DACA had to be rescinded because it was illegal. E.g., States.Br. 15; Regents.Br. 26; Garcia.Br. 16-17; see also ER.39 (district court’s similar holding). But that is a mischaracterization of the Acting Secretary’s memorandum, which instead explained her conclusion that DACA “should” be rescinded after “[t]aking into consideration” the Texas litigation invalidating DAPA and expanded DACA, as well as the Attorney General’s opinion that DACA “likely” would and should meet the same fate. ER.129-30. As explained in our opening brief, and further detailed below, the memorandum thus did not rely solely on illegality per se, but rather principally on litigation risk and legality concerns. As a Maryland district court recently held, that was an eminently reasonable basis to rescind DACA, Casa de Maryland v. DHS, No. 17-2942, 2018 WL 1156769, at *9 (D. Md. Mar. 5, 2018), and plaintiffs fail to show otherwise.
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1. Plaintiffs fail to distinguish the Texas decisions’ invalidation of DAPA.
At the outset, in criticizing the Acting Secretary’s reliance on the Texas decisions, plaintiffs repeatedly attempt to increase her burden under the APA review standard, by urging that she was required both to spell out in detail why she concluded that DAPA and DACA were sufficiently similar, and to anticipatorily rebut all the reasons plaintiffs now assert the facial similarities are illusory. States.Br. 42-45, 48-49, 54-55; Regents.Br. 48, 53; Garcia.Br. 32-33, 40. But plaintiffs have pointed to no law supporting their premise that the arbitrary-and-capricious standard requires an agency to spell out subsidiary legal grounds supporting an ultimate legal conclusion that is reasonable on its face. Although plaintiffs emphasize a case holding that “conclusory statements” that “explain[ ] nothing about why the agency” reached its decision are insufficient, that same case also reaffirmed that an agency need “not explicitly connect the dots” where its “path may reasonably be discerned.” Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350-51 (D.C. Cir. 2014). Indeed, the memorandum that originally adopted DACA contained no analysis of its legality, ER.141-43, yet plaintiffs obviously do not contend that the DACA policy itself was arbitrary and capricious. Nor did the APA require the Acting Secretary to conduct a more detailed analysis of DACA’s legality before rescinding that policy. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009).
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Turning to the merits of whether DACA is distinguishable from DAPA under the Texas decisions, an insurmountable obstacle to plaintiffs’ position is that the district court’s injunction affirmed by the Fifth Circuit covered both DAPA and expanded DACA. Texas v. United States, 86 F. Supp. 3d 591, 677-78 (S.D. Tex. 2015); Texas, 809 F.3d at 147 n.11, 178. Although plaintiffs note that the DACA expansion was distinct from the original policy, States.Br. 45 n.15; Regents.Br. 48 n.9, they do not and cannot explain why the distinctions—which merely concerned the length of the deferred-action period and the age and residence guidelines—would have been legally material to the rationale of the Texas courts. Indeed, the very fact that the Fifth Circuit did not separately analyze expanded DACA underscores it viewed that policy (and thus DACA itself) to be materially indistinguishable from DAPA, as the district court had held.
As to the Fifth Circuit’s substantive holding, plaintiffs reprise the distinction proposed by the district court here—namely, that because the INA contains a pathway to lawful status for DAPA beneficiaries, but not for DACA recipients, DAPA was somehow more suspect. States.Br. 45-46 & n.16; Regents.Br. 48-49 & n.10; Garcia.Br. 35 & n.5. As we have explained, however, this gets matters backward: because the INA does not provide a pathway to lawful status for individuals eligible for DACA, that policy is an even greater affront to Congress’s legislative judgment. Br. 32. Plaintiffs’ rejoinder that the Fifth Circuit would have viewed this as mere congressional “silence” conflicts with that court’s determination that the INA is a
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comprehensive, reticulated scheme. See Texas, 809 F.3d at 179 (“[T]he INA expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present.”). Relying on its understanding of the INA, the Fifth Circuit distinguished historical examples of deferred action, which it viewed as involving true gaps in the INA in emergency or interim situations. See id. at 184.
Plaintiffs also repeat the district court’s suggestion that the somewhat smaller number of people affected by DACA somehow distinguishes it from DAPA. States.Br. 46; Regents.Br. 49; Garcia.Br. 36. But plaintiffs have no response to our showing (Br. 33) that the relatively modest size difference between these two major policies is legally immaterial under the Fifth Circuit’s rationale. Conversely, plaintiffs’ reliance on the relatively large size of the Family Fairness program fails to further their argument. Garcia.Br. 30; States.Br. 46. That program was of an entirely different nature, in the Fifth Circuit’s view, because it was “interstitial to a statutory legalization scheme.” Texas, 809 F.3d at 185.
Finally, as to the Fifth Circuit’s procedural holding, plaintiffs do not even attempt to refute our showing (Br. 29-30) that DACA cannot be distinguished from DAPA and expanded DACA because the court based its holding as to the latter policies on a comparison to the former policy. Rather, plaintiffs’ only response is to argue that the Fifth Circuit’s holding was incorrect. States.Br. 46-47; Regents.Br. 4951; Garcia.Br. 36-37. But whether or not the Fifth Circuit was correct, it does not
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change the fact that in renewed litigation in the Fifth Circuit, DACA would have been enjoined as violating the APA’s notice-and-comment requirements.
2. Because the Texas decisions apply with equal force to DACA, the Acting Secretary reasonably rescinded DACA based on litigation risk.
Plaintiffs also proffer several reasons why, even accepting that DACA is indistinguishable from DAPA on the merits under the Texas decisions, litigation risk nevertheless cannot justify the Acting Secretary’s rescission decision. Those reasons are all unavailing.
Plaintiffs’ primary contention is that this litigation-risk rationale is “post-hoc.” States.Br. 53-54; Regents.Br. 52; Garcia.Br. 38-39. But plaintiffs continue to ignore the text of the Acting Secretary’s memorandum, which does not say that DACA must be rescinded because it is illegal, but rather that it “should” be rescinded, “[t]aking into consideration” the Texas decisions as well as the Attorney General’s letter, and “[i]n the exercise of [her] authority in establishing national immigration policies and priorities” under 6 U.S.C. § 202(5). ER.129-30. Moreover, prior to that conclusion, the memorandum detailed the Texas litigation resulting in the invalidation of DAPA and expanded DACA, acknowledged the subsequent letter from Texas and other States stating their intention to amend the existing lawsuit to challenge the original DACA policy, and quoted the Attorney General’s qualified statement that “it is likely that potentially imminent litigation would yield similar results with respect to DACA.”
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ER.126-29. Plaintiffs’ blinkered reading of the Acting Secretary’s rationale is therefore plainly not the only one that “may reasonably be discerned.” Bowman, 419 U.S. at 286.
Plaintiffs further contend that the Acting Secretary failed to consider that a subsequent Fifth Circuit panel or the Supreme Court might have disagreed with the Texas decisions on the merits. States.Br. 44-45. But a subsequent panel would have been bound by the prior panel’s analysis, at least at the preliminary-injunction stage. Trizec Prop., Inc. v. U.S. Mineral Prods. Co., 974 F.2d 602, 604 n. 9 (5th Cir. 1992) (recognizing that the court is “bound to prior panel opinions absent en banc reconsideration or a superseding contrary Supreme Court case”). And contrary to plaintiffs’ suggestion, the four Justices who voted in Texas to affirm the preliminary injunction necessarily determined there was a likelihood of success on the merits. Compare Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008) (when affirming a preliminary injunction, court is required to find a likelihood of success on the merits), with Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam) (when denying a stay of a preliminary injunction, court may rely on equitable factors rather than the merits).
Plaintiffs likewise fail to identify non-merits defenses that the government could have raised if DACA had been challenged under the Texas decisions. Contrary to plaintiffs’ argument, a laches defense would not have been successful. States.Br. 55; Regents.Br. 53-54; Garcia.Br. 36. Plaintiffs do not suggest that the suit’s delay would have prejudiced the government in the litigation or otherwise, and their suggestion of
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prejudice to DACA recipients—even assuming it were relevant—is implausible. There is no basis to speculate that DACA would have been less likely to be invalidated if the challenge had been filed earlier, and an earlier invalidation of DACA would have deprived DACA recipients of the benefits from the policy that plaintiffs themselves now emphasize. Similarly, plaintiffs err in asserting that equitable factors (such as DACA’s existence for several years) would have justified distinguishing DAPA’s invalidation in Texas. States.Br. 55; Regents.Br. 56-57; Garcia.Br. 36. To the contrary, allowing further implementation of a policy affirmatively sanctioning unlawful presence would simply have compounded the difficulties in reversing the policy.
Finally, plaintiffs err in contending that Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015) (en banc), categorically rejected litigation risk as a basis for rescinding prior agency action. States.Br. 54; Regents.Br. 53; Garcia.Br. 40. There, USDA initially had determined not to exempt a particular forest from a rule prohibiting roads in certain areas of national parks, but then reversed course two years later on the identical factual record. Kake, 795 F.3d at 959. As a tertiary rationale for its changed position, USDA suggested that granting the exemption would “reduce[ ] the potential for conflicts” in light of “litigation over the last two years” concerning its rule. Id. at 970. This Court rejected that rationale because the “other lawsuits involved forests other than the [one exempted],” and thus it was “impossible to discern how [the] exemption . . . would affect them,” and USDA “[a]t most . . . [had] deliberately traded one lawsuit for another.” Id. Kake is entirely inapposite. It involved the scope
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of a substantive rule rather than a purely discretionary enforcement policy, and it involved speculative litigation benefits rather than the significant litigation benefit of mooting a near-certain injunction. In short, the government’s position here is not that it may “trade[ ] one lawsuit for another,” but instead that it may choose an orderly wind-down of a purely discretionary non-enforcement policy rather than litigate to the bitter end in the face of adverse precedent.
3. Because the Texas decisions apply with equal force to DACA, the Acting Secretary also reasonably rescinded DACA based on concerns about its legality.
Even apart from the litigation-risk rationale, it was eminently reasonable for the Acting Secretary to rescind DACA based on the significant concerns about its legality in light of the Texas decisions and the Attorney General’s opinion. Plaintiffs’ contrary arguments are mistaken.
Plaintiffs’ primary response is that the Texas decisions are incorrect and thus reliance on their conclusions was legally erroneous. States.Br. 39-41, 43-44, 46-48; Regents.Br. 47-51; Garcia.Br. 29-31. Even setting aside that the Supreme Court affirmed the Texas injunction by an equally divided Court, there is a fundamental flaw in plaintiffs’ argument: the reasonableness of the Acting Secretary’s decision to rescind this purely discretionary non-enforcement policy because of significant legality concerns does not turn on whether DACA was in fact illegal. Again, it warrants emphasis that the Acting Secretary’s memorandum explains that she concluded she “should” rescind DACA after “[t]aking into consideration” the legal conclusions of
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the Texas courts and the Attorney General’s letter, not that she must rescind DACA solely because she had determined those conclusions are legally correct. ER.129-30. At a minimum, that reading is a “reasonably . . . discern[ible]” interpretation of the Acting Secretary’s memorandum. Bowman, 419 U.S. at 286. That reading supports the Acting Secretary’s decision to end this purely discretionary non-enforcement policy (whether or not those legal conclusions were correct), and it renders inapposite the cases cited by plaintiffs for the proposition that reviewable agency action must be set aside where it rests on an error of law. See States.Br. 49-50; Regents.Br. 51; Garcia.Br. 33.
Likewise, plaintiffs cannot undermine the reasonableness of the Acting Secretary’s decision by arguing that the Attorney General erroneously stated that the Fifth Circuit had found “constitutional” defects in DAPA and expanded DACA. States.Br. 42; Regents.Br. 46; Garcia.Br. 40-41. The Acting Secretary made her decision after “[t]aking into consideration” the Attorney General’s letter and the Fifth Circuit’s ruling, but nothing in her memorandum suggests that she misunderstood the nature of that ruling, which she herself described in purely statutory terms. ER.130. Moreover, even the Attorney General’s letter in its entirety should not be read to attribute “constitutional” holdings to the Texas courts, but rather to invoke the “legal grounds” they adopted in support of his own view that DACA was “unconstitutional.” ER.176. And in any event, any error in attributing a finding of unconstitutionality to the Texas courts was plainly harmless because the Attorney General did not rescind DACA. Rather, the Acting Secretary did, and it is clear from
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her memorandum that her decision did not depend in any way on whether DACA
was unconstitutional, rather than “merely” contrary to statute and likely to be
enjoined regardless.5
Finally, plaintiffs erroneously suggest that even if the Acting Secretary’s legality
concerns were otherwise valid, they must be set aside because they represent a marked
and unexplained change in position. States.Br. 39-43, 48-50; Regents.Br. 47-48, 57-58;
Garcia.Br. 37-39. It is of course true that the prior Administration defended DACA’s
legality in court, though plaintiffs neglect to mention that none of the resulting
appellate decisions (other than the Fifth Circuit’s Texas decision) reached the merits of
the DACA policy.6 Nevertheless, the Acting Secretary’s memorandum makes clear
that DHS changed its position because the Texas injunction against DAPA and
expanded DACA was affirmed by an equally divided Supreme Court; the Attorney
General has disavowed the prior position; and Texas and other States were
5 Plaintiffs are also wrong to suggest (Garcia.Br. 34, 37) that the government itself has conceded in this litigation that the Fifth Circuit erred in its procedural holding that DACA was required to go through notice and comment. Although the government noted that “controlling Ninth Circuit precedent”—Mada-Luna, supra— generally “constru[es] INS deferred-action directives as policy statements exempt from notice and comment,” Dkt. 204, at 26-27, Mada-Luna recognized the same exception that the Fifth Circuit did: a categorical deferred-action directive that deprives officials of individual discretion is a substantive rule. Compare Mada-Luna, 813 F.2d at 1014, with Texas, 809 F.3d at 171-78.
6 Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 975 (9th Cir. 2017) (declining to rule on the constitutionality of DACA), cert. denied, 2018 WL 1369140 (Mar. 19, 2018); Arpaio v. Obama, 797 F.3d 11, 14-15 (D.C. Cir. 2015) (suit dismissed for lack of standing); Crane v. Johnson, 783 F.3d 244, 247 (5th Cir. 2015) (same).
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threatening to challenge DACA. That is more than sufficient to satisfy the APA’s requirement to acknowledge and explain a changed position. Fox, 556 U.S. at 514-15.
4. Plaintiff’s additional arbitrary-and-capricious arguments are without merit.
a. Like the district court, plaintiffs err in asserting that the Acting Secretary’s decision is invalid because it did not expressly consider DACA recipients’ reliance interests. They emphasize the ways in which DACA recipients have benefited from the policy. States.Br. 50-53; Regents.Br. 57-60; Garcia.Br. 41-42. But those benefits do not transform a temporary non-enforcement policy that was revocable at will into one that created legitimate reliance interests. DACA made deferred action available for only two-year periods, which could “be terminated at any time” at the agency’s discretion. ER.151. And when President Obama announced DACA in 2012, he emphasized that it was a “temporary stopgap measure,” not a “permanent fix.” Remarks by the President on Immigration (June 15, 2012), https://go.usa.gov/xnZFY. Thus, the reason that DACA recipients’ reliance interests are less substantial than the reliance interests at issue in Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016), is not, of course, because the adverse effects on DACA recipients are less substantial than the impact on car dealers from the changed interpretation of the overtime exemption. Rather, it is because DACA recipients could not justifiably rely on the policy’s continued existence, given the particularly ephemeral nature of the agency action at issue: namely, DACA was not just a discretionary policy, but one that was
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expressly temporary as well as expressly revocable at will, without any statutory constraints. ER.151.
Indeed, for a change to a purely discretionary enforcement policy, there simply is no requirement that an agency expressly consider whatever benefits of the prior policy may later be posited by challengers. Contrary to plaintiffs’ suggestion (Garcia.Br. 41), this is unlike Michigan v. EPA, 135 S. Ct. 2699 (2015), where costbenefit consideration flows from a statutory requirement that regulation must be “appropriate and necessary.” Id. at 2707. There are no standards governing whether to end a deferred-action enforcement policy, and thus no metric for determining what factors must be weighed. The Acting Secretary could quite properly conclude that she would pursue a different enforcement policy based on her own view of her statutory responsibilities and priorities. Indeed, the memorandum originally adopting DACA did not contain any discussion of the economic and other costs of adopting the policy, ER.140-43, yet plaintiffs obviously do not contend that the DACA policy itself was arbitrary and capricious.
Notably, although the district court correctly recognized that the Acting Secretary’s memorandum was a general statement of policy exempt from notice-andcomment rulemaking, infra p. 53, the court overlooked the significance of that procedural posture when assessing whether the Acting Secretary had failed to consider an “important aspect” of the decision. State Farm, 463 U.S. at 43. In setting forth a general statement of policy governing enforcement discretion—i.e., a decision
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that is not constrained by any statutory or regulatory factors and not subject to public comment from potential objectors—the Acting Secretary must be afforded reasonable deference in her determination of what aspects of the problem were “important,” and she cannot have been required to engage in unreasonable speculation as to what interests a court may later deem important based on post hoc objections. Otherwise a court has improperly “substitute[d] its judgment” for her “rational” decision. Id.
In all events, the Acting Secretary’s reason for not giving greater weight to plaintiffs’ alleged reliance interests is self-evident from the face of her decision: there were significant litigation-risk and legality concerns with DACA, which were quite likely to overtake whatever questionable reliance interests existed if she had not rescinded the policy. Accordingly, she had no need to “explicitly connect the dots” because her “path may reasonably be discerned.” Amerijet, 753 F.3d at 1351-52.
b. Finally, one set of plaintiffs asserts that the Acting Secretary’s articulated rationale was pretextual. Regents.Br. 62-65. It is noteworthy that the other plaintiffs do not join in this contention and that the district court did not make any such finding. For good reason, because the pretext allegation is baseless.
Plaintiffs fall far short of making the “strong showing of bad faith or improper behavior” necessary to overcome the presumption of regularity. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). To do so, they must proffer “serious, nonconclusory allegation[s].” Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 72 (D.C. Cir. 1987).
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Plaintiffs fail to meet this high burden, as none of the alleged “flaws” and “inconsistencies” they rely upon (Regents.Br. 62) come close to raising any inference of bad faith. Indeed, none of the statements that supposedly indicate an alternative rationale are from the Acting Secretary herself—the only official vested with authority under the INA, 8 U.S.C. § 1103(a)(1), to make the decision at issue. See Regents.Br. 62-63 (relying on statements of the President, the Attorney General, and a Senior Counselor to the Acting Secretary).
Unable to point to any express statements by the Acting Secretary, plaintiffs instead try to infer pretext on her part based on alleged defects in her decision. But it is plaintiffs who err.
For starters, plaintiffs contend that “[i]n rescinding DACA, the Acting Secretary relied on the false claim that DAPA had been adjudged unconstitutional.” Regents.Br. 62. But that contention is itself false, because the Acting Secretary’s memorandum clearly and accurately described the statutory grounds upon which the Fifth Circuit had ruled in Texas. Supra pp. 28-29.
Likewise, plaintiffs contend that “[t]he government has asserted a series of defenses in this litigation that, if successful, would have equally applied to eliminate litigation risk from a lawsuit in Texas.” Regents.Br. 63. But that is a non sequitur, because the postures of the two cases are completely different. The fact that the government has raised certain defenses in the Ninth Circuit in support of the rescission of DACA does not mean that the government believed that such defenses also would
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have proved successful if raised in the Fifth Circuit in support of the continuation of DACA—especially since the Fifth Circuit had already rejected those defenses when raised in support of the continuation of DAPA and expanded DACA. For example, the court held that the adoption of DAPA was not committed to agency discretion by law because it could “be reviewed to determine whether the agency exceeded its statutory powers,” and the court held that the States’ challenge to the adoption of DAPA was not barred by section 1252(g) because it neither involved an action “to commence proceedings” nor was brought “by or on behalf of any alien.” Texas, 809 F.3d at 164, 168. Of course, all of those rationales for allowing review in Texas would have equally applied to a challenge to the continuation of DACA, yet none of them is applicable to the challenge here to the rescission of DACA. Supra at pp. 21-24. Simply put, the alleged inconsistency is illusory.
Plaintiffs’ reliance on statements by officials other than the Acting Secretary is even further afield. Regents.Br. 62-63. That other officials might have different views regarding the rescission of DACA does not indicate that the reasons given by the actual decisionmaker—the Acting Secretary—were pretextual. And besides, plaintiffs mischaracterize the views of the other officials.
For instance, plaintiffs suggest (Regents.Br. 63) that the Acting Secretary’s assessment of DACA litigation risk was a pretense because one of her advisors, when asked at a deposition, “Does DHS have a policy on how to deal with litigation risk?”, responded: “[T]hat sounds like the craziest policy you could ever have” because
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“[y]ou could never do anything if you were always worried about being sued.” SER.1377-78. But the advisor’s disavowal of a generalized policy to avoid “litigation risk” says nothing about how DHS chose to address the particular litigation risk from DACA.
Plaintiffs also rely (Regents.Br. 62) on a tweet from President Trump indicating that, if Congress “can’t” pass a legislative fix for DACA recipients, he “will revisit the issue!” SER.1382. But that comment is fully consistent with the President’s clearly stated view that “the program is unlawful and unconstitutional and cannot be successfully defended in court.” Statement from President Trump (Sept. 5, 2017), https://www.whitehouse.gov/the-press-office/2017/09/05/statement-presidentdonald-j-trump. The tweet simply expressed the President’s intention to revisit Administration policies on childhood arrivals—not the legality and defensibility of the DACA policy—if Congress did not timely act.
Plaintiffs further rely (Regents.Br. 63) on certain statements made by the Attorney General to the effect that DACA could be legal under the Texas decisions if it had been implemented on an individualized basis. But as we previously explained (Br. 33-34), that is precisely what the DACA rescission did.
Finally, the mere fact that plaintiffs can hypothesize alternative rationales for the DACA rescission—e.g., to influence immigration negotiations with Congress, see Regents.Br. 63-65—is obviously insufficient to render the Acting Secretary’s articulated rationales pretextual. Moreover, even if the Acting Secretary had as an
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additional reasonable consideration that Congress should address the status of DACA recipients as part of a larger package of immigration reform, that still would not undermine the validity of the reasonable rationales upon which the Acting Secretary rested her decision to rescind DACA.
B. The DACA rescission did not violate equal protection. 1. Plaintiffs have failed to state a claim that the DACA rescission violated equal protection. Their claims are foreclosed by the Supreme Court’s decision in AADC, which imposed a general bar on discriminatory-motive claims in the immigrationenforcement context. Such claims, the Court explained, “invade a special province of the Executive—its prosecutorial discretion.” 525 U.S. at 489; see also United States v. Armstrong, 517 U.S. 456, 463-65 (1996). And in the immigration context, this concern is “greatly magnified” because such claims “permit and prolong a continuing violation of United States law,” and also potentially implicate foreign policy concerns. AADC, 525 U.S. at 490-91. Like the district court, plaintiffs attempt to evade AADC and Armstrong by describing those cases as limited to claims challenging “selective enforcement” of “individual[s],” as opposed to claims challenging “programmatic decisions” to enforce for “discriminatory reasons.” Garcia.Br. 52. But plaintiffs likewise fail to provide any basis in precedent or logic for such a distinction. Where, as here, the “entire government program” at issue (Garcia.Br. 52) concerns the exercise of immigration-enforcement discretion, AADC’s rationale
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applies, not just fully but even more strongly, to claims that the policy’s rescission was motivated by discrimination: such claims “invade” the Executive Branch’s “special province” over enforcement discretion, and they enable aliens without lawful status “to permit and prolong a continuing violation of United States law.” AADC, 525 U.S. at 489-90. Although plaintiffs here insist that they “are not seeking a defense to deportation but are challenging a policy as a whole,” Garcia.Br. 52, that is nonsense: they have sought and obtained an injunction requiring maintenance of a deferred action policy of forbearance from removal, and that relief has the purpose and effect of interfering with the government’s discretion to remove the covered aliens.
The few cases cited by plaintiffs (Garcia.Br. 52-53) to support their position are facially inapposite. Unlike AADC, none of them involves the exercise of enforcement discretion, let alone immigration-enforcement discretion. Rather, they all involved claims concerning plaintiffs’ substantive treatment. See Kwai Fun Wong v. United States, 373 F.3d 952, 970 (9th Cir. 2004) (challenge to adjustment of status and parole revocation decisions); Jean v. Nelson, 711 F.2d 1455, 1462-63 (11th Cir. 1983) (challenge to decision whether to detain or parole illegal aliens pending a determination of their right to enter the country); Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 256-58 (1977) (challenge to a municipal zoning decision).
2. Notably, plaintiffs do not attempt to argue that this case qualifies for AADC ’s sole potential exception, reserved for “a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be
37

overcome.” 525 U.S. at 491. Plaintiffs have therefore forfeited any such contention, and their claim must be dismissed under AADC.
In any event, to the extent plaintiffs could somehow bring their claim despite AADC ’s general bar on immigration-enforcement challenges, they at least must produce the type of “clear evidence” of discriminatory motive that would be required in a criminal-enforcement challenge. AADC, 525 U.S. at 489. Plaintiffs have not come close to satisfying that burden.
First, plaintiffs essentially concede (Garcia.Br. 49) that they have no evidence of discriminatory intent on the part of the Acting Secretary, who, to repeat, was the sole official authorized to rescind DACA. Plaintiffs instead contend that the President’s allegedly discriminatory motive can be imputed to the Acting Secretary simply because she “reported to the President.” Garcia.Br. 49. But the sole authority they cite for that breathtaking proposition—Pacific Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142 (9th Cir. 2013)—is completely inapposite. There, after detailing evidence that a city council member had expressly admitted a discriminatory motive during a public meeting, this Court observed in a footnote that there was further evidence of that motive based on comments by the public during the meeting and the council members’ responsiveness to those views. See id. at 1163 & n.26. It should go without saying that this case does not remotely support the proposition that plaintiffs can impute alleged discriminatory animus of the President to a Cabinet Secretary whose motives have never been questioned, simply because she reports to the President.
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Second, plaintiffs suggest (Garcia.Br. 49-50) that statements of the President concerning “nationality” are merely a different “kind of animus,” but that is legally incorrect. Unlike race, ethnicity, or national-origin discrimination, distinctions based on nationality per se are not invidious but rather commonplace under federal immigration law—as plaintiffs do not and cannot dispute. Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008).
Third, plaintiffs do not deny (Garcia.Br. 50-51) that they are unable to identify any statements regarding the DACA policy that are based on race, ethnicity, or national origin. It therefore makes no sense for them to characterize the President’s pro-DACA statements as “camouflage,” Garcia.Br. 50, as plaintiffs have identified no discriminatory animus concerning DACA that needed to be disguised.
Fourth, as for plaintiffs’ suggestion (Garcia.Br. 48) that the government’s reversal of course and alleged “irregularities” in the decisionmaking process are evidence of pretext, that is far too thin a reed on which to rest a claim of discriminatory animus on the part of government officials. Indeed, plaintiffs fail to articulate any rational connection between the speed with which DACA was reversed and the likelihood of its being racially motivated. This failure is all the more apparent given the intervening threat by Texas and other States to challenge the DACA policy within the Fifth Circuit. ER.125-29, 274-76.
Finally, and most fundamentally, plaintiffs have no response to the basic implausibility of their claim: that the Acting Secretary’s decision to stop affirmatively
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sanctioning an ongoing violation of federal law by roughly 700,000 aliens without lawful status, in the face of significant questions about the legality of that policy, was instead motivated in any respect by the particular race of the aliens at issue. Such a bald assertion, devoid of plausible supporting factual content, does not even satisfy the ordinary pleading requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009), much less the heightened requirements for a selective enforcement claim under AADC and Armstrong.
C. The implementation of the DACA rescission will not violate due process.
1. At the outset, plaintiffs erroneously suggest (States.Br. 62-63) that this Court should not review the question whether they have failed to state a due-process claim challenging an alleged change in the government’s policy of sharing information provided by DACA recipients. Plaintiffs observe that the government did not separately enumerate that question in its petition for permission to appeal. This procedural objection is meritless.
When Federal Rule of Appellate Procedure 5(b)(1) states that “the question presented” must be included in the petition for permission to appeal, it is referring to the “controlling question of law” that has been certified for interlocutory appeal under 28 U.S.C. § 1292(b). The government did include those questions in its petition, see Pet. 1, and this Court granted the petition. Once appeal has been authorized under section 1292(b), this Court then may “exercise jurisdiction over any question that,” as
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here, “is included within the order that contains the controlling question of law identified by the district court.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 204 (1996). Plaintiffs’ cases are not to the contrary. McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1263 (11th Cir. 2004) (declining to consider a new issue raised for the first time during oral argument); In re GGM, PC, 165 F.3d 1026, 1032 (5th Cir. 1999) (applying waiver principles to a bankruptcy rule, not a petition under section 1292(b)). In any event, plaintiffs provide no explanation why this Court should decline to review this question, given that deciding it would prejudice no one, whereas not deciding it would result in the very sort of piecemeal appellate proceedings that this Court’s acceptance of all the certified interlocutory appeals was presumably intended to prevent.
2. As the government previously explained (Br. 45-47), plaintiffs have not alleged any facts giving rise to a plausible inference that DHS has changed its policy regarding whether information provided by DACA recipients to U.S. Citizenship and Immigration Services (USCIS) will be shared with other DHS components for purposes of immigration enforcement. To the contrary, it is clear that DHS’s policy— although always subject to change—has not changed at all.
Plaintiffs’ contention that DHS has in fact changed its policy is a conclusory assertion not entitled to the presumption of truth. Iqbal, 556 U.S. at 678-79. They merely emphasize that the words “generally” and “proactively” were added in a Q&A document about the policy. States.Br. 63-64; Garcia.Br. 55-57. But neither adverb
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represents that “special” or “non-proactive” releases will be made when they otherwise would not have been previously, and plaintiffs provide no plausible factual allegation to the contrary.
Moreover, DHS has consistently reassured the public that its informationsharing policy “has not changed in any way.” USCIS, DHS, Frequently Asked Questions: Rejected DACA Requests Q5 (Dec. 27, 2017), https://www.uscis.gov/daca2017/mailfaqs; see also ER.136. Indeed, for this reason, the district court in the parallel New York lawsuit recently dismissed this claim. Batalla Vidal v. Nielsen, No. 16-cv-4756, 2018 WL 1532370, at *10 (E.D.N.Y. Mar. 29, 2018).
3. Plaintiffs further argue that the alleged policy change was an improper deprivation of a protected interest in the use of their information because it is “ambiguous” whether the reservation of rights clause to change the policy applied to existing recipients rather than new requestors. States.Br. 64-65; Garcia.Br. 54-55. But there are myriad flaws with that argument.
First, plaintiffs do not and cannot allege any ambiguity in the separate clause that the policy “may not be relied upon to create any right or benefit, substantive or procedural.” ER.149. That alone defeats plaintiffs’ claim to having a protected due process interest. Doran v. Houle, 721 F.2d 1182, 1185 (9th Cir. 1983) (“Where the government, as the source of the interest in question, retains unrestricted discretion over future enjoyment of the interest, the interest is not a protected entitlement.”). Plaintiffs cite nothing to the contrary. Second, especially in light of the preceding
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language, the reservation of rights to change the policy does unambiguously cover existing recipients. After all, it covered rescission “at any time without notice”: “at any time” includes post-request, and it would be meaningless if focused only on new requestors. Plaintiffs fail to provide any explanation for this language. Third, at a minimum, plaintiffs’ claim fails with respect to information contained in renewal requests after September 5, 2017. Even plaintiffs’ own reading of the reservation of rights would include those requests.
In plaintiffs’ final effort to create a protected interest where none exists, they cite a December 30, 2016, letter by the outgoing Secretary of Homeland Security to a member of Congress, in which he advocates for the incoming administration to maintain the same policy regarding information-sharing. States.Br. 63; Garcia.Br. 5455. But this letter does not address DHS’s legal authority to change the policy, and it of course cannot create a protected interest that did not otherwise exist.
D. The district court’s nationwide injunction is overbroad. 1. As the government demonstrated (Br. 49-54), both Article III and equitable principles require that injunctions be no broader than necessary to redress named plaintiffs’ injuries. All of plaintiffs’ counterarguments fail. First, plaintiffs’ reliance on the fact that some of them have demonstrated an Article III injury misses the mark. States.Br. 59; Garcia.Br. 46 n.8. “[S]tanding is not dispensed in gross,” and a plaintiff must establish standing “separately for each form of relief sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017).
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Accordingly, the relief provided in this case must be tailored specifically to redressing any cognizable injuries of plaintiffs.
Second, plaintiffs also argue that courts of equity need not limit their injunctions to the plaintiffs’ own injuries. But their analysis of the case law is mistaken.
Plaintiffs try (States.Br. 61) to distinguish Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011), and Meinhold v. Department of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994), on the ground that those cases involved only a single plaintiff. The reasoning of those cases, however, did not turn on the number of the plaintiffs there, but on whether the injunction went beyond what was necessary for those plaintiffs.
Plaintiffs next affirmatively invoke (States.Br. 61; Garcia.Br. 43) a quotation from Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1987), that there “is no general requirement that an injunction affect only the parties in the suit.” But this Court simply meant that non-parties can incidentally benefit from injunctions necessary to redress a plaintiff’s injuries. Id. at 1170-71(“[A]n injunction is not necessarily made over-broad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.”). Indeed, in Bresgal this Court made clear that “[w]here relief can be structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown.” Id. at 1170. It is only where such relief is
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unworkable that a court should consider whether broader relief is necessary to provide the parties themselves with adequate relief.
Plaintiffs likewise rely (States.Br. 59-60; Garcia.Br. 43) on Califano v. Yamasaki, 442 U.S. 682, 702 (1979), for the proposition that “the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” But the Supreme Court was merely rejecting the argument that certifying a nationwide class action was improper, not that relief to non-parties was somehow proper. Id. To the contrary, as this Court recognized in Bresgal, Yamasaki ’s “primary concern” was that “the relief granted is not ‘more burdensome than necessary to redress the complaining parties.’” Bresgal, 843 F.2d at 1170 (quoting Yamasaki, 442 U.S. at 702).
Plaintiffs also rely (States.Br. 60) on the Supreme Court’s stay opinion in International Refugee Assistance Project, 137 S. Ct. at 2087. But that partial denial of a stay was not a decision on the merits, and as we previously explained (Br. 53), the lower courts in the cases concerning the President’s travel orders have tried to justify nationwide injunctions based on a particular need for uniformity in enforcing immigration laws. But whatever the merits of that justification, it cuts in the opposite
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way here, as expansion of deferred action exacerbates the departure from vigorous and uniform enforcement of the immigration laws.7
Third, plaintiffs argue that nationwide injunctions are permissible in an APA suit because the APA authorizes a court to “set aside” unlawful agency action. Regents.Br. 70; Garcia.Br. 43-44. This argument is incorrect even as to permanent relief under the APA, see, e.g., Los Angeles Haven Hospice, 638 F.3d at 664; Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 394 (4th Cir. 2001), but it is especially flawed as to preliminary injunctive relief under the APA.
The APA itself expressly provides that “to the extent necessary to prevent irreparable injury, the reviewing court” in an APA action “may issue all necessary and appropriate process . . . to preserve status or rights pending conclusion of the review proceedings.” 5 U.S.C. § 705 (“Relief pending review”). In allowing preliminary injunctions only “to the extent necessary to prevent irreparable injury,” the APA thus codifies the principle that preliminary injunctions are not designed to “enjoin all possible breaches of the law,” but rather to “remedy the specific harms” allegedly suffered by plaintiffs themselves, Zepeda v. U.S. INS, 753 F.2d 719, 728 n.1 (9th Cir. 1983); see also Bresgal, 843 F.2d at 1169 (recognizing this “rule” for “preliminary
7 Plaintiffs also rely (Regents Br. 69) on some additional cases that are facially inapposite. Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991), involved the question of the geographic scope of relief to protect the plaintiffs’ own trade secrets, and De Beers Consolidated Mines v. United States, 325 U.S. 212, 219, 221 (1945), concerned the validity of an injunction sought by the United States to restrain certain property.
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injunction[s]” in the APA context). Indeed, even assuming that permanent relief could go beyond plaintiffs, it is particularly sensible to limit preliminary relief to plaintiffs properly before the court, given the tentative nature of the ruling. See Bresgal, 843 F.2d at 1169.
Finally, plaintiffs insist that nationwide injunctions have no adverse effect on parallel litigation. States.Br. 62. But that is plainly not true. Here, for example, a Maryland district court has held on summary judgment that the Acting Secretary’s decision to rescind DACA was lawful. Casa de Maryland, 2018 WL 1156769, at *15. Nonetheless, all named plaintiffs in that case, including the individual DACArecipient members of Casa de Maryland, are currently benefitting from the nationwide preliminary injunction here (and the one entered in the New York litigation), despite losing a final judgment in their own lawsuit. This vividly illustrates how nationwide injunctions improperly function as de facto one-way class actions. Plaintiffs thus are fundamentally mistaken (Garcia.Br. 44) in objecting to a “flood of duplicative litigation”: in individual litigation, plaintiffs would be bound by their wins and losses, and the Supreme Court is able to await percolation rather than being forced to take the first case where a court has ruled against the government and imposed a nationwide injunction. At a minimum, a properly certified class action would avoid or minimize duplicative litigation while still ensuring that both sides are equally bound by the judgment.
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2. As the government further demonstrated (Br. 54-56), this nationwide injunction goes well beyond redressing plaintiffs’ cognizable injuries. (Indeed, it has subsequently become especially erroneous because it provides relief to the DACA recipients represented in the Maryland case even though they are barred from obtaining relief here due to the res judicata effect of their own loss.) Again, the nonindividual plaintiffs’ arguments to the contrary fail.
First, plaintiffs suggest that a geographically limited injunction would be unworkable and create a patchwork of regulation. States.Br. 60-61; Regents.Br. 71. But this argument is doubly wrong. The district court held that the non-individual plaintiffs only satisfied Article III and the zone-of-interests test because of their status as employers, ER.27-28, and plaintiffs have failed to explain why it would not be workable to limit the injunction to their identifiable DACA-recipient employees. More fundamentally, as discussed below, the district court erred in holding that the nonindividual plaintiffs have a cognizable claim based on their employees, and plaintiffs do not dispute that it would be possible to limit the injunction to the named plaintiffs and union members.
Second, plaintiffs dispute (States.Br. 33) the import of the Article III analysis in Linda R.S. v. Richard D., 410 U.S. 614 (1973), by arguing that the case relied solely on a lack of traceable harm. But the Supreme Court’s statement that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another” was central to its holding. Id. at 619. Indeed, under plaintiffs’ reading of Linda R.S., if a
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third party could merely show sufficiently direct causation, that third party could sue to enjoin the allegedly unlawful impending prosecution of a criminal defendant. For example, under plaintiffs’ theory, employers who would have to hire a new employee to replace an existing employee who was convicted of a felony could bring suit to stop a criminal prosecution. But that would be a radical departure from “American jurisprudence,” as Linda R.S. emphasized. Id. Nor is there any basis (States.Br. 33) for limiting the reasoning of Linda R.S. to criminal enforcement. Plaintiffs have identified nothing that supports refusing to apply this general principle of American jurisprudence to immigration enforcement, and AADC expressly extends (and indeed strengthens) criminal-enforcement protections in the immigration-enforcement context. See supra p. 36. For similar reasons, any “special solicitude” for States under Massachusetts v. EPA, 549 U.S. 497, 536 (2007), does not counsel a different result here, as the State plaintiffs lack a cognizable interest at all.
Third, plaintiffs’ zone-of-interest arguments are similarly unpersuasive. Repeating the district court’s error, plaintiffs contend that they fall within the zone of interests of the INA because the INA contains provisions regarding work authorizations. States.Br. 34; Regents.Br. 74-75; Garcia.Br. 46 n.8. But those provisions are not the basis of their claims, which is fatal because a plaintiff must demonstrate that its claim “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for [its] complaint.” Lujan v. National Wildlife Fed’n, 497 U.S. 871, 883 (1990). Even more mistaken is
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plaintiffs’ contention that the zone-of-interests test can be satisfied by alleged educational injuries. States.Br. 34-35; Regents.Br. 72-74. The district court itself rejected this argument, holding that even if INA provisions concerning student visas supported a zone-of-interests analysis in some cases, plaintiffs had not alleged here “that their DACA-recipient students or employees qualify for such visas. Nor do plaintiffs point to any provisions of the INA which indicate a protected interest in enrolling students with deferred action in their schools or universities.” ER.27.
Likewise, plaintiffs err in asserting that their direct injuries obviate the need for this Court to consider third-party standing objections to their asserted constitutional claims. States.Br. 33 n.11; Regents.Br. 73. The fact that they may have an injury in fact does not eliminate the need for them to either assert their own constitutional rights or satisfy the additional requirements for asserting third-party rights. See Kowalski v. Tesmer, 543 U.S. 125, 129-30 (2004). The non-individual plaintiffs’ own rights under the Fifth Amendment are not at issue in this case. Nor can they satisfy third-party standing requirements because, unlike in the cases they cite, there is no impediment to DACA recipients suing on their own behalf, as happened both in this very case and in multiple other cases throughout the country.
Fundamentally, plaintiffs have done nothing to dispute that, on their capacious theory of cognizable injury under Article III and zone of interests under the INA, any employer in this country would have standing to challenge the removal of any of their alien employees. That is not, and cannot be, the law.
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III. On Plaintiffs’ Cross-Appeal, the District Court Should Be Affirmed to the Extent That It Granted the Government’s Motion to Dismiss. The district court correctly dismissed three of plaintiffs’ claims challenging the
rescission of DACA based on: (1) failure to use notice-and-comment rulemaking, ER.53; (2) the Due Process Clause, ER.55; and (3) equitable estoppel principles, ER.58. See also Batalla Vidal, 2018 WL 1532370, at *3-6. In their cross-appeal opening brief, plaintiffs raise only the first two claims, so the third is waived. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001).
A. The DACA rescission did not require notice-and-comment rulemaking.
1. The APA generally requires that agencies give notice of proposed rules to the public and provide interested persons with an opportunity to comment on the proposal. 5 U.S.C. § 553(b)-(c). These requirements do not apply, however, to “general statements of policy.” Id. § 553(b)(3)(A).
A general statement of policy “serves several beneficial functions.” Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974) (PGE). First, it “advise[s] the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Lincoln, 508 U.S. at 197 (quoting U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947)). “[L]ike a press release,” a general statement of policy “encourages public dissemination of the agency’s policies prior to their actual application in particular situations,” such as by
51

announcing “the course which the agency intends to follow in future adjudications.” PGE, 506 F.2d at 38. But it also serves purposes internal to the agency. General statements of policy “‘educate’ and provide direction to the agency’s personnel in the field, who are required to implement . . . policies and exercise . . . discretionary power in specific cases.” Mada-Luna, 813 F.2d at 1013. They thereby “promote[ ] uniformity in areas of national concern.” PGE, 506 F.2d at 38. Significantly, however, policy statements “are binding on neither the public nor the agency,” and the agency “retains the discretion and the authority to change its position . . . in any specific case.” Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (citations omitted).
By contrast, a “substantive rule” subject to requirements for notice-andcomment rulemaking is one that is “finally determinative of the issues or rights to which it is addressed.” PGE, 506 F.2d at 38. These rules are “binding” and have the “force of law.” Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979); see also Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015) (“Rules issued through the notice-andcomment process are often referred to as ‘legislative rules’ because they have the ‘force and effect of law.’”).
This Court’s decision in Mada-Luna recognizes that prosecutorial discretion policies that leave officials with discretion to make individualized determinations are general statements of policy rather than substantive rules. In that case, the INS repealed a “generous” deferred-action policy that limited officials’ discretion to deny relief, and replaced it with a policy that was less favorable to aliens because it
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“emphasize[d] the broad and unfettered discretion” to deny relief. 813 F.2d at 1009 & n.2, 1017. This Court held that both policies were general statements of policy because they were prospective in operation and did not establish a binding norm that precluded the exercise of discretion. Id. at 1017. The Court specifically rejected the contention that the new policy was a substantive rule merely because it “diminishe[d] the likelihood that . . . aliens will be granted deferred action status.” Id. at 1016. Rather, the Court concluded that where a policy leaves officials “free to consider the individual facts” in each case, it will not be considered a substantive rule simply because it has a “substantial impact.” Id. at 1016-17.
2. As the district court correctly recognized, Mada-Luna controls here. The Rescission Memo was issued as an “exercise of [the Secretary’s] authority in establishing national immigration policies and priorities,” ER.130, and explains how the agency intends to exercise its enforcement authority on a prospective basis. The decision “does not . . . create any right or benefit, substantive or procedural, enforceable at law by any party,” ER.131, and does not affect anyone’s current immigration status. Rather, the Acting Secretary’s memo describes how pending and future deferred action requests will be “adjudicate[d]—on an individual, case-by-case basis.” ER.130. See also Romeiro de Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985) (“Proposed regulations require publication because they normally involve substantive rights and have the force of law. INS operations instructions fall within section 553(b)(3)(A)’s exception because the instructions are internal directives not having the
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force and effect of law.”). The Rescission Memo does not categorically forbid DHS from continuing to
defer enforcement action against particular DACA recipients in the future, but instead acknowledges the background principle that deferred action is “an act of prosecutorial discretion” that may be exercised “on an individualized case-by-case basis,” ER.127, and that places “no limitations” on the agency’s exercise of such “otherwise lawful enforcement . . . prerogatives,” ER.131. Nothing in the Rescission Memo evidences an “inten[t] to be bound.” Municipality of Anchorage v. United States, 980 F.2d 1320, 1325 (9th Cir. 1992); see id. (explaining that where “one cannot state without reservation” whether the agency intends to be bound, “the better course is to withhold court review”); see also Morales de Soto, 824 F.3d at 827 (noting that memoranda that “speak only to the exercise of prosecutorial discretion . . . do not create or modify the law to be applied by this or any other court”).
3. Plaintiffs contend that the DACA rescission is a substantive rule because it withdrew officials’ discretion to deny deferred action under DACA. States.Br. 67-68; Regents.Br. 76-77; Garcia.Br. 66-67. But that is not the relevant question. In MadaLuna, this Court did not hold that the new deferred action policy was a substantive rule because it precluded the petitioner from obtaining relief under the prior policy. Rather, this Court recognized that the new policy was a general statement of policy because officials retained discretion “to consider the individual facts in each case” when deciding whether to grant deferred action under it. 813 F.2d at 1017 (quotation
54

marks omitted). So, too, here. ER.130 (explaining that deferred action could be
granted on an individual, case-by-case basis). The essence of plaintiffs’ argument is
that they might be less likely to receive deferred action based on a totality of the
circumstances inquiry than under the DACA policy’s eligibility criteria, but as this
Court explained in Mada-Luna, a reduced likelihood of relief does not transform a
general statement of policy into a substantive rule. 813 F.2d at 1016.8
Indeed, if the Acting Secretary’s memorandum requiring a return to fully
individualized discretion for deferred action is a substantive rule, then a fortiori the
restriction on discretion imposed by DACA itself was a substantive rule, as the Fifth
Circuit held. Texas, 809 F.3d at 171-78. And that provides an independent and
sufficient basis to reject the plaintiffs’ claim. It would offend both law and equity for
this Court to set aside the DACA rescission for failure to follow notice-and-comment
procedures when that rationale necessarily implies that DACA itself was invalid for
the same reason. Cf. Batalla Vidal, 2018 WL 1532370, at *5. Not only would this
Court be effectively ordering the maintenance of an illegally enacted legislative rule,
8 United States ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), upon which the plaintiffs rely, bears no resemblance to this case. As the district court explained there, “[t]he legal posture of th[e] case [was] radically affected by the government’s factual concession” that the INS official “did not exercise independent discretion on the facts of th[e] case, but rather purported to follow a legal rule” when denying the plaintiff’s request for extended voluntary departure. Id. at 979. By contrast, as the district court correctly noted, the plaintiffs in this case “do not [and cannot] allege that all deferred action applications under DACA were approved but now, after the rescission, all requests for deferred action will be denied.” ER.52.
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but any relief it provides to plaintiffs would necessarily be short-lived, as such a decision would create binding precedent under which opponents of DACA could immediately obtain an injunction against it.
Plaintiffs respond that, even where a substantive rule is invalid, agencies must go through notice-and-comment before repealing it. States.Br. 68-69; Regents.Br. 8081; Garcia.Br. 68-69. But their argument rests on inapposite cases involving substantive rules that were promulgated through notice-and-comment rulemaking and were either claimed to be defective for some other reason, see Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 438 (D.C. Cir. 1982) (agency had not sufficiently evaluated the original rule); National Treasury Emps. Union v. Cornelius, 617 F. Supp. 365, 371 (D.D.C. 1985) (exceeded agency’s statutory authority), or were vacated by consent decree, see American Forest Res. Council v. Ashe, 946 F. Supp. 2d 1, 26-27 (D.D.C. 2013). By contrast, it would make no sense to permit an agency official to violate notice-andcomment requirements in adopting a rule and then require her successors to go through the very hurdle of those requirements to undo the prior violation. Cf. Romeiro de Silva, 773 F.2d at 1025 (rejecting the argument that a prior decision holding that an agency policy “granted aliens substantive rights . . . somehow prevents the INS from amending the old instruction in the same way it was originally promulgated,” i.e., without notice and comment).
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B. The denial of DACA renewals does not violate substantive due process.
The district court correctly dismissed plaintiffs’ substantive due process claims against the DACA rescission. Plaintiffs concede that they had no protected interest in the initial grant of deferred action under the DACA policy, Garcia.Br. 64-65, and the wind-down meant that no currently effective two-year period of deferred action would be revoked due to the policy’s rescission. Plaintiffs instead argue that they possess a protected interest in continued renewal of deferred action because, in their view, “[t]hough the DACA memorandum itself grants no rights, each discretionary decision to grant deferred action under DACA conveyed constitutionally protected liberty and property interests.’” Garcia.Br. 59.
The district court correctly rejected the contention that the government’s grant of deferred action created a protected interest in a renewal of deferred action in perpetuity. As the court explained, “a benefit is not a ‘protected entitlement’ where ‘government officials may grant or deny it in their discretion.’” ER.54 (quoting Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)). Although the court noted that plaintiffs may have subjectively come to rely on DACA, the court recognized that “a person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a protected right if that belief if not mutually held by the government.” ER.55. Rather, “‘[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire’ and ‘more than a unilateral
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expectation of it. He must, instead, have a legitimate claim of entitlement to it.’” Castle Rock, 545 U.S. at 756 (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
Plaintiffs miss the mark in contending that the expectation of renewal while the DACA policy was in place, Garcia.Br. 60, created a “legitimate claim of entitlement” to continuation of the DACA policy itself. Castle Rock, 545 U.S. at 577. Any such expectation was wholly subjective, and plaintiffs have not plausibly alleged that such a belief was mutually held by the government. Gerhart v. Lake County, 637 F.3d 1013, 1020-21 (9th Cir. 2011) (“A person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a property right if that belief is not mutually held by the government.”). This is especially true given that deferred action under DACA was subject to two-year renewal periods and has always been conceived of as a “temporary stopgap measure,” not a “permanent fix,” Remarks by the President on Immigration (June 15, 2012), https://go.usa.gov/xnZFY, which could “be terminated at any time” at the agency’s discretion, ER.151. The original memorandum also made clear that DACA “confer[ed] no substantive right, immigration status or pathway to citizenship.” ER.143. “Only the Congress, acting through its legislative authority, can confer these rights.” Id.; see also ER.151 (“DACA is an exercise of prosecutorial discretion and deferred action may be terminated at any time.”). In short, there is “no protectable liberty interest in deferred action,” Romeiro de Silva, 773 F.2d at 1024, and one was not created because deferred action was granted for two-
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year periods under a temporary policy that expressly conferred no rights and was revocable at will.
It therefore fails to advance plaintiffs’ claim to note that “99 percent of adjudicated DACA renewal applications were approved.” Garcia.Br. 63-64. As an initial matter, this argument is in direct tension with plaintiffs’ claim that the DACA policy was sufficiently individualized that it was not a substantive rule under MadaLuna. See supra p. 54. More fundamentally, as explained, this argument misconceives the question before this Court, which is not whether renewals would continue to occur while the policy existed; the question is whether plaintiffs gained a protected interest in continuation of the policy itself, even though they concede it did not create an entitlement to deferred action in the first place. Garcia.Br. 64. The question answers itself.
The same reasoning demonstrates that the cases upon which plaintiffs rely do not support their claim to a protected entitlement. Plaintiffs cite cases concerning various government programs, such as housing benefits, business licenses, and government employment. See Garcia.Br. 60, 62. But none of those cases holds, for example, that the government may never end the Section 8 housing benefit program. Nor do they involve policies like DACA where recipients were notified from the outset that the policy did not create any substantive rights or legal status. Plaintiffs cannot use due process to obtain from the courts substantive immigration rights that the Executive Branch (not to mention Congress) expressly refused to provide.
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As a final matter, even if plaintiffs had demonstrated a protected interest, substantive due process would not guarantee a lifetime interest in renewals of twoyear grants of deferred action to roughly 700,000 aliens without lawful status under a discretionary policy that was expressly framed as temporary and revocable at will. Such a conclusion would erect a serious barrier to ever adopting any such policies in the first place; it is thus unsurprising that plaintiffs have pointed to no cases holding that once the government temporary provides discretionary relief or benefits it must continue to do so indefinitely.
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CONCLUSION For the foregoing reasons, the district court’s preliminary injunction should be vacated, its order denying in part the government’s motion to dismiss should be reversed, and its order granting in part the motion to dismiss should be affirmed.
Respectfully submitted, CHAD A. READLER.
Acting Assistant Attorney General ALEX G. TSE
Acting United States Attorney HASHIM M. MOOPPAN
Deputy Assistant Attorney General
S/MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000
April 2018
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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B), and 9th Circuit Local Rule 32-2(b) because it contains 15,163 words. This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14-point font, a proportionally spaced typeface.
s/ Mark B. Stern MARK B. STERN

CERTIFICATE OF SERVICE I hereby certify that on April 3, 2018, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/Mark B. Stern MARK B. STERN

 
 Case: 18-15068, 03/19/2018, ID: 10804596, DktEntry: 56-1, Page 1 of 42
Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
_____________________________________________________________________________
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
Plaintiffs-Appellees-Cross-Appellants, v.
U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL.,
Defendants-Appellants-Cross-Appellees. __________________________________________________________________
On Appeal from the United States District Court for the Northern District of California
__________________________________________________________________
BRIEF OF 42 HISTORIANS AND THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES-CROSS-APPELLANTS
__________________________________________________________________
Robert S. Chang Lorraine K. Bannai Melissa Lee Jessica Levin RONALD A. PETERSON LAW CLINIC Seattle University School of Law 1215 East Columbia St. Seattle, WA 98122 (206) 398-4025
Counsel for Amici

Case: 18-15068, 03/19/2018, ID: 10804596, DktEntry: 56-1, Page 2 of 42
CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(c)(1), undersigned counsel for amici make the following disclosures. The Fred T. Korematsu Center for Law and Equality is a research and advocacy organization based at Seattle University, a non-profit educational institution under Section 501(c)(3) of the Internal Revenue Code. The Korematsu Center does not have any parent corporation or issue stock and consequently there exists no publicly held corporation which owns 10 percent or more of its stock.
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Case: 18-15068, 03/19/2018, ID: 10804596, DktEntry: 56-1, Page 3 of 42
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES................................................................................. iii INTEREST OF AMICI CURIAE.............................................................................1 INTRODUCTION AND SUMMARY OF ARGUMENT......................................3 ARGUMENT ..........................................................................................................8
I. History Is Replete with Instances in Which Racially Coded Expressions Have Strongly Evidenced Animus, Such As "Wetback," Used During the Mass Repatriation and Deportation of Persons of Mexican Ancestry in 1954..................................................11
II. Code Word Analysis Is a Widely Accepted Methodology that Historians Employ to Discern Racial Animus and Give Context to Government Action ..................................................................................16
III. Courts Routinely Recognize the Evidentiary Value of Coded Language in Discerning Racial Animus ...................................................17
IV. A Sensitive Inquiry into the Historical Background of the Decision to Rescind DACA, with Particular Attention Paid to Contemporaneous Statements Made by Decisionmakers, Reveals the Use of Code Words Reflecting Animus Against Persons of Mexican Ancestry and Latinos ...............................................23
CONCLUSION .....................................................................................................27 APPENDIX - List of Individual Amici............................................................... A-1 CERTIFICATE OF COMPLIANCE CERTIFCATE OF SERVICE
EXHIBIT 1 - Declaration of Dr. Stephen Pitti
EXHIBIT 2 - Declaration of Dr. Otto Santa Ana
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Cases

TABLE OF AUTHORITIES

Page(s)

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996) .............................................................................19

Arnold v. U.S. Postal Serv., 863 F.2d 994 (D.C. Cir. 1988) .........................................................................21

Arce v. Douglas, 793 F.3d 968 (9th Cir. 2015)......................................................................10, 18

Avenue 6E Invs., LLC v. City of Yuma, Ariz., 818 F.3d 493 (9th Cir. 2016)......................................................................18, 20

City of Memphis v. Greene, 451 U.S. 100 (1981) .........................................................................................19

E.E.O.C. v. Bd. of Regents of U. of Wisc. Sys., 288 F.3d 296 (7th Cir. 2002)............................................................................20

Gay v. Waiters’ and Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531 (9th Cir. 1982)............................................................................10

González v. Douglas, 269 F. Supp. 3d 948 (D. Ariz. 2017)..................................................3, 9, 18, 19

Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255 (5th Cir. 2007)............................................................................20

Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189 (1973) .........................................................................................19

MHANY Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581 (2d Cir. 2016) .............................................................................19

Plyler v. Doe, 457 U.S. 202 (1982) .........................................................................................10

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Smith v. Fairview Ridges Hosp., 625 F.3d 1076 (8th Cir. 2010), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011).......................20
Smith v. Town of Clarkton, N.C., 682 F.2d 1055 (4th Cir. 1982)..............................................................10, 18, 20
Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997) ..........................................................................19
Star Sci., Inc. v. R.J. Reynolds Tobacco, Co., 537 F.3d 1357 (Fed. Cir. 2008) ........................................................................19
Underwood v. Hunter, 730 F.2d 614 (11th Cir. 1984), aff’d, Hunter v. Underwood, 471 U.S. 222 (1985) ...............................................................................................................21
United States v. City of Birmingham, Mich., 727 F.2d 560 (6th Cir. 1984)............................................................................20
Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016), cert. denied, 137 S. Ct. 612 (2017) ......21, 22, 23
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) .............................................................................10, 11, 23
Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996)............................................................................21
Other Authorities 150,000 “Wetbacks” Taken in Round-Up, N.Y. TIMES, July 30, 1954, at 7,
https://timesmachine.nytimes.com/timesmachine/1954/07/30/84128756. html?pageNumber=7 ........................................................................................12
FRANCISCO E. BALDERRAMA & RAYMOND RODRÍGUEZ, DECADE OF BETRAYAL: MEXICAN REPATRIATION IN THE 1930S (1995) ...................................................5
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William J. Brennan, Conference Notes, Plyler v. Doe (Nos. 80-1538, 80-1934) (Dec. 8 1981) (on file with the Library of Congress, Manuscript Division, William J. Brennan Papers, Part I: Box 572) ...................................................15
Brownell Maps Trip for “Wetback” Study, N.Y. TIMES, Aug. 8, 1953, at 13, https://timesmachine.nytimes.com/timesmachine/1953/08/08/84417640. html?pageNumber=13 ......................................................................................15
Statement of Honorable Herbert Brownell, Jr., Attorney General of the United States, Testimony before Subcommittee on Immigration of the Committee on the Judiciary, April 13, 1956, https://www.justice.gov/sites/default/ files/ag/legacy/2011/09/12/04-13-1956%20pro.pdf.........................................14
Philip Bump, Donald Trump Endorsed “Operation Wetback” – But Not by Name, WASH. POST, Nov. 11, 2015, https://www.washingtonpost.com/ news/the-fix/wp/2015/11/11/donald-trump-endorsed-operation-wetbackbut-notbyname/?utm_term=.eb2b0a6f2955 .......................................................6
KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM, IMMIGRATION, AND THE I.N.S. (1992) ......................................................................................15
Keith Cunningham-Parmeter, Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, 79 FORDHAM L. REV. 1545 (2011) ...............15
John Dillin, How Eisenhower Solved Illegal Border Crossings from Mexico, CHRISTIAN SCI. MONITOR, July 6, 2006, https://www.csmonitor.com/ 2006/0706/p09s01-coop.html ........................................................................... 13
Drive on Wetbacks Termed a Success, N.Y. TIMES, Mar. 10, 1955, at 28, https://timesmachine.nytimes.com/timesmachine/1955/03/10/93729836. html?pageNumber=28 ......................................................................................14
Dwight D. Eisenhower, DDE Personal Diary Jan.-Nov. 1954 (1)(2) (“notes on Bricker Amendment; school construction; wetbacks; Brazilian coffee”), Eisenhower, Dwight D.: Papers as President; DDE Diary Series, at 5, https://www.eisenhower.archives.gov/research/finding_aids/pdf/ Eisenhower_Dwight_Papers_as_President/DDE_Diary_Series.pdf ................ 14
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Fifteen News Questions, N.Y. TIMES, Apr. 2, 1950, at E2 and E9, https://timesmachine.nytimes.com/timesmachine/1950/04/02/96214886. html?pageNumber=142 and https://timesmachine.nytimes.com/times machine/1950/04/02/96214988.html?pageNumber=149 .................................13
JUAN RAMÓN GARCÍA, OPERATION WETBACK: THE MASS DEPORTATION OF MEXICAN UNDOCUMENTED WORKERS IN 1954 (1980) ...............................11, 12
JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925 (rev. ed. 2002) ..............................................................................4, 5
Kate Linthicum, The Dark, Complex History of Trump’s Model for His Mass Deportation Plan, L.A. TIMES, Nov. 13, 2015, http://www.latimes.com/ nation/la-na-trump-deportation-20151113-story.html .......................................6
MAI NGAI, IMPOSSIBLE SUBJECTS, ILLEGAL ALIENS AND ALIEN CITIZENS (2004) ...5
Rick Perlstein, Exclusive: Lee Atwater’s Infamous 1981 Interview on the Southern Strategy, THE NATION, Nov. 13, 2012, https://www.thenation. com/article/exclusive-lee-atwaters-infamous-1981-interview-southernstrategy/ ............................................................................................................16
LUCY SALYER, LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS AND THE SHAPING OF MODERN IMMIGRATION LAW (1995)...............................................5
ALEXANDER SAXTON, THE INDISPENSABLE ENEMY: LABOR AND THE ANTI-CHINESE MOVEMENT IN CALIFORNIA (1975).............................................5
Sunshine Summit, “Thank You,” http://www.sunshinesummit.gop/ thankyou ..........................................................................................................24
The President’s News Conference, July 14, 1954, http://www.presidency. ucsb.edu/ws/index.php?pid=9947&st=wetback&st1= ..................................... 14
The President’s News Conference, July 21, 1954, http://www.presidency. ucsb.edu/ws/index.php?pid=9950&st=wetback&st1= ..................................... 14
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Transcript: Republican Presidential Debate, N.Y. TIMES, Nov. 11, 2015, https://www.nytimes.com/2015/11/11/us/politics/transcript-republicanpresidential-debate.html. ..................................................................................25
Harry S. Truman, Special Message to the Congress on the Employment of Agricultural Workers from Mexico, July 13, 1951, https://www.trumanlibrary.org/publicpapers/index.php?pid=368 ...................13
Statement from President Donald J. Trump (Sept. 5, 2017), https://www.whitehouse.gov/briefings-statements/statement-presidentdonald-j-trump-7/ .............................................................................................26
Donald J. Trump, Remarks at 2015 Sunshine Summit (Nov. 13, 2015), https://www.c-span.org/video/?400325-10/donald-trump-remarks-2015sunshine-summit ............................................................................................... 24
Donald J. Trump, Remarks at the Charlotte Convention Center in Charlotte, North Carolina (Aug. 18, 2016), http://www.presidency.ucsb.edu/ ws/index.php?pid=119175 ...............................................................................25
Donald J. Trump, Remarks at the Mississippi Coliseum in Jackson, Mississippi (Aug. 24, 2016), http://www.presidency.ucsb.edu/ ws/index.php?pid=123198 ...............................................................................25
Donald J. Trump, Remarks on Signing a Proclamation on the National Day of Prayer for the Victims of Hurricane Harvey and for Our National Response and Recovery Efforts and an Exchange with Reporters (Sept. 1, 2017), http://www.presidency.ucsb.edu/ws/index.php?pid =128160&st=dreamers&st1 .............................................................................26
U.S. Citizenship and Immigration Servs., Approximate Active DACA Recipients: Country of Birth (As of Sept. 4, 2017), https://www.uscis.gov/ sites/default/files/USCIS/Resources/Reports%20and%20Studies/ Immigration%20Forms%20Data/All%20Form%20Types/DACA/ daca_population_data.pdf...........................................................................10, 11
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STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE1 The 42 individual amici are academics trained in the field of history who
study, teach, and write about United States history.2 Amici are keenly aware of the role that discrimination on the basis of race, ethnicity, and nationality has played in this nation’s history. Amici have a special interest in ensuring that the Court has the benefit of their expertise when it draws its conclusions with regard to the role that animus may have played in the decision to rescind the Deferred Action for Childhood Arrivals (DACA) program. In a parallel lawsuit challenging the rescission of DACA brought by New York and fourteen other states and the District of Columbia in the United States District Court for the Eastern District of New York, New York et al. v. Donald Trump et al., No. 1:17-cv-5229, the plaintiffs submitted an expert report and declaration by Dr. Stephen Pitti with regard to the historical context and use of code words evidencing animus on the part of President Trump and other Trump officials in connection with the rescission of DACA, id., Dkt. 97-2, Ex. 38. After reviewing Dr. Pitti’s Declaration, attached herein as Exhibit 1, amici agree that Dr. Pitti used research methods that are widely
1 Amici certify that no party’s counsel authored this brief in whole or in part, nor did any party or party’s counsel contribute money intended to fund preparation or submission of this brief; and no person other than amici curiae and their counsel contributed money intended to fund preparation or submission of this brief. The parties have consented to the filing of this brief. 2 Their names, titles, and institutional affiliations are appended, Appendix at A-1.
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accepted as valid in the field of history. These methods include a specific interpretive methodology that looks at public discourse to discern the use of racially coded expressions or code words by government officials, politicians, and members of the public to advance discriminatory political objectives. Amici agree with Dr. Pitti’s summative opinion:
When properly understood within the context of the history and contemporary discrimination directed against Mexicans, Mexican Americans, and Latinos, . . . President Trump and others who worked for his campaign and in his Administration have long expressed animus towards ethnic Mexicans and other Latinos. President Trump and others associated with his presidential campaign and Administration have drawn upon and used racial code words, and have benefitted from racism against Latinos. Racial animus against ethnic Mexicans shaped their decision to terminate DACA. Pitti Decl. ¶ 17, Exhibit 1 at 5.
The Fred T. Korematsu Center for Law and Equality (“Korematsu Center”) is a non-profit organization based at the Seattle University School of Law. The Korematsu Center works to advance justice through research, advocacy, and education. Inspired by the legacy of Fred Korematsu, who defied military orders during World War II that ultimately led to the unlawful incarceration of 120,000 Japanese Americans, the Korematsu Center works to advance social justice for all. The Korematsu Center has a special interest in addressing government action targeted at classes of persons based on race, nationality, or religion. The Korematsu Center has developed an expertise with regard to the use of racial code
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words in its role as co-counsel to high school students who successfully challenged a facially neutral Arizona statute that was enacted and enforced to terminate the Mexican American Studies Program in the Tucson Unified School District. González v. Douglas, 269 F. Supp. 3d 948 (D. Ariz. 2017). In addition, the Korematsu Center is keenly aware of the use of direct and racially coded language used to justify the discriminatory treatment of Japanese Americans before, during, and after World War II. Drawing on its experience and expertise, the Korematsu Center seeks to ensure that courts understand the way that racially coded language is used to achieve discriminatory outcomes.3
INTRODUCTION AND SUMMARY OF ARGUMENT History teaches us that the institution of slavery, the dispossession and removal of Native Americans, the exclusion of Asian immigrants, the incarceration of Japanese Americans during World War II, and the mass repatriation and deportation of persons of Mexican ancestry were not accidents but instead were the product of deliberate decisions made by government officials. The historical record demonstrates that these decisions were informed by an explicit racial ideology that defined groups along racial lines; that justified discriminatory treatment based on notions of group superiority/inferiority and group desirability/undesirability; and
3 The Korematsu Center does not, in this brief or otherwise, represent the official views of Seattle University.
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that often posed the discriminatory treatment as necessary for the security of the nation and for the prosperity of its citizenry.
During earlier periods, government officials, politicians, and members of the public expressed, much more nakedly, this racial ideology used to justify and advance discrimination. As social norms changed and it became, increasingly, less acceptable to express publicly these same sentiments, racially coded language was used by politicians to garner public support and gain elected office and by government officials to justify and advance discriminatory political objectives. Historians and other academics have observed and documented this phenomenon, the shift from explicit racial language to coded racial expressions. Examination of public discourse for the use of code words has become a widely accepted interpretive methodology used by historians and other academics to discern the role that discrimination may have played with regard to particular events, as well as for the broader course of United States history.
History is replete with examples in which explicit and coded language has been used to justify and advance discrimination against a particular group. During severe economic downturns, populist leaders and politicians exploited racial nativism to scapegoat outsider immigrant groups who were blamed for taking away
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the rightful opportunities of an anxious citizenry.4 During the 1880s, the Chinese
were blamed; during the 1920s, racialized white ethnic groups from southern and
eastern Europe as well as immigrants from Asia were blamed; and during the height of the Great Depression in the 1930s, migrants from Mexico were blamed.5
In each instance, targeted anti-immigrant sentiment led to the various Chinese
Exclusion Acts, the 1924 Immigration and Nationality Act, which barred Asian
immigration and put into place per country quotas for immigration based on the
national origin composition of this country as reflected in the 1890 Census, and the
1930s mass deportation of Mexican migrants and U.S. citizens of Mexican ancestry.6 Of the nearly 1.5 million deported during this period, upwards of 60% were U.S. citizens.7 These various immigration measures were fostered by both
explicit and coded racial nativist expressions that relied on themes of invasion and
labeling Americans as victims with certain immigrant groups as undeserving and
4 See generally JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925 (rev. ed. 2002). 5 See generally ALEXANDER SAXTON, THE INDISPENSABLE ENEMY: LABOR AND THE ANTI-CHINESE MOVEMENT IN CALIFORNIA (1975); HIGHAM, supra note 4; FRANCISCO E. BALDERRAMA & RAYMOND RODRÍGUEZ, DECADE OF BETRAYAL: MEXICAN REPATRIATION IN THE 1930S (1995). 6 See LUCY SALYER, LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS AND THE SHAPING OF MODERN IMMIGRATION LAW 6-23 (1995) (discussing anti-Chinese sentiment and the various Chinese Exclusion Acts); MAI NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND ALIEN CITIZENS 18-54 (discussing the impetus of the Immigration Act of 1924) and 71-75 (discussing anti-Mexican hostility and the 1930s mass deportations). 7 BALDERRAMA & RODRÍGUEZ, supra note 5, at 216; NGAI, supra note 6, at 72.
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as threats to this nation’s security and prosperity. This amicus brief will focus on the use of code words in one historic
example—the 1954 mass deportation program called Operation Wetback—before turning to the use of code words associated with the rescission of DACA. Understanding how government officials, politicians, and members of the public used the word “wetback,” along with notions of threat to national security and national prosperity, in the period leading up to Operation Wetback provides an instructive example for understanding how various code words operate today with regard to immigration enforcement, including the decision to rescind DACA.
Further, Operation Wetback is particularly relevant because in November 2015 then-candidate Donald Trump invoked the 1954 deportation program, without using its name, as a successful model that he would seek to emulate.8 Though the rescission of DACA does not, at present, involve a mass deportation plan, the rescission of DACA is best understood as part of a set of immigration measures that is intended to accomplish then-candidate Trump’s promises to his
8 Philip Bump, Donald Trump Endorsed “Operation Wetback” – But Not by Name, WASH. POST, Nov. 11, 2015, https://www.washingtonpost.com/news/thefix/wp/2015/11/11/donald-trump-endorsed-operation-wetback-but-not-byname/?utm_term=.eb2b0a6f2955; Kate Linthicum, The Dark, Complex History of Trump’s Model for His Mass Deportation Plan, L.A. TIMES, Nov. 13, 2015, http://www.latimes.com/nation/la-na-trump-deportation-20151113-story.html (discussing Trump’s endorsement during the Nov. 11, 2015, Republican primary debate in which Trump described the “deportation force” he would deploy to emulate Operation Wetback).
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electorate. Promising to emulate this mass deportation program while omitting its name is itself an example of a camouflaged expression—an example of how, during the campaign and after the election, President Trump employed racially coded expressions or “code words,” language that evinces and appeals to racial animus and is intended to invoke racial fear but which permits plausible deniability that the speech is about race. His use of these code words while seeking elected office and after assuming the presidency presents strong evidence of animus.
To assist the Court in deciding whether to affirm the grant of provisional relief to Plaintiffs and to affirm the denial of Defendants’ motion to dismiss Plaintiffs’ equal protection claims, amici historians and the Fred T. Korematsu Center for Law and Equality submit this amicus brief to demonstrate that racial animus can be discerned by a code word analysis, and that such an analysis is a widely accepted methodology in the field of history. The conclusion that the use of code words evidences animus is bolstered by a separate quantitative and qualitative discourse analysis that systematically reviewed 347 speeches and 6,963 tweets drawn from the President’s public discourse delivered between August 2015 and mid-September 2017 and concluded:
Trump’s public discourse, in which he repeatedly uses several related conceptual metaphors to describe immigrants, Mexicans, and U.S. Latinos as the enemy, as disease, as criminal, and as animalistic, is discriminatory and racist according to standard definitions of racism. Trump speaks as if U.S. citizens suffer each day at the hands of immigrants. This scapegoating of
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Latino immigrants reinforces and capitalizes on his core constituency’s economic and cultural insecurities in order to advance Trump’s political objectives. Declaration of Dr. Otto Santa Ana, ¶ 54, Exhibit 2 at 64.9 Further, a survey of federal circuit courts, including this Circuit, demonstrates that code word analysis has been adopted into legal frameworks as providing important direct and circumstantial evidence of animus or discriminatory intent.
ARGUMENT The court below, in granting provisional relief to Plaintiffs, found that the Plaintiffs were likely to succeed on their claims that the Department of Homeland Security violated the Administrative Procedure Act (APA) when it terminated DACA. Order Denying FRCP 12(b)(1) Dismissal and Granting Provisional Relief (Jan. 9, 2018), at ER 38, 43. Specifically, the court rejected the Department of Homeland Security’s (DHS) offered reasons for its decision, finding that (1) the agency was operating under a “flawed legal premise,” id., ER 38, and (2) the offered litigation risk explanation was either a post hoc rationalization or was arbitrary, capricious, and an abuse of discretion, id., ER 42. In addition, the court below denied Defendants’ motion to dismiss Santa Clara’s and Individual
9 The complete analysis on which the declaration is based can be found at https://www.thepresidentsintent.com/ (“The President’s Intent”).
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Plaintiffs’ equal protection claims. Order Granting in Part Defendants’ Motion to Dismiss Under FRCP 12(b)(6) (Jan. 12, 2018), ER 58-61. Defendants have challenged each of these rulings. Appellants’ Op. Br. at 28-40 (arbitrary and capricious), 40-45 (equal protection), ECF No. 31.
Amici demonstrate that the evidence regarding racial animus supports each of these rulings. First, the strong evidence regarding animus as a motivating factor for the termination of DACA along with the district court’s findings that the offered reasons did not provide legal justification for the termination of DACA strongly suggests that those offered reasons were pretextual. Thus, the animus evidence strongly supports the findings that the decision was arbitrary and capricious and constituted an abuse of discretion in violation of the APA. Cf. González v. Douglas, 269 F. Supp. 3d 948, 973 (D. Ariz. 2017) (animus, in addition to being relevant for an equal protection claim, also established violation of student-plaintiffs’ right to be free from viewpoint discrimination when based on political and partisan reasons). Further, the animus evidence strongly supports the district court’s denial of the Defendants’ motion to dismiss Plaintiffs’ equal protection claims. Amici demonstrate that code word analysis is an accepted historical methodology for discerning racial animus and an accepted category of evidence that both this Circuit and other circuits have used to discern animus in equal protection claims and in other contexts in which discriminatory intent must
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be shown. Amici further demonstrate that discourse analysis supports the examination of public discourse to discern the use of code words.
Of special note is this Court’s recent observation and acknowledgment that because “‘officials acting in their official capacities seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority,’ we look to whether they have ‘camouflaged’ their intent. Arce v. Douglas, 793 F.3d 968, 978 (9th Cir. 2015) (quoting Smith v. Town of Clarkton, 682 F.2d 1055, 1064, 1066 (4th Cir. 1982). In determining the question of discriminatory intent, the “district court should make ‘a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’” Gay v. Waiters’ and Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 538 (9th Cir. 1982) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)). This sensitive inquiry examines the following non-exhaustive factors:
(1) the impact of the official action and whether it bears more heavily on one race than another; (2) the historical background of the decision; (3) the specific sequence of events leading to the challenged actions; (4) the defendant’s departures from normal procedures or substantive conclusions; and (5) the relevant legislative or administrative history. Arce, 793 F.3d at 977 (citing Arlington Heights, 429 U.S. at 266-68). It is indisputable that the rescission of DACA falls most heavily on persons
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of Mexican ancestry, who make up 79.4% of DACA recipients.10 Further, as the court below found with regard to Plaintiffs’ APA claims, the decision to rescind DACA was plagued by a host of procedural and substantive departures. See Order Denying FRCP 12(b)(1) Dismissal and Granting Provisional Relief (Jan. 9, 2018), ER 29-42 (agency decision was arbitrary and capricious and constituted an abuse of discretion because based on flawed legal premise and post hoc rationalization). Added to this, a sensitive inquiry into the historical background of the decision to rescind DACA, especially the contemporaneous statements made by decisionmakers, makes code word analysis especially important when examining facially neutral governmental action under an Arlington Heights analysis to discern discriminatory intent. See Arlington Heights, 429 U.S. at 266-68. The existence of discriminatory intent is pertinent to the APA claims, including that the existence of animus strongly supports a finding of pretext or bad faith.
I. History Is Replete with Instances In Which Racially Coded Expressions Have Strongly Evidenced Animus, Such As “Wetback,” Used During the Mass Repatriation and Deportation of Persons of Mexican Ancestry in 1954.
Operation Wetback. That was the official name given to the program undertaken in 1954 to forcibly repatriate hundreds of thousands of Mexican
10 U.S. Citizenship and Immigration Servs., Approximate Active DACA Recipients: Country of Birth (As of Sept. 4, 2017) 1, https://www.uscis.gov/sites/default/files/ USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Al l%20Form%20Types/DACA/daca_population_data.pdf.
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migrants.11 The massive scope of the program and lack of procedural safeguards resulted in many American citizens of Mexican ancestry being swept up in its dragnet and removed to remote areas of Mexico.12 In addition to those detained and deported, hundreds of thousands of Mexican migrants left voluntarily in order to avoid brutal conditions endured by those detained and forcibly removed. The decision to institute this mass deportation program was informed by the use of the racially coded expression, “wetback.”
Viewed from today’s perspective, many might say that “wetback” is not racially coded language, but rather an explicit expression of animus. While “wetback” may today be recognized as an epithet or slur, that was certainly not the case in the 1950s. The original mundaneness of the term “wetback” is evidenced in a 1950 Sunday edition of the New York Times, which included in its “Fifteen News Questions,” the following question: “’Wetbacks’ were reported last week to be entering California at a rate of 10,000 a month. What are ‘wetbacks’?” The answer is supplied several pages later: “Mexican immigrants who cross the border by stealth to seek work. The term ‘wetback’ was originally applied to Mexicans 11 See JUAN RAMÓN GARCÍA, OPERATION WETBACK: THE MASS DEPORTATION OF MEXICAN UNDOCUMENTED WORKERS IN 1954, at 228 (1980); see also 150,000 “Wetbacks” Taken in Round-Up, N.Y. TIMES, 1954, at 7 (reporting numbers apprehended approximately two months after the beginning of Operation Wetback),https://timesmachine.nytimes.com/timesmachine/1954/07/30/84128756. html?pageNumber=7. 12 GARCÍA, supra note 11, at 228.
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who entered the U.S. farther east by swimming the Rio Grande.”13 It is of note that the New York Times did not ask “Who are ‘wetbacks’?” but instead, “What are ‘wetbacks’?”
Further, “wetback,” originally a term used to describe those who swam across the Rio Grande River, became a metonym for all unauthorized Mexican migrants. President Harry Truman used the term in precisely this way in his July 13, 1951, address to Congress that called for a more comprehensive solution to address “the steady stream of illegal immigrants from Mexico, the so-called ‘wetbacks,’ who cross the Rio Grande or the western stretches of our long border.”14 Likewise, General Dwight D. Eisenhower, getting ready to run for president in 1951, in private correspondence with Senator William Fulbright “quoted a report in the New York Times,” and highlighted a paragraph that discussed “[t]he rise in illegal border-crossing by Mexican ‘wetbacks.’”15
Though there is no record of President Eisenhower using the term in public,
13 Fifteen News Questions, N.Y. TIMES, Apr. 2, 1950, at E2 and E9, https://times machine.nytimes.com/timesmachine/1950/04/02/96214886.html?pageNumber=14 2; https://timesmachine.nytimes.com/timesmachine/1950/04/02/96214988.html? pageNumber=149. 14 President Harry S. Truman, Special Message to the Congress on the Employment of Agricultural Workers from Mexico, July 13, 1951, https://www. trumanlibrary.org/publicpapers/index.php?pid=368. 15 John Dillin, How Eisenhower Solved Illegal Border Crossings from Mexico, CHRISTIAN SCI. MONITOR, July 6, 2006, https://www.csmonitor.com/2006/0706/ p09s01-coop.html.
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he responded to questions from reporters who used the term and affirmed his
support of legislation intended to address what the press characterized as the
“wetback problem.”16 Further, he did use the term at least once in his personal
diaries.17 And members of his administration, including the two primary architects
of Operation Wetback, General Joseph Swing who became the Commissioner of
Immigration and Naturalization in 1954 and Attorney General Herbert Brownell,
Jr., both used the term openly, including in statements to Congress.18 Before
Operation Wetback, Brownell announced that he “would go to California next
16 See The President’s News Conference, July 14, 1954, http://www.presidency. ucsb.edu/ws/index.php?pid=9947&st=wetback&st1= (question by Sarah McClendon, El Paso Times, about two Senate bills “designed to curb the hundreds of thousands of wetbacks coming into this country”); The President’s News Conference, July 21, 1954, http://www.presidency.ucsb.edu/ws/index.php? pid=9950&st=wetback&st1= (question by John Herling, Editors Syndicate, asking about “the wetback legislation prepared by Attorney General Brownell”). President Eisenhower’s response to these questions expressed support for the legislation and other efforts to address the issue. 17 DDE Personal Diary Jan.-Nov. 1954 (1)(2) (“notes on Bricker Amendment; school construction; wetbacks; Brazilian coffee”), Eisenhower, Dwight D.: Papers as President; DDE Diary Series, at 5, https://www.eisenhower.archives.gov/ research/finding_aids/pdf/Eisenhower_Dwight_Papers_as_President/DDE_Diary_ Series.pdf. 18 See, e.g., Drive on Wetbacks Termed a Success, N.Y. TIMES, Mar. 10, 1955, at 28, https://timesmachine.nytimes.com/timesmachine/1955/03/10/93729836.html? pageNumber=28 (reporting on Swing’s testimony to a House Government Operations subcommittee); Statement of Honorable Herbert Brownell, Jr., Attorney General of the United States, Testimony before Subcommittee on Immigration of the Committee on the Judiciary, April 13, 1956, https://www. justice.gov/sites/default/files/ag/legacy/2011/09/12/04-13-1956%20pro.pdf (discussing the “Mexican wetback problem” and Operation Wetback).
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week to study the ‘wetback’ problem.”19 General Swing, upon taking charge as
Commissioner, announced that he would “stop this horde of invaders.”20
Though it may not have been apparent at the time to government officials,
members of the mainstream press, or the public, “wetback” was a racially coded
expression that has since come to be recognized as an epithet or slur.21 Facially
descriptive, it is pejorative and diminishing, reducing a person to a characteristic
associated with a part of the body. Further, this term does not accurately describe
those who crossed the land border, yet it stands in as a metonym for all
unauthorized border crossers from Mexico, and eventually became a term that is
used by some for all Mexican migrants and Mexican Americans. Historians today,
19 Brownell Maps Trip for “Wetback” Study, N.Y. TIMES, Aug. 8, 1953, at 13, https://timesmachine.nytimes.com/timesmachine/1953/08/08/84417640.html?page Number=13. 20 KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM, IMMIGRATION, AND THE I.N.S. 51 (1992). 21 Whether it was a slur expressing animus was contested among Supreme Court justices as late as 1981. Justice William Rehnquist used the term during the justices’ private weekly conference when they were discussing Plyler v. Doe. Justice William Rehnquist referred to schoolchildren of Mexican ancestry as “wetbacks.” When Justice Thurgood Marshall protested, likening the word to the n-word, Justice Rehnquist defended his use of the term, saying that the term still had “currency” in his part of the country. Keith Cunningham-Parmeter, Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, 79 FORDHAM L. REV. 1545, 1547 (2011) (citing Justice William J. Brennan, Conference Notes, Plyler v. Doe (Nos. 80-1538, 80-1934) (Dec. 8 1981) (on file with the Library of Congress, Manuscript Division, William J. Brennan Papers, Part I: Box 572)). It is of note that Justice Rehnquist joined Chief Justice Burger’s dissent in Plyler v. Doe, 457 U.S. 202, 242 (1982) (Burger, C.J., dissenting).
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employing code word analysis, would draw the conclusion that the direct use of the term by President Truman, the private use and public acquiescence to the term by President Eisenhower, and the repeated use by members of Eisenhower’s administration is strong evidence of animus that may have affected government policies and immigration enforcement.
II. Code Word Analysis Is a Widely Accepted Methodology that Historians Employ to Discern Racial Animus and Give Context to Government Action.
While the use of “wetback” in the 1950s presents an easier case of discerning racially coded expressions, code word analysis becomes increasingly important when political strategists recognize the need to develop code words whose racial character is less obvious. The most explicit description is provided in a surprisingly candid confession by Republican political strategist Lee Atwater in 1981:
You start out in 1954 by saying, “Nigger, nigger, nigger.” By 1968 you can’t say “nigger” – that hurts you. Backfires. So you say stuff like . . . forced busing, states’ rights, and all that stuff, and you’re getting abstract. Now, you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites . . . “We want to cut this,” is much more abstract than even the busing thing . . . and a hell of a lot more abstract than “Nigger, nigger.”22
22 Rick Perlstein, Exclusive: Lee Atwater’s Infamous 1981 Interview on the Southern Strategy, THE NATION, Nov. 13, 2012, https://www.thenation.com/article/ exclusive-lee-atwaters-infamous-1981-interview-southern-strategy/.
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As Dr. Stephen Pitti sets forth in his Declaration: Historians and other academic experts recognize that animus does not require explicit, public declarations of racial ideology that racism has persisted across the centuries. An attention to history and careful analysis of the use of coded racial appeals in contemporary political discourse provide the keys to understanding the links between racial animus and politics in the twenty-first century.
Pitti Decl. ¶ 20, Exhibit 1 at 6. This understanding and appreciation of the operation of code words by
historians is precisely the reason the analysis and expert opinions expressed by historians examining current events can be helpful to the Court, especially when they are able to demonstrate how careful study of certain past events may inform our understanding of current events.
III. Courts Routinely Recognize the Evidentiary Value of Coded Language in Discerning Racial Animus.
Courts have come to rely on code words as evidence in determining whether alleged discriminatory acts are racially motivated. Unlike times past, today people are rarely explicit about their intent or motivation in expressing or acting on racial bias. This Court has recognized that because “‘officials acting in their official capacities seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority,’” it is necessary to determine “whether they have ‘camouflaged’ their
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intent. Arce v. Douglas, 793 F.3d 968, 978 (9th Cir. 2015) (quoting Smith v. Town of Clarkton, 682 F.2d 1055, 1064, 1066 (4th Cir. 1982)); see also Avenue 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 505 (9th Cir. 2016) (though camouflaged, when “code words consisting of stereotypes of Hispanics that would be wellunderstood in [the relevant community],” plausible inference of racial animus may be drawn).
On remand in Arce v. Douglas, after a bench trial, Judge A. Wallace Tashima, sitting by designation, held that public officials used code words with regard to Mexican Americans, and that this constituted evidence of discriminatory intent in violation of the Equal Protection Clause. González, 269 F. Supp. 3d at 967-68. In that case, plaintiffs successfully claimed that a facially neutral Arizona statute used to eliminate a highly successful Mexican American Studies program was the product of racial animus. The court noted that the officials involved in the enactment and enforcement of the statute frequently used certain terms to stand in for Mexican Americans, such as “‘Raza,’ ‘un-American,’ ‘radical,’ ‘communist,’ ‘Aztlán,’ and ‘M.E.Ch.A.’” Id. The court found these to be derogatory code words because they “[drew] on negative mischaracterizations that had little to no basis in fact,” and found that “[t]hese particular words were effective codewords with Arizona voters because they drew on ‘people’s … concerns about illegal immigration’ and the ‘Mexicanization’ of Arizona that were prominent” at the
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time. Id. (internal quotations omitted). Based in part on the code word evidence,

the court found that the statute had been enacted and enforced in violation of the

First and Fourteenth Amendments. Id. at 972, 974.

Nearly every circuit court has recognized that code words or camouflaged expressions can be considered as evidence of discriminatory intent:23

First Circuit:

Soto v. Flores, 103 F.3d 1056, 1067 n.12 (1st Cir. 1997) (“It is rare that discrimination wears its garb openly and it more often comes ‘masked in subtle forms.’ Triers of fact may recognize those more subtle forms for what they are and coded comments may raise inferences of discrimination.”) (quoting Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3rd Cir. 1996));

Second Circuit: MHANY Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581, 608-12 (upholding district court’s finding that opponents used racially charged code words to communicate animus and that city officials acquiesced to this animus in its shift in zoning);

Third Circuit:

Aman, 85 F.3d at 1082-83 (holding that use of “inherently racist” code words can constitute evidence of a hostile work environment and an intent to discriminate);

23 The only circuit that appears not to have directly addressed this issue is the Federal Circuit, though that court does recognize that “because direct evidence of deceptive intent is rarely available, such intent can be inferred from indirect and circumstantial evidence.” Star Sci., Inc. v. R.J. Reynolds Tobacco, Co., 537 F.3d 1357, 1366 (Fed. Cir. 2008) (citation omitted). At least two Supreme Court justices have referenced the concept of code words as a mask for racial discrimination. See City of Memphis v. Greene, 451 U.S. 100, 135 (1981) (Marshall, J., dissenting) (recognizing the use of “code phrases” for racial discrimination in city’s explanation for closure of road from predominately white area of the city to predominately black area); Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 243 n.23 (1973) (Powell, J., concurring in part, dissenting in part) (noting argument that “neighborhood education is now but a code word for racial segregation”).
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Fourth Circuit:

Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1066 (4th Cir. 1982) (concern evinced about the influx of “undesirables” and dilution of public schools and threat to public safety constituted “evidence … which in a different context might not illustrate racial bigotry, but, against the background of the housing project in Clarkton and the considerable opposition to it, were interpreted by the trial court as ‘camouflaged’ racial expressions”);

Fifth Circuit:

Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255, 265 (5th Cir. 2007) (recognizing that code words may provide basis of discriminatory intent);

Sixth Circuit:

United States v. City of Birmingham, Mich., 727 F.2d 560, 563 (6th Cir. 1984) (affirming injunctive relief on a Fair Housing Act claim based in part on statements that proposed housing would introduce “harmful elements” and bring “those people” to Birmingham, which led trial court to specifically conclude the language was in reference to “[B]lack people”);

Seventh Circuit: E.E.O.C. v. Bd. of Regents of U. of Wis. Sys., 288 F.3d 296, 303 (7th Cir. 2002) (finding that a reasonable jury could find use of code words such as “’pre-electronic’ era and that he would have to be brought ‘up to speed’ on ‘new trends of advertising via electronic means’” a reflection of age bias in ADEA case);

Eighth Circuit:

Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1085-86 (8th Cir. 2010), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (finding that “[t]he picture of Buckwheat, the comment about fried chicken, and the reference to the ghetto … carry some inferences that they were racially motivated” and discussing variety of instances in which code words may serve as evidence of racial animus);

Ninth Circuit:

Avenue 6E Invs., LLC v. City of Yuma, Ariz., 818 F.3d 493, 506-07 (9th Cir. 2016) (finding that use of code words consisting of stereotypes of Latinos, along with other evidence, “provide plausible circumstantial evidence that community opposition to Developers’ proposed development was motivated in part by animus, and that the City Council was

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fully aware of these concerns” when it voted against the zoning commission’s recommendations);

Tenth Circuit: Villanueva v. Carere, 85 F.3d 481, 488 (10th Cir. 1996) (sharing concern over use of “culture” in response to argument that use of term is a code word for “ethnic minority”);

Eleventh Circuit: Underwood v. Hunter, 730 F.2d 614, 621 (11th Cir. 1984), aff’d, Hunter v. Underwood, 471 U.S. 222 (1985) (holding that a provision of the Alabama constitution disenfranchised voters in violation of the Fourteenth Amendment, noting that “the avowed objective of the suffrage committee was to deny the vote to the corrupt and the ignorant,” which the defendant’s expert admitted “referred specifically to blacks and lower-class whites”) (emphasis added); and

D.C. Circuit

Arnold v. U.S. Postal Serv., 863 F.2d 994, 1000 (D.C. Cir. 1988) (recognizing that “[t]here may well be cases in which seniority is simply a code word or age discrimination” in an ADEA case).

A recent case under the Voting Rights Act is particularly instructive,

especially with regard to the role that an expert can play in assisting a court to

discern “that neutral reasons can and do mask racial intent, a fact we have

recognized in other contexts that allow for circumstantial evidence.” Veasey v.

Abbott, 830 F.3d 216, 236 (5th Cir. 2016), cert. denied, 137 S. Ct. 612 (2017). As

the court reviewed the evidence “that could support a finding of discriminatory

intent,” 830 F.3d at 235, it contrasted the stated purpose of SB 14—deterring

“voter fraud”—with evidence that the drafters and proponents likely knew of the

law’s disproportionate effect on minorities, id. at 236. The Deputy General

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Counsel to the Lieutenant Governor testified that he sent an email “urg[ing] senators to emphasize the detection and deterrence of fraud and protect[ing] public confidence in elections” as “the goal” of SB 14, “to remind people what the point of the bill was” for their speeches on the floor of the Texas Senate. Id. at 236 n.19; see also id. at 288 n.17 (Jones, J., dissenting) (cataloguing statements of proponents of SB 14 about the purpose of the bill being to deter “voter fraud” and “protect the integrity of the ballot box”).
In examining the stated purpose of deterring “voter fraud,” the court gave special attention to the testimony from plaintiffs’ expert on race relations, a history professor, which placed the “voter fraud” language in historical context. Id. at 237 (noting the record showed that Texas has a history of justifying voter suppression efforts such as the poll tax and literacy tests with the race-neutral reason of promoting ballot integrity). The court quoted directly from the expert’s testimony about the stated rationale for devices Texas had used to deny minorities the vote, including the all-White primary, the secret ballot, and the use of illiteracy, poll tax, re-registration, and purging. Id.
Q What, in your opinion, was the stated rationale for the enactment of all []White primaries in Texas?
A The stated rationale was voter fraud. Q What was the stated rationale, in your opinion, for the use of secret ballot
provisions in Texas? A The stated rationale was to prevent voter fraud.
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Q And what was the stated rationale, in your opinion, for the use of the poll tax in Texas?
A The stated rationale by the State was to prevent voter fraud. Q And how about the stated rationale for the use in Texas of re-registration
requirements and voter purges? A The stated rationale was voter fraud. Q Dr. Burton, in your expert opinion, did these devices actually respond to
sincere concerns or incidents—incidences of voter fraud? A No.
Id. The court remanded the discriminatory intent issue, instructing the trial court to
reweigh the Arlington Heights factors, noting “there is evidence that could support
a finding that the Legislature’s race-neutral reason of ballot integrity offered by the
State is pretextual,” id., and that “there remains evidence to support a finding that
the cloak of ballot integrity could be hiding a more invidious purpose,” id. at 241;
id. at 242 (remand).
IV. A Sensitive Inquiry into the Historical Background of the Decision to Rescind DACA, with Particular Attention Paid to Contemporaneous Statements Made by Decisionmakers, Reveals the Use of Code Words Reflecting Animus Against Persons of Mexican Ancestry and Latinos.
Dr. Stephen Pitti’s Declaration, Exhibit 1, based on his 96-page Expert
Report of Stephen J. Pitti, New York et al. v. Donald Trump et al., No. 1:17-cv-
05228, ECF No. 97-2 at 76-174 (“Pitti Report”), provides comprehensive
documentation and analysis of contemporaneous statements made by Donald
Trump as candidate and as President as well as statements made by key advisers
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and administration officials, including Senator and later Attorney General Jefferson Beauregard Sessions III and policy adviser Stephen Miller. Id. at 113-63. A comprehensive discourse analysis of 347 speeches and 6,963 tweets by thencandidate and now-President Donald Trump was conducted by a team of researchers. See Declaration of Dr. Otto Santa Ana, ¶ 14, Exhibit 2 at 4. Each scholar finds numerous, consistent, and persistent statements that are racially coded expressions and code words that provide strong evidence of animus. Pitti Decl. ¶¶ 18-148, Exhibit 1 at 18-46; Santa Ana Decl. ¶¶ 23-53, Exhibit 2 at 7-17.
Of special note is the manner in which Trump talks about DACA recipients and the way he contests and subverts the name by which they are commonly referred: “Dreamers.” On November 13, 2015, in a forum called the Sunshine Summit hosted by the Republican Party of Florida intended to “electrify the Republican grassroots movement,”24 then-candidate Donald Trump stated: “We are going to hire Americans first. We’re going to take care of our workers. Did you ever hear of the Dream Act? It is not for our children. The Dream Act is for other children that come into the country. I want the Dream Act to be for our children.”25 Two days earlier at the fourth Republican presidential primary debate, Trump had
24 Sunshine Summit, “Thank You,” http://www.sunshinesummit.gop/thank-you (stating mission). 25 Donald J. Trump, Remarks at 2015 Sunshine Summit (Nov. 13, 2015), https:// www.c-span.org/video/?400325-10/donald-trump-remarks-2015-sunshine-summit.
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promised a “deportation force” based on President Eisenhower’s enforcement of the border that included deportation efforts such as the 1954 Operation Wetback. In particular, he lauded Eisenhower’s program of deporting people deep into Mexico, saying, “Moved them way south. They never came back.”26 Rescinding DACA exposes DACA recipients to this “deportation force.”
These relatively early primary campaign statements are repeated during the general election campaign after Trump garners the Republican party nomination. In a speech on August 24, 2016, Trump juxtaposes truly deserving American children against DACA recipients: “Where is the sanctuary city for American children? Where is that sanctuary? The dreamers we never talk about are the young Americans. Why aren’t young Americans dreamers also? I want my dreamers to be young Americans.”27 In another general campaign speech, he implores, “Let our children be dreamers too.”28
On September 1, 2017, when asked by reporters whether Dreamers should be worried, he responded, “We love the DREAMers . . . We think the DREAMers
26 Transcript: Republican Presidential Debate, N.Y. TIMES, Nov. 11, 2015, https://www.nytimes.com/2015/11/11/us/politics/transcript-republicanpresidential-debate.html. 27 Donald J. Trump, Remarks at the Mississippi Coliseum in Jackson, Mississippi (Aug. 24, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=123198. 28 Donald J. Trump, Remarks at the Charlotte Convention Center in Charlotte, North Carolina (Aug. 18, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=119175.
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are terrific.”29 Mere days later, on September 5, the Trump administration ended DACA. In doing so, President Trump repeated, “Above all else, we must remember that young Americans have dreams too. . . . Our first and highest priority must be to improve jobs, wages and security for American workers and their families.”30
In this usage, Trump has co-opted “dreamer” and uses it instead to paint DACA recipients as interlopers whose unlawful presence threatens the rightful economic opportunities of “American” children. “Dreamer” itself becomes a code word that is intended to inflame and exploit negative sentiment based on people’s economic and cultural anxieties. See Santa Ana Decl. ¶ 50, Exhibit 2 at 16.
The declarations of Drs. Pitti and Santa Ana, each of which is based on accepted methodologies in their respective fields and supported by comprehensive reports with detailed findings based on publicly available statements, provide ample evidence that Plaintiffs have a strong likelihood of proving animus and prevailing on their APA claims.
29 Donald J. Trump, Remarks on Signing a Proclamation on the National Day of Prayer for the Victims of Hurricane Harvey and for Our National Response and Recovery Efforts and an Exchange with Reporters (Sept. 1, 2017), http://www. presidency.ucsb.edu/ws/index.php?pid=128160&st=dreamers&st1=. 30 Statement from President Donald J. Trump (Sept. 5, 2017), https://www. whitehouse.gov/briefings-statements/statement-president-donald-j-trump-7/.
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CONCLUSION For the foregoing reasons, this Court should affirm the district court’s (1) grant of provisional relief to Plaintiffs and (2) denial of Defendants’ motion to dismiss Plaintiffs’ equal protection claims.

Dated: March 19, 2018

Respectfully submitted,
FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY
s/ Robert S. Chang
Robert S. Chang Lorraine K. Bannai Melissa Lee Jessica Levin RONALD A. PETERSON LAW CLINIC Seattle University School of Law 901 12th Avenue Seattle, WA 98122 Telephone: (206) 398-4025 Facsimile: (206) 398-4036 changro@seattleu.edu
Attorneys for Amici Curiae

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APPENDIX
List of Individual Amici Curiae with Title and Institutional Affiliation Listed for Identification Purposes31

Name

Title

Institutional affiliation

Lauren Araiza

Associate Professor and Chair, Department of History

Denison University

Rick Baldoz

Associate Professor and Chair of Sociology

Oberlin College

Carlos Kevin Blanton Professor of History

Texas A & M University, College Station

Laura Briggs

Chair and Professor, Women, Gender, Sexuality Studies; Affiliate Professor, Department of History

University of Massachusetts Amherst

Geraldo L. Cadava

Associate Professor of History and Latina/o Studies

Northwestern University

Maria Raquel Casas

Associate Professor, Department of History

University of Nevada, Las Vegas

Lori Flores

Associate Professor, Department of History

Stony Brook University (SUNY)

Glenda E. Gilmore

Peter V. and C. Vann Woodward Professor of History

Yale University

31 None of the individual amici speak for or represent the official views of their respective institutions or departments.
A-1

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Ariela Gross

John B. & Alice R. Sharp

University of Southern

Professor of Law & History California

Thomas Guglielmo

Associate Professor of American Studies

George Washington University

Joshua B. Guild

Associate Professor of History and African American Studies

Princeton University

Matthew Pratt Guterl

Professor of Africana Studies and American Studies

Brown University

Leslie M. Harris

Professor, History and African American Studies

Northwestern University

Kelly Lytle Hernandez

Professor, Departments of History and AfricanAmerican Studies and Interim Director, Ralphe Bunche Center for African American Studies

University of California, Los Angeles

Daniel HoSang

Associate Professor of Ethnicity, Race & Migration Yale University and American Studies

Madeline Y. Hsu

Professor, Department of History and Center for Asian American Studies

The University of Texas at Austin

Michael D. InnisJiménez

Associate Professor of

American Studies and

University of Alabama

Director of Graduate Studies

Matthew Frye Jacobson

William Robertson Coe Professor of American Studies and History

Yale University

A-2

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Karl Jacoby Ari Kelman
Erika Lee
Shelley S. Lee
Mary Ting Yi Lui Joseph Lowndes Nancy MacLean Kate Masur John MckiernanGonzalez Ronald L. Mize Natalia Molina

Professor of History

Columbia University

Chancellor’s Leadership Professor of History

The University of California, Davis

Director, Immigration History Research Center, and Distinguished McKnight University Professor, Department of History

University of Minnesota

Associate Professor of History and Director of Comparative American Studies

Oberlin College

Professor of American Studies and History

Yale University

Associate Professor, Political Science Department

University of Oregon

William H. Chafe Professor of History and Public Policy

Duke University

Associate Professor of History

Northwestern University

Associate Professor of History

Texas State University

Associate Professor of Language, Culture and Society

Oregon State University

Professor of History

University of California, San Diego

A-3

Case: 18-15068, 03/19/2018, ID: 10804596, DktEntry: 56-1, Page 39 of 42

Gary Y. Okihiro Lorena Oropeza Leigh Raiford David Roediger
Renee C. Romano
Vicki L. Ruiz Rachel St. John Virginia J. Scharff Alexandra Minna Stern Timothy StewartWinter

Visiting Professor, American Studies

Yale University

Associate Professor, History University of California,

Department

Davis

Associate Professor, African University of California,

American Studies

Berkeley

Foundation Professor of American Studies

University of Kansas

Robert S. Danforth Professor of Humanities; Chair, Department of History; and Professor of Comparative American Studies and Africana Studies

Oberlin College

Distinguished Professor Emerita, History and Chicano/Latino Studies

University of California, Irvine

Associate Professor, Department of History

University of California, Davis

Distinguished Professor of History and Director, Center for the Southwest

University of New Mexico

Chair and Professor, Department of American Culture and History

University of Michigan

Associate Professor of History

Rutgers University – Newark

A-4

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Penny Von Eschen Julie M. Weise Judy Tzu-Chun Wu

L. Sanford and Jo Mills Reis

Professor of Humanities,

Cornell University

Department of History

Associate Professor of History

University of Oregon

Professor and Chair, Asian American Studies Department

University of California, Irvine

A-5

Case: 18-15068, 03/19/2018, ID: 10804596, DktEntry: 56-1, Page 41 of 42
CERTIFICATE OF COMPLIANCE I certify that this brief complies with the requirements of FRAP 32(a)(5) and (6) because it has been prepared in 14-point Times New Roman, a proportionally spaced font, and that it complies with the type-volume limitations of FRAP 29(a)(5) and Circuit Rule 32-1 because it contains 6,523 words according to the word count feature of Microsoft Word, excluding the parts exempted by FRAP 32(a)(7)(B)(iii).
s/ Robert S. Chang Robert S. Chang

Case: 18-15068, 03/19/2018, ID: 10804596, DktEntry: 56-1, Page 42 of 42
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
U.S. Court of Appeals Docket Numbers: 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
I hereby certify that on March 19, 2018, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Robert S. Chang Robert S. Chang

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Case: 18-15068, 03/19/2018, ID: 10804596, DktEntry: 56-3, Page 1 of 18
EXHIBIT 2

Case: 18-15068, 03/19/2018, ID: 10804596, DktEntry: 56-3, Page 2 of 18

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REGENTS OF THE UNIVERSITY

)

OF CALIFORNIA, ET AL.,

)

Plaintiffs-Appellees-Cross-Appellants )

)

v.

)

)

U.S. DEPARTMENT OF

)

HOMELAND SECURITY, ET AL.,

)

Defendants-Appellants-Cross-Appellants )

___________________________________)

Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
DECLARATION OF DR. OTTO SANTA ANA

Dr. Otto Santa Ana, Ph.D., pursuant to 28 U.S.C. § 1746, declares as follows:

A. INTRODUCTION

1. I am a tenured full professor at University of California, Los Angeles (UCLA). I was

appointed at UCLA as Assistant Professor in 1994, promoted to Associate Professor in 2001, and

was promoted to full Professor in 2013.

2. I received a B.A. in Anthropology from the University of Arizona in 1977. I received a

M.A. in Linguistics with a major in General Linguistics from the University of Arizona in 1981.

I received a Ph.D. in Linguistics from the University of Pennsylvania in 1991.

3. I have been the recipient of various fellowships in recognition of my scholarship,

including from the Ford Foundation and the Rockefeller Foundation. Most recently, I was a

Templeton Fellow at the University of Notre Dame Institute for Advanced Study from 2015 to

2016.

4. My primary field of research and teaching centers on linguistics and the critical analysis

of public discourse especially with regard to the use of metaphors and metonymy by public

officials, politicians, the media, and members of the public in shaping public discourse and

advancing political objectives.
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5. I teach or have taught graduate level and undergraduate-level courses on Critical Discourse Analytic Methods, Mass Media Research Methods, Representations of Latinos in Newspapers and in Television News, and Metaphor and Text Media Representations of Latinos.
B. QUALIFICATIONS 6. I serve as Vice Chair of the César Chávez Department of Chicana & Chicano Studies, University of California, Los Angeles. 7. I have served on the governing board of the National Association of Senior Scholars of Color as a founding co-director since 2007. I also serve on the honorary editorial board of the Applied Linguistics Journal, the editorial board of the Journal of Language and Politics, and have served on the editorial board of the Journal of Linguistic Anthropology since 2001. I have refereed journal articles on the use of metaphor in society. 8. I am the author of two major publications that examine the representation of Latinos in public discourse: Juan in a Hundred: Representation of Latinos on Network News (University of Texas Press, 2013) and Brown Tide Rising: Metaphoric Representations of Latinos in Contemporary Public Discourse (University of Texas Press, 2002). I co-edited Arizona Firestorm: Global Immigration Realities, National Media, and Provincial Politics (Rowman & Littlefield, 2012) (with Celeste González de Bustamante), a collection of book chapters by experts who examine the political, economic, historical, and legal issue surrounding Arizona’s SB 1070, with special attention to the shaping of public discourse by politicians, government officials, the media, and members of the public. Juan in a Hundred received the 2013 Ralph J. Bunche Award of the American Political Science Association awarded to the best scholarly work in political science that explores ethnic and cultural pluralism; Brown Tide Rising was recognized by the American Political Science Association as the best book of 2002 on ethnic and
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racial political ideology and/or political theory. 9. I have served as an expert in four cases involving discriminatory intent of a public
official; defamation on Spanish language radio; verbal sexual harassment in spoken Spanish; and racial hate language in spoken Mexican Spanish.
C. RESEARCH DESIGN AND METHODOLOGY 10. Working with a team of researchers, I prepared a preliminary report in December 2017 that studied then-candidate and now-President Donald J. Trump’s language as it related to the characterization of Latinos, Latino immigrants, and DACA grantees. This study is founded on cognitive science theory and is operationalized using an empirical discourse analytic method. Specifically, conceptual metaphor theory is a thirty-year-old research enterprise developed in universities across the world. Conceptual metaphor theory argues that above other structures of language, metaphor is a principal cognitive structure that people use to make sense of behavior, objects, and people. The specific method utilized in this study is an empirically grounded version of Critical Discourse Analysis that is based on conceptual metaphor theory. The report, scores of examples, and additional findings can be found at https://www.thepresidentsintent.com/. 11. Cognitive science has shown that people use conceptual metaphors to makes sense of, and to communicate to one another about the world. First, it turns out that to think about or talk about any particular topic, from breakfast cereal to family life, from nationhood or patriotism, people only use a handful of conceptual metaphors per topic. When they speak about any topic at length and repeatedly, they use those few metaphors consistently. Second, those handful of metaphors typically tend to be semantically congruent, meaning (in the case of political discourse) that they tend to create a narrative or tell a story. As such, we can empirically operationalize these insights to study Trump’s metaphor usage on a given issue, in this case his
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public discourse about immigrants, immigration and its relation to the nation. 12. Definition: When we refer to metaphor we are not talking about poetic turns of phrase.
Rather we are talking about prosaic, commonplace, unremarkable expressions. In cognitive linguistics a conceptual metaphor refers to the understanding of one idea in terms of another. Textbook examples are the understanding of quantity in terms of directionality, e.g. “the price of peace is rising,” or the understanding of love in terms of insanity, e.g. “I’m crazy about that woman.” It turns out that people use these relatively inconspicuous metaphors to organize their experiences in all conceptual domains, including political domains.
13. Definition: A metonym is a type of metaphor in which the word or phrase that is used stands in for another word of the same semantic domain. For example the metonymic phrase, “Give him a hand,” employs reference to a part of the body to stands in for the whole person addressed. It uses the semantic domain of the human body. Here, a small part represents the whole. Metonyms can operate as code words in political discourse, typically whereby a small portion of a population is falsely extended to the whole.
14. The research team conducted both qualitative and quantitative studies of the President’s public discourse. The quantitative study involved a systematic computer-assisted review of 347 speeches and 6,963 tweets. This data was drawn from the President’s public discourse delivered between August 2015 and mid-September 2017. The corpus totals 824,207 words. The quantitative corpus analysis was preceded by a qualitative research project. The qualitative study was an intensive inductive analysis of 11 carefully chosen speeches and 297 highly relevant tweets.
15. The research team used time-tested protocol to avoid selection bias and interpretation bias. To avoid selection bias, the protocol involves locating a reliable source of a large amount of
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data, and establishing the data-gathering criteria, e.g. date-range, discourse type, etc., and then gathering all the discourse data in a single download. The downloaded data are then comprehensively analyzed. An individual datum was not highlighted while ignoring other data; the team did not “cherry-picked” the data to argue for a preordained hypothesis. The speeches analyzed were obtained from http://www.presidency.ucsb.edu, and the tweets analyzed were obtained from http://www.trumptwitterarchive.com.
16. The team undertook a qualitative inductive analysis following a rigorous protocol to avoid interpretive bias. The researchers do not begin with a hypothesis. Instead, the metaphors are discovered by systematically applying an inductive method to the speeches, phrase by phrase, sentence by sentence. First a pair of team members work together to locate individual instances of metaphor (tokens) of one of the President’s speeches, sentence by sentence, labeling the source and target conceptual domains of each token, and placing the token with its labeling context into a growing table of metaphors. Another pair of researchers works independently to analyze the same speech, again sentence by sentence. Then these four researchers meet to compare their work, to develop a consensus description of the token. In a third pass, the tokens are again reviewed by other members of the research team, again independently, with the goal of finding the commonly accepted consensus label. No tokens are discarded even if they do not fit the general pattern. In this way, the interpretation of each token is determined by consensus.
17. When this protocol is followed, a metaphor pattern emerges inductively. It turns out that people only use a handful of conceptual metaphors consistently when they speak about any topic at length and repeatedly. We locate these metaphors one by one. When compiled, the variation we originally find reduces to just a few conceptual metaphors that typically are semantically congruent. We work with a clear success criterion: the best inductive analysis is the one that
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captures the greatest number of metaphor tokens. The constellation of conceptual metaphors of political speeches and statements can be summarized as a narrative.
18. After the qualitative inductive method has located the small handful of semantically related metaphors in the carefully specified subset of speeches and tweets, we use the power of computers to systematically review the whole corpus of over 340 speeches and 6900 tweets in order to test whether or not our qualitative analysis captures the patterning of the large data set. The qualitative analysis was confirmed in the full corpus.
19. Both the qualitative inductive analysis and quantitative computer-assisted analysis employ rigorous research protocol that minimize bias. The data can be independently retrieved, and the method can be independently replicated, which provides a high degree of scientific reliability.
D. SUMMARY OF OPINIONS 20. In his public discourse on immigration then-candidate and now-President Trump employs a set of metonyms (code words) that gives his discourse significantly greater persuasive power by demonizing immigrants, including DACA grantees, by associating all unauthorized immigrants with an infinitesimal subset of violent and dangerous felons. 21. As is the case for all speakers when they speak repeatedly about a single topic, the President’s discourse on immigration uses a small number of conceptual metaphors. However, his most frequently repeated metaphors articulate a factually inaccurate and racially repugnant plotline. These conceptual metaphors constitute the characters of a trope or storyline that will be familiar to students of U.S. history: the AMERICA AS FORTRESS. His narrative in brief: The United States is under existential attack from Mexico. Mexico sends ruthless criminal immigrants to wreak havoc throughout the nation. While previous traitorous politicians allowed
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this invasion to continue unabated until the United States has come to the brink of collapse, Trump alone is the one person, the hero, who can save America from this invasion. The President uses his code words to give greater persuasive power to his narrative, by falsely excoriating the vast majority of immigrants and exaggerating the danger to the country. Finally, the President uses two rhetorical devices, Pre-emption and Paralipsis, to ostensibly distance himself from his incendiary statements.
22. Trump’s conceptual metaphor usage articulates a consistently discriminatory and powerfully persuasive political message that sustains and reinforces false presuppositions and a racially discriminatory view of immigrants, Mexicans, and U.S. Latinos.
E. FINDINGS Trump’s Metonyms (Code Words)
23. Trump uses metonymy to create code words that gives his discourse significantly greater persuasive power by labeling the vast preponderance of unauthorized immigrants with demonizing terms. He uses several code words.
24. First, Trump frequently uses “MS-13,” a notorious gang composed on one-third immigrants and two-thirds U.S. citizens, as a metonymy for all Latino immigrants. This metonym attributes the violent behavior of a tiny subset to peaceful and productive Latino immigrants. Combining both immigrant and citizens, the largest estimated number of MS-13 gang members constitute far less than one-tenth of one percent of all unauthorized immigrants.
25. Second, Trump often uses “criminal alien,” the two percent of unauthorized immigrants who are charged with felonies, to refer to all unauthorized immigrants. Through this term, he attributes felonious conduct to all unauthorized immigrants who do not commit felonies, such as when he said the following in a speech:
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If I’m elected, we will impose tough new mandatory minimum federal prison sentences for anyone who illegally re-enters the country after previously being deported. And we will swiftly remove and deport all criminal aliens from this country, and dismantle the gangs and cartels preying on our citizens. Either we win this election, or we lose the country. 26. Third, Trump repeatedly uses the names of just twelve American individuals who were killed by “criminal aliens” to refer to the “countless Americans” or their families killed by “criminal aliens.” The threat of violence of twelve killers is thus attributed to all unauthorized immigrants. Hence, Trump states that every American is an imminent victim of brutal violence at the hands of an unauthorized immigrant. For example, Trump said in a speech, “Countless Americans are killed by illegal immigrants because our government won’t do its job. These include amazing Americans like Sergeant Brandon Mendoza, of Mesa Arizona, who was killed by an illegal immigrant with a criminal record who should have been deported.” (Trump’s following sentences invoked the names of Kris Eggle, Nick Erfle, and Grant Ronnebeck and detailed their murders). 27. Fourth, Trump conflates children who were brought without authorization by their parents with U.S.-born children of Latino immigrants. He repudiates both groups of children as not “our children,” and with the latter, through his criticism of birthright citizenship, argues that they are not entitled to U.S. citizenship. 28. Trump’s characterization of immigrants from Mexico and other Central American countries is intended to instill and provoke negative feelings, animus, against those groups, including DACA grantees. 29. Fifth, the President employs the code word “open border” to refer to the immigration policy and the purported actual state of U.S./Mexico border under the Obama administration, or a possible Hillary Clinton presidency. He frequently denounced “open borders as dangerous” and
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argued that an open-border policy allows criminals, drugs, and murderers to flow into the country. He also described open borders as weak and broken, thus leaving America vulnerable to crime, drugs, and lawlessness. He explicitly argued that drugs coming from the southern border into the United States is poisoning American communities with crime and death. For example, in a speech to law enforcement regarding MS-13, he said the following:
For many years, they exploited America’s weak borders and lax immigration enforcement to bring drugs and violence to cities and towns all across America. They’re there right now because of weak political leadership, weak leadership, weak policing, and in many cases because the police weren’t allowed to do their job. Since this terminology aligns with the other metaphors, it instantly recalls the leading conceptual metaphor of a nation under attack by invasion.
Trump’s Narrative Is Built on a Few Related Conceptual Metaphors 30. Trump’s leading metaphor is the fundamental organizing principle behind his discourse about immigrants and the state of this country: NATION AS FORTRESS UNDER ATTACK. He repeatedly described the U.S. has having a “broken border” or “open border” that imperils the American people causing its “homes, cities, and towns” to be “overrun” and “ravaged” by the murderous criminal enemy force from Mexico. Mexico is described as the enemy, whose leaders “send” or “push” its worst people to attack America. He uses the code word “criminal aliens” to describe that attacking force and attribute the felonies committed by two percent of unauthorized immigrants to all unauthorized immigrants.
Trump’s Metaphors about the U.S. and Mexico 31. Trump depicts Mexico as the enemy of the United States. He portrays Mexico as the “second deadliest country in the world” and uses this to support his call for a wall between the countries. He declared that the politicians of Mexico were “far smarter than ours” and that Mexico is taking advantage by “killing us at the border and at trade!” He asserted that Mexican
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Leaders “push” or “send” “the worst elements of society” to America, such as rapists, killers, and illegal drugs such as heroin. In a televised interview, he made the following remarks:
People are flowing into this country. People in many cases, who are very bad. They are sending their criminals and they are not going to help us. I’m sure there’s going to be some wonderful people, but for the most part those people are not going to be helping. We are getting criminals, gang members, the worst of the worst, and were just letting them flow right in. And now they’re going to be voting? The Democrats like this and they wanted to help. 32. Trump’s narrative NATION AS FORTRESS UNDER ATTACK has stock heroes and traitors. It is telling that Trump used the same negative metaphors for unauthorized immigrants and for Mexico, to smear his political opponents. Trump characterized them as dangerous criminal enemies of the nation who victimize the American people. 33. The Traitors: Trump labels as the traitors of America, Hillary Clinton, Barak Obama, and Republicans who don’t support Trump’s policies. He condemns these politicians as “corrupt” and “weak” based on their views on immigration policies and implied that these politicians were “complicit” in the “crime” and “devastation” resulting from “illegal immigration.” He vilifies the idea of amnesty as an action that would lead to the downfall of America. 34. The Hero: Trump promotes himself as a savior to the American public because he vows to “[f]ind, arrest, jail and deport,” every criminal alien in the United States, and because he will bring justice to “every mom who has lost her child to illegal immigration” through building a wall and defunding sanctuary cities. His catchphrase is “take back our country,” which can be seen in tweets and speeches such as when he tweeted, “We must stop the crime and killing machine that is illegal immigration. Rampant problems will only get worse. Take back our country!” (8/11/15 0:58). He also paints himself as a strong provider because he will build a wall that “will bring back [America] dreams” and deport illegal immigrants who have stolen American jobs.
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35. He depicts himself as a brave patriot and “protector” of America. He depicts the police, military, and Border Patrol using the same metaphors he uses for himself. For example, he said, “One by one, we’re liberating our American towns. Can you believe that I’m saying that? I’m talking about liberating our towns. This is like I’d see in a movie: They’re liberating the town, like in the old Wild West, right?” Additionally, he depicted Sherriff Arpaio as a hero, such as when he tweeted, “I am pleased to inform you that I have just granted a full Pardon to 85 year old American patriot Sheriff Joe Arpaio. He kept Arizona safe!” (8/26/2017 2:00:33 AM). He urges that Americans must take back the country allegedly “stolen by immigrants.”
36. In the same way that Trump paints his political enemies, and the nation’s existential enemies with the same villainous metaphors, Trump described himself using the same positive metaphors that he uses to characterize the U.S. military, the police, and the border patrol: both he and they are brave strong defenders of the country.
37. Trump used metaphors to describe America as having its existence threatened by weakened borders and unimpeded waves of criminal immigrants flowing into the nation. He describes the uncontrolled influx of a large immigration population as the result of the lax enforcement of immigration policy by stupid or complicit politicians. For example, he tweeted:
“A nation WITHOUT BORDERS is not a nation at all. We must have a wall. The rule of law matters. Jeb just doesn’t get it.” (8/11/15 0:58). During a speech delivered at Prescott Valley, Arizona, he similarly said, “Countless Americans who have died in recent years would be alive today if not for the open border policies of this Administration.” 38. For Trump, the linchpin of the survival of the nation is the “Great Wall,” which will allow him to regain control of the border, and close the breach in Fortress America. It is the opposite of the “Open Border” policy and purported state of affairs that exists, as the President
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repeated asserts. Trump expressed urgency for his “Great Wall” as the only way to keep the “nation secure.” It is notable that his references to the “Great Wall” echoes his political catchphrase: Make America Great Again. He asserts that this “Great Wall” will bring an end to the “disease” afflicting American communities, namely immigrant “rapists and killers coming across the southern border. For example, he tweeted
“The Wall is a very important tool in stopping drugs from pouring into our country and poisoning our youth (and many others)! If....the wall is not built which it will be the drug situation will NEVER be fixed the way it should be!” #BuildTheWall (4/24/2017 12:28:01 PM) 39. To reiterate, the narrative of Trump’s discourse, as revealed his conceptual metaphors, is that America, a once great fortress, is under siege by “criminal aliens” from Mexico. Mexico is intentionally sending violent criminals, drug cartels, and human traffickers to America, and Mexico is aided by stupid or complicit politicians. Trump is the only brave hero that can “make America great again” by directing law enforcement to expel the invading force and through building a Great Wall.
Trump’s Metaphors about Immigrants 40. Trump’s conceptual metaphors of unauthorized immigrants are linked to his leading metaphor: IMMIGRANT AS CRIMINAL, AS DANGER, and AS DISEASE. He states that all unauthorized immigrants are fundamentally criminals because they broke the law by crossing the border and causing states to incur expenses for public safety, health, and education. Additionally, as criminals, they threaten the very fabric of the U.S. and the rule of law. We will elaborate these metaphors below. 41. Trump identifies the immigrants crossing the southern border as enemy soldiers, as an army of “criminal gangs” who show no remorse to Americans. In a speech to the NRA, he said the following:
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It was this conviction that stirred the heart of a great American patriot on that day, April, 242 years ago. It was the day that Paul Revere spread his Lexington alarm -- the famous warning that “the British are coming, the British are coming.” Right? You’ve all heard that, right? The British are coming. Now we have other people trying to come, but believe me, they’re not going to be successful. That I can tell you. Nothing changes, right, folks? Nothing changes. They are not going to be successful. There will be serious hurt on them, not on us.
42. Trump also groups all Mexican and Central American immigrants together as the enemy
army of “criminal gangs” that has victimized American communities. He tweeted “Again illegal
immigrant is charged with the fatal bludgeoning of a wonderful and loved 64 year old woman.
Get them out and build a WALL!” (8/11/15 0:29). Further, he said the following:
In Washington, D.C. region, at least 42 alien minors from the border surge have been recently implicated in MS-13-related violence, including 19 charged in killings or attempted killings. You say, what happened to the old days where people came into this country, they worked and they worked and they worked, and they had families, and they paid taxes, and they did all sorts of things, and their families got stronger, and they were closely knit? We don’t see that. Failure to enforce our immigration laws had predictable results: drugs, gangs and violence. But that’s all changing now.
He paints all unauthorized immigrants in the U.S. as a “threat to the security and future” of our
children and all “civilized people.” He denounces this immigrant population as being “criminals,
rapists, and thieves,” and expresses frustration that these “killers” can “walk across the border,”
commit a crime, and still be allowed to “receive free health care.”
43. Trump depicts unauthorized immigrants as “animals” claiming that they are all hyper-
violent gang members who “don’t like shooting people because it’s took quick.” He repeatedly
employs this metaphor by providing vivid and gruesome examples of exactly twelve cases of a
U.S. citizen who was murdered by one of these “animals,” as justification for the harshest
treatment of each and every unauthorized immigrant. For example, he said the following:
Since January “16 -- think of this -- MS-13 gang members have brutally murdered 17 beautiful, young lives in this area on Long Island alone. Think of it. They butcher those little girls. They kidnap, they extort, they rape and they rob. They prey on children. They shouldn’t be here. They stomp on their victims. They beat them with clubs. They
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slash them with machetes, and they stab them with knives. They have transformed peaceful parks and beautiful, quiet neighborhoods into bloodstained killing fields. They’re animals.
Trump’s Metaphors about U.S. Citizens 44. Trump depicts American citizens as victims suffering from the absence of a border wall and poor immigration enforcement. He places blame on sanctuary cities and the immigration policies of past administrations, such as when he said, “Countless Americans who have died in recent years would be alive today if not for the open border policies of this President Obama and Hillary Clinton.” Further, he asserts that Americans are often forgotten or ignored by the political establishment.
Two of Trump’s Rhetorical Devices 45. All speakers use rhetorical devices to attempt to persuade their listeners to accept the spoken message. Scholars of rhetoric have commented that the President often relies two key rhetorical devices that most speakers rarely use in formal public discourse: Pre-emption and Paralipsis. The rhetorical purpose of these devices is to give the speaker ostensive emotional distance from the statements he or she is making without repudiating those statements. Trump used them to give him psychological cover, to evade responsibility for his offensive statements about immigrants and Mexico. 46. Pre-emption takes the form of a mild positive claim followed by a series of strong negative claims. Trump begins a new topic in a speech or conversation by offering a small or mild compliment about a group, followed with a stream of negative statements that make up the major claim in his speech. For example, Trump tweeted, “I love the Mexican people but Mexico is not our friend. They’re killing us at the border and they’re killing us on jobs and trade. FIGHT!” (6/30/15 12:57).
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47. Paralipsis takes the form of a series of negative claims into which a minor positive claim is inserted, followed by more negative claims. We found that Trump repeatedly inserts a faintly positive statement into a string of negative statements about immigrants or Mexico. For example, in a speech on the day he announced his run for presidency, he said the following:
Mexico sends its people. They are not sending their best. They are not sending you. [pointing to audience] They are not sending you. [pointing to audience] They are sending people that have lots of problems, and they are bringing those problems to us. They are bringing drugs, they are bringing crime, their rapists, and some I assume are good people but I speak to border guards and they tell us what we are getting. and it only makes common sense. It only makes common sense. They are sending us not the right people get it’s coming from more than Mexico. It’s coming from all over South and Latin America, and it’s coming probably probably from the Middle East. but we don’t know because we have no protection and we have no confidence. We don’t know what’s happening. In this quote, he disparages Mexico for intentionally dispatching its worst people to the US, and he casts slurs on ninety-eight percent of Mexican and other Latin American immigrants. Trump hedges his offensive statements with paralipis, but note that in this paralipis he suggests that he has not personally known any Mexican immigrant who is not a felon.
Drilling Down to Legally Protected Groups 48. As discussed above, Trump characterizes Mexico and (Mexican) immigrants as being the invading enemy of the U.S. within his nation as fortress narrative, and he attributes the violent actions of two percent of unauthorized immigrants to all unauthorized immigrants. 49. Trump at times conflates U.S. citizens by birthright and those who are unauthorized because they were brought to the U.S. as children. He repeatedly expresses hostility toward US Latino children, specifically hostility towards their right to U.S. citizenship because of the Birthright Citizenship clause of the 14th Amendment. Trump employs the disparaging term, “anchor babies,” for U.S. Latinos who are born to immigrants, despite their citizenship by constitutional directive. This suggests his concern is not their legal status, but rather their non-
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white race, and displays his disdain for their heritage as Mexican-Americans, Salvadoran-

Americans, and so forth. For example, he said the following in a speech:

So, we have 300,000 babies a year that you will have to take care of, we all have to take care of your [it] in the case of other countries, including Mexico, they do not do that. It does not work that way. You do not walk up the border one day and all the sudden we have another American citizen. Mexico does not do not do it. Very few places do it. We are the only place just about that is stupid enough to do it.

50. Trump tries to appropriate the terms DREAMers and Sanctuary Cities for the families of

his constituency. Trump is ambivalent about the group of activists called the DREAMers, but he

clearly expresses derision about the power of their self-describing term, DREAMer, such as

when he said, “Where is the sanctuary for American children? Where is that sanctuary? The

dreamers we never talk about are the young Americans. Why aren’t young Americans dreamers

also? I want my dreamers to be young Americans.”

51. Trump expresses concern that U.S. Latinos will vote Democrat if they stay in the United

States. In a televised interview, he said, “We are getting criminals, gang members, the worst of

the worst, and were just letting them flow right in. And now they’re going to be voting? The

Democrats like this and they wanted to help. These people are going to be voting a hundred

percent for Democrats.”

52. Then-candidate Trump repeatedly cited the Indiana-born United States District Judge

Gonzalo P. Curiel’s identity as a “Mexican” as evidence that Curiel could not be impartial in the

California class-action lawsuit against Trump University. Curiel has said, “[t]he deliberate

confusion of ethnicity for nationality is one of the most casually cruel rhetorical devices

available in this country,” yet that is precisely what Donald Trump did to Curiel over the

summer. For example, in a CNN interview with Jake Tapper, the following exchange occurred:

Tapper: Trump:

But you’re saying you can’t do his job because of that. Look, he’s proud of his heritage, OK? I’m building a wall. We are

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building a wall. He’s a Mexican. We’re building a wall between here and Mexico. The answer is, he is giving us very unfair rulings, rulings that people can’t even believe. This case should have ended years ago in summary judgement. 53. Trump denies he is racist, such as when he tweeted “Mitt Romney had his chance to beat a failed president but he choked like a dog. Now he calls me racist—but I am least racist person there is.” (11/06/16). F. CONCLUSION 54. Trump’s public discourse, in which he repeatedly uses several related conceptual metaphors to describe immigrants, Mexicans, and U.S. Latinos as the enemy, as disease, as criminal, and as animalistic, is discriminatory and racist according to standard definitions of racism. Trump speaks as if U.S. citizens suffer each day at the hands of immigrants. This scapegoating of Latino immigrants reinforces and capitalizes on his core constituency’s economic and cultural insecurities in order to advance Trump’s political objectives.
Executed on March 18, 2018
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 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
In the United States Court of Appeals for the Ninth Circuit
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL., Plaintiffs-Appellees-Cross-Appellants.
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., Defendants-Appellants-Cross-Appellees,
On Appeal from the United States District Court for the Northern District of California
BRIEF OF SERVICE EMPLOYEES INTERNATIONAL UNION, AMERICAN FEDERATION OF TEACHERS, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COMMUNICATIONS WORKERS OF AMERICA, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, AND UNITED FARM WORKERS OF AMERICA AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

NICOLE G. BERNER DEBORAH L. SMITH LEO GERTNER SERVICE EMPLOYEES INTERNATIONAL UNION 1800 Massachusetts Avenue, N.W. Washington, D.C. 20036 (202) 730-7466 nicole.berner@seiu.org
Attorneys for Amicus Curiae SEIU
March 20, 2018

DEEPAK GUPTA GUPTA WESSLER PLLC 1900 L Street, NW, Suite 312 Washington, DC 20036 (202) 888-1741 deepak@guptawessler.com
Counsel for Amici Curiae
(Additional counsel listed on inside cover)

DAVID J. STROM AMERICAN FEDERATION OF TEACHERS 55 New Jersey Avenue, N.W. Washington, D.C. 20001 (202) 393-7472 dstrom@aft.org
Attorney for Amicus Curiae AFT

BRADLEY RAYMOND INTERNATIONAL BROTHERHOOD OF TEAMSTERS 25 Louisiana Avenue, N.W. Washington, D.C. 20001 braymond@teamster.org
Attorney for Amicus Curiae IBT

JUDITH RIVLIN AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES 1101 17th Street, N.W., Suite 900 Washington, D.C. 20036 (202) 775-5900 jrivlin@afscme.org
Attorney for Amicus Curiae AFSCME
PATRICIA M. SHEA COMMUNICATIONS WORKERS OF AMERICA 501 3rd Street, N.W. Washington, D.C. 20001 (202) 434-1234 pats@cwa-union.org
Attorney for Amicus Curiae CWA

JOSEPH E. KOLICK, JR. INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, AFL-CIO 7234 Parkway Drive Hanover, MD 21076
Attorney for Amicus Curiae IUPAT
MARIO MARTÍNEZ MARTÍNEZ AGUILASOCHO & LYNCH, APLC 1527 19th Street, Suite 332 Bakersfield, CA 93301 (661) 859-1174 mmartinez@farmworkerlaw.com
Attorney for Amicus Curiae UFW

CORPORATE DISCLOSURE STATEMENT Amici curiae Service Employees International Union, American Federation of Teachers, American Federation of State, County and Municipal Employees, Communications Workers of America, International Brotherhood of Teamsters, International Union of Painters and Allied Trades, and United Farm Workers of America have no parent corporations. They have no stock, and therefore, no publicly held company owns 10% or more of their stock.
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TABLE OF CONTENTS
Corporate disclosure statement ............................................................................... i Interest of amici curiae ............................................................................................. iii
Table of citations.................................................................................................. vii
Introduction and summary of argument................................................................. 1
Argument ............................................................................................................... 2
I. Rescinding DACA will adversely impact employers and the U.S. economy....................................................................................................... 2
II. Terminating the DACA program inﬂicts irreparable harm on DACA recipients and their families, including American-citizen children. ............... 4
III. Union members and their family members have become vital parts of American society as a direct result of the opportunities provided to them by the DACA program........................................................................ 7 T.W.: From NFL athlete to Harvard orthopedic surgeon. ..............................7
P.V.: A dedicated public servant prosecuting crime for Travis County, Texas. ........................................................................................................9
K.R.: A sister-turned-guardian putting food on the table. .............................11
J.D. A public school teacher ﬁlling the gap for special needs instruction to deaf children. ......................................................................................13
E.M.: The father supporting his family and planning for college. .................14 O.S.: 21 and “able to do normal things” like attend college. .........................16 F.G.: Living without fear of being deported from his American wife............17
M.R.: Homecare worker for the elderly by day, tutor to his American siblings by night. .....................................................................................19
C.F.: Living the American dream until 17, regaining it through DACA. .....20
V.S.: A+ student, psychology graduate, and caretaker of her American siblings. ....................................................................................................22
R.A. A history teacher for immigrant students at a public school in the Bronx. ......................................................................................................24
Conclusion ........................................................................................................... 25
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INTEREST OF AMICI CURIAE1 Amici curiae are the Service Employees International Union, American Federation of Teachers, American Federation of State, County and Municipal Employees, Communications Workers of America, International Brotherhood of Teamsters, International Union of Painters and Allied Trades, and United Farm Workers of America. Service Employees International Union (SEIU) is a labor organization of approximately two million working men and women in the United States and Canada. SEIU’s members include foreign-born U.S. citizens, lawful permanent residents, and undocumented immigrants authorized to work in the United States. Many of SEIU’s members have mixed-status families. As described below, SEIU members will be directly affected by the termination of DACA. The American Federation of Teachers (AFT), an affiliate of the AFLCIO, was founded in 1916, and today represents approximately 1.7 million members who are employed across the nation in K-12 and higher education, public employment, and healthcare. The AFT has a longstanding history of supporting and advocating for the civil rights of our members and the communities they serve. The AFT has members throughout the country that have received work permits
1 All parties consent to the ﬁling of this brief. No counsel of any party to this proceeding authored any part of this brief. No party or party’s counsel, or person other than amici and their members, contributed money to the preparation or submission of this brief.
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through the DACA program. These members have utilized DACA work permits to obtain employment in institutions that provide essential services in communities throughout the United States. AFT members also teach students who have received DACA benefits. These students are integral members of their educational institutions. They contribute to the diversity of experience and viewpoint in classrooms, engage in valuable research projects, and play leadership roles in student life.
American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME), is a union of 1.6 million members in the United States and Puerto Rico, both in the public and private sectors, who share a commitment to service. AFSCME is participating in this case to advance its mission of helping all working people, including immigrants and people of color, achieve the American dream regardless of their identity. AFSCME is proud to represent members who came to the United States as children and who are contributing to our communities, states and country. The public servants of AFSCME, and indeed all Americans, deserve better.
The Communications Workers of America, AFL-CIO (CWA), is an international labor union representing more than 700,000 workers in the telecommunications, media, manufacturing, airlines, and health care industries and in a wide variety of public sector positions in the United States, Canada, and Puerto
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Rico. CWA represents and advocates on behalf of workers with respect to workplace rights and broader political and civil rights. As part of this mission, CWA has supported fair, humane, comprehensive immigration reform, as programs like Deferred Action for Childhood Arrival affect CWA members’ communities and the lives and welfare of fellow workers.
The International Brotherhood of Teamsters (IBT) is a labor organization with more than 1.3 million members who are employed in a wide array of industries across the United States and Canada. Its members include persons who will be harmed by any impairment of the Deferred Action for Childhood Arrivals program.
The International Union of Painters and Allied Trades (IUPAT) is a labor organization comprised of approximately 140,000 members. Our members work as commercial and industrial painters, glaziers, drywall finishers, floor coverers, trade show workers and in many other occupations. IUPAT welcomes any person who does the work we do. Our members are of many races, practice many religions, were born in many countries, speak many languages and have different political views. They include beneficiaries of DACA and citizens or lawful permanent residents whose family members benefit from DACA. They, and many other members, will be directly affected by the termination of DACA.
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United Farm Workers of America (UFW) represents thousands of migrant and seasonal farmworkers in various agricultural occupations throughout the country and has members of diverse racial, ethnic, and immigration backgrounds throughout the United States. UFW seeks to improve the lives, wages, and working conditions of agricultural workers and their families through collective bargaining, worker education, state and federal legislation, and through public campaigns. UFW’s members include foreign-born U.S. citizens, lawful permanent residents, immigrants authorized to work in the United States, and undocumented immigrants. Many of UFW’s members have mixed-status families, and many farmworkers have children who qualify and would qualify as DREAMers under DACA. As described below, UFW’s members will be directly affected by the termination of DACA.
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TABLE OF CITATIONS
Priscilla Alvarez, Will DACA Parents Be Forced to Leave Their U.S.-Citizen Children Behind?, The Atlantic, Oct. 21, 2017, https://perma.cc/XD7H-282Q........................... 1
Catalina Amuedo-Durantes & Francisca Antman, Can authorization reduce poverty among undocumented immigrants? Evidence from the Deferred Action for Childhood Arrivals program, Elsevier, 147 Econ. Lett. 1 (2016). .............................................................................................................. 4, 5
Ike Brannon & Logan Albright, The Economic and Fiscal Impact of Repealing DACA, Cato Institute (Jan. 18, 2017), https://perma.cc/ZH57-8D98.............................................. 1, 4
Center for American Progress & FWD.us, Study: The Impact of Deferred Action for Childhood Arrivals (DACA) Program Repeal on Jobs, FWD.us (Aug. 23, 2017), https://perma.cc/3X8Q-ZJSM.......................... 2, 6
Roberto G. Gonzales, et al., Becoming DACAmented: Assessing the Short-Term Benefits of Deferred Action for Childhood Arrivals (DACA), 58 Am. Behav. Sci. 1852 (2014). ............................ 5, 6
Edward Graham, Trump’s DACA Move Comes as Most Voters Back Citizenship for ‘Dreamers’, Morning Consult (Sept. 5, 2017), https://perma.cc/6BX9-J6K5. ..................... 4
Jens Hainmueller et al., Protecting unauthorized immigrant mothers improves their children’s mental health, 357 Science 1041 (2017) ...................................................................................... 6
Jens Manuel Krogstad, DACA has shielded nearly 790,000 young unauthorized immigrants from deportation, Pew Research Center (Sept. 1, 2017), https://perma.cc/A5NW-HKYD.......... 7
Jens Manuel Krogstad, Jeffrey S. Passel & D’vera Cohn, 5 facts about illegal immigration in the U.S., Pew Research Center (Apr. 27, 2017), https://perma.cc/FYM8-GAEA. ............................................. 3
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Jose Magaña-Salgado, Money on the Table: The Economic Cost of Ending DACA, Immigrant Legal Resource Center (Dec. 2016), https://perma.cc/S4NY-V33Z. ......................... 3
Milenko Martinovich, Rescinding DACA protections on immigrant mothers could have negative health impacts on their children, Stanford study finds, Stanford News (Sept. 7, 2017), https://perma.cc/ZMT5-K2MB........................................................................ 6
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INTRODUCTION AND SUMMARY OF ARGUMENT Through the Deferred Action for Childhood Arrivals program, law-abiding undocumented young people in the United States have been able to achieve a longstanding dream: to become productive members of the society in which they were raised. In just five years, DACA recipients have made invaluable contributions to the American labor force as doctors, lawyers, teachers, community health workers, janitors, homecare providers, and more. They are the working parents and siblings of 200,000 adolescent American citizens,2 providing what is often their family’s sole source of income. The question before this Court is whether the defendants’ abrupt termination of this program violates the U.S. Constitution and federal statutes. Amici submit this brief to demonstrate how rescinding DACA jeopardizes its employed recipients, their families, and the country in general, while doing little to address the need to reform our broken immigration system. It is conservatively estimated that DACA recipients would increase the gross domestic product by $215 billion and tax revenues by $60 billion over the next decade.3 Terminating DACA eliminates these gains. It also denies the recipients the security and confidence in knowing that they will return home safely to their families every day—a fear only

2 Priscilla Alvarez, Will DACA Parents Be Forced to Leave Their U.S.-Citizen Children Behind?, The Atlantic, Oct. 21, 2017, https://perma.cc/XD7H-282Q.
3 Ike Brannon & Logan Albright, The Economic and Fiscal Impact of Repealing DACA, Cato Institute (Jan. 18, 2017), https://perma.cc/ZH57-8D98.

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amplified now that the government has gained sensitive information about them through the program—and severely limits their educational and employment opportunities. Multiple studies establish the obvious and acute negative consequences of living in such uncertain conditions and how DACA has already provided observable relief from those consequences. The experiences of individual union members and their relatives shared below illustrate that research, demonstrating the real human toll that rescinding DACA will have on undocumented young adults, their families, their communities, their workplaces, and the nation.
ARGUMENT I.! Rescinding DACA will adversely impact employers and the U.S.
economy. Rescinding DACA subjects 800,000 young people to deportation while reducing local, state, and federal revenues and forcing employers to expend significant resources to hire and train new employees. The most immediate costs are those imposed on the American workplace. One study estimates that for “every business day DACA renewals are halted, over 1,400 jobs [will be] lost” in the next two years.4 This places a substantial burden on employers and employees, considering how even a short-term loss of DACA work authorization can seriously hinder a workplace. Take, for example, the story of Dr.

4 Center for American Progress & FWD.us, Study: The Impact of Deferred Action for Childhood Arrivals (DACA) Program Repeal on Jobs, FWD.us, 4 (Aug. 23, 2017), https://perma.cc/3X8Q-ZJSM.

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T.W. in Part III of this brief. Dr. T.W. is a retired NFL athlete and fifth-year medi-

cal resident in Harvard’s orthopedic surgery department. During his intern year,

he was forced to abruptly stop working for a period of six weeks while waiting for

the extension of his DACA authorization. This created a critical void that threw his

surgery team into disarray because his role could not be temporarily filled. In this

way, rescinding DACA will cause employers to grapple with the loss of staff in

which they have invested while also forcing them to absorb unnecessary turnover

expenses—a cost that is projected to total $3.4 billion for the wholesale replacement of employed DACA recipients.5
Terminating DACA will also mean that $24.6 billion worth of Medicare and

Social Security contributions will be lost over the next ten years, as well as most of

the federal and tax revenues generated from the 91% gainfully employed DACA

recipients.6 These effects will be particularly burdensome for the six states that are home to 59% of the undocumented immigrant population in the U.S.: California, Texas, Florida, New York, New Jersey, and Illinois.7 By contrast, DACA imple-

mentation has entailed almost no direct cost to taxpayers because the program’s

overhead is covered by the $495 fee paid by the applicants.

5 Jose Magaña-Salgado, Money on the Table: The Economic Cost of Ending DACA, Immigrant Legal Resource Center (Dec. 2016), https://perma.cc/S4NY-V33Z.
6 Id. 7 Jens Manuel Krogstad, Jeffrey S. Passel & D’vera Cohn, 5 facts about illegal immigration in the U.S., Pew Research Center (Apr. 27, 2017), https://perma.cc/ FYM8-GAEA.

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In addition, the federal government’s threat to deport DACA beneficiaries would lead to a staggering result: a burden of $7.5 billion8 on taxpayers. The public-opinion evidence suggests that the American people may at some level understand this stark cost-benefit calculus: 84% of Democrats, 74% of Independents, and 69% of Republicans think that DACA recipients should be able to stay in the country in some way, whether through citizenship or other means.9 Costly, ineffective, and unpopular, the deportation of these American-raised young adults would not repair our broken immigration system in any real way. II.! Terminating the DACA program inﬂicts irreparable harm on
DACA recipients and their families, including American-citizen children. Undocumented immigrants face a mountain of hardships. They suffer poverty rates nearly twice that of American citizens and have a harder time escaping those conditions because of their status.10 Employment opportunities are generally limited to low-wage jobs, but even that can be difficult to access without a driver’s license. Most undocumented immigrants also lack a bank account and carry cash, since “financial institutions often request U.S. identification and a Social Security

8 Brannon & Albright, The Economic and Fiscal Impact of Repealing DACA. 9 Edward Graham, Trump’s DACA Move Comes as Most Voters Back Citizenship for ‘Dreamers’, Morning Consult (Sept. 5, 2017), https://perma.cc/6BX9-J6K5. The statistics given here are calculated from the “allow them to become citizens” and “allow them to stay” categories of the graph from Morning Consult. 10 Catalina Amuedo-Durantes & Francisca Antman, Can authorization reduce
poverty among undocumented immigrants? Evidence from the Deferred Action for Childhood Arrivals program, Elsevier, 147 Econ. Lett. 1, 1 (2016).

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number,” making them targets for robbery.11 Undocumented youth encounter additional hurdles in their education because of their ineligibility for federal and state financial aid, paid internships, and study opportunities that require identification. On top of all these stressors is the constant fear of being deported that wreaks havoc on mental health, causing many undocumented immigrants to suffer from anxiety, depression, and suicidal thoughts.
What makes DACA so significant is that, in just five years, it has led to improved socioeconomic and health outcomes—including for American-citizen children. Researchers have found that the odds of life in poverty in households headed by DACA recipients fell by 38 percent.12 The stories of K.R. and M.R., presented in Part III below, confirm this research. K.R. is a 30-year-old community-health worker who is the sole caretaker of her three American-citizen siblings. Because of DACA, she is able to pay rent for her family, attend parent-teacher conferences for her younger siblings, and support her brother’s university tuition. M.R. also has three U.S.-citizen siblings. DACA helped him obtain a driver’s license and secure employment as a homecare worker so that he can help his parents financially support their family and also pick up his siblings from school. DACA has produced these kinds of tangible gains for the majority of its recipients. According to one sur-

11 Roberto G. Gonzales, et al., Becoming DACAmented: Assessing the Short-Term Beneﬁts of Deferred Action for Childhood Arrivals (DACA), 58 Am. Behav. Sci. 1852, 1855 (2014).
12 Amuedo-Durantes & Antman, Can authorization reduce poverty, at 1.

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vey, the program has led to new employment for 59 percent of beneficiaries, 45% of whom also experienced salary growth.13 55% of recipients were also able to purchase a vehicle while more than 10% purchased their first home.14
Looking at improved health outcomes, a study from Stanford University found that since 2012, the diagnoses of adjustment and anxiety disorders for the American children of DACA-eligible parents fell by an astounding 50 percent.15 Such “immediate and sizable improvements in the mental health of their US citizen children . . . suggests that parents’ unauthorized status is a substantial stressor that stymies normal child development and . . . transfer[s] parental [health] disadvantages to children.”16 These improvements are likely only preliminary, due to DACA’s short existence, and can reasonably be expected to create more observable gains in the long term if the program continues. As Stanford researcher Jens Hainmueller noted, “It’s not every day that public policy has such an immediate effect.”17

13 Gonzales et al., Becoming DACAmented, at 1863. 14 Center for American Progress & FWD.us, Study: The Impact of DACA Program Repeal on Jobs, at 5. 15 Jens Hainmueller et al., Protecting unauthorized immigrant mothers improves their children’s mental health, 357 Science 1041, 1043 (2017). 16 Id. 17 Milenko Martinovich, Rescinding DACA protections on immigrant mothers could have negative health impacts on their children, Stanford study ﬁnds, Stanford News (Sept. 7, 2017), https://perma.cc/ZMT5-K2MB.

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But nothing more clearly illustrates the value of DACA to its recipients than the fact that 78% of the law-abiding, American-raised young people eligible for the program have applied18—in spite of its hefty $495 fee and two-year limit. Ending DACA threatens all these advances, the improvements to come, and the hopes of young people like the union members and families described below. III.! Union members and their family members have become vital
parts of American society as a direct result of the opportunities provided to them by the DACA program. Millions of employees nationwide are united in the amici unions, and many union members and their families will be harmed by a repeal of DACA. The experiences of individual union members and their family members confirm and illustrate the social science data cited above.19 T.W.: From NFL athlete to Harvard orthopedic surgeon. Dr. T.W. is a fifth-year medical resident in Harvard’s program in orthopedic surgery, a former National Football League (NFL) athlete, and a beneficiary of DACA status for about four years. His wife, a U.S. citizen, is an alumni member of SEIU’s Committee of Interns and Residents (CIR).

18 Jens Manuel Krogstad, DACA has shielded nearly 790,000 young unauthorized immigrants from deportation, Pew Research Center (Sept. 1, 2017), https://perma.cc/ A5NW-HKYD.
19 The individuals whose stories are told here all consented to having their experiences recounted in this brief. Participants chose to maintain a measure of anonymity by using initials only.

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Born in Nigeria, Dr. T.W. came to the United States at age three with his family. The family fled political unrest in Nigeria and settled in California. Dr. T.W’s only memories are of life in the United States, and he grew up believing that with hard work and commitment, he could do anything. “I saw only the American Dream and truly believed if I put forth effort and determination, there was nothing I could not do.” A brilliant student and a track, wrestling and football star in high school and at Stanford University, he graduated and spent several years playing football on NFL teams.
Throughout his childhood and early adult years, Dr. T.W. believed he was American. It was only when he needed his passport to travel to Canada for a position with the Canadian Football League that he learned that he was not a U.S. citizen. “In some ways, the fact that I didn’t know my true immigration status freed me from the stress and obstacles imposed by undocumented status and allowed me to imagine limitless possibilities in my life.”
As Dr. T.W.’s football career ended, he turned to his other passion: medicine. He excelled in his studies at Northwestern University Feinberg School of Medicine, but recognized that his undocumented status would prevent his acceptance to a medical residency program in the United States. “DACA saved me, it rescued me, and allowed me to pursue my medical residency at the Harvard

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Combined Orthopaedic Residency Program at Massachusetts General Hospital. Thank God for DACA.”
A six-week lapse of his DACA status served as a reminder to Dr. T.W. of the critical importance of DACA to his medical career. Dr. T.W. had to stop working for 6 weeks during his intern year while he waited for the extension of his DACA work authorization card. “The orthopedic surgery intern functions as a crucial member of a team, and when I wasn’t able to work, I let my team down, my program could not fill the void, and I was sleepless with anxiety. All of a sudden it didn’t matter that I was a doctor. Without DACA I was thrust back into the status of an unwelcome, alien intruder.”
Dr. T.W. will continue his training in orthopedic surgery, joining a fellowship program next year, and working in an orthopedic surgery practice. He intends to continue serving the community and treating muscular injuries, broken bones and a wide range of conditions.
In June of 2017, Dr. T.W’s application for legal residency was approved. Although he no longer relies on DACA, he values the program that was vital to his medical career and his life. P.V.: A dedicated public servant prosecuting crime for Travis County,
Texas. P.V. is an Assistant County Attorney for Travis County, Texas, where Austin is located. As a dedicated public servant and an AFSCME Local 1624 mem-

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ber, he spends his workdays as a criminal prosecutor protecting public safety by handling all sorts of criminal cases from running red lights to DWI’s.
P.V. came to the United States with his family from Mexico when he was three years old. He and his family settled in the Houston area, but his living situation was difficult when he first arrived. His father found work as a dishwasher and his mother as a busser, and the family lived with various relatives while they got their footing. His father is now a bartender and his mother a licensed massage therapist. After 19 years, his parents became legal permanent residents. P.V., however, remains without legal status because he aged out of his parents’ application during the 19-year wait.
P.V. knew from a young age that he wanted to create a path to success in the United States and he studied hard to make that dream a reality. He graduated from high school in 2009 and went on to study sports management at the University of Texas at Austin, where he graduated with high honors. At first, P.V. thought he wanted to pursue a career as a sports agent, “like Jerry Maguire,” he said, but then decided he enjoyed public service and instead went to law school at The University of Texas School of Law. He graduated from law school in 2016 and soon after passed the Texas Bar.
P.V. is a DACA recipient and that status is what allows him to be a dedicated public servant and prosecuting attorney today. Without DACA, he would not

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be eligible to do the work he does every day for Travis County. P.V. is the first member of his family to go to college and graduate school; the first member of his family to work as a professional. Without DACA, he would be “unemployable” in most workplaces, and forced to work in the underground economy instead. However, because of DACA, P.V. can do the job he loves, and contribute to the economy by supporting himself, paying taxes, making contributions to the county retirement plan.
He also knows that without DACA his community would suffer dire consequences. As a prosecutor, P.V.’s experience has taught him that without legal status, many immigrants refuse to report crimes or avoid testifying when they are victims of assaults and other crimes for fear of deportation enforcement. As an immigrant himself, he knows that many immigrant families’ conduit to law enforcement and the community at large is through their DACA recipient children who serve as their “ambassadors.”
P.V. wants to continue to be a “positive agent of change in the criminal justice system”, but he knows he cannot do so without DACA. The ability to achieve work status through DACA is what gave him the confidence to go to law school in the first place, and make his family and community so proud.

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K.R.: A sister-turned-guardian putting food on the table. K.R. is a 30 year-old SEIU 521 member and shop steward who was brought
to the United States from Mexico when she was five years old. During her 25 years of residence in California, she has attended school and college, worked in a community health center, and cared for her three U.S. citizen siblings.
DACA changed K.R.’s life. She was granted DACA status in 2013, and it came at a crucial time in her life. K.R’s father had just passed away leaving her responsible for her three younger siblings. Since K.R.’s mother had left the family many years earlier, K.R. assumed sole responsibility for her siblings upon her father’s death.
“All of my siblings were in high school or middle school at the time of my father’s passing. I had to pay the rent and make certain there was food on the table. I had to attend parent-teacher conferences and make sure my teenage brothers were staying school and being good kids. Having DACA made my life better in so many ways. It meant that I could get a job to pay for my siblings’ needs. It also allowed me to have a job that paid for my brother’s tuition at Sacramento State University. I’m so grateful to have DACA.”
K.R.’s career goal was to become a lawyer and she attended college for two years, majoring in criminal justice. Unable to afford tuition, she now works as a patient appointment coordinator at a community health clinic. She assists low-income

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patients and helps them manage the appointments they need for complex heart, diabetes and other health conditions. Some of the patients K.R. works with have never seen a doctor before, and K.R. helps them arrange services including medical and dental referrals and taxi vouchers. “I’m a good listener and I reassure patients so they will feel safe.”
K.R. is committed to working for the benefit of others. “It’s important to me to care for others and make sure that we all work together.” J.D. A public school teacher ﬁlling the gap for special-needs instruction
to deaf children. J.D. is a 29-year-old public school teacher and member of the American Federation of Teachers (AFT) who was brought to the United States at age two from Mexico. Educated entirely in the United States, she teaches special education in Texas to Pre-K children (3 to 4 years old) who are deaf or hard of hearing. J.D. attended the University of Texas at San Antonio, where she focused on education. During her undergraduate studies, she took a special-education course called “exceptionalities,” which taught her about deaf education. After graduating from college, J.D. enrolled in a graduate program at the University of Texas, Health Science Center in San Antonio. Shortly after enrolling in graduate school, she received her work authorization though DACA (December 2012). DACA transformed J.D.’s life. “DACA made it possible for me to be able to find a job in teaching. If I wanted to, I could now go for a doctorate. It made it

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possible to be able to earn money to help out my mom while she went through numerous health issues. DACA made it possible for me to teach children who are deaf and hard of hearing. I am helping these students and families on their journey to being able to communicate and achieve their dreams.”
J.D. loves her job and her students and worries that, without DACA, her life and the lives of her students will suffer. She started working as a special education teacher for deaf children in 2014, shortly after she graduated from graduate school. Her school district has a shortage of teachers who are qualified to teach deaf students. J.D. understands the critical importance of early intervention and preschool programs for deaf children and fears the consequences that losing DACA will have on not only herself but her students and their families. E.M.: The father supporting his family and planning for college.
E.M. is a 31-year-old member of SEIU 32BJ who has lived in Washington, D.C. since he came to the United States from Mexico in 1999. He is a husband, a father of two U.S. citizen children, aged seven and four, an active member of his community, and a DACA beneficiary. E.M has been in DACA status for about four years.
E.M. attended Francis Junior High School and graduated from Roosevelt Senior High School in Washington, D.C. He wanted to go to college but without immigration status, it didn’t seem possible.

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A grant of DACA gave him hope. With DACA he has been able to “step out of the shadows,” participate in the community, and not be afraid of arrest and deportation. “I can’t stand the thought of being deported and leaving my kids alone.”
DACA also inspired E.M. to consider once again taking college courses so that he could move into a better job and then afford better housing. “I want to be able to afford a house so that my kids can play in our own backyard.” E.M’s kids are the world to him. “I want my kids to grow up to be someone—I want them to go to college, have a good future and be better than I am. My seven-year-old son says he wants to be a doctor and he wants to buy me a big house. My kids are my motivation, they are my anchor, and they keep me fighting for a better future.”
The growth of gangs and cartels has increased dramatically since E.M. left his hometown of Puebla, Mexico in 1999. E.M.’s sister, his only close family member still in Mexico, warned him “don’t you ever come back here, it’s too dangerous.”
After 18 years of living in the U.S. and contributing to his community through his work and union activities, E.M. believes that everything valuable to his life is in the U.S. “I’m not here to hurt anyone—I’m here to work hard and make a better life for me and my family—I don’t want to go back to living in the shadows.”
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O.S.: 21 and “able to do normal things” like attend college. O.S. is a 21-year old citizen of Colombia, the nephew of a SEIU 1199 mem-
ber, and a former DACA beneficiary who is now a legal resident of the United States. He resides in Queens, New York with his U.S. citizen wife, his brother, mother and grandmother.
O.S. has lived in New York City since he arrived in the United States with his family at age 8, more than 13 years ago. He always knew that he was undocumented, and as soon as the DACA program was created, O.S. applied and was granted DACA status. “Having DACA meant that I was able to do normal things that other people my age were doing. I was a sophomore in high school and with DACA, I qualified to get my first job through the city Summer Youth Employment Program. DACA allowed me to feel more confident and more comfortable. I didn’t feel ashamed and alien.”
In 2015, after O.S. graduated from high school in Queens, he enrolled in a bachelor’s degree program at a campus of the City College of New York. In addition to his studies, O.S. works part-time at a New York City museum and part-time at a pharmacy. He hopes to complete his bachelor’s degree in 2 years and work in his field.
O.S. renewed DACA twice and remained in DACA status until he obtained legal residency last year through his marriage to a U.S. citizen. O.S.’s wife works
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with him at the museum and also attends a campus of the City College of New York.
“Although I have a green card now, I’ll never forget how much it meant to me to receive DACA. It came at just the right time in my life and helped put me on the path to college and a better future.” F.G.: Living without fear of being deported from his American wife.
F.G., a citizen of Mexico who came to the United States 22 years ago at age four, received DACA status in 2014. He is a member of SEIU 32BJ and resides in New York City with his U.S. citizen wife.
DACA allowed F.G. to live, work, and participate in civic life without worrying that he would be deported. Fear of deportation shaped F.G’s life for two decades. F.G. learned that he was undocumented when he was in high school and did everything he could to keep his undocumented status hidden. “It’s hard to describe the level of fear that affects immigrant communities. My own loving parents were so frightened that they might be deported leaving my brother alone, that they gave up their parental rights in order to allow my U.S. citizen aunt to adopt us. That is level of fear I lived with until 2014 when I was granted DACA status. With DACA I could breathe freely for the first time.”
F.G. spent his childhood and teenage years in Fayetteville, a small college town in northwest Arkansas. He attended Catholic school and excelled at litera-
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ture, art and football. He worked on the art magazine in high school and acted as a stage manager for high school productions. “Despite my fear of deportation, I was resolved to continue my education. After I graduated from high school in 2010, I attended the University of Arkansas for several years with the goal of becoming an architect. But without work authorization, I felt that I could never get a good job. I left the University discouraged and without a degree.”
F.G. met his wife at the University of Arkansas and lived in Fayetteville until his wife graduated from the University. “We moved to Atlanta for a short time while my wife worked for CNN, and then to New York City where my wife found a job working as a photo editor for a national magazine. By the time we moved to New York, I had DACA and was able to get a good job.”
F.G. applied for legal residency in the United States and anticipates the final processing of his application in the near future. “I won’t need DACA after I receive my green card. Now my wife and I are making plans to open a business, and for my return to college. We are able to take advantage of the benefits of living in New York and often go to New York’s museums. We’re also making plans for a family. But I’ll always be grateful to DACA for giving me a sense of confidence, allowing me to work, and giving me the belief that I could live my life fully without the trauma of possible deportation. After receiving DACA I felt that I could finally relax.”
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M.R.: Homecare worker for the elderly by day, tutor to his American siblings by night. M.R. is a 22-year-old member of SEIU 2015 who came to the United States
from El Salvador at age eight. He lives in San Jose, California with his family, including his three U.S.-citizen siblings, aged seventeen, eleven and seven.
M.R. was granted DACA status in 2013. “With DACA I was able to work at a job that allowed me to make a difference in the life of a very ill, elderly patient. I’m a homecare worker and I care for an elderly man who is blind, diabetic, has kidney failure, a pacemaker, and is on dialysis. DACA made this meaningful job possible for me.”
M.R. attended school in California, graduating high school from Gunderson High School in 2014. During his high school years, received an honor roll award and played soccer on the varsity team. Active in school clubs and sports, he participated in the multicultural club, the boxing club, and volleyball.
“My parents raised me with the idea that I should make something of myself and contribute to the community. After graduation, I studied at DeAnza College for several quarters, but when my dad was laid off from his job, I knew I had to find full-time work.”
M.R. is a conscientious and responsible member of his family, his workplace and his community. He picks up his siblings from school, helps them with their homework, and does chores around his house. He attends church regularly and is
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involved in a leadership development program with his millennial co-workers. “I believe that I am responsible for more than myself alone. I think that in a democratic society we must care for the needs of our neighbors, friends and coworkers— not just ourselves and our families. These are the values that I learned from my parents—you have to hard for work for what you want, but you must respect others and treat them the way that you want to be treated.”
As a child in El Salvador, M.R. faced danger and uncertainty. His earliest memories are of warnings to avoid the gang members who moved freely through his neighborhood. M.R.’s family rushed him out of the country before the gangs could recruit him. “The gangs search for young boys to become members at an early age. I was lucky to escape before I was forcibly recruited. DACA has allowed me to live in safety and security in the U.S.” C.F.: Living the American dream until 17, regaining it through DACA.
C.F. is a member of SEIU 32BJ who was brought to the United States from Mexico 22-years ago when he was a one-year-old child. He works as a custodian and lives in Baltimore with his parents and his three U.S.-citizen brothers, aged 20, 18, and 13.
C.F. attended school in Baltimore, completing his studies and graduating from Lansdowne High School. His favorite subject was math and he participated

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in the chess team in high school. At age 17, C.F. learned for the first time that he was undocumented when he sought to apply for a Social Security card.
“I felt like I was as American as anyone else and finding out that I was undocumented was terrible for me. It changed my outlook and undermined my confidence.” C.S. felt that he didn’t belong, that he was different, even in his own family. “I’m really close to my three U.S. citizen brothers. But finding out about my immigration situation made me feel like an outsider, different and alone.”
C.F. also worried that he couldn’t invest in his future, because as a person without documents, his future was uncertain. He feared he could be deported without warning. “My hopes for living the American dream—going to college, studying marketing, buying a home some day—the belief that I could succeed and a build a good life suddenly seemed impossible.”
But shortly after C.F. graduated high school, he heard about and applied for the DACA program. “DACA gave me permission to work, and with that permission I was able to get a steady job and join the union. DACA gave me a chance and the hope for a better future.” With DACA, C.F.’s self-assurance returned and he began participating in activities to help his community and in activities supporting his co-workers. “There are many people like me who just want a chance to work hard and be part of the American dream. DACA gave me that chance.”
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V.S.: A+ student, psychology graduate, and caretaker of her American siblings. V.S. was born in Mexico City and has resided in the United States since in-
fancy. She is the 23-year-old daughter of a SEIU 1021 member. Educated entirely in the United States, from elementary school through the university, she was granted DACA status in 2012.
“DACA was a game changer for me. It gave me hope and allowed me to believe that I always could be a little more. That I could graduate from the University of California, Santa Cruz and be on the dean’s list, go to graduate school, and prepare for a career as an occupational therapist. When my parents were forced to depart the U.S. a few months ago and I became the head of my family, DACA kept my spirits up and helped me to trust that I would be able to support and care for my three younger U.S. citizen brother and sisters.”
V.S. grew up with faith in the power of education and the value of community service. In high school she maintained a 4.0 average, organized a schoolwide activities committee, worked on the yearbook and volunteered at her at a nursing home, running activities, music lessons, exercise sessions and movie events for the elderly and fragile seniors. During her years at U.C. Santa Cruz, she studied psychology at the same time that she worked as a research assistant in a child development lab, tutored over 40 students, and interned in a special program to advance
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and support diversity at the University. V.S. graduated in 2016 with a B.A. in psychology.
V.S. plans to enter a master’s program and pursue a career in occupational therapy. “My mother is a nurse and I watched her care for her patients with compassion and diligence. She inspired me to become an occupational therapist and help patients overcome trauma. But until my parents complete their immigration processing and are allowed to return to the U.S., I carry the responsibility for my 12-year-old brother and my two U.S. citizen sisters, ages 16 and 21, on my shoulders. I have to make sure everything goes smoothly.”
V.S. attends her brother and sister’s parent-teacher conferences and open house nights, oversees their homework, and makes sure they get to school on time. She takes her brother and sister to the doctor, does the family grocery shopping and cooking, and handles the financial issues for her siblings and her parents. “We’re a close-knit family, and I can sense if my brother and sisters are upset. I know they’re going through a lot and I want to be there for them. Our community, my mother’s union, and our church have been great to us.”
V.S.’s 21-year-old sister is a senior at U.C. Santa Cruz but she comes home on the weekends. “I’m really close to my sister and I want to support her and help her as she faces her last year of college. She’s a human bio major and plans to go to med school and be a pediatrician.”
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“I’ve always felt that I was an American,” she says. “But DACA has made me feel like my dreams could come true and I could have a career that will allow me to give something back to my community and my country.” R.A. A history teacher for immigrant students at a public school in the
Bronx. R.A. is a 9th grade history teacher in New York City and a member of the American Federation of Teachers (AFT). He came to the United States from Mexico when he was 7 years old, nearly 18 years ago. R.A. attended school and college in California, graduating from the University of California Los Angeles (UCLA). DACA gave R.A. the opportunity to participate in educational programs and practice his career. “The grant of DACA literally changed my life 180 degrees from one day to another. When I first heard about DACA I couldn’t believe it was real. But my mother helped me research the program and apply for it. DACA meant that I could participate in an externship with the Congressional Hispanic Caucus and a study abroad program in Italy.” During R.A.’s studies at UCLA, he wrote an honors thesis on the impact of the California Dream Act on California students. His thesis led to expanded opportunities in research, mentoring, and volunteering. He also learned of teaching opportunities, and following his graduation in 2016, began teaching at a public school in the Bronx.
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“My school is 100% English language learners. That means the majority, 95%, are immigrants. Some have green cards, some are citizens, some may be undocumented. These students and future leaders, who look up to me and with whom I have conversations on a daily basis, will be affected if I lose DACA. I feel that I will be abandoning my students. This is something I think about it constantly.”
CONCLUSION The district court’s orders granting a preliminary injunction and denying in part the government’s motion to dismiss should be affirmed and its order granting in part the motion to dismiss should be reversed.
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March 20, 2018

Respectfully submitted,

NICOLE G. BERNER DEBORAH L. SMITH LEO GERTNER SERVICE EMPLOYEES INTERNATIONAL UNION 1800 Massachusetts Avenue, N.W. Washington, D.C. 20036 (202) 730-7466 nicole.berner@seiu.org
Attorneys for Amicus Curiae SEIU
DAVID J. STROM AMERICAN FEDERATION OF TEACHERS 55 New Jersey Avenue, N.W. Washington, D.C. 20001 (202) 393-7472 dstrom@aft.org
Attorney for Amicus Curiae AFT
JUDITH RIVLIN AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES 1101 17th Street, N.W., Suite 900 Washington, D.C. 20036 (202) 775-5900 jrivlin@afscme.org
Attorney for Amicus Curiae AFSCME
PATRICIA M. SHEA COMMUNICATIONS WORKERS OF AMERICA 501 3rd Street, N.W. Washington, D.C. 20001 (202) 434-1234 pats@cwa-union.org
Attorney for Amicus Curiae CWA

/s/ Deepak Gupta DEEPAK GUPTA GUPTA WESSLER PLLC 1900 L Street, N.W., Suite 312 Washington, D.C. 20036 (202) 888-1741 (202) 888-7792 (fax) deepak@guptawessler.com
Counsel for Amici Curiae
BRADLEY RAYMOND INTERNATIONAL BROTHERHOOD OF TEAMSTERS 25 Louisiana Avenue, N.W. Washington, D.C. 20001 braymond@teamster.org
Attorney for Amicus Curiae IBT
JOSEPH E. KOLICK, JR. INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, AFL-CIO 7234 Parkway Drive Hanover, MD 21076
Attorney for Amicus Curiae IUPAT
MARIO MARTÍNEZ MARTÍNEZ AGUILASOCHO & LYNCH, APLC 1527 19th Street, Suite 332 Bakersfield, CA 93301 (661) 859-1174 mmartinez@farmworkerlaw.com
Attorney for Amicus Curiae UFW

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STATEMENT OF RELATED CASES This proceeding is a consolidated case arising out of (a) the government’s appeal of the district court’s preliminary injunction, Regents of the University of California v. United States of America, et al., Case Nos. 18-15068, 18-15069, 18-15070, 1815071, 18-15072; (b) plaintiffs’ petitions for interlocutory review of elements of the district court’s ruling on the government’s motion to dismiss, Case Nos. 18-15128, 18-15133, 18-15134; and (c) the government’s petition for interlocutory review of different elements of that order, Case No. 18-80004. This Court also previously heard a petition for writ of mandamus against the district court order regarding the administrative record in this case. In re United States of America, et al., Case No. 17-72917.

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/s/ Deepak Gupta Deepak Gupta

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The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2

(a) and is

words or

pages, excluding the portions exempted by Fed. R. App. P. 32

(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2

(c)(2) or (3) and is

words or

pages, excluding the portions exempted by Fed. R.

App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and

(6).

This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or s/ Deepak Gupta
Unrepresented Litigant
("s/" plus typed name is acceptable for electronically-filed documents)

Date 3/20/2018
(Rev.12/1/16)

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs/Appellees
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants/Appellants
_________________
On Appeal from the United States District Court for the Northern District of California, Honorable William H. Alsup, Presiding __________________
BRIEF FOR AMICUS CURIAE UNITED WE DREAM IN SUPPORT OF PLAINTIFFS-APPELLEES
__________________
Peter Karanjia Counsel of Record
Geoffrey S. Brounell DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, NW Washington, D.C. 20006 Tel.: (202) 973-4200
Counsel for Amicus Curiae United We Dream

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ................................................................................. ii CORPORATE DISCLOSURE ...............................................................................1 STATEMENT OF INTEREST...............................................................................1 INTRODUCTION .................................................................................................... 2 ARGUMENT ............................................................................................................4
A. DACA Recipients Are Integral to The Lives and Livelihood of Their Families........................................................................................4
B. DACA Recipients Contribute to Their Local Communities.................6 C. DACA Recipients Are Deeply Ingrained in the American
Fabric ...................................................................................................10 CONCLUSION .......................................................................................................12 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES

Page(s)

Statutes
Ala. Code § 31-13-8.................................................................................................10
S.C. Code Ann. § 59-101-430..................................................................................10
Other Authorities
Federal Rule of Appellate Procedure 26.1.................................................................1
Memorandum 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)......................................................................................................2

Tom K. Wong, et al., Results of Tom K. Wong, United We Dream, National Immigration Law Center, and Center for American Progress National Survey (Oct. 2016), available at https://cdn.americanprogressaction.org/content/ uploads/2016/10/21111136/2016daca_survey_draft_updated-FINAL2.pdf................................ 3-4, 9, 10

U.S. Citizenship and Immigration Services, Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2021-2016 (Sept. 30, 2016)...................................................................................................10
Zenen Jaimes Perez, How DACA Has Improved the Lives of Undocument Young People, Undocumented Young People, Center for American Progress (Nov. 19, 2014), available at http://ampr.gs/1O7iTHA ..................................................................................... 10

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CORPORATE DISCLOSURE Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, United We Dream (“UWD”) certifies that it does not have a parent corporation and that no publicly held corporation holds 10% or more of its stock.
STATEMENT OF INTEREST1 UWD is a national nonprofit, nonpartisan, membership-based organization comprising more than 300,000 immigrant youth and their allies, with 52 affiliate organizations in 25 states. UWD’s primary purpose is to advocate for the dignity and fair treatment of immigrant youth and their families, regardless of their immigration status. Many UWD members are beneficiaries of the Deferred Action for Childhood Arrivals initiative announced on June 15, 2012. Because the government action in this case seeks to undo the Deferred Action for Childhood Arrivals’ protections — protections that have formed the basis for the most consequential life decisions of hundreds of thousands of immigrant youth — UWD has a substantial interest in the proper resolution of the issues presented in this case.
1 Amicus curiae UWD states that no counsel for a party authored this brief in whole or in part, and no person other than amicus or its counsel made a monetary contribution to the brief’s preparation or submission. Counsel for all parties have consented to the filing of this brief.

INTRODUCTION When the United States government established the Deferred Action for Childhood Arrivals (“DACA”) program in 2012, it made a promise to more than a million undocumented young people: if they applied for and met the program’s eligibility criteria, they could rest assured that they would not be subject to governmental efforts to upend their lives by uprooting them from the United States. The government promised these immigrants they would not face removal proceedings for a renewable two-year period. But in practice, the program — which reflected the “low priority” associated with the removal of “certain young people who were brought to this country as children and know only this country as home” — did more than guarantee enrollees deferred action. Memorandum 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). DACA allowed its recipients to obtain work authorization, a Social Security number and, in many states, driver’s licenses and in-state tuition at public universities. DACA enabled recipients to open bank accounts, apply for credit cards, buy homes and cars, and conduct other aspects of daily life that are often impossible for undocumented immigrants. DACA thus enabled its recipients to fully participate in their communities and local economies.
2

United We Dream submits this amicus brief in support of the Plaintiffs in the above-captioned actions, who challenge the government’s unlawful efforts to rescind the DACA program. Our goal is not to reiterate Plaintiffs’ legal arguments, but rather to highlight the enormous stakes of these related cases for hundreds of thousands of individuals across the United States. In particular, this brief provides a glimpse into the lives of the countless young men and women who placed their trust in, and organized their lives around, DACA. With the sample of stories below, UWD hopes to illustrate how, from their diverse origins spanning the globe — including India, the Philippines, China, and Mexico — the DACA recipients discussed are now fully part of the fabric of America. As a result, the government’s rescission of this program that has given hope to so many threatens to cause massive disruption to these individuals, their families, and their local communities — communities that extend well beyond recipients of the DACA program.
Against this backdrop, UWD respectfully requests that this Court grant the relief sought by the Plaintiffs in these consolidated appeals by (1) affirming the district court’s decision to grant a preliminary injunction, (2) affirming the district court’s orders to the extent that they deny the government’s motion to dismiss, and (3) reversing the district court’s dismissal of Plaintiffs’ Administrative Procedure Act notice-and-comment claims.
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ARGUMENT Through DACA, thousands of young immigrant adults can give back to their communities. DACA recipients become teachers, community leaders, and small business owners. They provide for themselves and their families, support their friends, and are closely knit into the fabric of the lives of those around them. The government’s attempt to arbitrarily and abruptly undo DACA protections for these individuals causes grave harm not only to DACA recipients, but also to their families and communities at large. A. DACA Recipients Are Integral to The Lives and Livelihood of Their Families With the greater job opportunities that come with work authorizations, DACA recipients are better able to shoulder the financial burden for themselves and their families. Indeed, over 60 percent of surveyed DACA recipients reported that, as a result of obtaining work authorization through DACA, they could make enough money to financially support their family. Tom K. Wong et al., Results of Tom K. Wong, United We Dream, National Immigration Law Center, and Center for American Progress National Survey, at 2 (Oct. 2016).2 But work authorization is not the only benefit that makes DACA so important to family life. A driver’s license — which most Americans taken for
2 Available at https://cdn.americanprogressaction.org/content/uploads/ 2016/10/21111136/2016-daca_survey_draft_updated-FINAL2.pdf.
4

granted — is a prized commodity to an undocumented household. In the case of V.D., for example, the driver’s license he obtained as a result of DACA allowed him to drive his father to and from the hospital for doctor appointments after a serious heart attack, as well as to take care of his disabled younger sister. DACA has also provided V.D. the financial means to take care of his family. V.D., who studies computer science at the University of Illinois, uses the savings from his summer technology jobs to both pay for his tuition and help support his family.
Like V.D., P.Z. is also deeply committed to taking care of his family — and DACA provided him with the initial opportunity to do so. With undocumented parents suffering from an array of health problems, P.Z.’s responsibility was a heavy one, especially as an undocumented immigrant. But thanks to DACA, P.Z. got a job at Twitter, which allows him to provide his parents health insurance so they can receive the care they need. And, to be able to help his parents even more, P.Z. is saving money to help them move close to him in San Francisco.
The benefits DACA provides to families are not limited to the families of V.D., P.Z., or the other young immigrants identified in this brief. Hundreds of thousands of DACA recipients benefit from DACA, from having work authorization to accessing employer-provided health insurance to providing financially for their families every day. DACA recipients help relieve their families from the stress of ordinary daily tasks that most U.S. citizens and other
5

authorized immigrants need not think twice about. From picking up children at school to taking relatives to the doctor to paying the cable bill, young immigrants who receive DACA status can provide constant, stable support for their families. The government now threatens to undermine the foundations of thousands of families across the United States. B. DACA Recipients Contribute to Their Local Communities
DACA offers thousands of immigrants the chance to succeed in their chosen careers and contribute to their communities. Young entrepreneurs like D.A., for example, rely on DACA to create and innovate. After the government granted D.A. DACA status, she was able to obtain higher-paying jobs, which allowed her to save money and eventually start her own business. With a business partner, D.A. bought a landscaping company and hired two employees to help her meet demand. In addition, to maximize the potential of the new venture, D.A. also enrolled in classes on small business management at the local community college. As D.A.’s company continues to grow and prosper, its success and impact on the community will be closely entwined with the continuation of DACA.
For R.P., DACA provided the opportunity and confidence to become a leader in his local community. A Filipino immigrant who came to the United States when he was one year old, R.P. has lived in the United States almost his entire life. But only after receiving DACA status could he truly contribute to his
6

larger community in Georgia. Because of DACA, R.P. was offered and accepted a job with a non-profit group assisting Asian immigrants and refugees. And with the driver’s license R.P. was able to obtain as a result of DACA, he is finally able to travel freely and board a plane, a simple privilege otherwise reserved for those with valid government identification. The trips R.P. takes are not just for vacation. R.P. recently travelled to a Christian leadership conference where he could further develop skills necessary to growing as a leader in his local community. Without DACA, R.P.’s ability to openly and deeply involve himself in his community would be dramatically limited.
In the Arkansas hospital where he works, the people who meet L.A. do not know him as a formerly undocumented Mexican immigrant who now enjoys the benefits of DACA; they know him as their nurse. But L.A.’s story, and the integral role he plays in the lives of his patients in the hospital’s cardiovascular Intensive Care Unit, would not have been possible without DACA. In 2010, while L.A. was still a nursing student, the State of Arkansas passed a law making it impossible for any individual to obtain a nursing license without a Social Security card. For L.A., who came to the United States at age seven and lacked formal authorization or lawful status, that requirement was an insurmountable obstacle. Everything changed in 2013, when the government granted L.A. deferred action under DACA. As a result, L.A. obtained a Social Security number, received his nursing license,
7

and soon thereafter, was offered a position as a nurse in the cardiovascular Intensive Care Unit. Because of DACA, L.A. was able to fulfill his dream of being able to provide medical care to his community.
D.R., a medical student at the Icahn School of Medicine at Mount Sinai in New York, has a similar dream. As an undergraduate at the University of California, Berkeley, D.R. worked 30 hours per week as a waitress to support herself through school. A talented student, D.R. was a double major in Integrative Biology and Sociology who graduated from Berkeley with a 3.6 GPA and until DACA, she was undocumented. D.R.’s ability to complete a medical residency and be employed as a doctor depends on the work authorization she has because of DACA. The program has allowed D.R. to pursue a goal that would otherwise have been unattainable.
DACA recipients have served their communities in a wide range of endeavors. J.S. arrived in the United States as an 11-year-old to pick grapes in the Central Valley of California. Although he arrived in California with only a thirdgrade education and spoke no English (and limited Spanish), J.S. applied himself scholastically, successfully taking English Language Development classes by the time he was a high school junior. Because he lacked a Social Security number, J.S. was unable to apply to many colleges and for many scholarships. Nevertheless, J.S. worked three jobs to pay his way through community college, and eventually
8

completed his Bachelor’s degree. Immediately after being granted DACA status and work authorization, J.S. — who comes from a family of indigenous Mexican origin that speaks Zapotec — used his work authorization to serve in state and federal courts as the nation’s only court interpreter in the Zapotec dialect. In this capacity, he has traveled across California and New Mexico to ensure that Zapotec-speaking defendants are able to understand the legal proceedings in which they are involved. Without J.S.’s unique language skills to overcome linguistic obstacles, courts would face further delays — and immigration detainees longer detentions.
Just as DACA enabled Zapotec-speaking defendants access to a fluent court interpreter, the program has also given students at an Austin, Texas high school the guidance of a valuable teacher and mentor. A.Z. — a high-school salutatorian who graduated from the University of Texas on a full scholarship — teaches Spanish in the Austin Independent School District. And for A.Z., teaching is a family affair. When she is not in her classroom, she works with her older brothers, also DACA recipients, as they finish their teaching degrees at the University of Texas. Because of DACA, both A.Z. and her brothers are able to play an important part in the lives of hundreds of students.
Like the young immigrants described above, DACA has enabled hundreds of thousands of previously undocumented individuals to improve their lives and also
9

become integral parts of their communities. According to one survey, after receiving DACA status, 42.5 percent of DACA recipients got their first job. Wong et al., supra, at 2. About 61 percent pursued educational opportunities previously unavailable to them. Id. at 3. Indeed, 55 percent of DACA recipients surveyed are pursuing undergraduate degrees. Id. at 8. And 12 percent bought a home, 54 percent bought a car, and 14 percent paid off some or all their student loans. Id. at 2. For these individuals, DACA has opened a world of financial independence and opportunity that was previously unavailable. C. DACA Recipients Are Deeply Ingrained in the American Fabric
The individuals described above are representative of DACA recipients across the country. Indeed, as of 2016, all fifty states, as well as the District of Columbia and several territories, were home to at least one of the nearly 800,000 DACA recipients. See infra note 3. Because of DACA, these individuals — who were brought to the United States at a young age from countries across the world3 — have access to better jobs, better education, and more stable financial positions.
According to one survey, approximately two-thirds of DACA recipients were able to find a first job, or a job with better pay, after receiving DACA. Wong
3 To date, DACA recipients are originally from over 20 countries, including Mexico, Poland, South Korea, and India. U.S. Citizenship and Immigration Services (“USCIS”), Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012-2016 (Sept. 30, 2016).
10

et al., supra, at 2. They have increased their hourly wages by an average of nearly one-third. Id. at 5. Five percent of DACA recipients surveyed had started their own business. Id. at 2. Over 50 percent applied for and received their first credit card, and nearly 50 percent opened a bank account. Id. at 3.
Without a doubt, DACA offers greater access to higher education. For example, DACA enables students to enroll in public colleges and universities in states like Alabama and South Carolina, which undocumented students are otherwise barred from attending, see Ala. Code § 31-13-8; S.C. Code Ann. § 59101-430, and to apply for in-state tuition in Virginia, see Zenen Jaimes Pérez, How DACA Has Improved the Lives of Undocumented Young People, Center for American Progress, at 4 (Nov. 19, 2014), available at http://ampr.gs/1O7iTHA. In addition, several states — including Texas, California, and New York — allow undocumented immigrants and DACA recipients to attend public colleges and universities at in-state or reduced tuition rates and to receive state and institutional financial assistance so long as they meet certain criteria. Id. Although they remain ineligible for financial aid in many states and under federal programs, DACA recipients can fill out the Free Application for Federal Student Aid, which schools use to determine financial need and eligibility for scholarships and institutional financial aid.
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CONCLUSION As these stories demonstrate, the elimination of DACA would disrupt the lives of individuals, families, and whole communities, all of whom have grown to rely on that program in organizing their daily lives. The rescission of DACA would remove shopkeepers from their businesses; doctors and nurses from their hospitals; teachers from their classrooms; children from their parents’ homes; and young men and women who have done nothing wrong from the only country they have ever known. Understanding and even expecting that DACA recipients would assume these roles in their families and their communities, the government created the DACA program and made basic commitments of procedural fairness to its recipients. For the government to break its promise now would tear apart the lives of these young individuals — as well as the fabric of families and entire communities that have been built upon the government’s promise. Taking these considerations into account, UWD respectfully requests that this Court grant the relief sought by the Plaintiffs in these consolidated appeals by (1) affirming the district court’s decision to grant a preliminary injunction, (2) affirming the district court’s orders to the extent that they deny the government’s motion to dismiss, and (3) reversing the district court’s dismissal of Plaintiffs’ Administrative Procedure Act notice-and-comment claims.
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Dated: March 20, 2018

Respectfully submitted,
DAVIS WRIGHT TREMAINE LLP
By /s/ Peter Karanjia Peter Karanjia Counsel of Record Geoffrey S. Brounell 1919 Pennsylvania Avenue, NW Suite 800 Washington, D.C. 20006 Tel.: (202) 973-4200 peterkaranjia@dwt.com geoffreybrounell@dwt.com
Attorneys for Amicus Curiae United We Dream

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CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and Fed. R. App. P. 29(a)(5) because it is no more than one-half the maximum length authorized for the government’s principal brief. I further certify that the attached amici curiae 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 it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 14-point Times New Roman font. Executed this 20th day of March, 2018.
/s/ Peter Karanjia Peter Karanjia

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on March 20, 2018. I certify that all parties in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Executed this 20th day of March, 2018.
/s/ Peter Karanjia Peter Karanjia

 
 Case: 18-15068, 03/20/2018, ID: 10805429, DktEntry: 63-1, Page 1 of 40
Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Plaintiffs-Appellees,
v.
U. S. DEPARTMENT OF HOMELAND SECURITY et al., Defendants-Appellants.
On Appeal from the United States District Court for the Northern District of California
Nos. 17-05211, 17-05235, 17-05329, 17-05380, 17-05813 Hon. William Alsup, United States District Judge
BRIEF OF PUBLIC EDUCATION GROUPS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES
FOR AFFIRMANCE OF PRELIMINARY INJUNCTION
ALICE O’BRIEN EMMA LEHENY JASON WALTA LUBNA A. ALAM SEAN GOLDHAMMER National Education Association 1201 16th Street, N.W. Washington, DC 20036 Tel: (202) 822-7035 Fax: (202) 822-7033 Attorneys for Amicus Curiae National Education Association Complete list of counsel may be found on the signature page

Case: 18-15068, 03/20/2018, ID: 10805429, DktEntry: 63-1, Page 2 of 40
CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici AASA, The School Superintendents Association; Association of California School Administrators; California Faculty Association; California Federation of Teachers; California School Boards Association; California Teachers Association; National Education Association; and National School Boards Association state that they are not publicly-held corporations, do not issue stock, and do not have parent corporations.
/s/ Jason Walta Jason Walta
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TABLE OF CONTENTS I. INTRODUCTION .............................................................................................1 II. INTEREST OF AMICI CURIAE......................................................................2 III. ARGUMENT.....................................................................................................7
A. The Preliminary Injunction Serves the Public Interest......................................7 B. DACA Supports Students Who Have Embraced Opportunities,
Deepened Engagement at School, and Pursued Goals Previously Believed Unattainable........................................................................................8 C. The Preliminary Injunction Shields Public Schools from Harms to Teaching and Learning. ...................................................................................12 1. Threats to End DACA Destabilize the Classroom. ......................................13 2. Severe Teacher Shortages Would Only Worsen Absent the Injunction. .....20 3. DACA Increases Diversity in the Teaching Profession. ..............................23 IV. CONCLUSION................................................................................................29
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TABLE OF AUTHORITIES
Cases Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) ...............................................7
Kansas v. Nebraska, 135 S. Ct. 1042 (2015).............................................................7
People of State of Cal. ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319 (9th Cir. 1985), amended by 775 F.2d 998 (9th Cir. 1985) ................................................................................................................7
Other Authorities Alexia Fernández Campbell, DACA Immigrants Are Teaching American Children. What Happens After They’re Gone?, Vox (Sept. 15, 2017), https://www.vox.com/policy-and-politics/2017/9/15/16306972/dacateachers-dreamers .................................................................................................26
Dan Goldhaber et al., Univ. of Washington Bothell, The Theoretical and Empirical Arguments for Diversifying the Teacher Workforce: A Review of the Evidence (Ctr. for Educ. Data & Research, Working Paper No. 2015-9).......................................................................................... 24, 25
Ginette Magaña, DACAmented Teachers: Educating and Enriching Their Communities, Obama White House: Blog (Aug. 4, 2015), https://obamawhitehouse.archives.gov/blog/2015/08/04/dacamentedteachers-educating-and-enriching-their-communities ..........................................27
Jason A. Grissom, Luis A. Rodriguez & Emily C. Kern, Teacher and Principal Diversity and the Representation of Students of Color in Gifted Programs, 117 Elementary Sch. J. 396 (2017) .........................................24
Jason T. Downer et al., Teacher-Child Racial/Ethnic Match Within PreKindergarten Classrooms and Children’s Early School Adjustment, 37 Early Childhood Res. Q. 26 (2016) ......................................................................24
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Jie Zong et al., Migration Policy Inst., A Profile of Current DACA Recipients by Education, Industry, and Occupation (2017).......................... 18, 20
Matthew Ronfeldt et al., How Teacher Turnover Harms Student Achievement, 50 Am. Educ. Res. J. 4 (2013) ................................................ 19, 20
Memorandum from Elaine C. Duke, Acting Sec’y, DHS, to James W. McCament, Acting Dir., USCIS, et al., Rescission of Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca .................1
Nat’l Scientific Council on the Developing Child, Persistent Fear and Anxiety Can Affect Young Children’s Learning and Development (Harvard Univ. Ctr. on the Developing Child, Working Paper No. 9, 2010), http://developingchild.harvard.edu/wpcontent/uploads/2010/05/Persistent-Fear-and-Anxiety-Can-AffectYoung-Childrens-Learning-and-Development.pdf ..............................................17
Office of Planning, Evaluation & Policy Dev., U.S. Dep’t of Educ., The State of Racial Diversity in the Educator Workforce (July 2016), https://www2.ed.gov/rschstat/eval/highered/racial-diversity/stateracial-diversity-workforce.pdf ....................................................................... 23, 25
Office of Postsecondary Educ., U.S. Dep’t. of Educ., Teacher Shortage Areas Nationwide Listing 1990-1991 through 2017-2018 (June 2017), https://www2.ed.gov/about/offices/list/ope/pol/ateachershortageareasre port2017-18.pdf ....................................................................................................20
Randy Capps et al., Migration Policy Inst., Implications of Immigration Enforcement Activities for the Well-Being of Children in Immigrant Families: A Review of the Literature (2015) ........................................................13
Roberto G. Gonzales et al., Ctr. for American Progress, Taking Giant Leaps Forward: Experiences of a Range of DACA Beneficiaries at the 5-Year Mark (2017) ................................................................................................8
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U.S. Citizenship & Immigration Servs., Approximate Active DACA Recipients (Sept. 4, 2017), https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%2 0and%20Studies/Immigration%20Forms%20Data/All%20Form%20T ypes/DACA/daca_population_data.pdf ............................................................3, 25
Valerie Strauss, Teacher Shortages Affecting Every State As 2017-18 School Year Begins, Wash. Post (Aug. 28, 2017), https://www.washingtonpost.com/news/answersheet/wp/2017/08/28/teacher-shortages-affecting-every-state-as-201718-school-year-begins/?utm_term=.0583fbf55b17 ..............................................20
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I. INTRODUCTION Since its inception in 2012, the Deferred Action for Childhood Arrivals
(DACA) program has yielded immeasurable benefits for our nation’s students and educators. For young people who, prior to DACA, had only a limited pathway to college and almost no realistic expectation of long-term employment, the program created new hope and a reason to strive for academic excellence. Since the program began, many DACA recipients have completed high school and entered four-year colleges and universities. Almost 9,000 DACA recipients have joined the education profession. DACA teachers have helped alleviate the shortage of qualified educators, particularly in high needs schools and communities, and they serve as role models for the next generation of students, one that is increasingly diverse.
Following the September 5, 2017 decision by the Trump administration to rescind DACA,1 the Department of Homeland Security (DHS) immediately stopped accepting DACA applications and attempted to cut off renewal applications 30 days later. On September 8, 2017, Plaintiffs filed this action. The district court granted Plaintiffs’ request for provisional relief on January 9, 2018 by
1 Memorandum from Elaine C. Duke, Acting Sec’y, DHS, to James W. McCament, Acting Dir., USCIS, et al., Rescission of Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/memorandumrescission-daca.
1

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issuing the preliminary injunction now before this Court. The injunction re-opened the door to DACA renewal applications. For the reasons we present below on behalf of millions of education stakeholders, we urge the Court to affirm the district court’s preliminary injunction.
The elimination of DACA would wipe out the educational and professional gains made by DACA recipients and cause irreparable harm to the education communities where they live, work, and attend school. The DHS announcement already has destabilized schools and disrupted classrooms. If this Court does not affirm the injunction, the loss of much-needed DACA educators will worsen. Students will be irreparably harmed by the abrupt loss of trusted teachers who otherwise would have renewed their DACA status. And DACA recipients will be robbed of their public service careers, thwarted in their efforts to give back to a public education system that has given so much to them. Amici therefore urge the Court to uphold the January 9, 2018 preliminary injunction.
II. INTEREST OF AMICI CURIAE Amici curiae represent millions of public school educators, superintendents,
administrators, and elected school board members, whose shared purpose is to educate students regardless of their immigration status.2 Amici’s members know
2 Amici submit this brief pursuant to Fed. R. App. P. 29(a)(2); all parties have consented to its filing. No party or party’s counsel authored this brief in whole or
2

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well the contributions made by DACA recipients and the harm that will befall their education communities if the preliminary injunction is lifted. Amici are:
AASA, The School Superintendents Association represents more than 13,000 educational leaders throughout the world. AASA advocates for the highest quality public education for all students. Districts led by AASA members benefit from both DACA educators and students.
Association of California School Administrators (ACSA) serves more than 18,000 California school administrators, including many who work in K-12 schools with DACA staff and students.
Berkeley Unified School District enrolls over 9,000 K-12 students. Berkeley immediately neighbors the metro area of San Francisco, Oakland, and Hayward, which has the ninth-most DACA recipients in the nation, approximately 15,500.3
Butte County Office of Education supports over 31,000 students enrolled in fourteen school districts. Butte COE also runs the statewide Mini-Corps program, which hires and trains over 400 bilingual college students to tutor more
in part, and no party or person other than amici contributed money to fund its preparation or submission. Fed. R. App. P. 29(a)(4). 3 U.S. Citizenship & Immigration Servs., Approximate Active DACA Recipients: Leading Core Based Statistical Areas 8 (Sept. 4, 2017), https://www.uscis.gov/ sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20 Forms%20Data/All%20Form%20Types/DACA/daca_population_data.pdf.
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than 4,500 K-12 migrant youth across California. DACA recipients are among the college-student tutors employed in the Mini-Corps program.
California Faculty Association (CFA) represents 28,000 faculty employed by California State University. DACA recipients are among the membership of CFA and the students they serve. CFA is affiliated with amici California Teachers Association and National Education Association.
California Federation of Teachers (CFT), through its 135 affiliates, represents more than 120,000 teachers, faculty, librarians, nurses, counselors and classified employees working in California’s public schools, private schools, community colleges, and the University of California system. DACA recipients are among the membership of CFT and the students they serve.
California School Boards Association (CSBA) represents the elected officials who govern public school districts and county offices of education in nearly 1,000 educational agencies throughout California. CSBA is dedicated to serving all students in California’s K-12 schools, including the roughly 300,000 students who are undocumented.
California Teachers Association (CTA) represents 325,000 education employees who work in California’s more than 1,000 public school districts. DACA recipients are among the membership of CTA and the students they serve. CTA is affiliated with amicus National Education Association.
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Los Angeles County Board of Education works with the Los Angeles County Superintendent of Schools at the Los Angeles County Office of Education (LACOE) to provide certain services, and to promote inclusive policies protecting the educational rights of all students, including DACA recipients. Los Angeles County boundaries substantially overlap with the metro area that has the most DACA recipients in the country, close to 90,000.
Los Angeles County Superintendent of Schools oversees LACOE and the 80 public school districts and two million students it supports in the nation’s most populous county. Among the responsibilities of the Superintendent is the provision of services to educate teachers. Los Angeles County boundaries substantially overlap with the metro area that has the most DACA recipients in the country, close to 90,000.
Los Angeles Unified School District (LAUSD) is the second-largest public school district in the nation, enrolling more than 640,000 K-12 students. LAUSD boundaries substantially overlap with the metro area that has the most DACA recipients in the country, close to 90,000.
Moreno Valley Unified School District enrolls over 34,000 K-12 students in 41 schools. Moreno Valley immediately neighbors the metro area of Riverside, San Bernardino, and Ontario, California, which has the sixth-most DACA recipients in the nation, over 22,000.
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National Education Association represents more than three million education employees, including teachers, counselors, nurses, and support professionals throughout the country. The DACA recipients who belong to amici CFA and CTA are also members of NEA.
National School Boards Association (NSBA), through its state associations of school boards, including amicus CSBA, represents the nation’s 95,000 board members who, in turn, govern approximately 13,800 local districts serving more than 50 million public school students. NSBA has long advocated for equitable access to public schools. Article IV, Section 1.3 of NSBA’s Beliefs and Policies states: “Public schools should provide equitable access and ensure that all students have the knowledge and skills to succeed,” regardless of immigration status.
Oakland Unified School District enrolls nearly 50,000 K-12 students in 118 schools. Oakland is in the metro area with the ninth-most DACA recipients in the country. Together with San Francisco and Hayward, Oakland is home to approximately 15,500 DACA recipients.
Sacramento City Unified School District enrolls nearly 50,000 K-12 students. The greater Sacramento area is ranked 22nd in the nation with the most DACA recipients, close to 6,000.
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San Diego Unified School District enrolls almost 130,000 K-12 students. San Diego and neighboring Carlsbad are ranked 12th in the nation in the number of DACA recipients, with more than 11,300.
West Contra Costa Unified School District (WCCUSD) is based in Richmond, California and includes surrounding cities. WCCUSD serves more than 32,000 K-12 students and sits just north of the Oakland-San FranciscoHayward metro area that is home to more than 15,000 DACA recipients.
III. ARGUMENT A. The Preliminary Injunction Serves the Public Interest.
The public interest is one of four key factors that courts weigh in granting injunctive relief. See Hernandez v. Sessions, 872 F.3d 976, 996–97 (9th Cir. 2017) (affirming a preliminary injunction in part to protect interests of the public). Where the impact of an injunction reaches beyond the litigants, affecting the public, “a federal court’s equitable powers assume an even broader and more flexible character than when only a private controversy is at stake.” Kansas v. Nebraska, 135 S. Ct. 1042, 1053 (2015) (internal quotation marks and citations omitted); see also People of State of Cal. ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319, 1324 (9th Cir. 1985) (recognizing a district court’s broad discretion to fashion equitable relief in furtherance of the public interest), amended by 775 F.2d 998 (9th Cir. 1985). Here, the public has a critical
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interest in the education and professional growth of the nation’s youth. As amici set forth below, rescinding DACA would irreparably harm students and their education communities. Because the preliminary injunction addresses that irreparable harm and serves the public interest, it should be affirmed.
B. DACA Supports Students Who Have Embraced Opportunities, Deepened Engagement at School, and Pursued Goals Previously Believed Unattainable.
The DACA program has motivated countless young people to stay in school and further their education, according to the definitive longitudinal study on DACA recipients. The five-year study, conducted by Professor Roberto G. Gonzales at the Harvard Graduate School of Education, finds that without DACA,
most unauthorized immigrant youth end their schooling before entering college . . . . [T]he majority of unauthorized students pursuing higher education attend community colleges and struggle to persist and graduate. With access to legal employment and diminished fear of possible deportation [because of DACA], many of the study’s respondents described their newfound motivation and interest in school. Roberto G. Gonzales et al., Ctr. for American Progress, Taking Giant Leaps Forward: Experiences of a Range of DACA Beneficiaries at the 5-Year Mark 2 (2017). “DACA has been the impetus for many young people . . . to return to school . . . . Dozens of the respondents who had previously not finished high school told the authors that DACA was an important impetus to re-enroll in school . . . .” Id. at 3. DACA is a demonstrated asset to K-12 matriculation.
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“I could finally serve my community.” This was the reaction of Angelica Reyes upon learning of DACA.4 As a public school student in L.A., Reyes dreamed of becoming an educator, but felt that advanced academic and professional opportunities were out of reach because she was undocumented. During that time Reyes recalls, “I had done more than 1,000 hours of community service. It was heartbreaking that I couldn’t be part of the system I had tried to enrich.” With DACA, “it felt like an opportunity. I could finally serve my community. And I could be an educator. DACA gave me a clear path to obtain the career I had been working towards.” Once Reyes obtained the work authorization conferred by her DACA status, she was able to get a job to pay for her tuition. While earning her teaching credential at UCLA, she also worked for several non-profit advocacy organizations that assist K-12 students with college preparedness, financial aid, health and nutrition, immigrant and racial justice, and recovery from domestic violence. Reyes is now a valued member of the teaching corps in the district where she herself was a student, LAUSD. Reyes teaches Advanced Placement U.S. and World History.
4 To provide the Court with an expanded understanding of how DACA has impacted public education, amici have interviewed numerous students, graduates, educators, school administrators, and board members. Where names are used, it is with interviewees’ permission. Others asked not to be named or identifiably described because of the uncertainty of their DACA status or concern for their DACA students.
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“The basic sense of human dignity.” Kateri Simpson teaches at a public school in Oakland, California. Undocumented students and DACA recipients are part of the school’s student body. Simpson has seen first-hand how DACA has motivated students to fully engage in school and work toward graduation because higher education opportunities were now within reach. The students “all of a sudden . . . had agency and advocacy . . . . They were able to work for themselves and that was such a powerful thing.” Her students could afford to stay in school and, with DACA work authorization, hold jobs that paid at least minimum wage. As Simpson says, “The basic sense of human dignity to be able to work for what you want—I don’t think can be underestimated.”
“A doorway to college.” A student who received DACA while still in high school recalls teachers encouraging her to prepare for college. She was a good student but felt higher education was out of reach because she was undocumented. For her, DACA opened “a doorway to college.” The student renewed her efforts at school and was admitted to the University of California. She is now in her junior year and majoring in psychology. She is able to afford tuition and serve as a public education employee by working for the University. Her goal is to attend graduate school and become a school counselor. Her public service career will be unattainable if she cannot renew her DACA status.
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“A vehicle to better opportunities.” As a public school student in Texas, Roberto Valadez dreamed of becoming an academic, but his lack of immigration status made him feel that “no matter how hard I try, I can never go to college.” By high school, Valadez had begun to miss classes and struggle academically. But when DACA was announced, Valadez immediately recognized it as a “vehicle to better opportunities” and applied. He improved his schoolwork and was accepted to the University of Texas at El Paso. Valadez states that “I feel like a new person after DACA.” While DACA has allowed Valadez to work for a decent wage and put himself through college, “without DACA, it’s game over.” To pursue his hope of graduate school and a career in education, Valadez must be able to renew his DACA status.
“DACA was a motivator.” Prior to receiving DACA, Texas college student Joseph Ramirez would question the need to excel in school because he did not think he could go to college: “What am I going to do with that degree without a Social Security number?” During his senior year, he received DACA and it “was a motivator.” Without it, “I would not have pushed my limits.” Ramirez is now the first in his family to go to college. He studies public health with the goal of pursuing a career in nursing. “Losing DACA would be devastating” for Ramirez because it will foreclose his public service career aspirations.
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Everything will come “crashing down.” Raul Ramirez thought “the possibility of going to college was nonexistent” and “out of reach” before he received DACA. With DACA, however, he was excited to work hard in school and apply to colleges. Ramirez now studies nursing at the University of Rochester and has set his sights on medical school. But once DACA was put in jeopardy, “[t]hat was the point when everything I planned to do, including nursing school, came crashing down.” It is difficult to “have a plan for the future” in this period of uncertainty, and only the injunction allows Ramirez to stay the course with his studies.
These are just a few of the thousands of student and educator stories around the country. By opening the door to higher education and meaningful work in fields of public service, DACA gives young people a reason and the opportunity to succeed in their K-12 studies and beyond. If they lose their DACA status, the achievements they have worked so hard to attain will be diminished. The nation’s investments in educating and training DACA holders will be for naught. And for DACA recipients still in high school, the opportunities that motivated young people—and improved high school matriculation rates—will summarily vanish.
C. The Preliminary Injunction Shields Public Schools from Harms to Teaching and Learning.
The harm caused by the loss of DACA would not be borne by its recipients alone. Threats to end the program significantly disrupt classrooms and destabilize
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school districts, producing effects that reverberate throughout communities. Without DACA renewals, the status of thousands of educators will expire on different dates throughout the school year. Teachers and staff will abruptly vanish from classrooms to the distress of their students and to the measurable detriment of educational outcomes. The loss of these DACA educators will worsen alreadyserious teacher shortages, deprive students of mentors and role models, and strip the teaching corps of much-needed diversity.
1. Threats to End DACA Destabilize the Classroom. Public school administrators report that the attempts by DHS to terminate DACA create an atmosphere of anxiety that makes it more difficult for students to focus on their studies. This anxiety is not limited to students with DACA or those taught by DACA educators. Children often misunderstand whether they or their families have legal immigration status. Even those with legal status often believe “immigrant” is synonymous with unauthorized presence in the U.S. Randy Capps et al., Migration Policy Inst., Implications of Immigration Enforcement Activities for the Well-Being of Children in Immigrant Families: A Review of the Literature 6 (2015). As a result, students fear that they or their authorized relatives are in danger of being deported, which escalates their anxiety—and that of the classmates around them.
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“We cannot tell them that everything will be okay.” Steve Corona is a member of the school board for Fort Wayne Community Schools, the largest school district in Indiana, where he has served for 36 years. He states that at the high school with the largest concentration of Hispanic students, the anxiety level of students has increased dramatically since the September 5, 2017 rescission announcement. A superintendent in Long Island, New York noted that since the rescission announcement, he can “definitely sense an increase in anxiety and stress, both for the student who fears that the end of DACA means they have to go back to a country they have not lived in since the age of two; and for documented students, the worry is in wondering if their friend will need to go and leave the U.S.” Heidi Sipe is the superintendent of the Umatilla School District in eastern Oregon. Umatilla is in a rural area and serves primarily Hispanic students. Sipe says “the fear is very real in young students all the way up to high schoolers.” Sipe observes that the anxiety “puts educators in a really uncomfortable role because we cannot tell them that everything will be okay because it is not true.”
“Every single student is affected.” Cindi Marten is the Superintendent of San Diego Unified School District, which has a majority-Hispanic student population. The September 5, 2017 announcement of DACA rescission and enjoined attempt to halt renewal applications has already caused great anxiety among San Diego students. “Kids are worried about what’s going to happen to
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them,” says Superintendent Marten. While non-immigrant students are, in Superintendent Marten’s words, “not afraid of being deported, they’re afraid about their best friend or their best friend’s mother. Every single student is affected.” She observes that “as soon as you destabilize your school, you’re not delivering the quality of education that children deserve.” Marten emphasized that “the educational outcomes for our students are going to be compromised.”
“Students are unable to focus.” Sacramento City Unified School District Superintendent Jorge Aguilar reports that the September announcement threatening to end DACA already has caused considerable student anxiety. Aguilar observes that this anxiety is “taking a toll on our ability to be able to provide the academic intervention necessary. Students are unable to focus on their academic achievement when they are experiencing the kind of trauma, anxiety, and anguish that comes as a result of the ending of DACA.” Matt Charlton, the superintendent of the Manson School District in Washington State, echoes these observations, noting that in his rural, majority-Hispanic district, there is now an overall “feeling of angst . . . that translates from families down to the kids . . . which impacts the classroom” and harms children’s ability to learn. And the accompanying antiimmigrant statements made by President Trump, especially those targeting DACA, have made the students of Renata Hewlette, a Long Island English Language
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Learning teacher, extremely scared. As a result, her students are distracted and preoccupied in class and less able to focus on their studies.
“Conditions where educating students is harder.” Superintendent Matt Utterback, of the North Clackamas School District in the suburbs of Portland, Oregon says “stress has an impact on academics and behavior,” and children’s ability to “concentrate, their ability to excel is being hampered because they are worried about their safety and future and that of their family members.” Superintendent Theron Schutte, of the Marshalltown Community School District in Iowa, has seen first-hand the effects of increased immigration-related anxiety on children, including a “lack of ability to focus, more frequent absenteeism, and lesser achievement with coursework and on test performance.” Susan Bergtraum, President of the New York State School Boards Association, says the anxiety around threats to DACA “leads to conditions where educating students is harder, which significantly impairs the ability of school boards to fully discharge their obligations to provide educational opportunities to all students as they are legally and constitutionally obligated to do.” The preliminary injunction curbs these ill effects and stabilizes the education environment. Schools will devolve into deepened disarray if the injunction is lifted.
The experiences of these administrators and school leaders are reflected in academic research. A working paper by the Harvard University Center on the
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Developing Child found that such persistent anxiety can change a child’s brain and negatively affect their physical, cognitive, and emotional development, which in turn impacts their ability to learn effectively in school. Nat’l Scientific Council on the Developing Child, Persistent Fear and Anxiety Can Affect Young Children’s Learning and Development 5 (Harvard Univ. Ctr. on the Developing Child, Working Paper No. 9, 2010), http://developingchild.harvard.edu/wp-content/ uploads/2010/05/Persistent-Fear-and-Anxiety-Can-Affect-Young-ChildrensLearning-and-Development.pdf.
“There is not a light at the end of the tunnel for these kids.” The announced end of DACA also has caused many students to stop working towards their goals as they see carefully crafted plans unravel. Arianna Martinez, an Associate Professor at LaGuardia Community College in New York, teaches many DACA recipients. Those college students’ “entire relationship to education and their future” has changed as the students now feel there is no point to obtaining a degree. Through her own academic research, Martinez has found that older DACA recipients enrolled in GED or ESL classes to prepare for college are struggling to envision a way forward. Superintendent Sipe spoke emotionally of a brilliant student who dreams of becoming a pediatrician but may no longer even consider college. Sipe also knows DACA students who have dropped out of college because of their disappointment and feeling of “why bother investing [in their
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education] if it does not do any good.” Superintendent Charlton speaks of how DACA gave students “that hope and inspiration to reach higher; to rescind that now is not fair” to his students. Superintendent Schutte expresses his concern that the termination of DACA will lead to a “greater challenge to encourage kids to finish school, a greater challenge to reduce the achievement gap and drop-out rate . . . there is not a light at the end of the tunnel for these kids.”
Kids who “have done everything asked of them.” Laura Secory, Director of English Language Learning in the Des Moines School District, speaks of her many DACA students whose plans will be irreparably harmed absent court intervention. One of her DACA students was planning to attend a specialized school for disabled students for his post-secondary education. With DACA now threatened, the student has put aside those plans. In Superintendent Utterback’s district, “high school counselors and administrators are having conversations with kids who thought they had an avenue for post-secondary education” and now do not know how to plan for the future. “These are really bright kids who have been in the school system for 13 years and have done everything asked of them and now they do not have the same opportunities as their classmates.”
The loss of DACA would also mean that our nation’s schools would lose almost 9,000 valued education employees. Jie Zong et al., Migration Policy Inst., A Profile of Current DACA Recipients by Education, Industry, and Occupation 8
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(2017). Given the individual DACA expiration dates of these educators, no district, school, or classroom can adequately prepare students for the staggered departure of beloved teachers. Departures that occur mid-year or at critical points like testing periods would irreversibly harm children and their educational outcomes. The preliminary injunction helps abate these disruptions until the merits of Plaintiffs’ claims are adjudicated. An example of the harm caused by lapsing DACA status is second-grade teacher Karina Alvarez. While awaiting the delayed renewal of her DACA work permit, Alvarez was forced to temporarily resign from her classroom. Seven-year-olds cannot comprehend the reasons for such a loss, but research abundantly shows events like this diminish trust and thus students’ psycho-social wellbeing and educational outcomes. During Alvarez’s absence, her second-graders lost educational progress and relationship continuity with a trusted teacher. This would occur on a much larger scale if thousands of teachers lose the ability to renew their DACA status.
Teacher turnover has long been shown to harm student academic achievement. Matthew Ronfeldt et al., How Teacher Turnover Harms Student Achievement, 50 Am. Educ. Res. J. 4, 31 (2013). Not only would the students of DACA teachers who leave perform worse academically, all students would be negatively impacted. Id. Turnover causes a decline in student achievement school-wide because it damages faculty morale, increases the workload of
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remaining teachers, and diverts district funds away from student programs to training new hires. Id. at 8, 32. These impacts will only escalate in schools if the preliminary injunction is dissolved. A reversal of this provisional relief will place children in an unmitigated state of uncertainty.
2. Severe Teacher Shortages Would Only Worsen Absent the Injunction.
Throughout the country, states face a critical shortage of teachers. The U.S. Department of Education has found that “every state is dealing with shortages of teachers in key subject areas” in the 2017-18 school year. Valerie Strauss, Teacher Shortages Affecting Every State As 2017-18 School Year Begins, Wash. Post (Aug. 28, 2017), https://www.washingtonpost.com/news/answer-sheet/wp/2017/08/28/ teacher-shortages-affecting-every-state-as-2017-18-school-year-begins/?utm_ term=.0583fbf55b17; see also Office of Postsecondary Educ., U.S. Dep’t. of Educ., Teacher Shortage Areas Nationwide Listing 1990-1991 through 2017-2018 (June 2017), https://www2.ed.gov/about/offices/list/ope/pol/ateachershortage areasreport2017-18.pdf. DACA has helped districts ease these shortages. Approximately 9,000 DACA recipients nationwide work in education. Zong et al., supra, at 8. At a time when the nation can ill afford to lose teachers, the reversal of the district court’s provisional relief allowing for DACA renewals would lead to a significant loss of educational employees.
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School leaders throughout the country report significant teacher shortages. In Oregon, Superintendent Sipe noted that her district posts positions for three to six months without receiving a single application. And Superintendent Utterback stated that his district has not been fully staffed for 18 months. In Sacramento, Superintendent Jorge Aguilar reports that his district is heavily impacted by the teacher shortage that is felt throughout California. He knows of employees who receive DACA and he fears the end of DACA would exacerbate the district’s already-critical need for qualified staff.
K.R. is a Texas educator with DACA who teaches special education to hearing-impaired pre-K children. A course she took on deaf education was her “light at the end of the tunnel” and she knew she wanted to dedicate her life to teaching children with limited communication abilities. Absent the preliminary injunction, K.R.’s DACA and work authorization will expire, ending her career and very likely leaving her students without a specialized teacher due to a shortage of teachers for hearing-impaired students.
R.A. teaches history in a Bronx, New York high school. Receiving DACA “completely changed [his] life” and enabled him to pursue his dreams. R.A. has been able to extern in the U.S. Congress. Through his studies at UCLA, he became inspired to become an educator, in order to give something back. R.A.’s students are concerned he will no longer be able to teach them and have told him that “we
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want you in the classroom.” This will not be possible unless R.A. can renew his DACA status.
Vicente Rodriguez was able to enter the University of California when he received DACA. An aspiring educator, Rodriguez graduated with a degree in both English and Ethnic Studies. He works as the Director of Social Services at a nonprofit coordinating its after-school program. Rodriguez knows excellent DACA teachers who stand to lose their employment. Rodriguez points out that without DACA these highly educated individuals would likely choose to leave the U.S. to continue teaching. And absent the preliminary injunction, Rodriguez’s DACA will expire before he can complete a graduate teaching program.
Without DACA renewals, many aspiring educators will not have the chance to fill critical vacancies. Mike Walsh, President of the California School Boards Association and a Trustee of the Butte County Office of Education, observes that the Butte COE California Mini-Corps, which provides tutoring services to K-12 youth in migrant populations throughout the state, stands to lose numerous collegestudent tutors who hold DACA. Walsh notes, “About eighty percent of tutors go on to obtain a teaching credential or permit to continue to be involved in education. That’s a huge opportunity for them to . . . educate more students who are dealing with bilingual and migrant work.” The Mini-Corps tutors are “in the pipeline to become teachers, administrators, [and] superintendents.” If these tutors
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are no longer able to work lawfully, Mini-Corps will lose hard-to-replace staff and the state will lose committed educators. Juana Zamora, the Director of MiniCorps, has found that uncertainty around the future of DACA has created “a great deal of fear and apprehension among our DACA tutors.” It has already affected Mini-Corps’ work. “Some [DACA tutors] refrain from participating in program components” that require travel, for fear of “inadvertently jeopardizing their legal status.”
Public schools have invested in the K-12 and higher education of these motivated young people whose professional aim is to give back, to educate students like themselves. Reversing the preliminary injunction will bar them from the classrooms that so urgently need them. Countless students stand to lose the very support, instruction, and motivation that these aspiring educators and other public servants received because of DACA.
3. DACA Increases Diversity in the Teaching Profession. Numerous studies have shown that students benefit from teachers who are ethnically and culturally diverse. “Teachers of color are positive role models for all students in breaking down negative stereotypes and preparing students to live and work in a multiracial society.” Office of Planning, Evaluation & Policy Dev., U.S. Dep’t of Educ., The State of Racial Diversity in the Educator Workforce 1
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(July 2016), https://www2.ed.gov/rschstat/eval/highered/racial-diversity/stateracial-diversity-workforce.pdf.
For minority students, having a teacher who reflects a student’s own ethnicity has a particularly positive effect. There are “meaningful ‘role model effects’ when minority students are taught by teachers of the same race.” Dan Goldhaber et al., Univ. of Washington Bothell, The Theoretical and Empirical Arguments for Diversifying the Teacher Workforce: A Review of the Evidence 6 (Ctr. for Educ. Data & Research, Working Paper No. 2015-9). These effects are not subjective, but actually make a “meaningful impact on student test scores.” Id. at 3. For example, “a larger presence of Black and Hispanic teachers [is linked] to improved treatment or outcomes for Black and Hispanic students along a variety of dimensions, including lower rates of exclusionary discipline, lower likelihood of placement in special education, and higher pass rates on standardized tests.” Jason A. Grissom, Luis A. Rodriguez & Emily C. Kern, Teacher and Principal Diversity and the Representation of Students of Color in Gifted Programs, 117 Elementary Sch. J. 396, 400 (2017) (internal citations omitted). Similarly, “non-English proficient Latino children revealed greater gains on a direct assessment of literacy . . . if their teacher was also Latino rather than Caucasian.” Jason T. Downer et al., Teacher-Child Racial/Ethnic Match Within Pre-Kindergarten Classrooms and Children’s Early School Adjustment, 37 Early Childhood Res. Q. 26, 36 (2016).
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It is therefore critical for schools to hire teachers from minority backgrounds to keep pace with the growing immigrant population. Yet districts have had difficulty doing so. The superintendents interviewed spoke of the gap between the number of Hispanic students compared to that of Hispanic educators. Between 2003 and 2012, “the increase in the percentage of Hispanic students [in the U.S.] far outpaced the modest increase in the percentage of Hispanic teachers.” Goldhaber et al., supra, at 1. In the 2011-12 school year, 24% of students were Hispanic, while only 8% of teachers were Hispanic. Office of Planning, Evaluation & Policy Dev., supra, at 6. The disparity between the increased need for Hispanic teachers and the lagging number of Hispanic teachers that districts are able to hire, is only expected to grow: “students of color are expected to make up 56 percent of the student population by 2024.” Id. at 1.
Districts thus have a critical need to hire an increasing number of Hispanic teachers to serve the needs of their expanding Hispanic student populations. DACA teachers have helped to meet this growing need, given that over 93% of DACA recipients were born in Latin American countries. U.S. Citizenship & Immigration Servs., Approximate Active DACA Recipients: Country of Birth 1 (Sept. 4, 2017), https://www.uscis.gov/sites/default/files/USCIS/Resources/ Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Ty pes/DACA/daca_population_data.pdf. Indeed, some districts have specifically
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recruited DACA recipients. See, e.g., Alexia Fernández Campbell, DACA Immigrants Are Teaching American Children. What Happens After They’re Gone?, Vox (Sept. 15, 2017), https://www.vox.com/policy-and-politics/2017/9/15/ 16306972/daca-teachers-dreamers.
Many DACA educators acknowledge that their background makes them especially important to students, and that they have been drawn to teaching because of their desire to act as role models. For example, Angelica Reyes, who teaches Advanced Placement U.S. and World History in South Central Los Angeles, says many of her students come from immigrant backgrounds. Some of the students at her school are undocumented. Reyes believes that because she can understand the experiences of her students, she is uniquely able to teach them. She knows how to make American history relevant to them, because she can empathize with and incorporate their perspectives.
One of the DACA educators interviewed for this brief became a public middle and high school math teacher in Los Angeles because he felt he could be particularly effective with immigrant students who share his background. He is open with students about his immigration status and his childhood in an economically depressed immigrant community. He believes his openness helps students to feel safe so they can focus on their studies and that students trust him as a mentor and confidante in ways that help their morale and academic progress.
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Similarly, Jaime Ballesteros, a California DACA educator, said that he became a teacher because he knew he could reach immigrant students: “I wanted to amplify the voices of students and families who shared both my story and values. I wanted to ensure that there would be even just one less child who felt isolated and helpless because of his or her immigration status.” Ginette Magaña, DACAmented Teachers: Educating and Enriching Their Communities, Obama White House: Blog (Aug. 4, 2015), https://obamawhitehouse.archives.gov/blog/2015/08/04/ dacamented-teachers-educating-and-enriching-their-communities.
DACA recipient Karina Alvarez speaks to her second-graders, many of whom are Hispanic and some undocumented, about her own experience as an undocumented immigrant. Alvarez believes that her students “need to have a role model that has walked in their shoes . . . they need to see that college is in their reach, that it is possible for them to be a teacher or whatever they want to be.”
A.Z. teaches Spanish in Texas. She attended public schools and graduated second in her class, playing sports and musical instruments, and participating on student council. Growing up, she did not have many Hispanic teachers and decided to become a teacher so she could help her students feel that they could go to college. In addition to teaching Spanish, she mentors students in a college preparation program that she herself participated in as a student. A.Z. connects with and motivates her students as a result of their shared background. She enjoys
27

Case: 18-15068, 03/20/2018, ID: 10805429, DktEntry: 63-1, Page 34 of 40
building relationships with her students and inspiring them to work harder. Absent the preliminary injunction allowing for renewal applications, she will have to stop working with her mentees during their critical senior year as her DACA expires.
Administrators recognize the need for a diverse teaching staff. Superintendent Charlton said that “students benefit when they have role models and people teaching them who come from their background.” As a result, his district is trying to promote Hispanic para-professionals to teaching positions because “schools need to reflect our community.” Tom Ahart, the superintendent of the Des Moines School District in Iowa, which serves approximately 33,000 students, has witnessed the importance of a “diversity of points of view and different perspectives informing what happens in our classrooms,” and that having diverse educators is important so that “all students see models of success and leadership that look like them, so they start imagining different possibilities for themselves.” Superintendent Utterback echoed those sentiments, noting that “students can go thirteen years without experiencing teachers who look like them.” This harms white students as well since “white students never experience seeing a person of color in a professional role.”
Public K-12 schools and universities stand to lose close to 9,000 education employees. Their students would lose trusted mentors who share their background
28

Case: 18-15068, 03/20/2018, ID: 10805429, DktEntry: 63-1, Page 35 of 40
and experiences. These are losses that public schools, universities, and students cannot bear.
IV. CONCLUSION The elimination of DACA will irreparably harm not only DACA students
and educators, but also public school communities as a whole. DACA rescission will deprive schools and universities of qualified teachers and mentors, diminish diversity in the teaching corps, and destabilize school environments. By taking away the prospect of advanced learning and gainful employment, countless young people will lose the motivation to succeed and society will forego the contributions of DACA recipients who seek to serve as public educators. DHS efforts to end DACA and halt renewal applications already have disrupted classrooms. To prevent these compounding losses to public education, amici respectfully request that this Court affirm the district court’s preliminary injunction.
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Respectfully submitted,
By: /s/ Jason Walta Jason Walta
Alice O’Brien Emma Leheny Jason Walta Lubna A. Alam Sean Goldhammer National Education Association 1201 16th Street, N.W. Washington, D.C. 20036 Tel: (202) 822-7035 Fax: (202) 822-7033 aobrien@nea.org eleheny@nea.org
Attorneys for National Education Association
Abhas Hajela Capitol Advisors Group, LLC 925 L Street, Suite 1200 Sacramento, CA 95814 Tel: (916) 719-9438 Fax: (916) 443-7468 abe@capitoladvisors.org
Attorney for Association of California School Administrators

Dated: March 20, 2018
Andra M. Donovan San Diego Unified School District 4100 Normal Street, Room 2148 San Diego, CA 92103 Tel: (619) 725-5630 Fax: (619) 725-5639 adonovan@sandi.net
Attorney for Berkeley Unified School District, Moreno Valley Unified School District, San Diego Unified School District, and West Contra Costa Unified School District
Eric E. Stevens Girard, Edwards, Stevens & Tucker, LLP 8801 Folsom Blvd., Suite 285 Sacramento, CA 95826 Tel: (916) 706-1255 Fax: (916) 706-2672 Stevens@girardedwards.com
Attorney for Butte County Office of Education

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Case: 18-15068, 03/20/2018, ID: 10805429, DktEntry: 63-1, Page 37 of 40

Kathryn M. Sheffield California Faculty Association 980 9th Street, Suite 2250 Sacramento, CA 95814 Tel: (916) 441-4848 Fax: (916) 441-3513 ksheffield@calfac.org
Attorney for California Faculty Association
Glenn Rothner Rothner, Segall & Greenstone 510 South Marengo Avenue Pasadena, CA 91101 Tel: (626) 796-7555 Fax: (626) 577-0124 grothner@rsglabor.com
Attorney for California Federation of Teachers
Elaine M. Yama-Garcia D. Michael Ambrose California School Boards Association Education Legal Alliance 3251 Beacon Boulevard Sacramento, CA 95691 Tel: (800) 266-3382 Fax: (916) 374-3407 eyama-garcia@csba.org mambrose@csba.org
Attorneys for California School Boards Association

Laura P. Juran Jean Shin California Teachers Association 1705 Murchison Drive, Burlingame, CA 94010 Tel: (650) 552-5440 Fax: (650) 552-5019 ljuran@cta.org jshin@cta.org
Attorneys for California Teachers Association
Vibiana M. Andrade Los Angeles County Office of Education 9300 Imperial Highway Downey, CA 90242 Tel: (562) 922-6123 Fax: (562) 469-4334 andrade_vibiana@lacoe.edu
Attorney for Los Angeles County Board of Education and Los Angeles County Superintendent of Schools
David Holmquist Devora Navera Reed Los Angeles Unified School District 333 South Beaudry Avenue, 20th Fl. Los Angeles, CA 90017 Tel: (213) 241-7600 Fax: (213) 241-8444 dholmquist@lausd.net devora.naverareed@lausd.net
Attorneys for Los Angeles Unified School District

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Case: 18-15068, 03/20/2018, ID: 10805429, DktEntry: 63-1, Page 38 of 40
Francisco Negrón Sonja H. Trainor National School Boards Association 1680 Duke St. Alexandria, VA 22314 Tel: (703) 838-6209 Fax: (703) 548-5613 fnegron@nsba.org strainor@nsba.org
Attorneys for National School Boards Association
Michael L. Smith Oakland Unified School District 1000 Broadway, Suite 680 Oakland, CA 94607 Tel: (510) 879-8696 Fax: (510) 879-4046 mike.smith@ousd.org
Attorney for Oakland Unified School District
Raoul Bozio Sacramento City Unified School District 5735 47th Avenue Sacramento, CA 95824 Tel: (916) 643-9097 Fax: (916) 399-2020 Raoul-bozio@scusd.edu
Attorney for Sacramento City Unified School District
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CERTIFICATE OF COMPLIANCE This brief complies with the typeface and type-style requirements of Fed. R. App. P. 32(a)(5) and (6) because it uses a proportionally spaced typeface (Times New Roman) in 14-point. It complies with the type-volume limits of Fed. R. App. P. 29(a)(5) because it contains 6,379 words, which is less than half of the 14,000 words allowed for principal briefs under Ninth Circuit Rule 32-1(a).
/s/ Jason Walta Jason Walta
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CERTIFICATE OF SERVICE I hereby certify that on March 20, 2018, I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
/s/ Jason Walta Jason Walta
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Date Mar 20, 2018
(Rev.12/1/16)

 
 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, & 18-15134

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
Plaintiffs-Appellees, v.
UNITED STATES OF AMERICA, et al.,
Defendants-Appellants.

On Appeal from the United States District Court for the Northern District of California,
Nos. 17-cv-05211, 17-cv-05235, 17-cv-05329, 17-cv-05380, & 17-cv-05813 Hon. William H. Alsup

BRIEF OF AMICI CURIAE CURRENT AND FORMER PROSECUTORS AND LAW ENFORCEMENT LEADERS IN SUPPORT OF PLAINTIFFS-APPELLEES AND FOR AFFIRMANCE

Matthew J. Piers Chirag G. Badlani Caryn C. Lederer HUGHES SOCOL PIERS RESNICK
& DYM, LTD. 70 West Madison St., Suite 4000 Chicago, IL 60602

Joshua A. Geltzer Daniel B. Rice Institute for Constitutional Advocacy
and Protection Georgetown University Law Center 600 New Jersey Avenue NW Washington, DC 20001

Counsel for Amici Curiae

TABLE OF CONTENTS INTEREST AND IDENTITY OF AMICI CURIAE..................................................... 1 INTRODUCTION................................................................................................................ 2 ARGUMENT ......................................................................................................................... 4
I. DACA Fosters Effective Law Enforcement. ................................................ 4 A. “Community Policing” Is Essential to Effective Law Enforcement. ....................................................................................................4 B. DACA Promotes Cooperation with Law Enforcement....................5 C. DACA Aids Law Enforcement by Facilitating Access to Identification.................................................................................................. 11
II. DACA Helps Law Enforcement Protect Vulnerable Individuals from Crime and Exploitation. ................................................................................... 13
CONCLUSION ................................................................................................................... 18
i

Table of Authorities
Statutes
8 U.S.C. § 1324a(h)(3) .......................................................................................................... 13
8 C.F.R. § 274a.12(c)(14) ..................................................................................................... 13
Pub. L. No. 106-386, 114 Stat. 1491 (2000) ...................................................................... 10
Executive and Congressional Materials
Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm. on the Judiciary, 114th Cong. (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n)................................................................................................. 5, 8, 14
Soc. Security Admin., SSA Publ’n No. 05-10096, Social Security Numbers for Noncitizens (June 2015), available at http://www.ssa.gov/pubs/EN-0510096.pdf ......................................................................................................................... 13
U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., OMB No. 1615-0040, Instructions for I-765 Application for Employment Authorization (Nov. 2015), available at https://www.uscis.gov/sites/default/files/files/form/i-765instr.pdf.................... 13
U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., Victims of Criminal Activity: U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-human-trafficking-othercrimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminalactivity-u-nonimmigrant-status (last updated Aug. 25, 2017) ................................... 10
U.S. Dep’t of Justice, Office of Cmty. Oriented Policing Servs., Enhancing Community Policing with Immigrant Populations (Apr. 2010), available at https://ric-zai-inc.com/Publications/cops-w0747-pub.pdf..................................... 14
ii

Other Authorities
Angelica S. Reina, Brenda J. Lohman & Marta María Maldonado, “He Said They’d Deport Me”: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. Interpersonal Violence 593 (2013) ........................... 17
Anita Khashu, Police Found., The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties (2009), https://www.policefoundation.org/wp-content/uploads/2015/06/TheRole-of-Local-Police-Narrative.pdf.......................................................................... 5, 16
Elizabeth Fussell, The Deportation Threat Dynamic and Victimization of Latino Migrants: Wage Theft and Robbery, 52 Soc. Q. 593 (2011) ........................................14-17
Jacob Bucher, Michelle Manasse & Beth Tarasawa, Undocumented Victims: An Examination of Crimes Against Undocumented Male Migrant Workers, 7 Sw. J. Crim. Just. 159 (2010)................................................................................................15-16
James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering Clear of Police and Courts, L.A. Times, Oct. 9, 2017, http://www.latimes.com/ local/lanow/la-me-ln-undocumented-crime-reporting-20171009-story.html .......... 8
Jill Theresa Messing et al., Latinas’ Perceptions of Law Enforcement: Fear of Deportation, Crime Reporting, and Trust in the System, 30 J. Women & Soc. Work 328 (2015) ........................................................................................................................ 17
Leslye Orloff, Levi Wolberg & Benish Anver, Nat’l Ctr. on Domestic & Sexual Violence, U-Visa Victims and Lawful Permanent Residency (Sept. 6, 2012), http://www.ncdsv.org/ images/NIWAP_UVisaVictimsAndLawfulPermanentResidency_9-6-12.pdf ....................................10-11
Nat’l Immigration Law Ctr., Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement (Aug. 2013), https://www.nilc.org/wpcontent/uploads/2017/02/ Law-Enforcement-Opposition-to-Mandates2013-08-30.pdf .................................................................................................................. 8
Latinos and the New Trump Administration, Pew Research Ctr.: Hispanic Trends, Feb. 23, 2017, http://www.pewhispanic.org/2017/02/23/latinos-and-thenew-trump-administration/............................................................................................. 6
iii

Michael Corkery & Jessica Silver-Greenberg, Banks Reject New York City IDs, Leaving ‘Unbanked’ on Sidelines, N.Y. Times, Dec. 23, 2015 ........................................ 12
Michael Morris & Lauren Renee Sepulveda, A New ICE Age, Texas Dist. & Cty. Attorneys Ass’n, The Texas Prosecutor, Vol. 47, No. 4 (July/Aug. 2017), https://www.tdcaa.com/journal/new-ice-age.............................................................. 8
Natalia Lee et al., Nat’l Immigrant Women’s Advocacy Project, National Survey of Service Providers on Police Response to Immigrant Crime Victims, U Visa Certification and Language Access (Apr. 16, 2013), http://www.niwap.org/reports/Police-Response-U-Visas-LanguageAccess-Report-4.6.13.pdf............................................................................................... 11
Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina Immigrant Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230 (2005) ................... 18
Nik Theodore, Dep’t of Urban Planning & Policy, Univ. of Ill. at Chi., Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (May 2013), www.policylink.org/sites/default/files/INSECURE_ COMMUNITIES_REPORT_FINAL.PDF................................................................. 7
New York City Dep’t of Investigation, Office of the Inspector General for the New York Police Dep’t, When Undocumented Immigrants are Crime Victims: An Assessment of NYPD’s Handling of U Visa Certification Requests at 1 (July 2017), https://www.1.nyc.gov/assets/doi/reports/pdf/2017/07-28-2017-U-VisaRpt-Release.pdf ................................................................................................................ 7
Police Exec. Research Forum, Voices from Across the Country: Local Law Enforcement Officials Discuss the Challenges of Immigration Enforcement (2012), http://www.policeforum.org/assets/docs/Free_Online_Documents/Immi gration/voices%20from%20across%20the%20country%20%20local%20law %20enforcement%20officials%20discuss%20the%20challenges%20of%20 immigration%20enforcement%202012.pdf ............................................................ 6, 12
Robert C. Davis, Edna Erez & Nancy Avitabile, Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183 (2001) ............................................................................................................. 7, 9
Roberto G. Gonzales, DACA’s Beneficiaries Landed Good Jobs, Enrolled in College, and Contributed to Society, Vox Media, Sept. 5, 2017, https://www.vox.com/ 2017/9/2/16244380/daca-benefits-trump-undocumented-immigrants-jobs ..... 9-10
iv

Roberto G. Gonzales & Angie M. Bautista-Chavez, Am. Immigration Council, Two Years and Counting: Assessing the Growing Power of DACA (June 2014), http://www.immigrationpolicy.org/special-reports/two-years-andcounting-assessing-growing-power-daca ....................................................................... 9
S. Poverty Law Ctr., Under Siege: Life for Low-Income Latinos in the South (Apr. 2009), http://www.splcenter.org/sites/default/files/downloads/ UnderSiege.pdf ........................................................................................................... 14-16
Zenén Jaimes Pérez, United We Dream, A Portrait of Deferred Action for Childhood Arrivals Recipients: Challenges and Opportunities Three-Years Later (June 2015), http://unitedwedream.org/wp-content/uploads/2015/10/DACA-reportfinal-1.pdf..................................................................................................................... 9, 13
v

INTEREST AND IDENTITY OF AMICI CURIAE Amici Current and Former Prosecutors and Law Enforcement Leaders file this
brief as amici curiae in support of Plaintiffs-Appellees.1 Amici are a leading national
association of local law enforcement executives,2 as well as current and former prosecutors, individual police chiefs, sheriffs, and law enforcement leaders. Amici have deep and wide-ranging expertise in local law enforcement, prosecution, and cooperative federal-state law enforcement activities. They are intimately familiar with the difficulties of performing critical law enforcement functions in communities where immigrants fear the police and therefore are especially vulnerable to exploitation and crime. A full list of amici is attached as Exhibit A.
Amici’s experience in keeping their communities safe has underscored the critical importance of bringing immigrants and their families “out of the shadows.” Community trust and cooperation are essential to public safety, and sound police work and prosecutorial efforts are undermined when undocumented immigrants fear interacting with law enforcement and the justice system. This dynamic, moreover,
1 The parties have consented to the filing of this brief. No counsel for a party authored this brief in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae or their counsel made a monetary contribution to this brief’s preparation or submission. 2 Pursuant to Rule 26.1, Amicus National Organization of Black Law Enforcement Executives (NOBLE) certifies that it does not have a parent corporation and that no publicly held corporation holds 10% or more of its stock.
1

leaves undocumented immigrants more vulnerable to crime and exploitation, and undocumented immigrant victims less likely to come forward or cooperate with investigations and prosecutions, leading to more violence in the communities that amici are, and have been, charged with protecting.
The Deferred Action for Childhood Arrivals (“DACA”) program protects from deportation nearly 800,000 individuals brought to this country as children. Under DACA, these individuals, who have undergone background checks and lived continuously in the United States since 2007, have been permitted to live, work, and study in this country without fear of deportation. Amici are aware that the DACA program has helped law enforcement officers and prosecutors keep their communities safe by reducing the fear of removal from these nearly 800,000 individuals who are active members of their communities.
INTRODUCTION The lessons that amici have learned in protecting their communities shed important light on the issues raised in this case. Community policing, a philosophy that calls for trust and engagement between law enforcement and those whom they protect, is vital to effective police work and, in turn, to public safety. That trust is undermined when undocumented individuals fear interacting with the police, and law enforcement suffers as a result. Extensive evidence shows that, especially without programs such as DACA in place, undocumented immigrants—and their lawfully present family and neighbors—fear that turning to the police and cooperating with
2

prosecutors could bring adverse immigration consequences. As a result, immigrant communities are generally less willing to report crimes or cooperate with criminal investigations and prosecutions. This fundamental breakdown in trust poses a major challenge both to the investigation and prosecution of individual crimes and to the proper allocation of public safety resources.
DACA ameliorates these problems by addressing an important reason that many individuals fear cooperating with law enforcement. As experience with DACA has shown, when immigrants are permitted to step out of the shadows, they are much more willing to work cooperatively with police and prosecutors. As explained below, nearly two-thirds of DACA recipients reported being less afraid of law enforcement, and 59 percent indicated that they were more likely to report crimes after having entered the program. DACA further aids law enforcement by facilitating access to identification, such as federal employment authorization documents. Lack of identification in immigrant communities often leads to undue burdens on police, potentially turning a simple traffic stop into an hours-long detour to fingerprint someone at the police station. When police are able to identify victims, witnesses, and potential suspects without those sorts of delays, valuable law enforcement resources are spared. Knowing the identity of individuals law enforcement officers come into contact with aids in the safety of law enforcement officers as well.
DACA also benefits public safety by helping law enforcement protect a population uniquely vulnerable to exploitation and violent crime. Numerous studies
3

have shown that undocumented individuals’ fear of interacting with law enforcement makes them attractive targets for many forms of crime and abuse. Undocumented immigrants, for instance, face increased wage theft and other forms of exploitation in the workplace. With limited access to bank accounts (in substantial part because of their lack of identification), they have been dubbed by some as “walking ATMs” and are frequently targeted for robbery. Undocumented individuals are also especially vulnerable to domestic abuse because they are often afraid to turn to law enforcement for help against abusive partners.
By eliminating an important reason to fear law enforcement, by providing work authorization and access to identification, and by building trust between law enforcement and immigrants with longstanding ties to the United States, DACA aids community policing and makes recipients less vulnerable to crime and exploitation. In doing so, DACA provides vital support to police and prosecutors charged with protecting everyone in their communities.
ARGUMENT I. DACA Fosters Effective Law Enforcement.
A. “Community Policing” Is Essential to Effective Law Enforcement.
As one major city police chief has explained, the experience of policing cities across the country has taught law enforcement officers that, “[t]o do our job, we must
4

have the trust and respect of the communities we serve.”3 In order to stop crime,
police officers “need the full cooperation of victims and witnesses.”4
This common-sense philosophy has come to be called “community policing.”
Community policing is an approach to policing whereby local law enforcement
engages communities in a working partnership to reduce crime and promote public
safety.5 It thus requires police to interact with neighborhood residents in a manner
that will build trust and improve the level of cooperation with the police department.6
When that relationship of trust is missing—as it is when people believe that
contacting police or cooperating with prosecutors could lead to deportation for
themselves or others—community policing breaks down and the entire community is
harmed.
B. DACA Promotes Cooperation with Law Enforcement.
The reality of millions of undocumented immigrants living in the United States
poses significant challenges to effective community policing.
3 Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm. on the Judiciary, 114th Cong. 2 (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n), available at http://www. judiciary.senate.gov/imo/media/doc/07-21-15%20Manger%20Testimony.pdf. 4 Id. 5 See Anita Khashu, Police Found., The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties (Apr. 2009) (citing Mark H. Moore, ProblemSolving and Community Policing, Modern Policing (Michael Tonry & Norval Morris eds., 1992)), available at https://www.policefoundation.org/wp-content/uploads/2015/06/ The-Role-of-Local-Police-Narrative.pdf. 6 Id.
5

According to a recent Pew survey, 67 percent of Hispanic immigrants and 47
percent of all Hispanic adults in the United States worry about deportation—of
themselves, family members, or close friends.7 This fear necessarily affects
cooperation and communication with the police and prosecutors. Immigrants—and
their family members and neighbors who may be U.S. citizens or lawfully present—
often assume that interaction with police could have adverse consequences for
themselves or a loved one. Even when local authorities play no role in immigration
enforcement, many immigrants still associate police with immigration authorities, or
expect police to inquire about immigration status.8
As a result, immigrant communities in general, and undocumented immigrants
in particular, are less likely to trust and cooperate with local police and prosecutors.
One survey of Latinos in four major cities found that 70 percent of undocumented
immigrants and 44 percent of all Latinos would be less likely to contact law
7 Latinos and the New Trump Administration, Pew Research Ctr.: Hispanic Trends, Feb. 23, 2017, http://www.pewhispanic.org/2017/02/23/latinos-and-the-new-trumpadministration/. 8 See, e.g., Police Exec. Research Forum, Voices from Across the Country: Local Law Enforcement Officials Discuss the Challenges of Immigration Enforcement 2 (2012), http://www.policeforum.org/assets/docs/Free_Online_Documents/Immigration/v oices%20from %20across%20the%20country%20-%20local%20law%20enforcement %20officials%20discuss% 20the%20challenges %20of%20immigration%20 enforcement%202012.pdf (“[S]ome members of the public . . . may have a misperception that because immigration is governed by laws, all law enforcement agencies have responsibility for enforcing those laws. . . . Police chiefs note that immigrants often have this misperception, which often makes them reluctant to contact local police . . . .”).
6

enforcement authorities if they were victims of a crime for fear that the police would
ask them or people they know about their immigration status; and 67 percent of
undocumented immigrants and 45 percent of all Latinos would be less likely to
voluntarily offer information about, or report, crimes because of the same fear.9
This problematic atmosphere of mistrust is felt by police as well. In one study,
two-thirds of the law enforcement officers polled expressed the view that recent
immigrants reported crimes less frequently than others.10 Those surveyed also
indicated that the crimes underreported by immigrants are usually serious ones, with
domestic violence and gang violence at the top.11 These trends have only worsened in
recent months. According to the Houston Police Department, rape reporting by
members of the Hispanic community fell over 40 percent from the first quarter of
9 Nik Theodore, Dep’t of Urban Planning & Policy, Univ. of Ill. at Chi., Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement 5-6 (May 2013), www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_ REPORT_FINAL.PDF; see also id. at 1 (“Survey results indicate that the greater involvement of police in immigration enforcement has significantly heightened the fears many Latinos have of the police, . . . exacerbating their mistrust of law enforcement authorities.”). 10 Robert C. Davis, Edna Erez & Nancy Avitabile, Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183, 187 (2001). 11 Id. at 188-89; see also New York City Dep’t of Investigation, Office of the Inspector General for the New York Police Dep’t, When Undocumented Immigrants are Crime Victims: An Assessment of NYPD’s Handling of U Visa Certification Requests at 1 (July 2017), available at https://www.1.nyc.gov/assets/doi/reports/pdf/2017/07-28-2017U-Visa-Rpt-Release.pdf (“For undocumented people who are victims of crimes . . . fear of deportation can stand in the way of cooperation—a fact their abusers readily exploit.”).
7

2016 to the same period in 2017, despite an overall increase in city-wide crime
reports.12 Los Angeles, San Francisco, and San Diego also witnessed lagging sexual
assault and domestic violence reporting by Hispanic persons—but not other ethnic
groups—in the first half of 2017.13 According to Los Angeles County Sheriff’s
Deputy Marino Gonzalez, “[t]hey’re afraid of us. And the reason they’re afraid of us
is because they think we’re going to deport them.”14
Immigrants’ widely recognized fear of interacting with law enforcement and
prosecutors poses a fundamental challenge for community policing. Police cannot
prevent or solve crimes if victims or witnesses are unwilling to talk to them or
prosecutors because of concerns that they or their loved ones or neighbors will face
adverse immigration consequences. As the president of the Major Cities Chiefs
Association has explained to Congress, “[c]ooperation is not forthcoming from
persons who see their police as immigration agents.”15 As cautioned by one official,
“immigrants will never help their local police to fight crime once they fear we have
become immigration officers.”16
12 Michael Morris & Lauren Renee Sepulveda, A New ICE Age, Texas Dist. & Cty. Attorneys Ass’n, The Texas Prosecutor, Vol. 47, No. 4 (July/Aug. 2017), https://www. tdcaa.com/journal/new-ice-age. 13 James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering Clear of Police and Courts, L.A. Times, Oct. 9, 2017, http://www.latimes.com/local/lanow/lame-ln-undocumented-crime-reporting-20171009-story.html. 14 Id. 15 Statement of Tom Manger, supra note 3, at 2. 16 National Immigration Law Center, Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement 2 (Aug. 2013) (statement of Chief Acevedo),
8

The underreporting of crimes by recent immigrants is a problem for the entire
criminal justice system.17 The most immediate consequence, of course, is that serious
crimes go unreported and unpunished. At a broader level, undercounting the
incidence of crime in areas where immigrant communities live leads to the under-
allocation of law enforcement resources to those communities.18 As one official
explained, when criminal behavior goes unreported, “[c]rime multiplies” and
“[u]nresolved resentments grow in the community.”19 Another added that the
underreporting of crime “keeps fear at very high levels and diminishes quality of
life.”20
DACA has helped to ameliorate these problems and improve public safety
more broadly. Nearly eight in ten recipients of DACA relief reported that they are
now less afraid of deportation,21 two-thirds reported being less afraid of law
enforcement, and 59 percent said that they would report a crime now in a situation in
which they would not have reported it before.22 If DACA were to remain in place,
https://www.nilc.org/wp-content/uploads/2017/02/Law-Enforcement-Oppositionto-Mandates-2013-08-30.pdf. 17 Davis et al., supra note 10, at 188. 18 Id. 19 Id. 20 Id. 21 Zenén Jaimes Pérez, United We Dream, A Portrait of Deferred Action for Childhood Arrivals Recipients: Challenges and Opportunities Three-Years Later 23 (June 2015), http://unitedwedream.org/wp-content/uploads/2015/10/DACA-report-final-1.pdf. 22 Roberto G. Gonzales & Angie M. Bautista-Chavez, Am. Immigration Council, Two Years and Counting: Assessing the Growing Power of DACA 9 (June 2014), http://www.immigrationpolicy.org/special-reports/two-years-and-counting-
9

those who qualify for the program would not revert to old reasons to fear ordinary
encounters with law enforcement. Instead, they would retain greater freedom to
cooperate for the protection of their communities without worrying about how their
good deed might be punished—for example, by causing them to be separated from
their family members, siblings, or loved ones.
Lessons learned from implementation of the Violence Against Women Act of
200023 are instructive. With that Act, Congress created the U visa to provide
immigration relief to undocumented victims of certain crimes.24 Like DACA
qualification, a U visa allows recipients to identify themselves, receive temporary relief
from removal, and obtain verified government identification.25 The benefits for law
enforcement have been striking. A recent study indicated that U visa applicants and
recipients, freed of the need to remain in the shadows, became far more likely to
cooperate with law enforcement in the detection, investigation, and prosecution of
crimes.26 Indeed, more than 99 percent stated that they were willing to cooperate
assessing-growing-power-daca; Roberto G. Gonzales, DACA’s Beneficiaries Landed Good Jobs, Enrolled in College, and Contributed to Society, Vox Media, Sept. 5, 2017, https://www.vox.com/2017/9/2/16244380/daca-benefits-trump-undocumentedimmigrants-jobs. 23 Pub. L. No. 106-386, 114 Stat. 1491 (2000). 24 See U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., Victims of Criminal Activity: U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victimshuman-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrantstatus/victims-criminal-activity-u-nonimmigrant-status (last updated Aug. 25, 2017). 25 See id. 26 See Leslye Orloff, Levi Wolberg & Benish Anver, Nat’l Ctr. on Domestic & Sexual Violence, U-Visa Victims and Lawful Permanent Residency 5-6 (Sept. 6, 2012),
10

with the police, and 70 percent were in fact asked to—and did—provide assistance
related to crimes committed against them.27 That U visa holders who seek lawful
permanent residency are expected to provide “reasonably requested information and
assistance” to law enforcement in connection with the crimes that qualify them for
immigration relief undoubtedly helps explain the especially high level of cooperation,
but the protections offered by the U visa are what enable that cooperation.28 Another
study revealed that three-quarters of law enforcement officers view U visas as
beneficial in encouraging victims to come forward and report crimes.29
C. DACA Aids Law Enforcement by Facilitating Access to Identification.
A further benefit of DACA for effective policing follows from the greater
availability of identification. Because most states do not issue driver’s licenses or
other identification to undocumented immigrants, law enforcement often face serious
difficulties reliably identifying undocumented community members. Ready access to
identification aids law enforcement in the most basic of ways: if the police cannot
http://www.ncdsv.org/ images/NIWAP_UVisaVictimsAndLawfulPermanentResidency_9-6-12.pdf. 27 Id. 28 See id. at 5 (internal quotation marks omitted). As set forth supra, note 22, the DACA program has yielded similar results, despite entailing no expectation of law enforcement cooperation. 29 Natalia Lee et al., Nat’l Immigrant Women’s Advocacy Project, National Survey of Service Providers on Police Response to Immigrant Crime Victims, U Visa Certification and Language Access 21 (Apr. 16, 2013), available at http://www.niwap.org/reports/PoliceResponse-U-Visas-Language-Access-Report-4.6.13.pdf.
11

verify who someone is, it becomes much harder to identify witnesses and victims,
investigate potential suspects, and perform critical tasks like searching for a criminal
history, investigating outstanding warrants, and determining whether someone poses a
threat.30
Even the simplest traffic stop can lead to an unnecessary waste of valuable law
enforcement resources if an individual cannot be identified. If an officer stops a
motorist who does not have a license or other verifiable identification, the officer may
have no other option than to arrest the individual, bring him to the station, and obtain
fingerprint information in order to identify the individual. As one police chief has
explained, “[w]hen we stop cars and the driver doesn’t have a driver’s license, there
are very few options for the officers and troopers.”31 The only way to reliably identify
the individual may be through fingerprints, requiring a detour to “jail so we can find
out who they are.”32 Another former police chief lamented the “manpower” required
and time lost—“up to two to three hours to determine who an arrestee is”—which
could be devoted to more pressing law enforcement concerns.33
30 Police Exec. Research Forum, supra note 8, at 15; see also Michael Corkery & Jessica Silver-Greenberg, Banks Reject New York City IDs, Leaving ‘Unbanked’ on Sidelines, N.Y. Times, Dec. 23, 2015 (describing municipal identification and stating, “[t]he mayor emphasized that the cards were developed with input from the New York City Police Department and said the department had been one of the biggest backers of the program. ‘They want every New Yorker on the street to have an ID card; it greatly improves the work of the NYPD,’ Mr. de Blasio said.”). 31 Police Exec. Research Forum, supra note 8, at 15-16. 32 Id. at 16. 33 Id. at 15.
12

Recipients of DACA are eligible to apply for a federal employment
authorization document (“EAD”). The EAD comes in the form of a card issued by
U.S. Citizenship and Immigration Services, and includes the recipient’s photograph.34
Individuals who receive employment authorization also are eligible to obtain a Social
Security number and card.35 Because DACA has expanded availability of
identification, it has assisted law enforcement officers’ ability to identify those whom
they encounter.36 Instead of time-consuming, wasteful, and potentially antagonistic
encounters with individuals who pose no public safety concern, police have more time
to focus on higher priorities in keeping their communities safe.
II. DACA Helps Law Enforcement Protect Vulnerable Individuals from Crime and Exploitation.
DACA has yielded another vital public safety benefit: protecting individuals
who are attractive targets for criminals.
As discussed above, undocumented immigrants as well as their families fear
interactions with police and are reluctant to report crimes when doing so is
accompanied by the fear of removal. No one knows this better than the predators
34 See 8 U.S.C. § 1324a(h)(3); 8 C.F.R. § 274a.12(c)(14); see also U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., OMB No. 1615-0040, Instructions for I765 Application for Employment Authorization (Jul. 2017) (describing EAD as a “card” and requiring two passport-style photos), available at https://www.uscis.gov/ sites/default/files/files/form/i-765instr.pdf. 35 See Soc. Sec. Admin., SSA Publ’n No. 05-10096, Social Security Numbers for Noncitizens (Jul. 2017), available at http://www.ssa.gov/pubs/EN-05-10096.pdf. 36 More than 90 percent of recipients of relief under DACA report that they have acquired a driver’s license or other identification. Pérez, supra note 21, at 20.
13

who seek to take advantage of immigrant communities’ vulnerabilities. These
communities face a range of misconduct, from abuse by unscrupulous employers to
domestic and gang violence.37 “When immigrants come to view their local police and
sheriffs with distrust because they fear deportation, it creates conditions that
encourage criminals to prey upon victims and witnesses alike.”38
This phenomenon has been termed the “deportation threat dynamic.”39 The
logic is straightforward: “(1) an unauthorized migrant seeks, and finds, employment;
(2) a person, such as an employer or criminal, identifies the migrant as unauthorized;
(3) that person commits a crime against the migrant, such as wage theft, another
workplace violation, or robbery; and (4) the migrant does not report the crime to law
enforcement,” fearing immigration consequences.40
This phenomenon is widespread in the workplace. In a number of studies,
between 40 and 80 percent of mostly undocumented immigrants reported being
victims of wage theft.41 Many immigrants also reported other types of worksite
37 See U.S. Dep’t of Justice, Office of Cmty. Oriented Policing Servs., Enhancing Community Policing with Immigrant Populations 16 (Apr. 2010), available at https://ric-zaiinc.com/Publications/cops-w0747-pub.pdf. 38 Statement of Tom Manger, supra note 3, at 2. 39 Elizabeth Fussell, The Deportation Threat Dynamic and Victimization of Latino Migrants: Wage Theft and Robbery, 52 Soc. Q. 593 (2011). 40 Id. at 610. 41 See id. (finding that 2 of 5 respondents reported wage theft since arriving in New Orleans, and citing Nik Theodore, Abel Valenzuela, Jr. & Edwin Meléndez, La Esquina (The Corner): Day Laborers on the Margins of New York’s Formal Economy, 9 WorkingUSA: J. Labor & Soc. 407 (Dec. 2006), finding a wage theft rate of approximately 50% in New York); S. Poverty Law Ctr., Under Siege: Life for Low-Income
14

abuse.42 In one study, 32 percent of respondents said that they had suffered on-the-
job injuries—and most of these individuals, after being injured, were fired, not paid lost wages, or denied medical care by their employers.43
The deportation threat dynamic fuels not only exploitation but also outright
violence. An advocate reported that, when one worker attempted to collect wages his
employer owed him, “[t]he contractor raised his shirt and showed he had a gun—and that was enough. . . . He didn’t have to say any more. The worker left.”44 DACA
recipients are currently eligible to receive work authorization, and many are currently
working or pursuing higher educational opportunities. Revocation of their work
authorization would leave them more vulnerable to exploitation and even violent
crime.
This same lawlessness plaguing undocumented communities extends well
beyond the workplace. Nearly two-thirds of undocumented migrant workers
participating in a Memphis study reported being the victim of at least one crime, most commonly theft or robbery.45 Respondents indicated that fewer than a quarter of
Latinos in the South 6 (Apr. 2009) (finding that 41% of those surveyed across the South had experienced wage theft, and 80% had in New Orleans), http://www.splcenter. org/sites/default/files/downloads/UnderSiege.pdf. 42 Fussell, supra note 39, at 604. 43 S. Poverty Law Ctr., supra note 41, at 6. 44 Id. at 7 (internal quotation marks omitted). 45 Jacob Bucher, Michelle Manasse & Beth Tarasawa, Undocumented Victims: An Examination of Crimes Against Undocumented Male Migrant Workers, 7 Sw. J. Crim. Just. 159, 164, 166 (2010).
15

these crimes were reported to the police, and only one was reported by the victim himself.46
As this study suggests, robbery and similar crimes pose a particular threat to undocumented individuals, who typically do not have bank accounts, in part because of their inability to obtain government-issued identification.47 Moreover, many of these immigrants live in group apartments and are unable to store valuables in a safe place at home.48 As a result, undocumented immigrants are known to carry large amounts of cash, making robbing them an especially lucrative proposition. The risk to the perpetrators, meanwhile, is minimal because the victims are too afraid to report the crime to the police.
The targeting of undocumented immigrants for robbery has become so widespread that these individuals have been labeled “walking ATMs”—or the subjects of “amigo shopping.”49 In a study of largely undocumented immigrants helping to rebuild New Orleans in the wake of Hurricane Katrina, the immigrants reported robbery and physical assault at more than ten times the rate experienced by the general
46 Id. at 165. 47 Fussell, supra note 39, at 604; S. Poverty Law Ctr., supra note 41, at 6, 25. 48 Khashu, supra note 5, at 25; see also Bucher, Manasse & Tarasawa, supra note 45, at 164, 167-68 (finding that a large majority of surveyed undocumented migrants workers lived with at least three others and identifying a strong relationship between number of cohabitants and crime). 49 See Fussell, supra note 39, at 604-05; S. Poverty Law Ctr., supra note 41, at 25; Khashu, supra note 5, at 25.
16

population.50 In another survey, 53 percent of law enforcement officers held the view
that undocumented immigrants were especially likely to be victims of robbery and
theft.51
Undocumented immigrants are especially vulnerable to domestic violence. A
number of studies have shown that abusive partners may exploit the threat of
deportation in order to maintain power and control over their victims.52 Financial
dependence on an abusive partner with stable immigration status may facilitate
violence in this way.53
Seventy percent of participants in one study of domestic abuse victims said that
immigration status was a major impediment to their seeking help or reporting their
abuse to the authorities—and thereby permitting the violence to continue.54 In
another study, immigration status was identified as the single largest factor
50 See Fussell, supra note 39, at 604. 51 Id. 52 See, e.g., Jill Theresa Messing et al., Latinas’ Perceptions of Law Enforcement: Fear of Deportation, Crime Reporting, and Trust in the System, 30 J. Women & Soc. Work 328, 330 (2015) (citing several studies); Angelica S. Reina, Brenda J. Lohman & Marta María Maldonado, ‘‘He Said They’d Deport Me’’: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. Interpersonal Violence 593, 601 (2013). The latter study cited a participant who explained that a partner “beat me up and I could have called the police because that was what I thought to do . . . but he threatened me . . . [H]e told me that if I called the police I was going to lose out . . . because they [i.e., police officers] . . . would . . . take me, because I didn’t have legal documents.” Id. 53 See, e.g., Messing et al., supra note 52, at 330. 54 Reina, Lohman & Maldonado, supra note 52, at 600.
17

independently affecting the rate at which battered Latina immigrants called the

police.55

In short, should DACA recipients lose their work authorizations and once

again fear removal from the United States, their lack of status would embolden

exploitative employers and criminals alike and thus diminish the safety of entire

communities. By permitting these young individuals to live and work openly, DACA

eliminates a significant barrier to an open and trusting relationship with law

enforcement. Continuing DACA will enable police and prosecutors to better fight

crime and serve all those whom they are charged with protecting.

CONCLUSION

For the foregoing reasons, as well as the reasons set forth in Plaintiffs-

Appellees’ brief, this Court should affirm the district court’s grant of a preliminary

injunction and its order denying the government’s motion to dismiss.

March 20, 2018

Respectfully Submitted,

/s/ Matthew J. Piers

Matthew J. Piers Chirag G. Badlani Caryn C. Lederer Hughes Socol Piers Resnick & Dym, Ltd. 70 W. Madison St., Suite 4000 Chicago, IL 60602 Phone: (312) 580-0100

55 Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina Immigrant Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230, 237 (2005).
18

Joshua A. Geltzer Daniel B. Rice Institute for Constitutional Advocacy and Protection Georgetown University Law Center 600 New Jersey Avenue NW Washington, D.C. 20001 Phone: (202) 662-9042 Counsel for Amici Curiae
19

CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of BRIEF OF AMICI CURIAE CURRENT AND FORMER LAW ENFORCEMENT LEADERS was served on March 20, 2018 via this Court’s ECF filing system, whereupon all counsel of record were served.
/s/ Matthew J. Piers Matthew J. Piers

CERTIFICATE OF COMPLIANCE I certify that this document complies with the type-volume limitation set forth in Federal Rules of Appellate Procedure 29(a)(5) & 32(a)(7)(B) because it contains 4,483 words, exclusive of the portions of the brief that are exempted by Rule 32(f). I certify that this document complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point roman-style Garamond font.
/s/ Matthew J. Piers

Exhibit A

EXHIBIT A: LIST OF AMICI*
National Organization of Black Law Enforcement Executives (NOBLE), an organization committed to Justice by Action, with nearly 60 chapters and representing over 3,000 members worldwide, including chief executive officers and command level law enforcement officials from federal, state, county, and municipal law enforcement agencies, and other criminal justice practitioners;
Art Acevedo Police Chief, Houston, Texas
Roy L. Austin Former Deputy Assistant to the President for Urban Affairs, Justice and Opportunity, White House Domestic Policy Council Former Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice Former Assistant U.S. Attorney, District of Columbia
Aramis Ayala State Attorney, Ninth Judicial Circuit (Orlando), Florida
Chiraag Bains Former Senior Counsel to the Assistant Attorney General, Civil Rights Division, U.S. Department of Justice Former Trial Attorney, Criminal Section, Civil Rights Division, U.S. Department of Justice
Charles Beck Police Chief, Los Angeles, California
Diana Becton District Attorney, Contra Costa County, California
Hillary Blout Former Assistant District Attorney, San Francisco, California
Chris Burbank Former Police Chief, Salt Lake County, Utah Director, Law Enforcement Engagement, Center for Policing Equity
* Individual affiliations are provided for identification purposes only.

Jerry L. Clayton Sheriff, Washtenaw County, Michigan
Brendan Cox Former Police Chief, Albany, New York
Mark Curran Sheriff, Lake County, Illinois
Ronald Davis Former Director, U.S. Department of Justice, Office of Community Oriented Policing Services Former Police Chief, East Palo Alto, California
Stephen Downing Former Deputy Police Chief, Los Angeles, California
Mark A. Dupree, Sr. District Attorney, Wyandotte County (Kansas City), Kansas
George C. Eskin Former Judge, California Superior Court Former Chief Assistant City Attorney, Los Angeles Former Assistant District Attorney, Ventura and Santa Barbara Counties, California
Tony Estrada Sheriff, Santa Cruz County, Arizona
Kenneth Ferguson Police Chief, Framingham, Massachusetts
Shelley Fox-Loken Former Corrections and Parole/Probation Officer, State of Oregon
Neill Franklin Former Major, Baltimore City and Maryland State Police Departments
Randy Gaber Assistant Police Chief, Madison, Wisconsin

Brian Gaughan Former Officer, Davenport, Iowa and Chicago, Illinois Police Departments
Sarah F. George State’s Attorney, Chittenden County, Vermont
Michael Gilbert Former Corrections Officer, Alaska and Arizona Departments of Corrections
Sim Gill District Attorney, Salt Lake County, Utah
Diane Goldstein Former Lieutenant Commander, Redondo Beach Police Department, California
Eric Gonzalez District Attorney, Kings County (Brooklyn), New York
Mark Gonzalez District Attorney, Nueces County (Corpus Christi), Texas
Ronald Haddad Police Chief, Dearborn, Michigan
Michael Haley Former Sheriff, Washoe County, Nevada
Michael Hilliard Former Major, Baltimore Police Department, Maryland
Lawrence S. Krasner District Attorney, Philadelphia, Pennsylvania
Miriam Aroni Krinsky Executive Director, Fair and Just Prosecution Former Assistant U.S. Attorney, Central District of California Former Criminal Appellate Chief and Chief, General Crimes, Central District of California Former Chair, Solicitor General’s Criminal Appellate Advisory Group

Chief William Landsdowne Former Police Chief, San Diego County, California Former Police Chief, San Jose County, California Former Police Chief, Richmond, California
Chris Magnus Police Chief, Tucson, Arizona
John Matthews II Former Assistant U.S. Attorney, District of Puerto Rico
Gordon D. McAllister, Jr. Former Judge, District Court of Tulsa, Oklahoma
Beth McCann District Attorney, 2nd Judicial Circuit (Denver), Colorado
Bill McCarthy Sheriff, Polk County (Des Moines), Iowa
Steve Miller Former Sergeant, Canton Police Department, Michigan
Teri Moore Former Patrol Officer, Los Angeles Police Department, California
Marilyn J. Mosby State’s Attorney, Baltimore City, Maryland
John Padgett Former Sergeant, City of Augusta Police, Richmond County Sheriff’s Department, Georgia
Corey Pegues Former Deputy Inspector, New York City Police Department, New York
Joe Pelle Sheriff, Boulder County, Colorado
Titus Peterson Former Lead Felony Investigator, Fifth Judicial District, Colorado

Channing Phillips Former Acting U.S. Attorney, District of Columbia Former Senior Counselor to the Attorney General, U.S. Department of Justice Former Deputy Associate Attorney General, U.S. Department of Justice
Abdul Pridgen Police Chief, Seaside, California
Mark Prosser Director, Department of Public Safety, Storm Lake, Iowa
Charles Ramsey Former Commissioner, Philadelphia Police Department, Pennsylvania
Ira Reiner Former District Attorney, Los Angeles County, California Former City Attorney, Los Angeles, California
Celestino Rivera Police Chief, Lorain, Ohio
Dan Satterberg Prosecuting Attorney, King County (Seattle), Washington
Ronal Serpas Co-Chairman, Law Enforcement Leaders to Reduce Crime & Incarceration Former Superintendent, New Orleans Police Department, Louisiana Former Chief, Metropolitan Nashville Police Department, Tennessee Former Chief, Washington State Patrol
Carol A. Siemon Prosecuting Attorney, Ingham County (Lansing), Michigan
Norm Stamper Former Police Chief, Seattle, Washington
Ray Strack Former Special Agent, Department of Homeland Security, Immigration and Customs Enforcement

Carl Tennenbaum Former Sergeant, San Francisco Police Department, California
Raúl Torrez District Attorney, Bernalillo County (Albuquerque), New Mexico
Michael Tupper Police Chief, Marshalltown, Iowa
Cyrus R. Vance, Jr. District Attorney, New York County (Manhattan), New York
Allison Watson Former Assistant District Attorney, 13th Judicial District, Tennessee
Richard Wiles Sheriff, El Paso County, Texas

 
 Case: 18-15068, 03/20/2018, ID: 10805661, DktEntry: 66-1, Page 1 of 36

18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE
United States Court of Appeals
FOR THE NINTH CIRCUIT

d REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, In her official
capacity as President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ; COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521,

— v. —

Plaintiffs-Appellees,

UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, In her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
HON. WILLIAM ALSUP, CASE NO. 3:17-CV-05211-WHA

BRIEF OF AMICI CURIAE 119 RELIGIOUS ORGANIZATIONS IN SUPPORT OF PLAINTIFFS-APPELLEES FOR AFFIRMANCE OF PRELIMINARY INJUNCTION

STEVEN A. ZALESIN ADEEL A. MANGI MICHAEL N. FRESCO ZACHARY KOLODIN PATTERSON BELKNAP WEBB
& TYLER LLP 1133 Avenue of the Americas New York, New York 10036 (212) 336-2000

JOHNATHAN SMITH SIRINE SHEBAYA JUVARIA KHAN MUSLIM ADVOCATES P.O. Box 66408 Washington, DC 20035 (202) 897-2622

Attorneys for Amici Curiae 119 Religious Organizations

Case: 18-15068, 03/20/2018, ID: 10805661, DktEntry: 66-1, Page 2 of 36
RULE 26.1 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae
hereby certify that they have no parent corporations and that no publicly held company owns 10% or more of their stock.
ii

Case: 18-15068, 03/20/2018, ID: 10805661, DktEntry: 66-1, Page 3 of 36
TABLE OF CONTENTS Page
RULE 26.1 CORPORATE DISCLOSURE STATEMENT..................................... ii TABLE OF AUTHORITIES ....................................................................................iv INTEREST OF AMICI CURIAE ...............................................................................1 SUMMARY OF ARGUMENT .................................................................................5 ARGUMENT .............................................................................................................7 I. RELIGIOUS ORGANIZATIONS SUPPORT DACA AS A JUST
RESPONSE TO A HUMANITARIAN CRISIS.............................................8 II. TERMINATION OF DACA WILL CAUSE AMICI, THEIR
CONGREGATIONS, AND THEIR COMMUNITIES IRREPARABLE HARM AND POSES A GRAVE THREAT TO PUBLIC WELFARE .....................................................................................12 A. Direct Harm to Amici and Their Congregants ....................................14 B. Impairment of Amici’s Ability To Carry Out Their Missions ............19 C. As Sensitive Locations for Immigration Enforcement Purposes,
Some Amici Will be Called Upon to Provide Sanctuary While at the Same Time Risking Being Targeted for Immigration Raids ....................................................................................................20 III. THIS COURT SHOULD AFFIRM THE NATIONWIDE INJUNCTION UNDER THE ADMINISTRATIVE PROCEDURE ACT ...............................................................................................................26 CONCLUSION ........................................................................................................28
iii

Case: 18-15068, 03/20/2018, ID: 10805661, DktEntry: 66-1, Page 4 of 36
TABLE OF AUTHORITIES Page(s)
Cases Georgia v. Penn. R.R. Co.,
324 U.S. 439 (1945)............................................................................................13 Harmon v. Thornburgh,
878 F.2d 484 (D.C. Cir. 1989)............................................................................27 Hawaii v. Trump,
859 F.3d 741 (9th Cir. 2017) ..............................................................................20 Kalaw v. Ferro,
651 F. Supp. 1163 (W.D.N.Y. 1987)..................................................................18 Lewis v. Casey,
518 U.S. 343 (1996)............................................................................................26 Cal. ex rel. Lockyer v. Safeway, Inc.,
355 F. Supp. 2d 1111 (C.D. Cal. 2005) ..............................................................13 Lujan v. Nat’l Wildlife Fed’n.,
497 U.S. 871 (1990)............................................................................................27 Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs,
145 F.3d 1399 (D.C. Cir. 1998)....................................................................26, 27 Nunez v. Boldin,
537 F. Supp. 578 (S.D. Tex. 1982).....................................................................17 Valle Del Sol Inc. v. Whiting,
732 F.3d 1006 (9th Cir. 2013) ............................................................................20 Winter v. NRDC, Inc.,
555 U.S. 7 (2008)................................................................................................13
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Other Authorities
ABC-7 KVIA, Which places are considered ‘sensitive locations’?, http://www.kvia.com/crime/which-places-are-considered-sensitivelocations/338319025 (Feb. 16, 2017) .................................................................25
Alex Emmons, The Intercept, Targeting a Sanctuary: After ICE Stakes Out a Church Homeless Shelter, Charities Worry Immigrants Will Fear Getting Help, https://theintercept.com/2017/02/27/after-ice-stakes-out-a-churchhomeless-shelter-charities-worry-immigrants-will-fear-gettinghelp/ (Feb. 27, 2017)...........................................................................................24
CBS News, Undocumented immigrant, father of leukemia patient, takes refuge in Phoenix church, https://www.cbsnews.com/news/undocumented-immigrant-fatherof-leukemia-patient-takes-refuge-in-phoenix-church/ (Feb. 12, 2018, 7:20 AM)...................................................................................................23
Council on American-Islamic Relations, CAIR Condemns Trump’s Termination of DACA Program as ‘Pandering to Anti-Immigrant Extremists’, https://www.cair.com/press-center/pressreleases/14582-cair-condemns-trump-s-termination-of-dacaprogram-as-pandering-to-anti-immigrant-extremists.html (Sept. 5, 2017) ...................................................................................................................10
Julie Carey, NBC Washington, ICE Agents Arrest Men Leaving Fairfax County Church Shelter, https://www.nbcwashington.com/news/local/ICE-Agents-ArrestMen-Leaving-Alexandria-Church-Shelter-413889013.html (Feb. 15, 2017) .............................................................................................................23
Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement to Field Office Directors, Special Agents in Charge, and Chief Counsel (Oct. 24, 2011), https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-policy.pdf .....................21
Odette Yousef, WBEZ 95.1 Chicago, Amid Deportation Push, Suburban Church Grapples with Loss, https://www.wbez.org/shows/wbez-news/amid-deportation-pushsuburban-church-grapples-with-loss/3d269fc3-04e7-4604-bae4a376a37410c9 (Feb. 15, 2016) ...........................................................................24
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Qué Pasa Mi Gente, Arrestos de ICE cerca de escuela elemental de mayoría hispana, https://charlotte.quepasanoticias.com/noticias/ciudad/local/arrestos -de-ice-cerca-de-escuela-elemental-de-mayoria-hispana (Feb. 9, 2017) ...................................................................................................................24
Religious Action Center of Reform Judaism, Reform Jewish Movement Assails White House Targeting of Immigrant Youth, https://rac.org/reform-jewish-movement-assails-white-housetargeting-immigrant-youth (Sept. 5, 2017).........................................................11
Sanctuary Movement, http://www.sanctuarynotdeportation.org/............................11
Tina Vasquez, Rewire, Have Trump’s Mass Deportations Begun? Immigration Arrests Reported Around the Country, https://rewire.news/article/2017/02/10/trumps-mass-deportationsbegin-immigration-arrests-reported-around-country/ (Feb. 10, 2017) ...................................................................................................................24
U.S. Dep’t of Homeland Security, Statement by Secretary Jeh C. Johnson on Southwest Border Security, https://www.dhs.gov/news/2016/02/02/statement-secretary-jeh-cjohnson-southwest-border-security (Feb. 2, 2016).............................................21
U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests: Does ICE’s policy sensitive locations policy remain in effect?, https://www.ice.gov/ero/enforcement/sensitive-loc ...........................................21
United States Conference of Catholic Bishops, USCCB President, Vice President and Committee Chairmen Denounce Administration’s Decision to End DACA and Strongly Urge Congress to Find Legislative Solution, http://www.usccb.org/news/2017/17-157.cfm (Sept. 5, 2017)...........................10
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INTEREST OF AMICI CURIAE1 Led by the Muslim Bar Association of New York, amici are American religious or religiously-affiliated organizations who represent a wide array of faiths and denominations. Amici include congregations and houses of worship as well as professional, civil liberties, and immigrant rights groups who work with or represent faith communities (“Religious Organizations”). Amici have long supported Deferred Action for Childhood Arrivals (“DACA”) as a compassionate and appropriate response to the humanitarian crisis posed by the hundreds of thousands of undocumented people brought to this country as children, before they could make choices of their own. Amici believe that the arbitrary rescission of DACA will indelibly harm the vitality of their spiritual communities, including by forcing committed members of their congregations and organizations to leave the country or return to the shadows. Indeed, certain amici have committed to providing sanctuary to those targeted for deportation. Amici are identified here by name, with a fuller description of their identities and interests attached to this memorandum at Appendix A.
1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(e), amici certify that this brief was not written in whole or in part by counsel for any party, and no person or entity other than amici and their counsel has made a monetary contribution to the preparation and submission of this brief. All parties have consented to the filing of this amicus brief. See Fed. R. App. 29(a)(2).

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Amici are: Albuquerque Insight Meditation Center; Albuquerque Mennonite Church; Albuquerque Monthly Meeting of the Religious Society of Friends (Quakers); The American Association of Jewish Lawyers and Jurists; American Baptist Churches of Metropolitan New York; American Friends Service Committee; Ansche Chesed, New York City; Arch Street United Methodist Church; Association of Muslim American Lawyers; Cabrini Immigrant Services of NYC; Campus Ministry of Roman Catholic Archdiocese of New York at Hostos and Bronx Community College of City University of New York; Capital Area Muslim Bar Association; Catholic Charities of the Diocese of Stockton; Catholic Charities Community Services of the Archdiocese of New York; Catholic Legal Immigrant Network, Inc.; Catholic Legal Services, Archdiocese of Miami, Inc.; Central Conference of American Rabbis; Central Pacific Conference of the United Church of Christ; Church Council of Greater Seattle; Church of Our Redeemer in Lexington, Massachusetts; Church of Our Saviour/La Iglesia de Nuestro Salvador (Cincinnati, Ohio); Congregation B’nai Israel of Sacramento; Congregation B’nai Jeshurun (New York City); Congregation Beit Simchat Torah; Congregation Beth Elohim (Brooklyn, NY); Congregation Shaarei Shamayim (Madison, Wisconsin); Council of Churches of the City of New York; Council on American-Islamic Relations – California Chapter; Council on American-Islamic Relations – Michigan Chapter; Council of American-Islamic Relations – New Jersey Chapter;
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Council of American-Islamic Relations – New York Chapter; Council on American-Islamic Relations – Oklahoma Chapter; Cuba Presbyterian Church (Presbyterian Church, USA), Cuba, New Mexico; Daughters of Charity of St. Vincent de Paul; Degrees of Change; DMV Sanctuary Congregation Network; Dominican Development Center; East End Temple (New York City); El Paso Monthly Meeting of the Religious Society of Friends; Emgage; Episcopal City Mission; Episcopal Dioceses of Massachusetts; Episcopal Diocese of New York; Episcopal Dioceses of Western Massachusetts; Episcopal Society of Christ Church/The Christ Church Cathedral, Cincinnati, Ohio; Faith Action Network; First Congregational United Church of Christ (Albuquerque, New Mexico); First Presbyterian Church of Taos, New Mexico; First Unitarian Congregational Society in Brooklyn; First United Presbyterian Church of Las Vegas, New Mexico; Franciscan Friars of the Province of St. Barbara; Global Justice Institute; Hawaii Conference of the United Church of Christ; Hispanic Apostolate of the Catholic Diocese of Baton Rouge; Hispanic Connection of Southern Indiana; Hyattsville Mennonite Church; ICNA Council for Social Justice; Interfaith Alliance of Iowa; Iowa Conference of the United Church of Christ; Islamic Circle of North America; Islamic Society of Basking Ridge; Islamic Society of Central Jersey; Lab/Shul; Leadership Conference of Women Religious; Legal Advocacy Project of Unitarian Universalist FaithAction of New Jersey; Living Interfaith Church of Lynnwood,
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WA; Lutheran Social Services of New York (LSSNY); Maryknoll Office for Global Concerns; Metropolitan New York Synod of the Evangelical Lutheran Church in America; Muslim Advocates; Muslim Bar Association of New York; Muslim Public Affairs Council; Muslim Urban Professionals (Muppies); Muslims for Peace, Inc.; Muslims for Progressive Values; National Council of Jewish Women; NETWORK Lobby for Catholic Social Justice; New Jersey Interfaith Coalition; New Mexico Conference of Churches; New Mexico Faith Coalition for Immigrant Justice; New Sanctuary Coalition; New Sanctuary CT; New York Board of Rabbis; New York Conference United Church of Christ; Northern California Nevada Conference of the United Church of Christ; Oregon Interfaith Movement for Immigrant Justice; Pacific Northwest Conference of the United Church of Christ; Presbyterian Church (U.S.A.); Presbytery of the Pacific; Presentation Sisters at Caminando Juntos; Province of St. Mary of the Capuchin Order; Queens Federation of Churches; Religious Institute; Romemu; Santa Fe Monthly Meeting of the Religious Society of Friends (Quakers); Sikh Coalition; Society for the Advancement of Judaism; Southern California Nevada Conference of the United Church of Christ; Southwest Conference of the United Church of Christ; St. Andrew Presbyterian Church in Albuquerque, New Mexico; St. Francis Community Services / Catholic Legal Assistance Ministry; St. Luke’s Episcopal Church in Long Beach; St. Stephen’s Episcopal Church in Boston; St. Thomas of
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Canterbury Episcopal Church (Albuquerque, NM); Stephen Wise Free Synagogue; T’ruah: The Rabbinic Call for Human Rights; Temple Israel of Hollywood (CA); Temple Israel of the City of New York; Temple Sinai (Washington, DC); Town and Village Synagogue, New York, New York; Trinity Church Wall Street; Union for Reform Judaism, including Reform Jewish Voice of New York State; Unitarian Universalist Mass Action Network; United Methodist Women; University Christian Ministry at Northwestern University; Visitation BVM Church in Philadelphia, Pennsylvania; West End Synagogue (New York City); Westminster Presbyterian Church of Santa Fe; and Women of Reform Judaism.
SUMMARY OF ARGUMENT Since DACA’s inception in 2012, American religious communities of many faiths have supported the program as a just and compassionate response to a moral and humanitarian crisis. The children and young adults eligible for and currently receiving the benefits of DACA status (often referred to as “Dreamers”) were, in most cases, brought to this country as children by their parents. They have lived most of their lives in the United States, typically with no memory of any other home. Only young people who have pursued education or served in our military, and have no significant criminal record, are eligible for DACA status. Yet they now face deportation to often dangerous and unfamiliar places, or a life in the undocumented shadows.
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Amici believe, on the basis of faith and morality, that these children and young adults must be protected. Amici therefore offer this brief in support of Plaintiffs-Appellees in order to address how, in their view, the Government’s proposed termination of DACA (the “Termination Memo”) would cause irreparable harm and constitute a severe detriment to the public. Amici have firsthand knowledge of the valuable contributions to faith and community made by DACA recipients and understand all too well the harm that the termination of DACA would cause. For example, ending DACA would put Nancy, an Associate Rector at amicus St. Luke’s Episcopal Church in Long Beach, California, who came to the United States from Mexico at age seven, at risk of deportation. Amici detail the stories of Nancy and others like her in Section II(A) below to provide the Court with a sample of the lives that are at risk of being upended. Amici also know, because of their religious and charitable work in Latin America and other regions, the challenges and dangers these young people face if they are deported.
Amici also have a direct stake in these issues beyond their religious concerns and the protection of their congregants. First, amici stand to lose the substantial benefits they currently enjoy as a result of the varied contributions that DACA recipients make to their congregations and institutions.
Second, if the Termination Memo is carried out and DACA recipients and DACA-eligible individuals are forced into hiding, amici will suffer an impairment
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of their ability to carry out their core mission to provide spiritual guidance and general assistance to people of all backgrounds and faiths.
Third, many amici have and will continue to offer sanctuary to those facing deportation. Amici’s churches, mosques, and synagogues are ostensibly designated by U.S. Immigration and Customs Enforcement (“ICE”) as sensitive locations to be avoided by enforcement officials, but ICE has shown a growing willingness to target and exploit, rather than avoid, sensitive locations. Amici will be on the front line of this conflict if DACA is rescinded: honoring their convictions to protect DACA recipients will risk ICE raids on or around their houses of worship.
For the reasons set forth herein and in Plaintiffs-Appellees’ and other amici’s briefs, amici urge the Court to affirm the district court’s grant of provisional relief enjoining the Termination Memo in its entirety. This is the appropriate remedy pursuant to the Administrative Procedure Act, as described in Section III below, and is necessary to prevent irreparable harm.
ARGUMENT The district court enjoined the Government from proceeding with its planned termination of DACA, finding that plaintiffs demonstrated (1) a likelihood of success on the merits of their claims under the Administrative Procedure Act, (2) irreparable harm, and (3) that the balance of equities and the public interest favored injunctive relief. (See Dkt. 48 in Case No. 3:17-cv-05813-WHA). Amici endorse
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the district court’s holding and the arguments set forth by Plaintiffs-Appellees, and submit this brief to further illustrate the irreparable harm that implementation of the Termination Memo would cause. Amici also endorse the parameters of the relief ordered by the district court, and urge this court to affirm the nation-wide injunction. I. RELIGIOUS ORGANIZATIONS SUPPORT DACA AS A JUST
RESPONSE TO A HUMANITARIAN CRISIS Amici object to the Government’s arbitrary and ill-reasoned decision to rescind DACA on moral, spiritual, and religious grounds. Although they represent different faiths and denominations, amici are in unequivocal agreement that DACA is a force for good in our society that should be protected. As amicus Catholic Charities Community Services of the Archdiocese of New York explains, “DACA is an important first step to acknowledging and growing the human and social contributions and needs of young immigrants and of our own communities.”2 Those who are eligible for DACA or who already benefit from it “were brought to the United States” by their parents, “now have established roots, have built families, have contributed to their communities of faith, work, and family,” and
2 Quotes from amici herein are drawn from interviews conducted by counsel in November and December 2017 to provide the Court with a fuller understanding of how DACA has impacted American religious communities.
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their “energy, spirit, life, and heart are part of this nation, which can only benefit from their continued participation.”
For many amici, these convictions are deeply rooted in their faith and moral principles. Temple Sinai of Washington D.C., for example, believes that “as a Jewish institution, Biblical texts and our Jewish history inform our position on modern day immigration policy. Leviticus 19 explicitly says, ‘When a stranger sojourns with you in your land, you shall do him no wrong.’” St. Luke’s Episcopal Church in Long Beach, California, similarly states that “for us, this is a biblical rather than a political issue.” And as the Catholic mission Maryknoll attests, “recognizing the hardships and struggles of immigrant families, and the tremendous economic and social contributions Dreamers make to the United States, we feel it is unethical to send Dreamers back to countries they hardly know, as well as a senseless loss to our nation.”
For others still, supporting DACA is part of their social justice mission. Christ Church Cathedral in Cincinnati has, in light of the Government’s immigration policy priorities, “focused its social justice concerns on matters of immigration and the impact that deportations or the repeal of DACA will have on God’s children.”
Amici and groups like them have, accordingly, objected vocally to the arbitrary repeal of the DACA program. On September 5, 2017, when the
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Government announced its decision to terminate DACA, countless religious
groups and leaders released statements of condemnation. The United States
Conference of Catholic Bishops publicly called the decision “reprehensible,”
“unacceptable,” and “a heartbreaking moment in our history that shows the absence of mercy and good will.”3 The Council on American-Islamic Relations
described the move as a “heartless action [that] will only serve to create fear and
anxiety for the Dreamers and their loved ones, and will force them back to living in the shadows, rendering them unable to contribute to our nation’s economy.”4 And
amici Union for Reform Judaism and Central Conference of American Rabbis
declared it “morally misguided and poor public policy,” noting that “Judaism
demands that we welcome the stranger and compels us to work for a just immigration system.”5
3 United States Conference of Catholic Bishops, USCCB President, Vice President and Committee Chairmen Denounce Administration’s Decision to End DACA and Strongly Urge Congress to Find Legislative Solution, http://www.usccb.org/news/2017/17-157.cfm (Sept. 5, 2017). 4 Council on American-Islamic Relations, CAIR Condemns Trump’s Termination of DACA Program as ‘Pandering to Anti-Immigrant Extremists’, https://www.cair.com/press-center/press-releases/14582-cair-condemns-trump-stermination-of-daca-program-as-pandering-to-anti-immigrant-extremists.html (Sept. 5, 2017). 5 Religious Action Center of Reform Judaism, Reform Jewish Movement Assails White House Targeting of Immigrant Youth, https://rac.org/reform-jewishmovement-assails-white-house-targeting-immigrant-youth (Sept. 5, 2017).
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Amici agree wholeheartedly with these statements. Rev. Robin Hynicka of amicus Arch Street United Methodist Church (“UMC”) in Philadelphia, for example, describes the “mythology surrounding why people migrate” as a campaign to “criminalize immigration” and to paint all immigrants as “bad,” when in fact the “the real reasons for these migrations are not listened to, considered, or understood.” He explains: “From a faith perspective, we take a baptismal vow that states we will resist evil, injustice, and oppression in any form in which it presents itself. The current immigration system and the move to end DACA create unjust circumstances, made manifest in human suffering. The attempt to crack down on Dreamers is a serious, cynical, evil action that has nothing to do with safety or justice. We have a theological and moral obligation to oppose these forces.”
Amici include entities that have taken active steps to protect Dreamers. A nation-wide, interfaith network of communities and congregations known as the New Sanctuary Movement, of which many amici are a part, have pledged to stand in solidarity with immigrants facing deportation.6 These groups provide preparedness training and legal counseling and referrals; accompany individuals to immigration hearings; run awareness programs and panel discussions; and conduct advocacy aimed at supporting immigrant communities through the lens of faith. Amicus New Mexico Faith Coalition for Immigrant Justice, for example, provides 6 See Sanctuary Movement, http://www.sanctuarynotdeportation.org/.
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these services “in order to create better immigration laws and a more just system that supports the well-being of all,” and employs two DACA recipients in their three-person office. Similarly, amicus New Sanctuary Coalition is an interfaith network working “to reform immigration enforcement practices and policies, both locally and nationally, with a special focus on preserving family unity.” As explained below, many amici and congregations like them have offered themselves as places of sanctuary, providing shelter to those targeted for deportation actions.
Amici thus oppose with deep conviction the Government’s arbitrary decision to terminate DACA. As institutions of faith with a special interest in servicing vulnerable immigrant populations, amici have direct knowledge of the harm that the Government’s actions will cause to them and the people with whom they live, work, and worship. II. TERMINATION OF DACA WILL CAUSE AMICI, THEIR
CONGREGATIONS, AND THEIR COMMUNITIES IRREPARABLE HARM AND POSES A GRAVE THREAT TO PUBLIC WELFARE The early and arbitrary termination of DACA will not only imperil Plaintiffs, it will directly harm amici and their congregants, clergy members, staff, clients, and communities.7 In the words of amicus Church Council of Greater
7 Ordinarily, a party seeking a preliminary injunction must show that it—not a third party— will directly suffer harm if the injunction is not granted. See Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must establish that . . . he is likely to suffer irreparable harm.”) (emphasis added).
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Seattle, “DACA-recipients are our brothers and sisters, relatives, service-providers, congregational members, initiators of small business, and protectors of our communities and nation,” and the Government’s actions would “deprive hopeful and patriotic men and women of the opportunity to exercise their hopes and dreams, to the detriment of the common good.” Like our society at large, faith communities, according to the Albuquerque Monthly Meeting of the Religious Society of Friends (Quakers), “stand to lose the tremendous investment made over many years to bring DACA recipients into adulthood with skills and multicultural perspectives that are sorely needed by the larger community and the nation.”
The Government’s planned actions would cause harm on various levels. First, DACA recipients are vital members of amici’s congregations and workforces whose loss of status will not only disrupt their lives, but harm amici who benefit from their participation. Second, termination of the DACA program will impair the ability of amici and other religiously-affiliated organizations to carry out their missions to help people of all backgrounds and faiths. Third, as institutions of faith and sensitive locations for immigration enforcement purposes, many amici
With regard to the state and local government Plaintiffs’ claims, however, harm to amici equates to harm to the Plaintiffs who, as parens patriae, sue on amici’s behalf. Georgia v. Penn. R.R. Co., 324 U.S. 439, 447 (1945) (holding that a state may seek an injunction in its parens patriae capacity); accord Cal. ex rel. Lockyer v. Safeway, Inc., 355 F. Supp. 2d 1111, 1123 (C.D. Cal. 2005). With respect to the other Plaintiffs’ claims, harm to amici is relevant to whether an injunction is in the public interest.
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face the grim prospect that following their spiritual calling to provide sanctuary for targeted Dreamers will result in the religious entities themselves being targeted by immigration enforcement authorities, a concern that would increase dramatically with the termination of DACA.
A. Direct Harm to Amici and Their Congregants To illustrate the irreparable harm at issue in this case, amici provide the Court with the following examples of individual DACA recipients brought to this country as children who have enriched their communities, organizations and congregations. Nancy.8 Nancy, Associate Rector at amicus St. Luke’s Episcopal Church in Long Beach, California, came to the United States from Mexico at age seven. Like many Dreamers, Nancy did not know she was undocumented until her junior year of high school, when she applied to college and learned what a social security number was—and that she did not have one. Nancy describes her life after learning her immigration status as “in the shadows”; she could not get a driver’s license, and could not drive a car for fear of getting pulled over and risking deportation. For a teenager in Los Angeles, this was no idle fear.
8 Declarations from the individual DACA recipients attesting to the information presented here are on file with counsel. The last names of these individuals have been withheld here to protect their privacy.
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Nonetheless, Nancy was active in her community. The Episcopal Church served as an extended family during her childhood, and by the time she turned 17 Nancy led the largest youth group in the Episcopal Diocese of Los Angeles. So great was her dedication that the Church paid for her tuition to college and seminary school, where she obtained a Master’s of Divinity degree. After obtaining DACA status, Nancy was able to fulfill her dream of becoming an ordained Episcopal minister. Today, Nancy is the associate rector at amicus St. Luke’s Episcopal Church, and the Diocese of Los Angeles’s first Latina leader to have grown up in a Spanish-speaking Episcopal Church and gone on to pursue ordination. At St. Luke’s, she is actively involved in immigrants’ rights activism and education initiatives.
For Nancy, the Government’s announcement on September 5, 2017 was “a moment of complete fear and hopelessness.” She and others like her have “made a life here, trusted the system and tried to do things the right way,” but now “run the risk that we will be hunted down and sent to a country that we do not know.”
Rafael. Brought to Los Angeles at three years old, Rafael, an office assistant with amicus New Mexico Faith Coalition for Immigrant Justice, was born in Guanajuato, Mexico. Rafael’s parents, having risked everything to bring him to the United States, sought to instill in him the values of hard work and education. They succeeded. Rafael completed a Bachelor’s Degree with a double major in
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History and Chicano Studies from California State University Dominguez Hills while working full time to pay his tuition and support himself. After obtaining DACA status, Rafael went on to obtain a Master’s Degree in American Studies at the University of New Mexico, where he is now a Ph.D. candidate and an instructor.
Rafael’s parents also instilled in him the values of Catholicism. He believes that faith-based organizations “fill the gaps of social justice and service that many times nation-states do not offer.” As such, he works for amicus New Mexico Faith Coalition for Immigrant Justice as an office assistant. Rafael is proud to contribute to their work, which he sees as fulfilling community needs and a natural expression of his Catholic faith.
For Rafael, the end of DACA represents drastic and dangerous change. It spells the end of access to the work that he loves and a halt to his career after graduation. Moreover, it means “going back to living in the reality of survival mode,” forever uncertain of his place and permanence in his own home, and without opportunity to flourish and grow.
Andrea. Andrea is a legal assistant at amicus American Friends Service Committee. Andrea was born and baptized in Ecuador, but brought to New Jersey by her parents when she was a year and a half old. Andrea grew up in the Catholic Church. She went to Sunday school, took First Communion, and received
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Confirmation at her church in the Newark area, where she continues to volunteer in youth groups and for fundraising activities.
Andrea’s parents, like many parents of Dreamers, prioritized her education. Knowing she could not obtain financial aid, Andrea’s parents, both union members, carefully saved. After Andrea earned a paralegal degree from community college, her parents put her through Rutgers University’s undergraduate program. Nonetheless, until DACA, Andrea’s life was one of fear and constraint. She kept her undocumented status secret, and had to refrain from the normal day-to-day activities and jobs that her friends freely engaged in.
Andrea graduated from Rutgers summa cum laude. After she obtained DACA status, she was hired as a paralegal at a law firm, and was proud to have a job and a salary. Andrea’s dream is to go to law school in the United States. For her, the end of DACA puts her dream to a halt and threatens to send her to Ecuador, a place she has never set foot since she was an infant. In the face of this peril, Andrea maintains, “I love this country and I can’t imagine living elsewhere.”
*** The harm that these individuals would suffer as a result of their loss of DACA status is readily apparent. See Nunez v. Boldin, 537 F. Supp. 578, 587 (S.D. Tex. 1982) (“Deportation to a country where one’s life would be threatened obviously would result in irreparable injury.”); Kalaw v. Ferro, 651 F. Supp. 1163,
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1167 (W.D.N.Y. 1987) (enjoining deportation proceeding and finding irreparable harm because “petitioner’s deportation would make her ineligible for any subsequent application for legalization”). Amici would be harmed as well; not only do people like Nancy, Rafael and Andrea contribute richly to religious and faithbased organizations through their own individual efforts, they serve as mentors and inspire others to give back to institutions from which they have benefitted. If the Termination Memo goes into effect, nearly 800,000 Dreamers—many with stories similar to the three detailed above—will be forced out of the country or into hiding. Amici will suffer incalculable harm if they are deprived of the contributions and talents of these young congregants and community members.
Moreover, as amici know from their work in other parts of the world, Dreamers deported would face tremendous challenges and even physical danger. For example, Gerry Lee and others from amicus Maryknoll Office for Global Concerns have lived and worked with impoverished families in Mexico, El Salvador, Guatemala, and other countries to which DACA recipients face deportation. In Haiti, for example, “Maryknoll Sisters have witnessed the bare struggle for post-disaster survival in the massive slums of Cite Soleil, where they help residents subsist from gardens grown in discarded tires on turf fought over by rival gangs.” In El Salvador, a Maryknoll Lay Missioner witnessed “the anger and pain that pervades communities preyed upon by powerful gangs, where immediate
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survival forces youth to face grim choices between lives of drugs and guns—or escape.” In Guatemala, a Maryknoll Father reports on the “rising rates of femicide” and sums up what motivates millions of rural migrants in a single word: “desperation.” And along the U.S.-Mexico border, Maryknoll Missioners hear daily the “stories of desperation from the countries to which many Dreamers might be returned,” namely, that “poverty, starvation, extortion, sexual assault, gang violence, and political oppression are among the conditions cited as triggers to leave.” In one such encounter in Nogales, Sonora, “a man travelling north with his son from Honduras merely pointed south and said, ‘There is no life there anymore.’” Children raised in America knowing no other country should not have to face deportation into such conditions.
B. Impairment of Amici’s Ability To Carry Out Their Missions
It goes without saying that religious and faith-affiliated organizations such as amici play a vital role in society. Countless lives have been uplifted and enriched by the spiritual guidance as well as the material and legal assistance these institutions provide. Immigrants and their families—including children brought to this country at a young age—are among the groups that have benefitted most from the support furnished by amici and similar organizations. By aiding such vulnerable individuals, faith-based organizations including amici have helped to
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make their entire communities more prosperous, united and civically engaged than they otherwise would be.
Implementation of the Termination Memo would undermine these efforts by making it virtually impossible for amici to continue their outreach to Dreamers and their families, causing amici irreparable harm. See Hawaii v. Trump, 859 F.3d 741, 782-83 (finding the “State’s inability to assist in refugee resettlement” to be irreparable harm) (9th Cir.), vacated on other grounds by Trump v. Hawaii, 138 S. Ct. 377 (2017); Valle Del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (finding irreparable harm where “organizational plaintiffs have shown ongoing harms to their organizational missions”).
Amici cannot reach people in need if those people are hiding in the shadows or have been deported. If the Termination Memo is implemented, amici and similarly-situated organizations will lose their ability carry out their core mission to assist those in the greatest need of help. This will result in the needless suffering not only of at-risk individuals, but of their communities as a whole.
C. As Sensitive Locations for Immigration Enforcement Purposes, Some Amici Will be Called Upon to Provide Sanctuary While at the Same Time Risking Being Targeted for Immigration Raids
Finally, religiously-affiliated organizations like amici occupy a unique position in matters of immigration enforcement, particularly with respect to DACA. Pursuant to an October 2011 memorandum by then-ICE Director John
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Morton, ICE is not to engage in immigration enforcement actions such as arrests,
interviews, searches, or surveillance at churches, synagogues, mosques, or other
houses of worship, unless exigent circumstances or other law enforcement
purposes exist, or if prior approval is obtained (the “ICE sensitive locations policy”).9 In 2016, while the prior administration was still in office, then-Secretary
of Homeland Security Jeh C. Johnson publicly reiterated that “when enforcing the
immigration laws, our personnel will not, except in emergency circumstances,
apprehend an individual at a place of worship, a school, a hospital or doctor’s office or other sensitive location.”10 The ICE sensitive locations policy remains in effect today, at least as an official matter.11
The ICE sensitive locations policy recognizes that houses of worship are
sacred spaces of sanctuary and peace, where community members can go and be
without fear of harassment or arrest. Many amici and others like them proudly
9 Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement to Field Office Directors, Special Agents in Charge, and Chief Counsel (Oct. 24, 2011), https://www.ice.gov/doclib/ero-outreach/pdf/10029.2policy.pdf. The sensitive locations policy puts the same restrictions on raids at schools, hospitals, and other public settings. 10 U.S. Dep’t of Homeland Security, Statement by Secretary Jeh C. Johnson on Southwest Border Security, https://www.dhs.gov/news/2016/02/02/statementsecretary-jeh-c-johnson-southwest-border-security (Feb. 2, 2016). 11 See U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests: Does ICE’s policy sensitive locations policy remain in effect?, https://www.ice.gov/ero/enforcement/sensitive-loc.
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fulfill that role and have pledged to offer their churches, synagogues, and mosques as sanctuaries to those at risk of deportation. Temple Sinai DC, Christ Church Cathedral in Cincinnati, St. Luke’s in Long Beach, Arch Street UMC in Philadelphia, Albuquerque Friends Meeting, the many members of amici New Mexico Faith Coalition for Immigrant Justice and New Sanctuary Coalition, and others have publicly declared their status as sanctuary congregations. These organizations maintain dedicated, furnished space for visitors who need protection, and rely on their congregants for support in doing so.
In each case, the decision to become a sanctuary congregation is made after careful discussion among congregations and communities, and reflects broad religious consensus on this issue. The Albuquerque Friends Meeting, for example, when called upon to respond to an urgent need for sanctuary by a community member, convened their members and attenders. “Through a process of deep discernment together—and in commitment to our Quaker values of Equality and Community—we were led to a profound sense of Spiritual Unity, meaning we were ‘One in the Spirit,’” and the Meeting collectively committed to providing sanctuary. Many amici reported that these decisions, while weighty, were not difficult to make. When Arch Street UMC was called upon to house a man in danger of immigration detention, “the conversation among the congregation wasn’t ‘will we do this,’ but how?” They provided sanctuary to the man in question for
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11 months. In Phoenix, Shadow Rock United Church of Christ provided sanctuary to a man facing deportation whose wife is pregnant and young son is in the midst of leukemia treatment. The church’s reverend stated in a public interview that the man “shouldn’t be prosecuted,” but rather “lifted up, used as an example of what it means to be a father.”12
Under the current administration, however, the parameters and application of the ICE sensitive locations policy are increasingly in doubt. ICE has already begun to target areas adjacent to places of worship for enforcement actions, to worrisome effect. For example, earlier this year on a freezing cold morning in Alexandria, Virginia, a dozen ICE agents surrounded a group of Latino men as they emerged from a church hypothermia shelter where they had spent the night. Six men were arrested and taken away in vans.13 After church leaders demanded and were refused the names and locations of the men taken, Governor Terry McAuliffe and Senator Tim Kaine both sent letters to ICE inquiring about the raid
12 CBS News, Undocumented immigrant, father of leukemia patient, takes refuge in Phoenix church, https://www.cbsnews.com/news/undocumented-immigrantfather-of-leukemia-patient-takes-refuge-in-phoenix-church/ (Feb. 12, 2018, 7:20 AM). 13 Julie Carey, NBC Washington, ICE Agents Arrest Men Leaving Fairfax County Church Shelter, https://www.nbcwashington.com/news/local/ICE-Agents-ArrestMen-Leaving-Alexandria-Church-Shelter-413889013.html (Feb. 15, 2017).
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and their enforcement policies near churches. ICE responded to neither.14 In
suburban Illinois, ICE agents tricked a worshiper into leaving a church service—by
texting him from his cousin’s cell phone about a fictional car accident—and
arrested him at a neighboring McDonald’s. They arrived in unmarked cars and
wore vests that said “Police.” A retired ICE supervisor, interviewed after-the-fact,
praised this strategy as “actually . . . quite creative.”15
ICE has shown a propensity to target sensitive or controversial locations
other than religious institutions as well. In Charlotte, North Carolina, ICE
conducted raids and arrests within two miles of a predominantly Latino elementary
school.16 Students witnessed the arrests as they passed by in school busses.17 In El
14 Alex Emmons, The Intercept, Targeting a Sanctuary: After ICE Stakes Out a Church Homeless Shelter, Charities Worry Immigrants Will Fear Getting Help, https://theintercept.com/2017/02/27/after-ice-stakes-out-a-church-homelessshelter-charities-worry-immigrants-will-fear-getting-help/ (Feb. 27, 2017). 15 Odette Yousef, WBEZ 95.1 Chicago, Amid Deportation Push, Suburban Church Grapples with Loss, https://www.wbez.org/shows/wbez-news/amid-deportationpush-suburban-church-grapples-with-loss/3d269fc3-04e7-4604-bae4a376a37410c9 (Feb. 15, 2016). 16 Tina Vasquez, Rewire, Have Trump’s Mass Deportations Begun? Immigration Arrests Reported Around the Country, https://rewire.news/article/2017/02/10/trumps-mass-deportations-beginimmigration-arrests-reported-around-country/ (Feb. 10, 2017). 17 Qué Pasa Mi Gente, Arrestos de ICE cerca de escuela elemental de mayoría hispana, https://charlotte.quepasanoticias.com/noticias/ciudad/local/arrestos-deice-cerca-de-escuela-elemental-de-mayoria-hispana (Feb. 9, 2017), translation available at https://translate.google.com/translate?hl=en&sl=es&tl=en&u=https%3A%2F%2Fc
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Paso, Texas, a Latina woman was taken into custody by ICE agents dressed in plain clothes after she left a courtroom in a county courthouse. The criminal complaint filed against her indicates that ICE knew she was living at a domestic and sexual abuse resource center.18
These incidents indicate that instead of abiding by the spirit of the sensitive locations memorandum—that is, to avoid immigration enforcement at sensitive locations—ICE is using houses of worship and other locations as lures for easy, unsuspected surveillance and arrest. This puts amici in the untenable and unacceptable position of at once heeding their faith-based calling to provide sanctuary while at the same time attracting the attention of those who would do harm to the people amici seek to protect. This crisis of conscience has sewn fear and anxiety among amici and their congregants and supporters. These concerns will be greatly exacerbated if the Termination Memo goes into effect and the DACA program is terminated.
harlotte.quepasanoticias.com%2Fnoticias%2Fciudad%2Flocal%2Farrestos-de-icecerca-de-escuela-elemental-de-mayoria-hispana. 18 ABC-7 KVIA, Which places are considered ‘sensitive locations’?, http://www.kvia.com/crime/which-places-are-considered-sensitivelocations/338319025 (Feb. 16, 2017).
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III. THIS COURT SHOULD AFFIRM THE NATIONWIDE INJUNCTION UNDER THE ADMINISTRATIVE PROCEDURE ACT As illustrated by the stories detailed in the preceding sections, the
Termination Memo will cause irreparable harm to individuals from all walks of life and across the entire United States. The Termination Memo will affect nearly 800,000 DACA grantees along with their family members, communities, and faith groups. In order to address fully the scope of the harm the Termination Memo has inflicted and will continue to cause, this Court should affirm the district court’s injunction of the Memo nationwide and in its entirety.
Contrary to the Government’s argument, injunctive relief should not be limited to “particular DACA recipients whose loss of DACA would cognizably injure plaintiffs.”19 The “systemwide impact” the Termination Memo will have warrants a “systemwide remedy.” Lewis v. Casey, 518 U.S. 343, 359 (1996) (internal quotation marks omitted). When a court determines that an executive action facially violates statutory constraints, a comprehensive injunction that sets aside the entire action is the “ordinary result.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (the “result is that [the action is] vacated—not that [its] application to the individual petitioners is proscribed”) (internal quotation marks omitted). This is especially appropriate
19 Appellants’ Opening Brief, (Case No. 18-15128 Dkt. 17), at 48-57. 26

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where, as here, Plaintiffs challenge not only the application of an action “in an illegal manner on a particular occasion” but instead generally challenge the validity of a policy “of broad applicability.” Id. (quoting Lujan v. Nat’l Wildlife Fed’n., 497 U.S. 871, 913 (1990) (Blackmun, J., dissenting on other grounds)). Any other outcome would lead to the unjust result of halting the Termination Memo’s effects for only a fraction of persons impacted by it.
In fact, a limited injunction of this nature would “merely . . . generate a flood of duplicative litigation.” Id.; see also Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”). The Termination Memo is precisely the type of agency action of “broad applicability” that should be enjoined in total, not least in order to avoid unnecessary and repetitive litigation and promote judicial economy. See Nat’l Mining Ass’n, 145 F.3d at 1409 (refusal to sustain broad injunction where adversely impacted individuals can each challenge the agency action “is likely merely to generate a flood of duplicative litigation”). By enjoining the implementation of the Termination Memo in its entirety, this Court would ensure, in the most efficient manner possible, that all who are harmed by this unlawful Government action are able to obtain the relief they deserve.
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Accordingly, this Court should find that the Termination Memo is unlawful on its face and affirm the injunction of the Memo in full, not merely in its application to particular petitioners represented in this litigation.
CONCLUSION For the foregoing reasons, amici respectfully urge the Court to affirm the preliminary injunction granted below.

Respectfully submitted, Dated: March 20, 2018

PATTERSON BELKNAP WEBB & TYLER LLP
By: /s/ Steven A. Zalesin Steven A. Zalesin Adeel A. Mangi Michael N. Fresco Zachary Kolodin 1133 Avenue of the Americas New York, NY 10036-6710 Telephone: 212.336.2000 Facsimile: 212.336.2222
MUSLIM ADVOCATES Johnathan Smith Sirine Shebaya Juvaria Khan P.O. Box 66408 Washington, DC 20035 Telephone: 202.897.2622
Attorneys for Amici Curiae 119 Religious Organizations

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Certificate of Compliance With Type-Volume Limit, Typeface Requirements, and Type-Style Requirements
I certify that:
1. This document complies with the type-volume limit of Fed. R. App. P. 29(a)(5), 32(a)(7)(B), and Circuit Rule 32-1 because, excluding the parts of the document exempted by Fed. R. App. P. 32(f), this document contains 6,154 words.
2. This document 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 document has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman font.

Dated: March 20, 2018

PATTERSON BELKNAP WEBB & TYLER LLP
MUSLIM ADVOCATES

By: /s/ Steven A. Zalesin
Attorneys for Amici Curiae 119 Religious Organizations

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CERTIFICATE OF SERVICE CM/ECF FILING/SERVICE U.S. Court of Appeals Docket Nos.: 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
I, Steven A. Zalesin, hereby certify that on March 20, 2018, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth 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.

Dated: March 20, 2018

PATTERSON BELKNAP WEBB & TYLER LLP
MUSLIM ADVOCATES
By: /s/ Steven A. Zalesin
Attorneys for Amici Curiae 119 Religious Organizations

Case: 18-15068, 03/20/2018, ID: 10805661, DktEntry: 66-2, Page 1 of 50

18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
dIN THE
United States Court of Appeals
FOR THE NINTH CIRCUIT

REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, In her official capacity as President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ; COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521,

— v. —

Plaintiffs-Appellees,

UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, In her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
HON. WILLIAM ALSUP, CASE NO. 3:17-CV-05211-WHA

APPENDIX TO BRIEF OF AMICI CURIAE 119 RELIGIOUS ORGANIZATIONS IN SUPPORT OF PLAINTIFFS-APPELLEES FOR
AFFIRMANCE OF PRELIMINARY INJUNCTION

STEVEN A. ZALESIN ADEEL A. MANGI MICHAEL N. FRESCO ZACHARY KOLODIN PATTERSON BELKNAP WEBB
& TYLER LLP 1133 Avenue of the Americas New York, New York 10036 (212) 336-2000

JOHNATHAN SMITH SIRINE SHEBAYA JUVARIA KHAN MUSLIM ADVOCATES P.O. Box 66408 Washington, DC 20035 (202) 897-2622

Attorneys for Amici Curiae 119 Religious Organizations

Case: 18-15068, 03/20/2018, ID: 10805661, DktEntry: 66-2, Page 2 of 50
APPENDIX A
IDENTITY AND INTERESTS OF AMICI
1. Albuquerque Insight Meditation Center
Albuquerque Insight Meditation Center (AIMC) is a community that aspires to end suffering through the realization of the Buddha’s teachings. AIMC extends refuge to all who seek the liberating teachings of the Buddha and offers non-fear, protection and compassion to all living beings. Immigrants covered by DACA fear the loss of its protection. Even though the USA is their home, they face the risk of being deported to the countries where they were born and where their lives may be in danger. DACA recipients are part of our community, they are our neighbors, our friends, our colleagues and our members. We stand with them, for their safety, protection and the end of suffering.
2. Albuquerque Mennonite Church
Part of Mennonite Church USA, Albuquerque Mennonite Church is a community of over 150 Mennonites who believe strongly in the connections between peacemaking and justice, and the Kingdom of God that Jesus taught about and lived out. Albuquerque Mennonite Church holds that every person is created in God’s image, valued without regard to origin, sexual identity, affiliation, or status. We are a Christian community of peace and justice, including love and advocacy for our siblings with and without status, especially those struggling to maintain DACA status.
3. Albuquerque Monthly Meeting of the Religious Society of Friends (Quakers)
Albuquerque Monthly Meeting of the Religious Society of Friends is a Quaker Meeting for Worship in Albuquerque, New Mexico, affiliated with Intermountain Yearly Meeting, a community of Quaker Meetings and individual Friends situated within the Intermountain West. In unity with the shared testimonies of Friends within IMYM, we affirm that “Our witness to the world comes from our perception of the Divine Spirit moving through us (IMYM Faith and Practice, Advice 1 on Integrity, p. 130).” “Recognizing the oneness of humanity in God, we affirm fellowship with all people (Id., Advice 2 on Integrity,, p. 131).” “We affirm that our first allegiance is to our experience of the Divine. If this conflicts with any compulsion of the state, our country is served best when we remain true to our higher loyalty (Id., Advice 1 on Peace, p. 132.).” Indeed, “We
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[must] refuse to join in actions that denigrate others or lead to their victimization (Id., Advice 4 on Peace, p. 133.).” Albuquerque Meeting has long been troubled by the treatment of refugees and migrants within the US and in the borderlands. In 2014, we committed ourselves “. . . to assure that the humanity of every migrant to our borders is honored and that all are treated with compassion and dignity, regardless of what their legal status may ultimately be determined to be.” (AMM minute 2014.8.3). We care about DACA recipients because they are threatened with an assault on their humanity. We cannot be faithful to the Light that Spirit has granted us and ignore what is being done in our name to these brothers and sisters.
4. American Association of Jewish Lawyers and Jurists (AALJ)
The AAJLJ is a membership association of lawyers and jurists open to all members of the professions regardless of religion. It is an affiliate of the International Association of Jewish Lawyers and Jurists, which is based in Israel and was founded by the late Justice Arthur Goldberg of the United States Supreme Court and the late Justice Haim Cohen of the Supreme Court of Israel. The mission of the AAJLJ includes representation of the American Jewish Community in regard to legal issues and controversies that implicate the interests of that community. The Association carries out that mission through advocacy in the public arena and in the courts, educational programs, and representation of individuals whose religious and other human rights have been threatened or abridged. As a minority that has historically faced exclusion from the United States and other countries during times of dire peril, the Jewish community strongly supports the role of the United States as a refuge from tyranny, war and oppression.
5. American Baptist Churches of Metropolitan New York
The ABCMNY region is unique among other regions in the American Baptist Churches USA because of its very wide theological diversity, racial-ethnic identity mix, and the breadth of languages spoken among our 185 churches located in the various boroughs, counties and neighborhoods within the NY metro area. On any given Sunday, worship is conducted and fellowship occurs in 8-12 spoken languages, Toward our common mission, our ABCMNY vision documents include the following declarations: “The Great Commission, as understood in Matthew 28:16f, continues to motivate and call us to invite persons, who are near and far as suggested in Acts 1:6-8, to receive and live in the hope of the good news of Christ. In covenant, American Baptists in Metro New York will endeavor to continue to follow Jesus, to call persons to deeper discipleship, and to work for justice with
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compassion particularly for and with communities and peoples who have been oppressed or suppressed through human actions.”
Our mission statement asserts that “We seek to welcome others like Jesus welcomes us, to simply serve God within our complex city, to respond in times of need, to live together peaceably amidst our differences, to grow deeper in inclusion and greater in connection, and to glorify God in all of our endeavors.” Our positions as a region on DACA include the assertion that the over 800,000 young people, known as “Dreamers” who consider the United States as their national home contribute to this nation and its economy and spirit and function as citizens of the United States. ABCMNY, among other things, calls on the US government to protect and expand DACA and similar programs, and end the mass deportation of undocumented immigrants. It is in the spirit of our identify and work that we gladly join with others in this needed intervention.
6. American Friends Service Committee
The American Friends Service Committee (“AFSC”) is a Quaker organization whose work is shaped by its spiritual framework and based on the belief in the worth of every person, and faith in the power of love to overcome violence and injustice. Founded in 1917, AFSC has programs throughout the United States that work with immigrants, including many DACA grantees, through legal representation, leadership training, community organizing, and policy advocacy. AFSC's offices in Florida, Iowa and New Jersey represent and provide a voice for many vulnerable immigrant populations, including immigrant detainees, survivors of domestic violence and other crimes, asylum seekers, individuals who have faced long struggles to obtain legal status, and immigrant children and youth. These three programs have represented hundreds of DACA grantees since the DACA program was introduced in 2012. In addition, AFSC programs across the United States have engaged in organizing and advocacy with and on behalf of young immigrants in their quest for a path to a permanent and secure immigration status for themselves, their families and their communities.
7. Ansche Chesed, New York City
We are a Conservative synagogue on Manhattan’s Upper West Side, ritually traditional, intellectually vibrant and socially progressive. We believe in protecting all the vulnerable of society, those who need emotional, spiritual and economic sustenance in the face of those who would exploit them. And we believe that society needs Dreamers.
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8. Arch Street United Methodist Church
Arch Street United Methodist Church (ASUMC) is an historic congregation located in the Center Square neighborhood of Philadelphia. Established in 1862 – before Philadelphia’s City Hall was built, ASUMC is located at the crossroads of center city and, as such, has one of the most diverse congregations in Philadelphia. ASUMC’s vision is to be a welcoming Christian community that inspires openness, understanding and reconciliation both within the congregation and in the community-at-large. Our mission is to love God and neighbor by nurturing individuals on their spiritual journeys, encouraging creativity in faithful service, strengthening relationships and promoting justice. ASUMC is a multi-racial, multi-ethnic, multi-class, LGBTQIA and immigrant welcoming faith community. As a founding member of POWER (Philadelphians Organized to Witness Empower and Rebuild) an interfaith network of 60 congregations, ASUMC is in constant contact and community with Muslims, Jews, Roman Catholics, other Protestants, Quakers and Ethical Humanists. Through the New Sanctuary Movement and the Nationalities Service Center of Philadelphia, ASUMC further expands its connections with persons from all over the world, representing a wide variety of cultural and religious expressions. ASUMC is a seasoned interfaith and cross-cultural partner and finds great joy in building and sustaining compassionate connections across all borders.
Arch Street United Methodist Church is pleased to sign on to the DACA Amicus Brief on Behalf of Religious Organizations. We do so an act of faith in following the teaching of our sacred texts to welcome the stranger and to love our neighbor. In addition, we hold the strong opinion that the termination of DACA and the deportation of all those under the provisions of DACA would be inhumane, unjust and in direct violations of basic human rights.
9. Association of Muslim American Lawyers
The Association of Muslim American Lawyers (AMAL) seeks to assist the Muslim-American community’s exercise of legal rights through education; encourage entry into the legal profession; assist members in their professional development; promote the administration of justice; benefit the community with legal resources and services; identify and explore themes common to American and Islamic jurisprudence; and promote the highest standards of professionalism, integrity and honor amongst AMAL members.
America needs talent. Children who came to this country raised and educated in the United States are already part of the American fabric. They
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represent what is best about America and they are essential to our future. We stand with our dreamers, leaders across the business, civic, religious, and non-profit sectors to defend this important cause.
10. Cabrini Immigrant Services of NYC
Cabrini Immigrant Services of NYC provides supportive services to the immigrant community to encourage economic independence and social empowerment, foster individual growth and development, and promote selfdetermination for immigrant families, children, and youth. We are a faith-based agency and seek to emulate the spirit of Mother Cabrini in our work.
The organization is deeply committed to the fight for the Dream Act and has participated in lobby days in Washington, local rallies, phone banks, and more. Additionally, over the past year the organization assisted nearly 100 clients in submitting new and renewal applications for DACA, and continues to offer renewal services. Dreamers are an integral part of our community. We have seen firsthand the incredible contributions DACA recipients have made to their families, communities, and society as a whole. We believe it is both our moral duty and in the nation’s best interest to protect Dreamers and allow them to fully contribute to society. For these reasons, we denounce the arbitrary rescission of the DACA program, which would cause irreparable harm to the immigrant communities we serve and our nation as a whole. We work to honor the legacy of Mother Cabrini and the Catholic Social Teachings on the dignity of all persons by standing in solidarity with all immigrants and advocating for a path to citizenship for all Dreamers.
11. Campus Ministry of Roman Catholic Archdiocese of New York at Hostos and Bronx Community College of City University of New York
The Catholic Campus Ministry and Interfaith Department, funded by the Roman Catholic Archdiocese of NY since the 1970’s at the community colleges of CUNY, serves the traditional immigrant base that bodes well for the future of the NY metropolitan area and our great country. Most of the 13,500 students of both colleges are either immigrants or sons and daughters of people of color and accents. We DO have DACA students. They are extremely hardworking and wellmotivated. They WANT to be US citizens—and would be good ones!
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12. Capital Area Muslim Bar Association
The Capital Area Muslim Bar Association (CAMBA) is a voluntary bar association in the Washington, DC metro area with a diverse membership. CAMBA’s mission includes fostering a sense of fellowship amongst diverse Muslim legal professionals and amplifying our collective voice to impact legal issues affecting the Muslim community. CAMBA’s objectives include addressing legal issues affecting the community at large and their related impact on the Muslim American community, and educating and advocating for constitutional, civil, and human rights for all persons.
13. Catholic Charities of the Diocese of Stockton
For over 70 years, Catholic Charities of the Diocese of Stockton has provided social services to people in San Joaquin, Stanislaus, Calaveras, Tuolumne, Alpine, and Mono counties, and throughout the years, it has served as a sign of hope in local communities for people of all ages, religions, and races. These services are offered to those in need, regardless of their religious beliefs, because our work is grounded in the dignity of each person and in the building of a just and compassionate society, especially for the most vulnerable among us. In keeping with our work and mission, we believe that the termination of DACA without an adequate replacement would undermine our communities and would cause them great harm. For these reasons, we join the Religious Organizations amicus brief.
14. Catholic Charities Community Services of the Archdiocese of New York
Since 1949, Catholic Charities Community Services of the Archdiocese of New York (CCCS) has provided direct human and legal services to over 170,000 people each year from all parts of New York City and the Lower Hudson Valley. These services are offered to all New Yorkers in need, regardless of their religious beliefs, because our work is grounded in the dignity of each person and in the building of a just and compassionate society, especially for the most vulnerable among us. CCCS is a leading provider of immigration legal, resettlement, and integration assistance in its service area, providing direct legal services to individuals, families, workers, and children seeking stability and reunification, including application assistance, clinical consultation, and direct court representation, hotline and referral information to over 70,000 callers each year, case management assistance, reception, reunification integration, employment and ESL assistance to refugees, asylees and other documented and undocumented
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newcomers, and to all those seeking protection, including over 3,000 unaccompanied minors each year.
15. Catholic Legal Immigrant Network, Inc.
The Catholic Legal Immigration Network, Inc. (“CLINIC”), a national religious organization created in 1988 by the United States Conference of Catholic Bishops, embraces the Gospel value of welcoming the stranger and promotes the dignity and protects the rights of immigrants in partnership with a dedicated network of Catholic and community legal immigration programs. CLINIC’s network includes approximately 330 faith and community-based immigration legal programs in more than 400 cities, and employs roughly 1,400 legal representatives, including attorneys, Department of Justice-accredited representatives and paralegals who serve hundreds of thousands of citizens and immigrants each year.
CLINIC has a substantial interest in the Court’s resolution of this case because the issues this Court will decide have a direct impact on the work of CLINIC’s network and the immigrants it serves. Within CLINIC’s network, the majority of legal immigration programs provide DACA and related immigration services and have seen the positive benefits of this program on their clients. Further, for many of the programs, DACA services represent a significant amount of program revenue. Consequently, CLINIC has a substantial interest in ensuring that DACA recipients are able to safely remain with their families, in their schools and communities, and employed.
16. Catholic Legal Services, Archdiocese of Miami, Inc.
Catholic Legal Services, Archdiocese of Miami, Inc (“CLS”) is a not-forprofit corporation with the express mission of providing: “Legal Representation and Immigration Services for those who come to South Florida from foreign lands.” Currently, it is the largest provider of pro bono and low-cost immigrations services in the State of Florida. Over two thousand migrants and refugees seek the services of CLS each month. Among them, mothers longing to be reunited with their children; political and religious refugees seeking security; religious workers offering their ministry to our faith communities; battered spouses and their children searching for safety; and, of particular note, individuals who entered as children and remained to pursue the dream of legal status in the United States. CLS has represented hundreds of recipients of the Deferred Action for Childhood Arrivals Program since its inception in 2012.
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17. Central Pacific Conference of the United Church of Christ
The Central Pacific Conference (CPC) is a community of United Church of Christ congregations in Oregon, southern Idaho and southern Washington. In this family of 45 congregations, our shared commitment is to ministry and mission. The CPC provides spiritual and material resources and encouragement to all our 7,600 members. We put purposes and programs into action by drawing on the experience and talents of all the conference members, both lay people and clergy. The CPC assists and encourages local congregations and their members in working together to explore, communicate, support and pursue the ministry and mission of the church, and provides a channel for effective relationships with the UCC and with other faith communities.
At its Annual Meeting in September 2016, the Central Pacific Conference of the United Church of Christ declared itself to be an "Immigrant Welcoming Conference" which encourages the development of policies dedicated to facilitating the respectful welcome and inclusion of all immigrants into Oregon, Idaho, and Washington. The Central Pacific Conference was a co-sponsor of the United Church of Christ General Synod Resolution calling upon the United Church of Christ to declare itself an Immigrant Welcoming Denomination; the resolution passed with an overwhelming vote with 97% of delegates in favor.
18. Church Council of Greater Seattle
The Church Council of Greater Seattle is a membership organization of 320 congregations from 16 Christian denominations in Martin Luther King Jr. County and South Snohomish County in the State of Washington. Founded in 1919, we have worked for nearly a century to forge ecumenical and interreligious relationships and to serve vulnerable and marginalized populations in our midst. We believe in the inherent dignity and worth of every human being as a child of God. We believe that God’s love has no exclusions. We are proud to have opposed the internment of Japanese-Americans during World War II and to have continued to minister to them during and after the war. We played an important role in ending redlining in the City of Seattle as part of our legacy of seeking a society built upon equity and social justice.
DACA is a win-win that has allowed families to stay intact, while creating a pathway forward for many in order to strengthen our economy and build up our community fabric. Removing DACA will tear apart grantees from loved ones. It is our ministry and responsibility to not allow the marginalization of this community
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and to affirm their voices and self-determination for an inclusive, viable future, which will be beneficial for the integrity of the United States. The moral and humane solution is to allow those who have benefitted from DACA to become United States citizens toward the end of Comprehensive Immigration Reform.
19. Church of Our Redeemer in Lexington, Massachusetts
The Church of Our Redeemer in Lexington, Massachusetts serves a parish community made up of people from many nations and ethnicities. We seek to foster a thriving community in Lexington and beyond by building relationships across differences and forming ministers of the Gospel. The decision to end DACA would impact individuals and families who reside in our parishes and broader communities. Ending residency for those currently protected by the DREAM Act would move our country further away from the principles of justice that we seek as people of faith. We are committed, as people of faith, to working together with other responsible leaders to justly address the immediate needs of the people affected by this action and ensure long-term solutions for communities impacted by exclusionary policies. We stand with Dreamers in Massachusetts and across America and implore the courts to represent those most impacted by refusing to put the termination memo into effect.
20. Church of Our Saviour/La Iglesia de Nuestro Salvador (Cincinnati, Ohio)
The Church of Our Saviour/La Iglesia de Nuestro Salvador is an Episcopal parish in Cincinnati Ohio, with a far-reaching ministry beyond its central urban location.
We have been engaged with immigrants and refugees from Latin America for over twenty-five years; and have been a bilingual parish since 2006. The immigrants and refugees with whom we stand are esteemed members of our community, contributing to our society. The US is now their home. For many of them, deportation would be a risk of grave danger or even death. Besides leaving dependents here who would then need public assistance, their processing, prosecution, incarceration and deportation at taxpayer expense is a cruel and mindless waste, unworthy of the values of this country.
21. Congregation B’nai Jeshurun (New York City)
For nearly two centuries, Congregation B’nai Jeshurun (NYC) has been at the forefront of American Jewish life. As we move into our third century, our
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vision is focused on the spiritual work of transformation: of ourselves, our community of nearly 1700 member households, and of the larger world. We believe that as a faith community we are called upon to hold ourselves, each other, and our elected leaders accountable for sustaining the core values of our nation, and to bring to bear the moral values of our Jewish tradition and teachings for the benefit of all. For many years, these beliefs have manifest through engagement in the growing global refugee crisis, and efforts to assist immigrants and refugees in New York City. As such, we strongly support the goals of the DACA program, and we are proud to join this brief to help ensure that the rights of all immigrants and refugees, regardless of race, religion, gender identity, sexual orientation, financial status, or country of origin, are treated fairly and equally, and with respect and dignity, by the American government.
22. Congregation Beit Simchat Torah
Congregation Beit Simchat Torah (CBST) is a bold spiritual community of love and resistance that embodies a progressive voice within Judaism. Founded in 1973, CBST attracts and welcomes gay men, lesbians, bisexuals, transgender, queer and straight individuals and families who share common values. Passionate, provocative, and deeply Jewish, CBST champions a Judaism that rejoices in diversity, denounces social injustice wherever it exists, and strives for human rights for all people.
CBST is a community of immigrants and refugees and descendants of immigrants and refugees. We see those being targeted as part of our community and our neighbors, not our enemies. We are reminded of the words from the book of Leviticus that command us to welcome the stranger because we, too, were once strangers in a strange land. As LGBTQ people and Jews, we know the dangers of demonization, and we embrace resistance and love as our response. We cannot be silent. CBST stands committed to furthering social justice and equality for all people. We work within the congregation, take public action and lend our names and voices to a variety of social and humanitarian causes.
After the 2016 presidential election, CBST made a commitment to amplify its social justice initiatives and as part of that promise, we joined the New Sanctuary Coalition of New York City. We are partnering with them on education, training and support for the immigrant community in the tri-state area. CBST members regularly support immigrants facing ICE hearings and check-ins by attending meetings with DHS officials. We are committed to fighting for justice and for the humane treatment of all people.
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23. Congregation Beth Elohim (Brooklyn, NY)
Congregation Beth Elohim is the largest Reform congregation in Brooklyn and a welcoming and inclusive synagogue, proudly rooted in Jewish history and identity, profoundly open to different backgrounds and divergent points of view. Our membership has a long tradition of engaging in tikkun olam (repairing the world) and see the termination of the DACA program as a grave threat to our moral obligation to always remember that we too were once “strangers in a strange land.”
24. Congregation Shaarei Shamayim (Madison, Wisconsin)
Congregation Shaarei Shamayim is a synagogue located in Madison, Wisconsin. Last January we initiated the Madison Jewish Pledge of Sanctuary and Solidarity, a statement that expresses our commitment to stand with our Muslim and Latino neighbors and to not remain silent when their safety is in jeopardy. We work closely with Voces de la Frontera, Wisconsin’s leading immigrant rights organization, and stand in solidarity with the Muslim and Latino communities of Madison. We have declared ourselves to be a sanctuary congregation and are ready to open our doors to provide shelter to an undocumented immigrant facing deportation. Out of these commitments we object to the termination of the DACA program.
25. Council of Churches of the City of New York
The Council of Churches of the City of New York was organized in 1895 and serves through the Christian denominations having ministry in the five boroughs of New York City. Its Board of Directors is composed of the bishops and chief executives of the member denominational judicatories which, collectively, are related to thousands of Christian congregations in the City. The Council, like its member denominations and affiliated congregations, are vitally concerned for the well-being of all persons created by God and residing in God’s Household, the inhabited earth. In particular, we are concerned for the protection and legal status of immigrants, especially those who arrived in this nation as children without documentation.
26. Council on American-Islamic Relations – California Chapter
The Council on American-Islamic Relations, California (CAIR-CA), is a chapter of the nation’s largest American Muslim civil rights and advocacy organization. CAIR-CA’s mission is to enhance the understanding of Islam,
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encourage dialogue, protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding. Through its four offices, CAIR-CA serves California’s estimated one million American Muslims by providing direct legal services to victims of discrimination, working with the media, facilitating community education, and engaging in policy advocacy to advance civil rights and civic engagement. CAIR-CA also has dedicated Immigrants’ Rights Centers in each local office working to empower, and protect the rights of, non-citizens.
CAIR-CA is dedicated to providing services to individuals whose immigration status will be impacted by the repeal of DACA. CAIR-CA has established Immigrants’ Rights Centers at each of its four offices. Through these Centers CAIR-CA seeks to empower non-citizens by helping them achieve independence, security, and the opportunity to fully participate in American society. CAIR-CA takes a holistic approach, and serves the non-citizen community through engaging with and educating the community on immigration issues, providing legal services and representation, building coalitions among other organizations, and championing advocacy to improve governmental policies and practices.
27. Council on American-Islamic Relations – Michigan Chapter
CAIR-MI’s mission is to enhance the understanding of Islam, encourage dialogue, protect civil liberties, empower American Muslims and build coalitions that promote justice and mutual understanding through education, mediation, media and the law. CAIR-MI has been serving the entire state of Michigan since 2000 with an emphasis on Metro Detroit, Flint/Saginaw, Ann Arbor/Jackson, Lansing, Kalamazoo/Battle Creek, and Grand Rapids/Muskegon.
In addition to legal services CAIR-MI Safe Spaces program aims to proactively produce and implement legal policies and best practices with a variety of institutions to prevent incidents of bias and discrimination before they occur. Through the Safe Spaces Program, CAIR-MI has successfully drafted and implemented legal policies and best practices at a variety of institutions including law enforcement, universities, schools, correctional facilities, government agencies and several corporations throughout Michigan. Our Safe Spaces program also engages in youth outreach and engagement and anti-bullying programs.
CAIR-MI opposes the DACA termination memo based on its intent to deport individuals who have spent the majority of their lives in the US many of whom know no other home. These individuals directly benefit our programs by
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engaging in outreach and providing diverse voices in various programs and internships with our legal and safe spaces programs. The loss of the individual and collective voices, ideas and actions provided by DACA recipients would result in harm to our mission and programming.
28. Council on American-Islamic Relations – New Jersey Chapter
The Council on American-Islamic Relations (CAIR) is the largest Islamic civil liberties and advocacy group in the United States. Its mission is to enhance the understanding of Islam, encourage dialogue, protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding. The demand for our services has grown tremendously. From restrictions placed on Muslims to practice their religion, to profiling and discrimination stemming from a lack of understanding of Islam, CAIR-NJ aims to provide that relief to the Muslim population in New Jersey. Protecting the rights of New Jersey's Muslims is at the core of CAIR-NJ's mission. CAIR-NJ also provides know your rights workshops for our constituents to teach them about their fundamental rights guaranteed to them under the Constitution. We work vigorously to educate on behalf of community members experiencing discrimination and remedy cases through in-person negotiations, from filing charges of discrimination, letter writing, and actively litigating in court. Cases range from employment, public accommodation and school discrimination, to hate crimes and governmental religious/racial profiling. CAIR-NJ’s civil rights department counsels, mediates and advocates on behalf of Muslims and others who have experienced religious discrimination, defamation or hate crimes. The department works to protect and defend the constitutional rights of American Muslims, thereby supporting the rights of all Americans.
CAIR-NJ opposes the DACA termination memo based on its intended mission of potentially deporting 800,000 young undocumented individuals who have spent their entire lives in the United States.
29. Council on American-Islamic Relations – New York Chapter
The Council on American-Islamic Relations, New York Inc. (“CAIR-NY”) is a leading Muslim civil rights organization, defending, representing, and educating nearly one million Muslims in the New York area. CAIR-NY's mission is to protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding. Through legal representation, education, media relations, and advocacy, CAIR–NY empowers the American Muslim community and encourages their participation in political and social
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activism. CAIR–NY counsels, mediates, and advocates on behalf of Muslims and others who have experienced discrimination, harassment, or hate crimes. Our lawyers work to protect and defend the constitutional rights of American Muslims, thus supporting the rights of all Americans.
30. Council on American-Islamic Relations – Oklahoma Chapter
CAIR-Oklahoma is a nonprofit 501(c)(3) grassroots civil rights and advocacy group. Established in 2006 by a group of local Muslims, CAIROklahoma serves the entire state of Oklahoma through its Oklahoma City office. Through legal representation, community education and outreach, government and legislative advocacy, and youth leadership programs, CAIR-Oklahoma works to empower the state’s Muslim community and improve relationships between Oklahoma’s many diverse faith and social justice communities. CAIR-Oklahoma is a chapter of the Council on American-Islamic Relations (CAIR), America’s largest Islamic civil liberties group with chapters nationwide. The national headquarters is located on Capitol Hill in Washington D.C. CAIR-OK’s mission is to enhance the understanding of Islam, encourage dialogue, protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding.
CAIR-Oklahoma opposes the DACA termination memo because of its stated intent to deport the 800,000 young undocumented individuals who have spent their lives in the United States, dedicating their lives to education and work that improves the United States’ ability to compete on a global market. These young people benefit their communities by enhancing the diversity of the spaces in which they live, work, and go to school, their loss would harm the mission and programming of CAIR-Oklahoma by inhibiting our stated purpose of defending rights and defeating intolerance.
31. Cuba Presbyterian Church (Presbyterian Church, USA), Cuba, New Mexico
Cuba Presbyterian Church (Presbyterian Church, USA), Cuba, NM is a small, traditional congregation in a northern New Mexico village. It was established in 1889 in a multi-cultural community made up of Spanish and Mexican settlers among the diverse Native American tribal communities – Navajo, Jicarilla Apache, and the nineteen Pueblos; along with the Anglo American presence which came into the area in the 1870s. We are keenly aware that we are all immigrants, and feel called to assure others the opportunities our families have had. Our mission as a church is to spread God’s loving message to all regardless
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of race or national origin. Ending the DACA program has spread fear among some in the area, which overshadows and impairs the Christian message we are living in this community.
32. Daughters of Charity of St. Vincent de Paul
The Daughters of Charity of Saint Vincent de Paul are an international community of about 14,500 Catholic sisters who devote our lives to serving the poorest and most abandoned individuals in today’s society. The Daughters of Charity, USA, many of whom are immigrants themselves, serve in 27 U.S. states, Washington, D.C. and Canada. For more than 200 years, the Daughters of Charity, have embraced the gospel mandate to welcome the stranger by providing a host of direct services that includes legal advocacy, healthcare, education and other social work to the U.S. immigrant population.
Termination of the Deferred Action for Childhood Arrivals (DACA) program is an immoral act that violates our Catholic call to welcome the stranger and diminishes our ability to carry out our mission of service to those on the margins of society. The Daughters of Charity have befriended Dreamers and their families. They teach in our Catholic schools. They nurse in in our Catholic hospitals. They provide social services to our neighbors. Simply put, their presence creates stronger, healthier communities.
Pope Francis has instructed us, we “cannot remain silent in the face of the suffering of millions of people whose dignity is wounded, nor can we continue to move forward as if the spread of poverty and injustice has no cause.” If the termination of the DACA program is upheld, we know this injustice will result in the destruction of the family unit, the diminishment of community safety and the degeneration of our national honor. The Daughters of Charity will not remain silent in the face of this injustice that threatens Dreamers with merciless exclusion.
33. Degrees of Change
Degrees of Change is a faith-based organization located in Tacoma, Washington that helps communities and colleges equip students to learn together through college and lead together back home. Degrees of Change partners with six Christian community-based organizations and twelve Christian colleges, serving more than 700 students across five states (WA, OR, MN, IL and IN). The curriculum that our community partners deliver to students integrates Christian perspectives and teaching on leadership, diversity and community development. The Executive Order to end DACA has led more than 60 of our scholars and
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alumni to question their worth and their safety in this country. Deportation has ripped apart several of our scholars’ families. Our college partners are struggling to provide financial aid to these scholars, and several scholars have dropped out of college because they can no longer afford it. Degrees of Change has made efforts to support immigrants facing deportation through our public messaging and national conversations with our scholars and community partners.
34. DMV Sanctuary Congregation Network
DMV Sanctuary Congregation Network (the network) is a network of 70 congregations of 17 religious traditions from DC, Maryland, and Northern Virginia. The network works and provides support to immigrant community in the DMV area and works with local allies to advance sanctuary policies. Our congregations have DACA-holders congregants who will be impacted by the ending of DACA. In the face of hate and discrimination we are committed to showing love, compassion and hospitality.
35. Dominican Development Center
Dominican Development Center is a non-profit organization affiliated with Saint Lourdes Church/Second Community in Boston, Massachusetts. We seek to develop and empower Dominican immigrants and immigrants representing all Latin American and Caribbean communities to take full participation on the civic life of this society. We strive to improve the quality of life of our members by promoting and organizing around issues that might impact our community, including but not limited to current laws, legal procedure, civic engagement, education, immigration reform, and human rights among others. The decision to end DACA would impact individuals and families who reside in our parishes and broader communities. Ending residency for those currently protected by the DREAM Act would move our country further away from the principles of justice that we see as people of faith. We add our voice to those asking the court to protect DREAMERs by not to allowing the termination order to go into effect.
36. East End Temple (New York City)
East End Temple is a Reform Jewish congregation located in lower Manhattan in New York City that is dedicated to issues regarding immigration and immigrants’ rights. With members of the congregation who are immigrants themselves or are descendants of recent immigrants, the congregation is particularly committed to the principle and commandment to welcome the stranger.
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37. El Paso Monthly Meeting of the Religious Society of Friends
The El Paso (Texas) Monthly Meeting of the Religious Society of Friends (Quakers) is a forty-year old organization but the roots of Quakers go back to seventeenth-century England. Friends strive to practice the ways of simplicity, peace, integrity, community and equality. Included in those values is our support for family-based immigration, the diversity visa, and strengthening access to asylum. Because we live in a border community, these issues are part of our lives each day. We also oppose the expansion of harmful or unchecked border enforcement and the elimination of avenues of legal immigration.
38. Emgage
Emgage Foundation is one of the nation’s largest civic education and mobilization organizations for Muslim American voters. We provide learning opportunities and events, including direct engagement with lawmakers, to increase the civic engagement of Muslim Americans and advance values that are important to us as Americans and as Muslims. One of our core programs is Get Out The Vote in five electorally important states, including Florida, Virginia, Pennsylvania, Texas, and Michigan. Our issue advocacy focuses on combating Islamophobia and hate crimes, social justice reform, improving our healthcare system, protecting immigrant and refugee communities, and advancing human rights globally.
39. Episcopal City Mission
Episcopal City Mission (ECM) fights for racial, economic and immigrant justice through building relationships of shared power with faith rooted communities, grass-roots organizations and community organizing movements in Massachusetts. Our Episcopal/Anglican lens invites us to see all life as sacred and worthy of dignity and justice. This understanding guides us as we face into the dynamics of power and enable access and liberation for all communities. As the termination of DACA would deny access to those who are protected under the DREAM act we ardently ask that the court would not allow the termination order to go into effect
40. Episcopal Diocese of Massachusetts 41. Episcopal Diocese of Western Massachusetts
The Episcopal Dioceses of Massachusetts and the Diocese of Western Massachusetts serve 235 parishes across the state of Massachusetts. We seek to be Christ’s presence of mercy, compassion, and hope in the communities we serve.
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The decision to end DACA would impact individuals and families who reside in our parishes and broader communities. Ending residency for those currently protected by the DREAM Act would move our country further away from the principles of justice that bind us together. We add our voice to those asking the court to protect our brother and sister DREAMERs by not allowing the termination order to go into effect.
42. Episcopal Diocese of New York
The Episcopal Diocese of New York includes 199 local congregations (parishes) with about 66,000 members, 72 deacons, 600 priests and three bishops—including the diocesan bishop, currently the Rt. Rev. Andrew M.L. Dietsche, who is our chief pastor. To Episcopalians it seems pretty clear what Christians are supposed to do. Jesus said “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind. This is the first and great commandment. “And the second is like unto it, Thou shalt love thy neighbor as thyself. On these two commandments hang all the law and the prophets.” The first thing, then, after love of God—indeed the only thing— is to love our neighbors as ourselves. Not just some of them; not just the ones we feel comfortable with; not just the ones who have the same colored skin as us, or the same sexual preferences, or who don’t smell; but every single one of them. In fact as Episcopalians, we believe that no Christian life can be complete if the person living it does obey this command and act on it.
To end the Deferred Action for Childhood Arrivals would endanger the lives of thousands of young people and their families and run contrary to the faith and moral traditions of our country. It is unfair to threaten the well-being of young people who arrived in our country as children through no choice of their own. Ending DACA without a similar replacement program will force these young people to face the future in this country with little access to education and employment, and ultimately, could very well lead to sending them to countries where they did not grow up, have few support structures, may not even speak the language and may be vulnerable to violence and persecution. Any of these scenarios, we believe, is cruel.
43. Episcopal Society of Christ Church/The Christ Church Cathedral, Cincinnati, Ohio
The Episcopal Society of Christ Church is a congregation of the Episcopal Church and is the Cathedral for the Episcopal Diocese of Southern Ohio. For 200 years, the Cathedral has worked in the Cincinnati community to combat poverty
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and has been involved, since its founding, in issues of social justice. The Cathedral carries out its missions through community grants, educational opportunities and direct mission work. For example, the Cathedral hosts “community forums” to educate the public on issues of social justice and also sponsors a 200 + person dinner every Tuesday for our friends who make their homes on the streets, offering not only food but also social services. Because of its tradition and continuing programs, the Cathedral is interested in helping those who face the prospect of deportation without just cause. The Cathedral is keenly aware of the perils faced by those who would be subject to such deportation, including the breakup of families, the impact on economic well-being and the dangers faced in home countries. For these reasons, the Cathedral has become involved in the sanctuary movement in Cincinnati.
44. Faith Action Network
Faith Action Network (FAN) is a statewide (Washington State) interfaith advocacy organization that educates, organizes, and mobilizes people of all faith traditions to take action on the critical social issues of our day. One of those very current social issues regards the Deferred Action for Childhood Arrivals (DACA) program of the federal government. FAN is deeply concerned about President Trump’s decision to terminate this important protection program for those who came to this country as children by their parent(s) or family member many years ago. It is morally reprehensible to think that these young people who know no other country than the USA will be deported by next March and sooner. We all know that deportation means imprisonment, separation from family, loss of employment and income, and will put their lives at risk as they are forcibly displaced to another country. FAN has advocated for those in this program (Dreamers) for many years at the state and congressional level to receive equal tuition/scholarship opportunities for college and other government benefits. The Dreamers – as they are known – love this country, contribute to our economy with their skills and talents, and have – and we hope will continue to make our nation better, stronger, and more equitable.
45. First Congregational United Church of Christ (Albuquerque, New Mexico)
We are strong supporters of DACA. Our mission is to live God’s love, justice, and inclusion and we believe that should be for all. We are currently offering sanctuary to a refugee at our church as a part of our faith commitment to
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the principle that “God’s doors are open to all.” It is a privilege to walk with one together in this journey toward a just immigration system.
46. First Presbyterian Church of Taos, New Mexico
Our congregation’s call to love God and our neighbors extend to all members of the Taos community, regardless of immigration status. We know and love immigrants and DACA recipients in our community, and we know that our church and our community is enhanced by their presence. We believe that DACA is a humanitarian issue for our community and for all God’s people. Additionally, our denomination has consistently and historically expressed support for the values, safety, gifts, and perspectives of immigrants of all nations, and has called for the ongoing support and protection of all DACA recipients. We sign onto this Amicus Brief in the spirit of Leviticus 19, which calls us not to oppress immigrants but to love each immigrant as ourselves, and in the Spirit of Matthew 25, in which Jesus reminds his disciples that when we welcome a stranger, we welcome Jesus Christ himself.
47. First Unitarian Congregational Society in Brooklyn
As a member congregation in the Unitarian Universalist Association, the First Unitarian Congregational Society in Brooklyn (First U Brooklyn) is committed to: the inherent worth and dignity of every person; justice, equity and compassion in human relations; and the goal of a world community with peace, liberty and justice and for all. Consistent with these principles, First U Brooklyn has declared ourselves a sanctuary congregation, invoking the millennia-old tradition of a house of worship offering a safe space and time for individuals in need. First U Brooklyn specifically offers safe space and time for immigrants and refugees to examine their options and make the soundest decisions when faced with possible deportation.
But Dreamers protected by DACA should have no need for sanctuary. Our country has already recognized that it is just and appropriate to allow these young men and women, who came to this country at an early age and in good conscience, to make a life for themselves in the United States, just as so many of our ancestors did. Terminating DACA now would unconscionably disrupt and threaten their lives and those of their families and loved ones. The righteous path is for our country to maintain the commitments we have made to these young people under DACA. While First U Brooklyn is proud to offer sanctuary to those in need, Dreamers should continue to be protected under DACA, and have no need of sanctuary.
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48. First United Presbyterian Church of Las Vegas, New Mexico
Our inclusive congregation is a member of the Presbytery of Santa Fe and the Presbyterian Church (USA). This denomination has historically supported the valuable gifts and perspectives of immigrants. The church has called for support of DACA recipients. Our church community stands for justice and, from that standpoint, we wish to protect the rights of all people—especially those most vulnerable. For this reason, we express our support of the Amicus Brief.
49. Franciscan Friars of the Province of St. Barbara
The Franciscan Friars of the Province of St. Barbara, part of what is formally known as the Order of Friars Minor (OFM), are members of a Roman Catholic religious order of men. From a diversity of backgrounds and cultures, they are dedicated to serving the poor and promoting justice, peace, care of creation, and reconciliation. They do this in the joyful and prophetic spirit of St. Francis of Assisi.
The members of the Province of St. Barbara live and work in California, Arizona, Oregon, and Washington, serving communities whose profiles cross ethnic, cultural and economic boundaries. Friars also serve in a number of Native American nations in the Southwest, as well on mission to Mexico, Russia, and the Holy Land. The friars uphold the dignity and rights of immigrants through ministry in parishes, retreat centers, advocacy actions, and social outreach programs.
The friars of the St. Barbara Province are convinced that the present federal climate of oppressing immigrants is contrary to human dignity afforded every child of God. Like Pope Francis has stated, “A person who thinks only about building walls, wherever they may be, and not building bridges, is not Christian. This is not the Gospel.” And last year, the Pope added, “Walls solve nothing. We must build bridges. But bridges are built intelligently, through dialogue and integration. So I understand this fear, but closing borders does not solve anything, because in the long term that closure hurts the people themselves.” And as well, the underlying racism needs to be labeled, and nonviolently opposed.
50. Global Justice Institute
The Global Justice Institute serves as the social justice arm of Metropolitan Community Churches, and works with LGBTQI activists and allies around the world to support projects for social change. One of our programs, ASAP (Asylum Seekers Assistance Program) has enabled LGBTQI people fleeing persecution to
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resettle in safer environments. We have consistently lobbied on behalf of DACA and those it supports.
51. Hawaii Conference of the United Church of Christ
The Hawaii Conference of the United Church of Christ is an organization of 130 member churches on six islands in the Hawaiian archipelago that traces its beginnings back to immigrants who were first welcomed by the Hawaiian people in 1820. We are committed to a world of Aloha, justice, and peace for all. On Saturday, February 3, at the Board of Directors of the Hawai’i Conference United Church of Christ quarterly meeting in Honolulu, Hawaii, we voted enthusiastically to sign on to the DACA Amicus Brief on Behalf of Religious Organizations.
52. Hispanic Apostolate of the Catholic Diocese of Baton Rouge
The Hispanic Apostolate of the Catholic Diocese of Baton Rouge is an organization whose mission is to promote the integration of our Hispanic brothers and sisters into the life of the Catholic Diocese of Baton Rouge. In keeping with that mission, we believe that the termination of DACA without an adequate replacement would be a senseless injustice and enthusiastically endorse the Religious Organizations amicus brief.
53. Hispanic Connection of Southern Indiana
Our mission is to assist all immigrant people that are underserved. By signing on to the Amicus Brief, we are exercising our belief that justice and peace are served when the rights of all people are protected.
54. Hyattsville Mennonite Church
Part of Mennonite Church USA, Hyattsville (MD) Mennonite Church is a congregation of 250 children and adults committed to making Mennonite Christian traditions and beliefs relevant in the cultural setting of the Washington, D.C., metropolitan area. We are a welcoming congregation strongly committed to peace, justice, hospitality and beauty. Our Sanctuary Committee works closely with Sanctuary DMV (District, Maryland, Virginia), San Mateo Episcopal Church (in Hyattsville), PICO and CASA of Maryland to advocate for and support our immigrant neighbors and friends, with and without status.
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55. Interfaith Alliance of Iowa
Interfaith Alliance of Iowa is a progressive voice for people of faith and no religious affiliation in Iowa protecting religious freedom, ensuring religion is not misused to discriminate, championing individual rights, and uniting diverse voices to challenge extremism. We educate and advocate on many issues of social justice, but always leading through a lens of civility.
DACA is important to the fabric of our state because it has allowed Iowans – Dreamers - to come out of the shadows, live without fear, and contribute more fully to the communities in which they live. Dreamers only want to work, go to school, and be family in a secure community. They want to worship in safety. They want their children to get an education. They want to be good neighbors. As an organization, we believe in the American Dream and we believe that ensuring Dreamers can participate in our communities not only helps them but helps the communities in which they live.
56. Iowa Conference of the United Church of Christ
The Iowa Conference of the United Church of Christ is a regional association of 168 UCC congregations. In supporting this brief we are represented by our staff and Board of Directors. Our rationale for this support is theological and practical: Hospitality and welcome for neighbors – both long-time and newly arrived – is fundamental to our values and our identity. Our congregations were mostly formed 140 to 175 years ago – many by immigrants. We are convinced that the fabric of our communities is stronger today for the inclusion of those who came here as “outsiders” over a century ago; similarly we believe that our communities will be strengthened by the inclusion of immigrants newly in our midst, and are consequently strongly supportive of DACA.
57. Islamic Circle of North America 58. ICNA Council for Social Justice
Established on September 1st, 1968, the Islamic Circle of North America was a response to the growing need for a supportive Muslim community in North America. In the past decade, ICNA has expanded its reach across the US while maintaining an active presence in local communities. The ICNA Council for Social Justice, a branch of ICNA dedicated to representing the Muslim voice on matters of social justice was formed in 2009. In keeping with our goal of representing the Muslim voice on matters of social justice, we believe that the termination of DACA without an adequate replacement would undermine American communities
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and would cause great harm. We have therefore decided to join the Religious Organizations amicus brief.
59. Islamic Society of Basking Ridge
The Islamic Society of Basking Ridge is dedicated to providing Islamic religious, educational, cultural and social services to Muslims living or working in Somerset Hills, New Jersey, and the surrounding areas; providing these services in an open, diverse, inclusive and moderate environment, consistent with the Qur’an and Sunnah; and promoting interfaith and intra-faith dialogue in order to improve relations between Muslims and people of other faiths. We strongly believe as part of our religious outreach that our laws must be applied fairly and justly to all communities. We feel that the children and young adults eligible for DACA and currently receiving its benefits are entitled to the equal protection of the law.
60. Islamic Society of Central Jersey
The ISCJ is an organization of Muslim Americans that was formed in 1975 that provides religious, educational and social services to its members, as well as to the community at large. The ISCJ established a place of worship in South Brunswick, NJ in the early 1980s. The ISCJ aspires to be the anchor of a model community of practicing Muslims of diverse backgrounds, democratically governed, efficiently served, relating to one another with inclusiveness and tolerance, and interacting with neighbors and the community at large in an Islamic exemplary fashion.
The ISCJ is very concerned about the issues raised in this matter as it believes that the arbitrary rescission of DACA will certainly harm our diverse congregation and community by forcing members of organizations to leave the country or to live in fear. This action is contrary to the ISCJ’s moral, spiritual and religious beliefs and practices.
61. Lab/Shul
Lab/Shul is an everybody friendly, artist-driven, God-optional, experimental community for sacred Jewish gatherings based in NYC and reaching the world. The Lab/Shul community is dedicated to exploring, creating and celebrating innovative opportunities for contemplation, life cycle rituals, the arts, life-long learning and social justice. We oppose the termination of the DACA program for three reasons:
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1. Terminating DACA would prevent us from fully fulfilling our mission as a spiritual community that is “everybody friendly,” including to immigrants and specifically DACA recipients.
2. Many of us are friends with or have worked with DACA recipients and we know them to be upstanding members of society that add to the cultural and economic fabric of the United States.
3. Most of our community identifies as Jewish. It is commonly known that Jewish-American narratives are often stories of seeking refuge from tyranny in the freedom of the United States. Just as the lives of our ancestors were at stake, the very lives of many of these DACA recipients are at stake. Some of our ancestors arrived here documented, and some arrived undocumented, some were turned away - and later murdered during the Holocaust. Experience and the Torah teach us that the United States can and should welcome those who immigrate here because we were “once strangers in the land of Egypt” - that is, because we are also immigrants.
62. Leadership Conference of Women Religious
The Leadership Conference of Women Religious (LCWR) is an association of leaders of congregations of Catholic women religious in the U.S. founded in 1956. LCWR has nearly 1300 members, who represent approximately 38,800 women religious in the U.S. The conference promotes a developing understanding religious life by assisting its members to carry out more collaboratively their service of leadership in order to accomplish further the mission of Christ in today's world; fostering dialogue and collaboration among religious congregations within the church and in the larger society; developing models for initiating and strengthening relationships with groups concerned with the needs of society, thereby maximizing the potential of the conference for effecting change.
LCWR members are committed to the gospel mandate to welcome the stranger. Catholic sisters have a long history of accompanying the immigrant community and they continue to minister to these aspiring citizens in schools, hospitals, and service agencies across the country. They know first-hand the fear and uncertainty that plagues Dreamers and their communities. They will continue to stand with immigrant youth and their families and will be staunch advocates for a solution that protects Dreamers, provides them a path to citizenship, recognizes
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the sanctity of families, and balances the need of nations to control their borders with the right of vulnerable migrants to access protection.
63. Legal Advocacy Project of Unitarian Universalist FaithAction of New Jersey
The Legal Advocacy Project of Unitarian Universalist FaithAction of New Jersey (“UU FaithAction NJ”) is a New Jersey not-for-profit membership organization representing most of the Unitarian Universalist congregations of New Jersey. Founded in 2009, UU FaithAction NJ gives voice to Unitarian Universalist humanitarian values in matters of public policy and justice advocacy in New Jersey. Rooted in 250 years of free church tradition, Unitarian Universalists share a belief in right action, as opposed to right doctrine, as the basis of their core humanitarian values. Its shared Principles and Purposes include a commitment to the inherent worth and dignity of every person; to justice, equity and compassion in human relations; and to the right of conscience and the use of the democratic process within its congregations and in society at large.
64. Living Interfaith Church of Lynnwood, WA
The Living Interfaith church was founded upon the principles of love, compassion, and community, and a respect for the diversity that is our human family. One of our founding fundamental assumptions is that “We are defined by how we act and whom we help. We are called to act with compassion, love and respect not only within our community but within the entirety of the human community.” We are thus called to act with compassion, love and respect for the nearly 1 million “Dreamers” who have lived in our country most of their lives, and who deserve both the legal and emotional security of having their rights recognized. Justice and our hearts demand that we support DACA. We feel honored to be included among those supporting this crucial brief.
65. Lutheran Social Services of New York (LSSNY)
Lutheran Social Services of New York (LSSNY) has provided comprehensive social service programs to children and families for more than 130 years. LSSNY serves families in need across the New York metropolitan area and Long Island, offering a variety of programs, including foster care, family treatment rehabilitation, early childhood education and special education, immigration legal services, shelter and supportive services to unaccompanied minors, supportive housing and hunger prevention. LSSNY began in 1886 when 11 Lutheran congregations in the New York metropolitan area created an orphanage for
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children affected by a severe outbreak of influenza within the German communities of New York City. The agency was among a group of Lutheran mission societies that served Lutherans who had immigrated to New York. Over the years, LSSNY formed alliances with other Lutheran organizations and church bodies, and in the years since 1990 has expanded its programming to include community services (immigration legal, refugee services, hunger prevention), supportive housing for formerly homeless individuals, and education services. Throughout this expansion, LSSNY’s mission has remained the same: “Called by God, we encourage people to reach their full potential.” LSSNY works with local community partners to understand the needs of our neighbors, and to bridge the gap between what any one individual can accomplish on their own, and what they can achieve with the supportive care of our services. LSSNY employs some 650 employees who work as counselors, teachers, caregivers and legal counsel, to strengthen the lives of those we serve.
66. Maryknoll Office for Global Concerns
Maryknoll Office for Global Concerns is the justice and peace advocacy office representing Maryknoll Missioners – Catholic priests, brothers, sisters and lay missioners- who work with the poor and marginalized in 40 countries around the world. From their headquarters in Ossining, NY, Maryknoll Missioners have lived and worked with families in extreme poverty for many years in countries where DACA recipients originate. Maryknoll Fathers and Brothers, Sisters, and Lay Missioners have acquired a deep understanding of the dire social, economic and environmental conditions that Dreamers would face if they were deported, as well as intimate witness to the fragility and insecurity of living in the shadows without documents in the US. Deporting Dreamers to their countries of origin, where most have only weak or distant ties, would subject them to the same forces of poverty, violence, and instability their families originally fled and from which millions more still flee. For these reasons we oppose the termination of DACA and seek a resolution of Dreamers’ status that allows them a path to citizenship.
67. Metropolitan New York Synod of the Evangelical Lutheran Church in America
The Metropolitan New York Synod is the regional expression of the Evangelical Lutheran Church in America, a member church of the Lutheran World Federation—A Communion of Churches. Lutherans are a diverse group of people, convinced that the Holy Spirit is leading us toward unity in the household of God. As Lutherans, we are worshipping God, helping friends and neighbors, celebrating
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diversity, feeding the hungry, working for justice, and advocating for peace. When we serve others and address social issues that affect the common good, we live out our Christian faith. There are nearly 200 congregations across New York City, Long Island, and in the counties of Westchester, Putnam, Orange, Rockland, Sullivan and Dutchess. The Rev. Dr. Robert Alan Rimbo serves as the Lutheran Bishop of the Metro New York area.
The Metropolitan New York Synod and, specifically, Bishop Robert Alan Rimbo, have been consistent supporters of Dreamers. The termination of the DACA program is, to say the least, troubling. These people whom some now wish to deport from the only homeland they know because of what can only be called the accidents of history and for no other reason – they just happened to be brought to our communities as their families searched for new hope – are model citizens. They are the kinds of people we want to have as neighbors: health care professionals, artists, teachers, friends, mechanics, the list seems endless, and now, for reasons beyond our grasp they are being threatened with deportation. We stand united against this and in support of DACA and the people it protects. We, as people of faith, are prompted to pray for godly wisdom to prevail among the powers that be in our country, itself built on the hopes and dreams of immigrants.
68. Muslim Advocates
Muslim Advocates is a national legal advocacy and educational organization that works on the front lines of civil rights to guarantee freedom and justice for Americans of all faiths. Muslim Advocates advances these objectives through litigation and other legal advocacy, policy engagement, and civic education. Muslim Advocates also serves as a legal resource for the American Muslim community, promoting the full and meaningful participation of Muslims in American public life. The issues at stake in this case directly relate to Muslim Advocates’ work fighting for civil-rights protections for American Muslim communities, which includes immigrants and persons who have benefited from the Deferred Action for Childhood Arrivals Program.
69. Muslim Bar Association of New York
Muslim Bar Association of New York (“MuBANY”) is one of the nation’s largest and most active professional associations for Muslim lawyers. MuBANY provides a range of services for the legal community and for the larger Muslim community. One of MuBANY’s missions is to improve the position of the Muslim community at large which is comprised of significant number immigrants and, in particular DACA recipients. MuBANY seeks to support the Muslim community
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and its significant immigrant contingent through community education, advancing and protecting the rights of Muslims in America, and creating an environment that helps guarantee the full, fair and equal representation of Muslims in American society.
70. Muslim Public Affairs Council
The Muslim Public Affairs Council (MPAC) is a community-based public affairs nonprofit working to promote and strengthen American pluralism by increasing understanding and improving policies that impact American Muslims. MPAC’s vision is an America enriched by the vital contributions of American Muslims. MPAC participated as amicus curiae in cases concerning civil liberties (Boumediene v. Bush and al-Odah v. U.S. (U.S. 2007)); immigration (Donald Trump v. IRAP (U.S. 2017) and Arizona v. U.S. (U.S. 2012)); and religious liberties (Masterpiece Cakeshop v. Colorado Civil Rights Commission (U.S. 2017) and Holt v. Arkansas Dept. of Correction (U.S. 2014)).
71. Muslim Urban Professionals (Muppies)
Muslim Urban Professionals, (Muppies), is a nonprofit, charitable organization dedicated to empowering and advancing Muslim business professionals to be leaders in their careers and communities. Its mission is to create a global community of diverse individuals who will support, challenge, and inspire one another by providing a platform for networking, mentorship, and career development.
Muppies represents an engaged group of Muslim professionals that believe immigrants and refugees are an integral part of the U.S. economy, adding over $1 trillion to the USA's GDP. Muslims contribute to the fabric of the US in diverse ways, such as driving innovation, creating new opportunities for employment, and promoting excellence through diversity and inclusion. We oppose any policy that results in a reduction of opportunity and inclusion for any individuals or groups.
72. Muslims for Peace, Inc.
Muslims for Peace, Inc. (“MFP”) is a New Jersey based non-profit that aims to bridge people from different religious and ethnic backgrounds through interfaith activities, such as presentations, seminars and discussions. We also provide charitable support in the form of organizing food drives and organizing relief for disaster victims. Through our work, we aim to assist people of all faiths and ethnic backgrounds. We stress tolerance, education and humane solutions to problems
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facing our communities. We support DACA as a just and proper response to a humanitarian issue that otherwise has and will continue to divide and disrupt families and communities.
73. Muslims for Progressive Values
Muslims for Progressive Values is the oldest and only progressive and Muslim faith-based human rights organization in the U.S. founded in 2007. We embody and advocate for the traditional Quranic values of social justice, an understanding that informs our positions on women’s rights, LGBT inclusion, freedom of expression and freedom of and from belief. As an organization that promotes diversity and inclusivity, we find the termination of DACA cruel to families and the antithesis to America's founding values.
74. National Council of Jewish Women
The National Council of Jewish Women (NCJW) is a grassroots organization of 90,000 volunteers and advocates who turn progressive ideals into action. Inspired by Jewish values, NCJW strives for social justice by improving the quality of life for women, children, and families and by safeguarding individual rights and freedoms. NCJW's Resolutions state that NCJW resolves to work for “Comprehensive, humane, and equitable immigration, refugee, asylum, and naturalization laws, policies, and practices that facilitate and expedite legal status and a path to citizenship for more individuals.” Consistent with our Principles and Resolutions, NCJW joins this brief.
75. NETWORK Lobby for Catholic Social Justice
NETWORK Lobby for Catholic Social Justice is a national organization founded by Catholic Sisters in 1972. For 45 years we have worked at the intersection of faith and politics. Our staff and extensive national membership include Dreamers all of whom have been effective and enthusiastic in their engagement with faith in the quest for justice. If the administrative order is implemented our work in democratic education will be seriously impaired both in our central office in Washington, DC and around the nation.
76. New Jersey Interfaith Coalition
New Jersey Interfaith Coalition is non-partisan network of houses of worship, organizations, and individuals with the following mission: Promote houses of worship, non-political organizations and individuals to work together to
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honor and enrich diverse faiths and ethical practices. Oppose intolerance and hate. Foster a climate of positive mutual acceptance and appreciation for all, regardless of their faith, race, or sexual orientation. Our guiding principles are to promote the adoption of the “Stand Up for the Other” pledge, especially among our own communities; encourage interfaith dialogue and collaboration; respond to acts of intolerance, bigotry, terrorism, and hate; sponsor and participate in events consistent with our mission and promote each other’s events within our communities; and to promote other common actions consistent with our mission.
Our “Stand Up for the Other” pledge leads us to support DACA and oppose its termination just the same as we oppose bigotry, racism, anti-Semitism, and Islamophobia: “While interacting with members of my own faith, or ethnic, or gender community, or with others, if I hear hateful comments from anyone about members of any other community, I pledge to stand up for the other and speak up to challenge bigotry in any form.”
77. New Mexico Conference of Churches
The New Mexico Conference of Churches is a statewide network of churches working for the wellbeing of New Mexico’s peoples and environment. Our congregations welcome the gifts of all people in the name of Christ no matter their immigration status. Our member congregations, and the communities in which they serve, include DACA recipients and their families. We call for ongoing support and protection of DACA recipients.
By our baptism, we are united in Christ and called to care for the least of these (Matthew 25:40) and to love our neighbors as ourselves (Matthew 22:39). DACA recipients, immigrants, and refugees are our neighbors and we are compelled by our faith to seek and serve Christ in each person. We believe that justice and peace are served when the rights of all people—especially vulnerable young people, immigrants and refugees—are protected.
78. New Mexico Faith Coalition for Immigrant Justice
The New Mexico Faith Coalition for Immigrant Justice is a faith based group that was formed over eight years ago as a response to attacks on our immigrant communities during the last administration. Since its formation, the Coalition has been deeply committed to supporting the immigrant families in New Mexico through the hardships of deportation and detention and has been outspoken against unjust and inhumane immigration laws, advocating for laws that reflect the higher values of the dignity of the person, unity of the family, richness in diversity,
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and the freedom of the pursuit of purpose. Among the many services we provide to the immigrant community are direct service: connecting families to legal and social resources, faith-based community education of immigrant issues, border awareness programs, micro-loans for immigration form submittals, court accompaniment for families, and refugee hospitality program: picking up and finding a place to stay for asylum seekers and asylees released from the Cibola detention center.
As a small organization with 3 part-time staff, two who are DACAmented, our efforts to work for immigrant justice and support the direct service needs of our migrant communities are inextricably tied to having a continuation of DACA or implementation of a Clean DREAM Act. While many of us who are allies have worked in this field for years or decades, it is only with the participation and leadership of the affected communities, particularly those who are undocumented or under threat of immigration enforcement, that we can strive to create better immigration laws and a more just system that supports the well-being of all.
79. New Sanctuary Coalition
The New Sanctuary Coalition is an interreligious grass roots organization in solidarity with families and communities who are striving to keep their loved ones together as we reimagine and implement ways to prevent and stop the detention and deportation of our loved ones.
80. New Sanctuary CT
New Sanctuary CT is a faith-based organization committed to providing safe space for undocumented friends facing deportation.
81. New York Board of Rabbis
The New York Board of Rabbis (“NYBR”) is the largest and oldest interdenominational rabbinic organization in the world, representing the different streams of Jewish life in America. Our members serve communities in the Greater New York area and around the country. Established in 1881, the NYBR is the primary address for rabbis serving congregations, organizations, chaplaincies, communal service agencies, and schools. The Board seeks to enhance and expand the role of the Rabbinate for the betterment of the Jewish people and the world at large by providing its members with a spiritual environment and opportunities to grow professionally, promoting religious pluralism, and building bridges across denominations with other faiths. We are a central convener of multi-faith
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dialogues to promote increased understanding of one another and pursue avenues of common concern.
The Jewish community is an immigrant community spanning the history of America. From the first Jewish settlers who arrived in New Amsterdam in Lower Manhattan to the Jews who have come to this great nation in recent years. We believe that America is a great nation because of its diversity and its robust immigrant history. The NYBR proudly collaborates with legal and advocacy groups to support Dreamers and to keep our Nation's doors open to those who seek refuge on our shores. Recently we partnered with UNICEF USA to help Syrian refugees who are living in the United States. Our tradition teaches us to "welcome the stranger," created in the image of God and a respected member of the human family.
82. New York Conference United Church of Christ
The New York Conference United Church of Christ consists of over 270 local churches and 30,000 members, encompassing the entirety of New York State. The Conference is one of thirty-eight regional bodies of the United Church of Christ. We are committed to being led by the Spirit to faithful witness, compassionate justice, and bold Christian leadership. Guided by this mission, the ministries of the New York Conference, in all its settings, respond to the Still Speaking God and the gospel call for peace and justice. Embracing the United Church of Christ’s vision of “A Just World For All,” we believe that the elimination of the Deferred Action for Childhood Arrivals Program is contrary to our faith, which affirms the dignity and worth of all people regardless of country of origin or extent of documentation. The gospel of Jesus Christ compels us to extend an extravagant welcome to all, so that all may experience a “more and better life than they ever dreamed of” (John 10:10 The Message). The New York Conference signs on to this brief in support of all the Dreamers who are not only members of our congregations but our neighbors and friends.
83. Northern California Nevada Conference of the United Church of Christ
The Northern California Nevada Conference of the United Church of Christ (NCNCUCC) includes 117 churches in Northern California and Northern Nevada. NCNC prides itself on its work and participant in issue of justice. Justice in our Immigration process is one area of focus for many of our churches and for our Conference as a whole. A year ago we passed a resolution titled “A Call to Become Immigrant and Refugee Welcoming as a Conference and in Congregations.” This resolution is based on the belief that every immigrant and
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refugee has inherent dignity and human rights; that every immigrant and refugee should be able to live in safety, to live without fear, and have access to basic necessities and opportunities. Our churches live this out through works of direct service, worship, and advocacy. The repeal of DACA would mean the government would stand between us and those we are called to serve. It would make it much more difficult, and in some cases impossible, for us to fulfill the mission we’ve discerned God is calling us to.
84. Oregon Interfaith Movement for Immigrant Justice
The Oregon Interfaith Movement for Immigrant Justice (IMIrJ) is an organization made up individuals, faith leaders and diverse faith communities called by our conscience to respond actively and publicly to the suffering of our immigrant brothers and sisters in the U.S. Through advocacy, accompaniment, and faith community organizing, we expose the injustices current immigration policies and practice inflict on the entire community, as we take radical action for the transformation of power to enact policies of welcome and respect. We see the termination of DACA as a complete betrayal of the trust that immigrant families place in this country, as these families seek refuge, safety, and a dignified life free from oppression and violence. The reality of U.S. policies that separate families and imprison individuals for deportation is a type of profound harm that cannot be ignored—and will be difficult to “undo”—with long term repercussions on the lives of immigrants and on the moral fabric of this country. Our traditions of faith compel and inspire us to add our voice of support to this amicus brief. We pledge our unwavering commitment to opening doors of welcome, love, and sanctuary to immigrants and refugees.
85. Pacific Northwest Conference of the United Church of Christ
The Pacific Northwest Conference of the United Church of Christ (PNCUCC) is an organization of approximately 80 churches in Washington State, North Idaho and Alaska. Our Constitution and Bylaws open with this scriptural guidance; “The Lord has told us what is good. What God requires of us is this: to do what is just, to show constant love, and to live in humble fellowship with our God.” Out of this call from God, PNCUCC recently passed a resolution titled “A Call to Become Immigrant and Refugee Welcoming as a Conference and in Congregations.” This resolution is based on the belief that every immigrant and refugee has inherent dignity and human rights; that every immigrant and refugee should be able to live in safety, to live without fear, and have access to basic necessities and opportunities. Our churches live this out through works of direct
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service, worship, and advocacy. The repeal of DACA would mean the government would stand between us and those we are called to serve. It would make it much more difficult, and in some cases impossible, for us to fulfill the mission we’ve discerned God is calling us to.
86. Presbyterian Church (U.S.A.)
Reverend J. Herbert Nelson, II, Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.) (“PCUSA”) joins this brief as the senior ecclesiastical officer of the PCUSA. The PCUSA is a national Christian denomination with nearly 1.6 million members in over 9500 congregations, organized into 170 presbyteries under the jurisdiction of 16 synods.
Through its antecedent religious bodies, it has existed as an organized religious denomination within the current boundaries of the United States since 1706. This brief is consistent with one hundred and twenty-five years of policies adopted by the General Assembly of the Presbyterian Church (U.S.A.) wherein we have pressed our government for better treatment of immigrants and refugees. For the past decade this denomination has supported and encouraged its congregations to provide pastoral care to and advocacy for and with young people brought to this country as children without documentation. Many of our members and rising church leaders will be directly harmed if the government ends deferred action for childhood arrivals. As a denomination that supports and engages in the Sanctuary Movement many of our congregations will choose to offer sanctuary rather than allow our members to be deported to countries they have never known. The General Assembly does not claim to speak for all Presbyterians, nor are its policies binding on the membership of the Presbyterian Church. However, the General Assembly is the highest legislative and interpretive body for the denomination, and it is the final point of decision in all disputes. As such, its statements are considered worthy of the respect and prayerful consideration of all the denomination’s members.
87. Presbytery of the Pacific
The Presbytery of the Pacific is the governing body of the Presbyterian Church (USA) in Los Angeles, California. We partner with churches, communities and the city of LA and are a leader in faith-based immigration initiatives throughout the city and county of Los Angeles.
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88. Presentation Sisters at Caminando Juntos
Caminando Juntos, sponsored by the Aberdeen Presentation Sisters, is a ministry with the Latino population in the Sioux Falls, South Dakota area. Inspired by the zeal of our foundress, The Venerable Nano Nagle, and her deep love for those made poor, Caminando Juntos responds to the Gospel mandate to “welcome the stranger.” Our primary purpose is to help create a welcoming presence and respond to the needs of newer Latino immigrants as they seek to integrate into a new culture and make a home among us. In keeping with that purpose and the spirit of The Venerable Nano Nagle, we believe that the termination of DACA without an adequate replacement would be a grave injustice and for this reason, we join the Religious Organizations amicus brief.
89. Province of St. Mary of the Capuchin Order
In the Northeast United States, the Capuchin Franciscan friars of the Province of St. Mary are dedicated to the service of real human needs and the proclamation of God’s love. The vision of St. Francis of Assisi inspires our life and ministry. We serve immigrants from a variety of cultures and nations in urban, suburban, and rural settings. We are troubled by the Government’s proposed rescission of Deferred Action for Childhood Arrivals because it is driving away from our churches and institutions the youth most in need of love and care. Furthermore, the proposed termination of DACA has already harmed our religious organization because it has hindered young men with a calling to ministry as a friar from joining our community. Indeed, all religious organizations are being hobbled through their inability to recruit and train the next generation of spiritual leaders and servants. This is causing injury to the welfare of our communities. The termination decision is contrary to the Gospel of Christ at the foundation of our life and work. We join this amicus brief moved by the needs of the Dreamers and the demands of justice.
90. Queens Federation of Churches
The Queens Federation of Churches was organized in 1931 and is an ecumenical association of Christian churches located in the Borough of Queens, City of New York. It is governed by a Board of Directors composed of equal number of clergy and lay members elected by the delegates of member congregations at an annual assembly meeting. Over 390 local churches representing every major Christian denomination and many independent congregations participate in the Federation’s ministry. Our ecumenical ministry in the nation’s most diverse county finds many congregations ministering to
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immigrants. Our concern to protect their God-given right to be in our part of the global household of God is paramount. Therefore, especially, we strongly support legal status for those who came to this country as children.
91. Religious Institute
Founded in 2001, the Religious Institute is a multi-faith organization dedicated to advocating for sexual, gender, and reproductive health, education, and justice in faith communities and society. With a network of more than 8,500 religious leaders and people of faith, the Religious Institute has a record of creating campaigns that mobilize thousands of religious leaders and hundreds of faith communities. The Religious Institute also has long-standing partnerships with graduate theological schools, denominations, religious organizations, and sexual, gender, and reproductive justice organizations . In all our work, we offer prophetic, moral leadership at the intersection of religion and sexuality, gender, and reproductive health. As part of that prophetic leadership, we oppose the termination of the DACA program. We hold that all people should be able to live and create families with dignity and respect, free from fear and state-based violence. The sacred worth of all people is inherent and in no way dependent on performance, productivity, or so-called ‘economic value.’
92. Romemu
Romemu is a Jewish community that seeks to integrate body, mind, and soul in a progressive, fully egalitarian community committed to tikkun olam, or social action, and to service that flows from an identification with the sacredness of all life. As a spiritual community grounded in the twin values of tikkun olam (social action) and a Divine connection meant to inspire us to live more holy and engaged lives, we feel that it is our duty and responsibility to speak out against injustice. As a Jewish community engaged with our historical narratives, we know that a large part of our own story has been shaped by being refugees and foreigners in strange lands. It is for this reason that the most repeated injunction in the Torah is the commandment to take care of and love the stranger. We know from our own families and historical stories what it is like to be strangers, and we are grateful and loyal to this country for the opportunities and blessings that it has provided. We have an obligation as religious, moral, and compassionate individuals to make sure that America continues to be a place where those marginalized can find economic security, freedom, and hope.
For all of these reasons and many more, we object to the repeal of the DACA program. As a faith community, we must advocate for our at-risk brothers
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and sisters regardless of their religion, ethnicity, or country of origin. We believe in equality of opportunity for all.
93. Santa Fe Monthly Meeting of the Religious Society of Friends (Quakers)
DACA is important to our Meeting because as Quakers we are guided by the values of Equality and Community not only within our Meeting but also in the world around us. We care about DACA recipients because they are threatened with an assault on their humanity—tearing them away from their homes, often the only homes they know, uprooting them from their families, jeopardizing their education and employment and denying them their fundamental human dignity. We cannot be faithful to the Light that Spirit has granted us and ignore what is being done in our name to these brothers and sisters.
94. Sikh Coalition
The Sikh Coalition is a community-based civil rights organization that defends civil liberties, including religious freedom, for all Americans. Our mission is to promote educational awareness and advocacy, and provide legal representation in moving towards a world where Sikhs and other religious minorities may freely practice their faith without bias and discrimination. We are the largest community-based Sikh civil rights organization in the United States. Since its inception on September 11, 2001, the Sikh Coalition has worked to defend civil rights and liberties for all people, empower the Sikh community, create an environment where Sikhs can lead a dignified life unhindered by bias or discrimination, and educate the broader community about Sikhism in order to promote cultural understanding and diversity. The Sikh Coalition has vindicated the rights of numerous Sikh Americans subjected to bias and discrimination because of their faith. Ensuring the rights of religious and other minorities is a cornerstone of the Sikh Coalition’s work, including the individuals who would be affected by the rescission of DACA.
95. Society for the Advancement of Judaism
The Society for the Advancement of Judaism (SAJ) is a synagogue located on the Upper West Side, with about 400 individual members. Within our community we have a standing SOJAC (Social Action Justice Committee) and an Immigrant Rights Action Team that seek to organize our members in support of fair and just immigration policies and to stand up for immigrant rights. We are active members of the Synagogue Coalition for Refugees and Immigrants, a coalition of New York synagogues fighting for the rights and dignity of refugees
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and immigrants. We believe that Dreamers contribute greatly to our society and believe they should be given a pathway to citizenship.
96. Southern California Nevada Conference of the United Church of Christ
The Southern California Nevada Conference of the United Church of Christ (SCNCUCC) is an organization of 134 churches in Southern California and Southern Nevada. As such it is one of the most culturally and racially diverse conference in our denomination. Last year, SCNCUCC passed a resolution declaring becoming a sanctuary conference. This resolution is based on the belief on the biblical mandate of welcoming the “stranger and the alien.” Historically, our conference has stood on the side of the oppressed and the marginalized. The repeal of DACA would be in direct opposition to our call and our mission.
97. Southwest Conference of the United Church of Christ
The Southwest Conference of the United Church of Christ (UCC) is the regional body that provides support and services to 48 local UCC congregations and more than 300 clergy within Arizona, New Mexico and El Paso, Texas. We are proud of our progressive view of the Gospel and our mission statement, “extravagantly welcoming and affirming followers of Christ called to embody God’s unconditional justice and love” is manifested in the ways we live out every day.
The United States government for thirty years has failed to address immigration reform by enacting legislation to protect families and those fleeing persecution and poverty, and the federal government recently has stepped up detention and deportation of ordinary people—not dangerous criminals—resulting in cruel injustice, extreme hardship and family separation. We have therefore called upon the covenant partners of the Southwest Conference to prayerfully organize, advocate, act prophetically, preach and teach about immigration justice, including local, state and national legislation. Signing on to this amicus brief reflects that call to action.
98. St. Andrew Presbyterian Church in Albuquerque, New Mexico
Our congregation, founded in 1959, is part of the Presbytery of Santa Fe, Presbyterian Church (U.S.A.). Our mission is to proclaim and live the Good News of Jesus Christ by: listening to a loving God; celebrating our faith together; nurturing each other in Christian love and spiritual growth; working for social
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justice and peace; reaching out in compassionate service; and being stewards of all God’s gifts.
In March 2017, St. Andrew Presbyterian Church declared itself to be an ally church to the Sanctuary Movement. Since then we have provided financial support and volunteers to the movement, offered educational forums about immigration and participated in acts of public witness in support of undocumented immigrants and immigration policy reform. We do so because as Christians we are called to love our neighbor as ourselves, and Jesus puts no limitation on our love of neighbor. The undocumented young people who are covered under DACA are our neighbors. The repeal of DACA would tear apart their families and our communities, causing irreparable harm.
99. St. Francis Community Services / Catholic Legal Assistance Ministry
St. Francis Community Services is dedicated to serving families in need through community-based, culturally sensitive programs in the St. Louis Region. We work in the areas of legal aid, services to immigrants, and supportive services for others in our community who are vulnerable and marginalized. St. Francis of Assisi was chosen as the namesake and model for our organization because he embodies a selfless devotion to others, a simple way of life, and an unbounded love for the poor. Our organization upholds Catholic social teaching on immigration, which advocates embracing diverse newcomers and believes that in encountering immigrants, we encounter Christ. DACA youth are woven into the fabric of our country, and deserve the same opportunity to life, liberty, and pursuit of happiness that we as citizens—and children of God—do.
100. St. Luke’s Episcopal Church in Long Beach
St. Luke’s Episcopal Church in Long Beach was the first parish to declare itself a sanctuary parish in the Episcopal Diocese of Los Angeles. St. Luke’s sees our commitment of standing with the oppressed and fighting against systems of oppression as part of our baptismal covenant. We welcome everyone equally and enthusiastically. Whatever religious background, age, race, gender, sexual orientation, or economic status, we welcome all. Scripture is clear that we should welcome the stranger in our midst and love one another as ourselves. St. Luke’s strives to be a beacon of hope to all immigrants and people who are marginalized by an unjust society.
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101. St. Stephen’s Episcopal Church in Boston
St. Stephen’s Episcopal Church of Boston, MA serves the South End/Lower Roxbury Community. We seek to meet the out-of-school time needs of young people and families in Boston and Chelsea. The decision to end DACA would impact individuals and families who reside in our parishes and broader communities. Ending residency for those currently protected by the DREAM Act would move our country further away from the principles of justice that we seek as people of faith. In addition, supporting those impacted by the ending of the DREAM act would add to our already demanding program load—thereby negatively affecting the entire community. We add our voice to those asking the court to protect Dreamers by not to allowing the termination order to go into effect.
102. St. Thomas of Canterbury Episcopal Church (Albuquerque, NM)
St. Thomas of Canterbury Church values the lives, safety, gifts, perspectives and presence of immigrants and refugees in our nation and in our local community and we call for the ongoing support and protection of DACA recipients. Our baptismal covenant includes the vow to “seek and serve Christ in all people, loving our neighbors as ourselves.” DACA recipients, immigrants, and refugees are our neighbors and we are compelled by our faith to seek and serve Christ in each one of them. Our baptismal covenant also includes the vow to "strive for justice and peace and respect the dignity of every human person." We believe that justice and peace are served when the rights of all people--especially vulnerable people, including immigrants and refugees, are protected.
103. Stephen Wise Free Synagogue
Stephen Wise Free Synagogue is a Reform Jewish congregation of over 800 member families located in the Upper West Side of Manhattan. Our history is deeply rooted in social justice values and our clergy and congregants have participated in and supported countless efforts to protect the rights of immigrants in this country. As our members are descendants of/are themselves immigrants and refugees, we see it as our role to support these communities.
As part of our social justice programs, our Immigration and Refugees Task Force fights for the rights of people in the United States and overseas and brings our community closer together through direct service, action, and advocacy. We work to support the integration of immigrants into our community consistent with Leviticus 19:34 “The alien who resides with you shall be to you as the citizen
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among you; you shall love the alien as yourself, for you were aliens in the land of Egypt: I am the Lord your God.”
104. T’ruah: The Rabbinic Call for Human Rights
T’ruah: The Rabbinic Call for Human Rights is a network of 1,800 rabbis and cantors from all streams of Judaism that, together with the Jewish community, act on the Jewish imperative to respect and advance the human rights of all people. Grounded in Torah and our Jewish historical experience and guided by the Universal Declaration of Human Rights, we call upon Jews to assert Jewish values by raising our voices and taking concrete steps to protect and expand human rights in North America, Israel, and the occupied Palestinian territories. T'ruah's support of DACA is based in Jewish tradition and history. The Torah teaches the obligation to love the immigrant, just as God loves and cares for the immigrant: “The ger (immigrant) who sojourns with you shall be like a citizen unto you, and you shall love this person as yourself, for you were gerim in the land of Egypt. I am Adonai, your God.” (Leviticus 19:34) The ancient rabbis taught that the city of Sodom was considered the epitome of evil because the residents made laws prohibiting kindness to strangers. In addition, within the Jewish community, many families are alive today because of the relatively open immigration policies of the late 19th and early 20th centuries. And too many Jews died after being trapped in Europe when the borders closed in 1924. We understand the cruelty of forcing Dreamers back to the countries where they were born, but in many cases have never lived, and where—in some cases—their lives will be in danger.
105. Temple Israel of Hollywood (CA)
Temple Israel of Hollywood, Los Angeles was founded upon a dedication to social justice, through both thought and action. Leading Jewish thinkers, including Rabbis Mordechai Kaplan, Leo Baeck and Stephen S. Wise, gave sermons here about important social issues. In 1965, the Reverend Dr. Martin Luther King Jr. spoke movingly from the Temple’s pulpit about segregation, poverty, freedom, and human dignity. Ten years later, at the end of the Vietnam War, Bob Dylan sang “Blowin’ in the Wind” at a Temple seder. In keeping with this tradition and commitment to social justice, we are inspired to add our voice of support to this amicus brief.
106. Temple Israel of the City of New York
Temple Israel of the City of New York, founded in 1870, is a Reform Jewish synagogue that welcomes all who choose to worship, study and celebrate within
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the Jewish community. Located on the Upper East Side on 75th street between Park and Lexington Avenues, we are a dynamic, inclusive neighborhood community. As a family of families, we are committed to building a diverse and inclusive congregation united by humanitarian values as expressed in our Jewish religious, educational, justice and social activities, and through these activities to create a rich, vibrant Judaism that enriches the lives of our congregants and responds to the demands of modern life.
Temple Israel of the City of New York stands on core Jewish values that affirm life and freedoms. Our people have been immigrants and refugees in need of aid from our ancestral days to now, and across our world history one of the greatest homes we have ever found is the United States of America. It is important to us that we keep America open as a land of opportunity for immigrants and refugees as it has been a promised land for so many. With that, to take away this great land of freedom from someone who has grown up in this country, is at home in this country, would be shameful and un-American; it goes against what makes America great, and to go back on this promise already made makes it even worse. The Torah tells us 36 times to aid the plight of the immigrant. Taking away the hand DACA has already extended is detrimental to our neighborhood, our New York City, our state, and country. We would see it reinstated immediately.
107. Temple Sinai (Washington, DC)
Temple Sinai is one of the largest Reform Jewish congregations in the Washington, DC area. Organized in 1951, the congregation has over 1,200 member families. The Temple Sinai community offers a great breadth of opportunities for participating in worship, programs, and services for all ages, as well as a remarkable Religious education program and NAEYC-accredited Nursery School. The temple’s mission statement and core values incorporate the primary reasons members belong to Temple Sinai – ritual observance, Jewish education, tikkun olam (repairing the world), belonging to a Jewish community and concern for Israel as a Jewish homeland. Temple Sinai has a distinguished tradition in each of these areas, with our particular focus through the lens of Reform Judaism.
Temple Sinai is committed to working on immigration issues in our country. Our own Jewish history of displacement as well as the Biblical injunction to “welcome the stranger” guide us in our work to welcome refugees, support those facing deportation, and strongly oppose the suspension of DACA.
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108. Town and Village Synagogue, New York, New York
Town and Village Synagogue is an egalitarian, traditional synagogue, affiliated with the Conservative Movement. Located in lower Manhattan, NYC, T&V welcomes all people to share in its activities irrespective of gender, sexual orientation, race, ethnicity or religion. In its strategic plan T&V identifies as one of its "Core Values" Gemilut Hasadim (loving kindness) "caring for one another; committed to social justice and Tikkun Olam (social responsibility); engaged with our local and global communities for the betterment of all." It is joining in this Amicus to fulfill the Biblical precept that there be "one law for the citizen and for the stranger who dwells among you" (Exodus 12:49).
T&V oppose changes to the DACA program that will affect those brought here as children, some of whom are still attending school or higher education, or currently work here and who have known no other home than the United States. If DACA were to be terminated, these young people -- Americans in every respect but citizenship -- could be deported to dangerous countries they have never known, separated from their families, and forced to survive alone, many without even knowing the language. Members of the synagogue have attended workshops to help immigrants get their affairs in order should they face sudden arrest or deportation orders, as immigration policies are summarily changed.
109. Trinity Church Wall Street
Trinity Church Wall Street is a vibrant and growing Episcopal parish in Lower Manhattan. Guided by our core values of faith, integrity, inclusiveness, compassion, social justice and stewardship, Trinity’s mission is to build our neighborhood, train leaders of Christian communities for the future, and help our partners become financially sustainable to support their ministries. Trinity is committed to serving the most vulnerable in our neighborhood and to advocating for justice on behalf of those whose voices are not heard, including immigrants and “Dreamers.” We support fairness and safety for immigrants, whose contributions are essential to our city and our nation, and in that spirit, we oppose the termination of DACA.
We are concerned that ending DACA will mean that vulnerable people in our communities will be deported to countries they have little experience of, leaving dependent family members here; will lead them to live outside of the legal protections of New York City out of fear for their own safety; and will cause them to avoid the police, hospitals, schools, and other services designed for individual and public safety. Furthermore, the repeal of DACA is a turning back of policy
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that asked undocumented people to register with the government in return for a protected status. The fact that such registration is being used to target and deport them is a profound betrayal of trust by the U.S. government that should give pause to any immigrant to this country of immigrants.
110. Union for Reform Judaism, including the Reform Jewish Voice of New York State
111. Central Conference of American Rabbis 112. Women of Reform Judaism 113. Congregation B’nai Israel of Sacramento, CA
The Union for Reform Judaism, whose 900 congregations across North America include 1.5 million Reform Jews, the Central Conference of American Rabbis (CCAR), whose membership includes more than 2000 Reform rabbis, Women of Reform Judaism that represents more than 65,000 women in nearly 500 women’s groups in North America and around the world, and Congregation B’nai Israel of Sacramento, CA that has declared itself a sanctuary congregation come to this issue inspired by Jewish tradition that demands of us concern for the stranger in our midst.
114. Unitarian Universalist Mass Action Network
Unitarian Universalist Mass Action Network is a state action network that works in coalition with interfaith partners and organizations led by those who are directly affected by injustice. Our mission is to organize and mobilize Unitarian Universalists to confront oppression. It is through our social justice work that we live our values and principles that define our faith. One manifestation of oppression in which we deeply engage is immigrant rights. The level of cruelty, ignorance and hateful attacks perpetrated on immigrant communities is an offensive affront to human values. We are dedicated to confronting these attacks on families and the safety of our communities through building resistance networks. We support the DACA program and DACA recipients as part of our overall support for all immigrants. All families deserve the right remain together. Young people who have grown up in the US, were educated in our school systems and are integral members of our communities deserve to have a pathway to a legal status that allows them to work and obtain a post-secondary education. UU Mass Action works closely with many young leaders who have DACA status. Their families and friends are here and the only country they know is the US. Deporting these young people to a country where they typically know no one puts their lives
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in danger. Tearing families apart and endangering lives is immoral. We will not remain silent and allow this to occur.
115. United Methodist Women
United Methodist Women is one of the largest Protestant denominational faith organizations for women with approximately 800,000 members whose mission is fostering spiritual growth, developing leaders and advocating for justice. Our work includes service to women, children and youth in marginalized communities in the United States and support for such work around the world.
The US immigration system is broken. United Methodist Women has been working for reform for decades. Irregular migration status is not a crime, and should not be met with demonization, detention and deportation. DACA holders present particular urgency, as these young people do not remember any other country and are already leaders making important contributions in the US, including in our organization. We continue to work for broad immigration reform that includes regularization of status for millions of irregular migrants who have long-term residency in the US. Until that reform, we urge the protection of all migrants and their families through temporary status programs.
116. University Christian Ministry at Northwestern University
UCM is a campus ministry of Northwestern undergraduate and graduate students who try to make faith relevant in daily life. UCM is an honest, safe, and inclusive community following the example of Jesus. We embrace openness, strive to love God, and serve others to the best of our ability. In keeping with those values, we welcome Northwestern students into our community regardless of immigration status, and believe that the termination of DACA without an adequate replacement would be a senseless injustice.
117. Visitation BVM Church in Philadelphia, Pennsylvania
Visitation BVM is a multicultural Catholic parish located in the Kensington section of North Philadelphia. The majority of our parishioners come from Puerto Rico, the Dominican Republic, México, Honduras, Ecuador and Vietnam. Our mission is to preach Good News to an immigrant community who often struggle in their day to day living situations. These challenges have only increased over the past year as some of our members have been detained or deported.
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Many of our young adults are protected by DACA, including our Pastoral Outreach Assistant. These young people call the United States their home. Some have little to no memory of the countries where they were born. They are in college or working as they strive to become productive members of society. These Dreamers are nervous about their future and want to make their families and their lives here in the U.S. - the country they call home.
Our church is a member of the New Sanctuary Movement and we were very involved in the sanctuary effort of Angela Navarro two years ago. We provided spiritual and material support to her and her family over the months she was in sanctuary. The Archdiocese of Philadelphia does not allow Catholic Churches to offer sanctuary so we collaborated with a neighboring Presbyterian Church. Our institution has not directly been the target of ICE raids but they have taken place in the neighborhood.
118. West End Synagogue (New York City)
West End Synagogue is a Reconstructionist congregation, affiliated with the Reconstructionist Movement. Located on the Upper West Side of Manhattan, NYC, West End Synagogue is a diverse group of individuals and families committed to exploring Jewish life and creating an intellectually challenging, spiritually vibrant, and mutually supportive community. Utilizing the principles of Reconstructionist Judaism, we celebrate the richness and diversity of Jewish tradition through study, prayer, meditation, music and tikkun olam, or acts of repairing the world.
West End Synagogue opposes changes to the DACA program that will affect those brought here as children. Many of these children are attending school, pursuing higher education, or working here and have known no other home than the United States. If DACA were to be terminated, these young people— Americans in every respect but citizenship -- could be deported to dangerous countries they have never known. They would be separated from their families, and forced to survive alone, many without even knowing the language. As immigrants, or children and grandchildren of immigrants who fled oppression, we are particularly sensitive to the situation of these young people who call the United States home. According to the Torah, “You shall treat the stranger as your own.” Maintaining the DACA program is a critical step in this direction.
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119. Westminster Presbyterian Church of Santa Fé Our congregation is fully inclusive and affirming of all people regardless of
nationality, immigration status, ethnicity, social status or gender and sexual orientation, and a member of the Presbytery of Santa Fé and the Presbyterian Church (USA). Our denomination has consistently and historically expressed support for the values, safety, gifts, and perspective for immigrants of all nations, and has also called for the ongoing support and protection of DACA recipients. By signing on to the Amicus Brief, we reiterate our belief that justice and peace are served when the rights of all people—especially vulnerable people, including immigrants and refugees, are protected.
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CERTIFICATE OF SERVICE CM/ECF FILING/SERVICE U.S. Court of Appeals Docket Nos.: 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
I, Steven A. Zalesin, hereby certify that on March 20, 2018, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth 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.

Dated: March 20, 2018

PATTERSON BELKNAP WEBB & TYLER LLP
MUSLIM ADVOCATES
By: /s/ Steven A. Zalesin
Attorneys for Amici Curiae 119 Religious Organizations

 
 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, & 18-15134
__________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL. Plaintiffs-Appellees,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL.
Defendants-Appellants. On Appeal from the United States District Court for the
Northern District of California, Hon. William Alsup Presiding
BRIEF FOR AMICI CURIAE INSTITUTIONS OF HIGHER EDUCATION IN SUPPORT OF PLAINTIFFS-APPELLEES
THOMAS J. PERRELLI LINDSAY C. HARRISON ISHAN BHABHA JENNIFER J. YUN JENNER & BLOCK LLP 1099 New York Ave., NW Suite 900 Washington, DC 20001 (202) 639-6000 LHarrison@jenner.com
Attorneys for Amicus Curiae Institutions of Higher Education
i

CORPORATE DISCLOSURE STATEMENT The following institutions of higher education do not have any parent corporation, and there is no publicly-held corporation that has a 10% or greater ownership interest in any of the institutions: Amherst College, Asnuntuck Community College, Board of Governors of the California Community Colleges, Boston University, Bowdoin College, Brandeis University, Bucknell University, Capital Community College, Carnegie Mellon University, Case Western Reserve University, Central Connecticut State University, Charter Oak State College, City College of San Francisco, Colby College, University of Connecticut, Eastern Connecticut State University, Emerson College, Gateway Community College, Hampshire College, Housatonic Community College, Los Angeles Community College District, Los Rios Community College District, Manchester Community College, the University of Maryland, College Park, University of Michigan, Middlebury College, Middlesex Community College, Mount Holyoke College, Naugatuck Valley Community College, Northeastern University, Northwestern CT Community College, Norwalk Community College, Pace University, Quinebaug Valley Community College, Rice University, Riverside Community College District, San Mateo Community College District, Smith College, Southern Connecticut State University, State Center Community College District, Three Rivers Community College, Tufts University, Tunxis Community College, Wellesley College, Western Connecticut State University, Williams College, and Worcester Polytechnic Institute (collectively “Institutions of Higher Education”).
i

STATEMENT OF CONSENT TO FILING Plaintiffs-Appellees and Defendants-Appellants have consented to the filing of this amicus curiae brief.
ii

Table of Contents
CORPORATE DISCLOSURE STATEMENT ..........................................................i STATEMENT OF CONSENT TO FILING ............................................................. ii TABLE OF AUTHORITIES ....................................................................................iv INTEREST OF AMICI CURIAE ..............................................................................ix INTRODUCTION...................................................................................................... 1 ARGUMENT .............................................................................................................4 I. DACA Has Allowed Tens of Thousands of Previously Undocumented
Youth To Pursue Higher Education ................................................................4 II. DACA Students Contribute Immeasurably to Our Campuses ........................7
a. DACA Students Have Had Great Academic and ExtraCurricular Success At Our Schools.......................................................9
b. DACA Students Contribute to Campus Diversity, A Key Component of the Educational Experience.........................................14
III. The Rescission of DACA Will Harm American Colleges and Universities ....................................................................................................16
CONCLUSION ........................................................................................................19 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE

Table of Authorities

Cases

Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013) .............................14

Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) .......................14, 15

Grutter v. Bollinger, 539 U.S. 306 (2003)...............................................................14

Statutes

Ala. Code § 31-13-8...................................................................................................6

S.C. Code Ann. § 59-101-430....................................................................................6

Other Authorities

America’s

Voice

Online

(Oct.

3,

2017),

https://americasvoice.org/blog/name-denisse-rojas-marquez-28-years-

old-old-proud-undocumented-american-soon-doctor/ ...................................9, 10

American Dreamers: Nancy A., N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/nancy-a (last visited Oct. 29, 2017)..........................................................................................12

American Dreamers: Alfredo Avila, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/alfredo-avila (last visited Oct. 29, 2017)..................................................................................13

American Dreamers: Belsy Garcia, N.Y. Times, https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/belsy-garcia (last visited Oct. 29, 2017)..................................10

American Dreamers: Denisse Rojas Marquez, 2016, N.Y. Times, https:// www.pdsoros.org/meet-the-fellows/denisse-rojas-marquez (last visited Oct. 29, 2017) .......................................................................................................9

American Dreamers: Isabelle Muhlbauer, N.Y. Times, https://www. nytimes. com/interactive/projects/storywall/american-dreamers/stories/ isabelle-muhlbauer (last visited Oct. 29, 2017) ..................................................10

American Dreamers: Jin Park, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/jin-park (last visited Oct. 29, 2017)..........................................................................................10

iv

American Dreamers: Gargi Y. Purohit, N.Y. Times, https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/gargiy-purohit (last visited Oct. 29, 2017) ................................9

American Dreamers: Brisa E. Ramirez, N.Y. Times, https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/brisae-ramirez (last visited Oct. 29, 2017) ..............................10

American Dreamers: Anayancy Ramos, N.Y. Times, https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/anayancy-ramos (last visited Oct. 29, 2017) .......................9, 11

American Dreamers: Kok-Leong Seow, N.Y. Times, https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/kok-leong-seow (last visited Oct. 29, 2017) .............................9

American Dreamers: Carlos Adolfo Gonzalez Sierra, N.Y. Times, https://

www.

nytimes.com/interactive/projects/storywall/american-

dreamers/stories/carlos-adolfo-gonzalez-sierra (last visited Oct. 29, 2017)9, 10, 11

American Dreamers: Eduardo Solis, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/eduardo-solis (last visited Oct. 29, 2017)..................................................................................12

American Dreamers: Julia Verzbickis, N.Y. Times, https://www. nytimes.com/interactive/projects/storywall/americandreamers/stories/julia-verzbickis (last visited Oct. 29, 2017) ............................10

Association of Vermont Independent Colleges, Statement on the Revocation of the Deferred Action for Childhood Arrivals (DACA) Program, http://www.vermont-icolleges.org/Documents/DACAFinal2017.pdf .................9

Eleanor J. Bader, As End of DACA Looms, Colleges and Organizers Ramp

Up Efforts to Protect Undocumented Students, NACLA (Jan. 27, 2017),

https://

nacla.org/news/2017/01/27/end-daca-looms-colleges-and-

organizers-ramp-efforts-protect-undocumented-students ..................................18

DACA Population Data, USCIS (Sept. 4, 2017), https://www.uscis.gov/ sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigra tion%20Forms%20Data/All%20Form%20Types/DACA/daca_population _data.pdf .............................................................................................................. 16

Jerome Dineen, If Trump Ends DACA, Here’s How Many Students Could Be Affected, USA Today College (Feb. 8, 2017), http://college.usatoday.com/2017/02/08/if-trump-ends-daca-heres-howmany-students-could-be-affected/ ......................................................................16

v

Jose Herrerra, DACA student leads by example, Los Angeles Pierce College Roundup (Sept. 13, 2017), http://theroundupnews.com/2017/09/13/dacastudent-leads-example/ .........................................................................................9

Immigration Policy Center, The DREAM Act: Creating Opportunities for

Immigrant Students and Supporting the U.S. Economy (2010),

http://www.

mygreencard.

com/downloads.php?file=Dream_Act_January2011.pdf .....................................2

Institute for Immigration, Globalization, & Educ., In the Shadows of the

Ivory Tower: Undocumented Undergraduates and the Liminal State of

Immigration

Reform

(2015),

http://www.undocuscholars.org/assets/undocuscholarsreport2015.pdf ...............2

Letter of Joseph E. Aoun, President, Northeastern University, to all members of the Northeastern Community (Sept. 4, 2017), http://www. northeastern.edu/president/2017/09/04/turning-ideals-into-action/ .....................9

Letter from Adam Falk, President, Williams, to the Williams Community, https://president.williams.edu/writings/caring-for-our-undocumentedstudents/ (last visited Oct. 29, 2017) ....................................................................8

Letter from Drew Gilpin Faust, Harvard, to Donald J. Trump, President (Aug. 28, 2017), https://www.harvard.edu/president/news/2017/letter-topresident-trump-regarding-daca ...........................................................................8

Letter from Andrew D. Hamilton, New York University to Donald J. Trump,

President

(Sept.

1,

2017),

http://www.nyu.edu/content/dam/nyu/president/documents/09-01-17-

daca-letter.pdf .......................................................................................................8

Letter from David W. Leebron, President, Rice University (Sept. 5, 2017), https://president.rice.edu/presidents-office/remarks/DACAannouncement .......................................................................................................9

Letter from Ron Liebowitz, President, Brandeis University, to Donald J.

Trump,

President

(Sept.

5,

2017),

http://www.brandeis.edu/president/letters/2017-09-05.html ................................ 8

Letter from Biddy Martin, Amherst College to Donald J. Trump, President

(Aug.

30,

2017),

https://www.amherst.edu/amherst-

story/president/statements/node/689036 ..............................................................8

Letter from Lee Pelton, President, Emerson College, to Emerson Community (Sept. 6, 2017) http://www.emerson.edu/news-events/emerson-collegetoday/pelton-reaffirms-support-emerson-daca-students#.We5Ui2you70 ............8

vi

Letter from Vincent E. Price, President Duke University, to Donald J. Trump, President (Aug. 30, 2017), https://today.duke.edu/2017/08/dukeuniversity-letter-support-daca ............................................................................... 8

Middlebury

College,

Diversity

and

Inclusion,

http://www.middlebury.edu/student-life/community-living/diversity-

inclusivity (last visited Oct. 29, 2017)................................................................15

Caitlin Patler & Jorge A. Cabrera, From Undocumented to DACAmented: Impacts of the Deferred Action for Childhood Arrivals (DACA) Program Three Years Following its Announcement (June 2015), http://www.chicano.ucla.edu/files/ Patler_DACA_Report_061515.pdf ......5, 6, 7

Zenén Jaimes Pérez, Center for American Progress, How DACA Has Improved the Lives of Undocumented Young People (Nov. 19, 2014), https://cdn.americanprogress.org/wpcontent/uploads/2014/11/BenefitsOfDACABrief2.pdf ........................................6

Pomona College: Statement in Support of the Deferred Action for Childhood Arrivals (DACA) Program and Our Undocumented Students, https://www.pomona.edu/news/2016/11/21-college-university-presidentscall-us-uphold-and-continue-daca (last visited Oct. 30, 2017) ............................8

Resolutions of the Board of Governors, California Community Colleges, Nos. 2017-04 (Sept. 18, 2017), 2017-01 (Jan. 18, 2017) http://extranet. cccco. edu/Portals/1/ExecutiveOffice/Board/2017_agendas/September/2.2Resolution-DACA.pdf ..........................................................................................8

Rice University, Statement of Office of Diversity and Inclusion, http://diversity.rice.edu/ (last visited Oct. 29, 2017) ..........................................15

Penny Schwartz, A Jewish ‘Dreamer’ is scared, but refuses to despair,

Jewish

Telegraphic

Agency

(Sept.

6,

2017),

https://www.jta.org/2017/09/06/news-opinion/united-states/a-jewish-

dreamer-is-scared-but-refuses-to-despair .....................................................10, 11

Monica Scott, Undocumented: One immigrant’s story of life under DACA, MLive (Aug. 29, 2017), http://www.mlive.com/news/grand-rapids/index. ssf/2017/08/one_daca_students_story_about.html ...............................................9

Statement on DACA from President, University of Michigan, Mark Schlissel

(Sept.

3,

2017),

https://president.umich.edu/news-

communications/statements/statement-on-daca-from-president-mark-

schlissel/ ................................................................................................................8

vii

Statement of Susan Herbst, President, University of Connecticut (Sept. 5, 2017), https://today.uconn.edu/2017/09/president-herbst-responds-dacadecision/ ................................................................................................................8

Statement of Kathleen McCartney, President, Smith College, to Students, Staff and Faculty (Sept. 5, 2017), https://smith.edu/president-kathleenmccartney/letters//2017-18/responding-to-daca-decision ....................................8

U-M Remains Committed to Helping All Students Succeed (Mar. 2, 2018), https://president.umich.edu/news-communications/statements/u-mremains-committed-to-helping-all-students-succeed/ ..........................................8

Vision, Mission, & Equity, Folsom Lake College,

http://www.flc.losrios.edu/about-us/vision-mission-and-equity

(last

visited Oct. 29, 2017); Mission & Diversity Statements, Brandeis

University, http://www.brandeis.edu/about/mission.html (last visited Oct.

29, 2017) .............................................................................................................15

Tom K. Wong, 2017 National DACA Study, https://cdn. americanprogress.org/content/uploads/2017/08/27164928/Wong-Et-AlNew-DACA-Survey-2017-Codebook.pdf ............................................................7

viii

INTEREST OF AMICI CURIAE Amici Institutions of Higher Education, by their attorneys, Jenner & Block LLP, submit this amicus brief in support of Plaintiffs-Appellees.1 Amici are institutions of higher education from across the country. Amici include large public universities, private research universities and liberal arts colleges, and community colleges. We are located in urban centers and rural farm areas, and throughout states that span the political spectrum. Collectively, amici teach and employ millions of people. Amici have seen firsthand the positive effects of the Deferred Action for Childhood Arrivals (“DACA”) program on their campuses. DACA has facilitated the pursuit of higher education by undocumented youth in unprecedented numbers. And it has ensured that once enrolled, these students are positioned to succeed. As a result of DACA, thousands of these talented and hard-working young people have made significant and wide-ranging contributions to amici’s campuses. They form a key part of our campus life and as institutions we benefit greatly from the energy and academic excellence they bring. And, amici have made substantial investments in the education of undocumented youth in reliance on DACA. Although these students unquestionably benefit from being able to attend our institutions—and this is something DACA certainly facilitates—we as institutions
1 This brief has not been authored, in whole or in part, by counsel to any party in this appeal. No party or counsel to any party contributed money intended to fund preparation or submission of this brief. No person, other than the amici, its members, or its counsel, contributed money that was intended to fund preparation or submission of this brief.
ix

also benefit significantly from the many contributions this remarkable group of young people make to our schools.
We believe the perspective we bring as institutions is relevant to this case because it will demonstrate to the Court another group—beyond DACA recipients themselves—that will be harmed by the Defendants-Appellants’ actions. Amici Institutions of Higher Education share the Plaintiffs-Appellees’ interest in a diverse student body, and this brief demonstrates that Defendants-Appellants’ arbitrary and capricious actions will impact institutions large and small throughout the nation.
x

INTRODUCTION Amici are institutions of higher education from across the country: Amherst College, Asnuntuck Community College, Board of Governors of the California Community Colleges, Boston University, Bowdoin College, Brandeis University, Bucknell University, Capital Community College, Carnegie Mellon University, Case Western Reserve University, Central Connecticut State University, Charter Oak State College, City College of San Francisco, Colby College, University of Connecticut, Eastern Connecticut State University, Emerson College, Gateway Community College, Hampshire College, Housatonic Community College, Los Angeles Community College District, Los Rios Community College District, Manchester Community College, the University of Maryland, College Park, University of Michigan, Middlebury College, Middlesex Community College, Mount Holyoke College, Naugatuck Valley Community College, Northeastern University, Northwestern CT Community College, Norwalk Community College, Pace University, Quinebaug Valley Community College, Rice University, Riverside Community College District, San Mateo Community College District, Smith College, Southern Connecticut State University, State Center Community College District, Three Rivers Community College, Tufts University, Tunxis Community College, Wellesley College, Western Connecticut State University, Williams College, and Worcester Polytechnic Institute. American institutions of higher education benefit profoundly from the presence of immigrant students on our campuses. Whether they attend large public universities, private research universities and liberal arts colleges, or community

colleges, these students contribute a perspective and experience that is unique and important. That is especially true of Dreamers—that is, undocumented young people who were brought to the United States as children.
Through no choice of their own, Dreamers were raised and educated in this country as Americans. They have worked and studied in American schools; have prepared and trained for all manner of careers; and have strived to innovate, achieve, and serve their communities. Yet, until the government announced the Deferred Action for Childhood Arrivals (“DACA”) program in 2012, they lived under the threat that the government might one day come calling, to remove them from the country that has become their home. Though they might have dreamed of bright futures, for many their undocumented status stood as an impenetrable roadblock to one of the most fundamental tools for a successful future: Of the 65,000 undocumented youth who graduate from U.S. high schools each year, historically only approximately 5 to 10 percent were able to enroll in college.2
DACA changed all of this and has provided up to 2 million Dreamers with an opportunity to apply for temporary protection from removal, an opportunity to pursue their education, and the authorization to work legally. To qualify for DACA, Dreamers are required to meet strict conditions, including having completed high school or a GED in the United States, or being currently enrolled in school. In addition, Dreamers are required to pay a significant application fee
2 Inst. for Immigration, Globalization, & Educ., In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform 1 (2015), http://www.undocuscholars.org/assets/undocuscholarsreport2015.pdf; Immigration Policy Center, The DREAM Act: Creating Opportunities for
2

and provide detailed personal information to the government—a significant request given the hesitancy of undocumented persons to have any interaction with the government whatsoever. But the students who have signed up and placed their trust in the government received, in exchange, the opportunity to pursue higher education. They have done so in unprecedented numbers.
On September 5, 2017, Appellants announced they were rescinding DACA. This misguided, arbitrary and capricious decision will harm millions of remarkable young people. But, critically, it will also harm the country, which will be deprived of the many contributions Dreamers would otherwise be able to make. On November 1, 2017, Plaintiffs-Appellees in this case filed a motion for preliminary relief in the Northern District of California to enjoin the Appellants’ action. On January 9, 2018, the district court ordered and enjoined the government to maintain the DACA program on a nationwide basis on the same terms and conditions as they were in effect before the rescission, with a few exceptions regarding new applications and advance parole. Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018). On January 18, 2018, Appellants filed a petition for a writ of certiorari before judgment with the Supreme Court. Petition for Writ of Certiorari before Judgment, U.S. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., No. 17-1003 (U.S. Jan. 18, 2018),
Immigrant Students and Supporting the U.S. Economy (2010), http://www.mygreencard.com/downloads.php?file=Dream_Act_January2011.pdf.
3

2018 WL 509822. That petition was denied on February 26, 2018, 2018 WL
1037642 (U.S. Feb. 26, 2018).3
Amici collectively have educated thousands of DACA beneficiaries, and we
have benefited from their talents and the passion they bring to our campuses. Even
those amici who have no DACA beneficiaries currently on campus view DACA as
core to their educational missions. In this brief, amici explain how we will be
harmed if DACA is rescinded. For that reason, amici support Plaintiffs-Appellees
and respectfully urge the Court to affirm the judgment of the district court.
ARGUMENT
I. DACA Has Allowed Tens of Thousands of Previously Undocumented Youth To Pursue Higher Education.
DACA has enabled previously undocumented students to pursue higher
education in several important ways.
First, in order to qualify for deferred action under DACA, an applicant must
generally obtain a high school diploma or GED certificate. The possibility of
securing deferred action provides a powerful incentive for students to stay in
3 In addition to the instant suit, three other lawsuits have been filed challenging the government’s decision to rescind DACA. In Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 2018), the court granted preliminary injunction, and the defendants have filed a notice of appeal to the Court of Appeals for the Second Circuit; in Casa De Maryland v. United States Department of Homeland Security, No. CV RWT-17-2942, --- F. Supp. 3d ---, 2018 WL 1156769 (D. Md. Mar. 5, 2018), the court enjoined the defendants from using or sharing information provided by DACA recipients for enforcement or deportation purposes but granted summary judgment in favor of defendants with regard to all other claims; in The Trustees of Princeton University v. United States, No. 1:17-cv-2325 (D.D.C. filed Nov. 3, 2017), the plaintiffs’ motion for summary judgment and/or preliminary injunction is pending.
4

school, increasing the likelihood that they will pursue postsecondary education, and become taxpayers and significant contributors to our society.
Second, prior to DACA, undocumented students felt the need to hide their status from others, which constrained their access to academic resources and their desire to apply to college.4 Not surprisingly, undocumented students who felt the need to hide their status from school personnel or peers during high school are significantly less likely even to think college is a possibility.5
Third, DACA enables students to secure social security numbers and photo identification. Something as simple as flying on an airplane was previously all but impossible for undocumented youth. With DACA, they can fly across the country to visit campuses, attend school and academic conferences, and even obtain authorization to study abroad. Likewise, with a social security number, they can apply for financial aid and fee waivers that were previously unobtainable and secure credit to fund other education-related expenses. Given that DACA students come from families whose parents lack legal status—and thus frequently are unable to secure high-paying jobs—the availability of financial aid is all the more crucial to their ability to attend college or university.
Fourth, DACA enables students to secure work authorization. With the ability to work part-time jobs and participate in work-study programs, undocumented students can better afford school—something previously made

4 Caitlin Patler & Jorge A. Cabrera, From Undocumented to DACAmented:

Impacts of the Deferred Action for Childhood Arrivals (DACA) Program Three

Years Following its Announcement

at 15 (June 2015),

http://www.chicano.ucla.edu/files/Patler_DACA_Report_061515.pdf.

5 Id. at 16.

5

difficult or impossible by the inability to work lawfully.6 Likewise, the ability to secure a legitimate job following graduation from college provides a powerful incentive to pursue a college education; and the inability to secure such a job likewise dissuades promising students from pursuing higher education. DACA thus increases the value of higher education itself for undocumented students.
Fifth, DACA has enabled students to overcome state laws that impede their ability to pursue higher education. For example, DACA recipients may enroll in public colleges and universities in states where they would otherwise be barred from attending,7 and may apply for in-state tuition in others, making it far easier for them to afford a college education.8 Sixth, DACA enables students to envision a future for themselves in this country, providing the incentive to pursue a degree, develop skills and expertise, and invest in their future here.
Finally, because of DACA, amici have made extensive investments in the education of DACA beneficiaries, facilitating their access to higher education like never before. Among other things, amici have provided DACA students with financial aid, housing benefits, counseling, faculty time and attention, and graduate and research assistant positions, all in reliance on the DACA program. Some amici even provide legal services. Amici made these investments with the expectation that those students would be able to pursue their education and career in this country, in furtherance of amici’s educational missions, and the public interest.
6 See Zenén Jaimes Pérez, Center for American Progress, How DACA Has Improved the Lives of Undocumented Young People, at 5 (Nov. 19, 2014), https://cdn.americanprogress.org/wpcontent/uploads/2014/11/BenefitsOfDACABrief2.pdf; Patler, supra, at 18. 7 See, e.g., Ala. Code § 31-13-8; S.C. Code Ann. § 59-101-430.
6

DACA has accomplished what it was intended to do: In a 2017 survey of more than 3,000 DACA recipients, 45% are currently in school.9 And, among those who are in school, 94% said that, because of DACA, they “[p]ursued educational opportunities that I previously could not.”10 In a different study, nearly four-fifths of DACA recipients (78%) reported that DACA made it easier to pay for school.11 Three-quarters of current students said DACA made it easier to attend school and to stay in school.12 These studies and amici’s experience confirm what should be obvious: once young people are able to come out of the shadows and avail themselves of programs available to countless other American youth, they seize and benefit from the opportunity.
But, while Dreamers and their families have benefited greatly from the DACA program, colleges and universities have benefited as well.
II. DACA Students Contribute Immeasurably to Our Campuses. American colleges and universities have benefited immeasurably from DACA. As amicus Amherst’s President, Biddy Martin, wrote in a letter to the President, “[o]ur classrooms at Amherst are enriched by the academic talent, hard work, and perspectives of DACA students who go on to become doctors, teachers,
8 See Pérez, supra, at 4. 9 Tom K. Wong, 2017 National DACA Study, https://cdn.americanprogress.org/content/uploads/2017/08/27164928/Wong-Et-AlNew-DACA-Survey-2017-Codebook.pdf. 10 Id. at 7. 11 Patler, supra, at 5 or 18. 12 Id. at 18.
7

engineers, and artists.”13 And President Martin is far from alone. Hundreds of other university presidents have echoed those sentiments, issuing public statements on DACA’s importance to American colleges and universities, including many whose institutions have signed this brief.14

13 Letter from Biddy Martin, Amherst College to Donald J. Trump, President (Aug.

30,

2017),

https://www.amherst.edu/amherst-

story/president/statements/node/689036.

14 See Pomona College: Statement in Support of the Deferred Action for Childhood

Arrivals (DACA) Program and Our Undocumented Students,

https://www.pomona.edu/news/2016/11/21-college-university-presidents-call-us-

uphold-and-continue-daca (last visited Oct. 30, 2017) (letter opposing the

nonrenewal of DACA signed by over 700 university and college presidents and

chancellors); see also, e.g., Letter from Andrew D. Hamilton, New York

University to Donald J. Trump, President (Sept. 1, 2017),

http://www.nyu.edu/content/dam/nyu/president/documents/09-01-17-daca-

letter.pdf; Letter from Vincent E. Price, President Duke University, to Donald J.

Trump, President (Aug. 30, 2017), https://today.duke.edu/2017/08/duke-

university-letter-support-daca; Letter from Drew Gilpin Faust, Harvard, to Donald

J.

Trump,

President

(Aug.

28,

2017),

https://www.harvard.edu/president/news/2017/letter-to-president-trump-regarding-

daca; Letter from Ron Liebowitz, President, Brandeis University, to Donald J.

Trump, President (Sept. 5, 2017), http://www.brandeis.edu/president/letters/2017-

09-05.html; Statement on DACA from President, University of Michigan, Mark

Schlissel

(Sept.

3,

2017),

https://president.umich.edu/news-

communications/statements/statement-on-daca-from-president-mark-schlissel/; U-

M Remains Committed to Helping All Students Succeed (Mar. 2, 2018),

https://president.umich.edu/news-communications/statements/u-m-remains-

committed-to-helping-all-students-succeed/; Letter from Adam Falk, President,

Williams,

to

the

Williams

Community,

https://president.williams.edu/writings/caring-for-our-undocumented-students/

(last visited Oct. 29, 2017); Statement of Kathleen McCartney, President, Smith

College, to Students, Staff and Faculty (Sept. 5, 2017), https://smith.edu/president-

kathleen-mccartney/letters//2017-18/responding-to-daca-decision; Letter from Lee

Pelton, President, Emerson College, to Emerson Community (Sept. 6, 2017)

http://www.emerson.edu/news-events/emerson-college-today/pelton-reaffirms-

support-emerson-daca-students#.We5Ui2you70; Resolutions of the Board of

Governors, California Community Colleges, Nos. 2017-04 (Sept. 18, 2017), 2017-

01

(Jan.

18,

2017)

http://extranet.cccco.edu/Portals/1/ExecutiveOffice/Board/2017_agendas/Septembe

r/2.2-Resolution-DACA.pdf; Statement of Susan Herbst, President, University of

Connecticut (Sept. 5, 2017), https://today.uconn.edu/2017/09/president-herbst-

8

a. DACA Students Have Had Great Academic and ExtraCurricular Success At Our Schools.
Dreamers are invaluable members of our academic communities. DACA
recipients serve as the president15 and vice-president16 of student government,
publish research in top academic journals,17 innovate and apply for patents,18 earn
inclusion on the Dean’s List19 and graduate summa cum laude,20 and serve as tutors
and research assistants.21 They have won Soros Fellowships22 and been named
responds-daca-decision/; Letter from David W. Leebron, President, Rice University (Sept. 5, 2017), https://president.rice.edu/presidentsoffice/remarks/DACA-announcement; Letter of Joseph E. Aoun, President, Northeastern University, to all members of the Northeastern Community (Sept. 4, 2017), http://www.northeastern.edu/president/2017/09/04/turning-ideals-intoaction/; Association of Vermont Independent Colleges, Statement on the Revocation of the Deferred Action for Childhood Arrivals (DACA) Program, http://www.vermont-icolleges.org/Documents/DACAFinal2017.pdf. 15 See Jose Herrerra, DACA student leads by example, Los Angeles Pierce College Roundup (Sept. 13, 2017), http://theroundupnews.com/2017/09/13/daca-studentleads-example/. 16 Monica Scott, Undocumented: One immigrant’s story of life under DACA, MLive (Aug. 29, 2017), http://www.mlive.com/news/grandrapids/index.ssf/2017/08/one_daca_students_story_about.html. 17 America’s Voice Online (Oct. 3, 2017), https://americasvoice.org/blog/namedenisse-rojas-marquez-28-years-old-old-proud-undocumented-american-soondoctor/. 18 American Dreamers: Kok-Leong Seow, N.Y. Times, https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/kok-leong-seow (last visited Oct. 29, 2017). 19 E.g., American Dreamers: Anayancy Ramos, N.Y. Times, https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/anayancy-ramos (last visited Oct. 29, 2017). 20 American Dreamers: Carlos Adolfo Gonzalez Sierra, N.Y. Times, https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/carlos-adolfo-gonzalez-sierra (last visited Oct. 29, 2017). 21 E.g., American Dreamers: Gargi Y. Purohit, N.Y. Times, https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/gargiy-purohit (last visited Oct. 29, 2017). 22 American Dreamers: Denisse Rojas Marquez, 2016, N.Y. Times, https://www.pdsoros.org/meet-the-fellows/denisse-rojas-marquez (last visited Oct. 29, 2017).
9

Gates Cambridge Scholars and Schwarzman Scholars.23 They have graduated with honors and received admission to serve others in the Teach for America24 and AmeriCorps VISTA25 programs. They have founded national organizations to assist other undocumented youth.26 They have pursued careers in a wide variety of fields, including health care27 and service to low-income veterans.28 The following are but a few examples of current and past DACA students at amici and other institutions of higher education who are brave enough to share their stories, and whose remarkable achievements serve as a reminder of why DACA benefits both students and the institutions lucky enough to have them:
 Elias Rosenfeld, now a sophomore at Brandeis University, was brought to the United States at age 6 from Venezuela by his mother

23 American Dreamers: Carlos Adolfo Gonzalez Sierra, N.Y. Times,

https://www.nytimes.com/interactive/projects/storywall/american-

dreamers/stories/carlos-adolfo-gonzalez-sierra (last visited Oct. 29, 2017).

24 American Dreamers: Julia Verzbickis, N.Y. Times,

https://www.nytimes.com/interactive/projects/storywall/american-

dreamers/stories/julia-verzbickis (last visited Oct. 29, 2017).

25 American Dreamers: Brisa E. Ramirez, N.Y. Times,

https://www.nytimes.com/interactive/projects/storywall/american-

dreamers/stories/brisae-ramirez (last visited Oct. 29, 2017).

26 America’s Voice (Oct. 3, 2017), https://americasvoice.org/blog/name-denisse-

rojas-marquez-28-years-old-old-proud-undocumented-american-soon-doctor; see

also

American

Dreamers:

Jin

Park,

N.Y.

Times,

https://www.nytimes.com/interactive/projects/storywall/american-

dreamers/stories/jin-park (last visited Oct. 29, 2017); Penny Schwartz, A Jewish

‘Dreamer’ is scared, but refuses to despair, Jewish Telegraphic Agency (Sept. 6,

2017),

https://www.jta.org/2017/09/06/news-opinion/united-states/a-jewish-

dreamer-is-scared-but-refuses-to-despair.

27 America’s Voice (Oct. 3, 2017), https://americasvoice.org/blog/name-denisse-

rojas-marquez-28-years-old-old-proud-undocumented-american-soon-doctor/;

American

Dreamers:

Belsy

Garcia,

N.Y.

Times,

https://www.nytimes.com/interactive/projects/storywall/american-

dreamers/stories/belsy-garcia (last visited Oct. 29, 2017).

28 American Dreamers: Isabelle Muhlbauer, N.Y. Times,

https://www.nytimes.com/interactive/projects/storywall/american-

dreamers/stories/isabelle-muhlbauer (last visited Oct. 29, 2017).

10

who was a media executive and came on an L1 visa. His mother died when he was in fifth grade, and it was only in high school when he tried to apply for a driver’s license that he learned he was undocumented because his mother’s death voided her (and his) visas. Elias excelled in high school, completing 13 AP classes and ranking in the top 10% of his class. At Brandeis he is studying political science, sociology and law. When asked what America means to him, he responded: “It means my country. It’s my home. There’s a connection. I want to contribute.”29
 Anayancy Ramos is a student at Eastern Connecticut State University who will graduate with a double major in Biology and Computer Science and a minor in Bioinformatics. Before matriculating at ECSU, she attended a community college where she was a Dean’s List scholar, was inducted into the Phi Theta Kappa honor society, was the president of the Alpha Beta Gamma chapter, and worked full time at an animal hospital. She notes that through DACA she’s been able to achieve an education and a future she never thought possible, but that those dreams will die if DACA forces her to retreat once more into the shadows.30
 Carlos Adolfo Gonzalez Sierra came to the United States from the Dominican Republic when he was eleven. Carlos graduated summa cum laude from Amherst and studied as a Gates Scholar at Cambridge University and a Schwarzman Scholar in China. Carlos emphasizes that his desire to stay is not economic: “The United States is my home. It is where I feel the most comfortable.” Moreover, given the education he’s received, he expresses an “inconsolable desire to contribute to the country that has given me so much.”31
 Eduardo Solis was brought to the United States when he was 1-month old from Mexico. He is a student at UCLA, aspiring to major in either psychology or sociology. At the age of 11 he founded a blog to help

29 See Penny Schwartz, A Jewish ‘Dreamer’ is scared, but refuses to despair,

Jewish Telegraphic Agency (Sept. 6, 2017), https://www.jta.org/2017/09/06/news-

opinion/united-states/a-jewish-dreamer-is-scared-but-refuses-to-despair

(last

visited Oct. 29, 2017).

30 See American Dreamers: Anayancy Ramos, N.Y. Times,

https://www.nytimes.com/interactive/projects/storywall/american-

dreamers/stories/anayancy-ramos (last visited Oct. 29, 2017). Amicus Eastern

Connecticut State University has provided updated details about Ramos’s course of

study, with her consent.

31 See American Dreamers: Carlos Adolfo Gonzalez Sierra, N.Y. Times,

https://www.nytimes.com/interactive/projects/storywall/american-

dreamers/stories/carlos-adolfo-gonzalez-sierra (last visited Oct. 29, 2017).

11

fellow children deal with bullying. He has gained over 30,000 followers, from all over the world, and has won awards recognizing his role as a teen activist. Although worried about the end of DACA, Eduardo says that “[f]or now, I will continue on pledging allegiance to the only flag I know and love; the American Flag.”32
 Nancy A. was brought to the United States from Togo as a child. When she entered high school at 13 she realized she was undocumented and, shortly thereafter both she and her parents were put in deportation proceedings. Despite being in these proceedings, she graduated as the valedictorian of her high school class and then became the youngest graduate of her masters programs. She is currently due to graduate with her Doctorate at age 27 and is a professor of Political Science and Education at a university and community college. She describes receiving DACA at age 23 as being “finally forgiven for a sin I had no control over when I was a child.”33
 Alfredo Avila was brought to the U.S. when he was just a child, and despite neither of his parents being able to speak English, they managed to send Alfredo and his siblings to school where they all learned English. Despite having to move around a number of times out of a fear of deportation, Alfredo excelled in school and is now a student in the Honors College at the University of Texas at San Antonio, majoring in Electrical Engineering. Alfredo works part-time as a math and science tutor and is involved with many student organizations, including serving as the President of the professional engineering student organization. His dream is to one day build and manage his own technology company that thrives off diversity and inclusion.34
The success of DACA students in college and university should come as no
surprise. These students have overcome innumerable hardships simply to be able
to apply and enroll in an institute of higher education. For many of our students

32 See American Dreamers: Eduardo Solis, N.Y. https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/eduardo-solis (last visited Oct. 29, 2017). 33 See American Dreamers: Nancy A., N.Y. https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/nancy-a (last visited Oct. 29, 2017).

Times, Times,

12

(whether U.S. citizens or from other countries), matriculation in college or university is a natural progression after attending high school and taking standardized tests. But this is not the case for DACA students. Those students must perform well in school and on tests while at the same time living under the constant threat that they and their families may be deported. Moreover, until DACA these students could not get work authorization, and most of their parents still cannot.35 Thus, DACA students frequently have had to work multiple, poorlypaid jobs in order to help put food on the table while at the same time trying to maintain their focus and performance in school and apply to college. The sacrifices these students and their families have had to make simply to enroll as students at our institutions are legion, and their commitment to bettering themselves and getting the most out of their education is unwavering. These extraordinary young people should be cherished and celebrated, so that they can achieve their dreams and contribute to the fullest for our country. Banishing them once more to immigration limbo—a predicament they had no part in creating—is not merely cruel, but irrational. DACA students are the ideal candidates for prosecutorial discretion, which the government formerly recognized and exercised for those who applied and were accepted. DACA’s rescission is not based on any different conclusion about those eligible; rather, it appears to reflect an arbitrary
34 See American Dreamers: Alfredo Avila, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/alfredo-avila (last visited Oct. 29, 2017). 35 Most DACA students are raised in households with incomes well below the federal poverty line. See Inst. for Immigration, Globalization, & Educ., supra, 7 (in a survey of undocumented students, 61.3% had annual household incomes
13

and capricious policy shift for which talented young people will bear the brunt of the harm. If such an unlawful decision is allowed to stand—and these young people take their tremendous talent, enthusiasm, and skills elsewhere—we (both amici and the country as a whole) will be the losers.
b. DACA Students Contribute to Campus Diversity, A Key Component of the Educational Experience.
The Supreme Court has time and again noted the myriad benefits that a diverse student body yields for institutes of higher education. First, the Court has recognized “the educational benefits that flow from student body diversity,” Fisher v. University of Texas at Austin, 133 S. Ct. 2411, 2419 (2013) (Fisher I) (quotation marks omitted), namely the deeper understanding students and professors achieve when an issue or problem is analyzed by individuals who bring differing perspectives and backgrounds to the question. See also Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (noting that the “educational benefits that diversity is designed to produce . . . [are] substantial”). Second, “enrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.’” Fisher v. Univ. of Texas at Austin (Fisher II), 136 S. Ct. 2198, 2210 (2016) (quoting Fisher I, 133 S. Ct. at 2427; see also Grutter, 539 U.S. at 328, 330). While this obviously has a direct benefit to students, it also is a key component in creating a dynamic and integrated campus environment. Third, and “[e]qually important, student body diversity promotes learning outcomes, and better prepares students for an
below $30,000 and 29% had annual household incomes between $30,000 and $50,000).
14

increasingly diverse workforce and society.” Fisher II, 136 S. Ct. at 2210 (internal quotation marks omitted).
The Supreme Court’s observations in this respect are well taken. Diversity on campus is amongst the highest priorities for amici, and we have seen the benefits in practice that the Supreme Court has highlighted in theory. For example, amicus Rice University’s mission statement notes that it seeks to fulfill its mission “by cultivating a diverse community of learning and discovery that produces leaders across the spectrum of human endeavor.”36 Likewise, amicus Middlebury College explains its commitment to “full and equal participation for all individuals and groups” by noting evidence that “groups of people from a variety of backgrounds and with differing viewpoints are often more resilient and adaptive in solving problems and reaching complex goals than more homogenous groups.”37 These are but two examples of many.38
The DACA students attending our schools play a significant role in fostering the inclusive and diverse on-campus atmosphere we strive to create. As reported by the United States Citizenship and Immigration Services, the 689,900 DACA recipients as of September 2017 come from over 150 countries spanning every

36 Rice University, Statement of Office of Diversity and Inclusion,

http://diversity.rice.edu/ (last visited Oct. 29, 2017).

37

Middlebury

College,

Diversity

and

Inclusion,

http://www.middlebury.edu/student-life/community-living/diversity-inclusivity

(last visited Oct. 29, 2017).

38 See, e.g., Vision, Mission, & Equity, Folsom Lake College,

http://www.flc.losrios.edu/about-us/vision-mission-and-equity (last visited Oct. 29,

2017); Mission & Diversity Statements, Brandeis University,

http://www.brandeis.edu/about/mission.html (last visited Oct. 29, 2017).

15

continent except Antarctica.39 And, this diversity of backgrounds and ethnicities is reflected in the thousands of DACA recipients, and undocumented students, who study on our campuses.40 Indeed, in many ways DACA students bring a special form of diversity to our campuses in that they are neither traditionally domestic nor traditionally international students. They have an entirely different perspective and they bring that in addition to their compelling life stories to our schools.
III. The Rescission of DACA Will Harm American Colleges and Universities.
If DACA’s rescission is allowed to stand, the greatest harm will of course be suffered by DACA recipients and their families. But American colleges and universities will be harmed as well.
First, and foremost, we will lose important members of our academic communities. The few examples cited above are not anomalous; rather, they exemplify the talent and accomplishment of the thousands of DACA students we have on our campuses. As many students may be forced to withdraw, amici will be deprived of some of our most accomplished students. These students contribute not only to the diversity of perspectives in our classrooms but also to the student leadership of social action initiatives in our communities. Our campuses will be noticeably poorer places without those substantial contributions.

39 See DACA Population Data, USCIS (Sept. 4, 2017),

https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Stu

dies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_popula

tion_data.pdf.

40 See Jerome Dineen, If Trump Ends DACA, Here’s How Many Students Could Be

Affected,

USA

Today

College

(Feb.

8,

2017),

http://college.usatoday.com/2017/02/08/if-trump-ends-daca-heres-how-many-

16

Second, the education we provide our students is a valuable commodity, and we have finite resources to provide it. If DACA students lose their status and, with it, the ability to pay for tuition or living expenses, they may well not be able to continue with their education. And, even for those students who have saved enough money to continue, the value of an education may decrease if they will be unable to secure lawful employment upon graduation. As a result, amici will almost certainly lose students mid-way through their degree programs, and the retention rate for this population will drop dramatically and beyond what institutions are prepared to accommodate through normal attrition cycles. Amici have devoted valuable, and in many cases limited, enrollment spaces to this student population that will not continue in their education and cannot be replaced during a mid-point of their progression in their degree program.
Third, some of our DACA students work in a variety of positions on campus, and many are already trained for these positions and performing well. With the loss of employment authorization, amici will lose these valuable contributions. The cost of refilling and retraining for these roles, if we can even find adequate replacements, represents measurable harm to the institutions. More broadly, the loss of work authorization will also mean that our DACA students will be unable to secure stable jobs upon graduation. While of course this is primarily a harm to them, given that our DACA students are among the most committed of our alumni, we too will lose an important source of support (both financial and otherwise).
students-could-be-affected/ (estimating that 10,000 undocumented students
17

Fourth, DACA’s rescission has already required amici to dedicate valuable resources to counsel students who are negatively impacted by rescission. Many of these students have required mental health counseling to deal with the stress and anxiety induced by the government’s sudden shift in position, as well as legal assistance to determine their range of possibilities.41 As institutions of higher education, we believe we should be spending our resources on educating our students for the bright futures they will have, not defending and counseling them against unfair and adverse actions by their government for a situation in which they have no blame whatsoever.
Finally, even for those schools without many or even any DACA students, supporting DACA is central to our mission as educators. Amici are devoted to the education of people to help them realize their ambitions and potential, and to contribute to their communities, to this country, and to the world. We pursue that mission on behalf of our students, regardless of national origin. Indeed, core to that mission is our commitment to equal opportunity. The rescission of DACA devalues that mission without any rational basis. In that respect, it harms all amici.
CONCLUSION DACA is an enlightened and humane policy, and it represents the very best of America. It provides legal certainty for a generation of high-achieving young people who love this country and were raised here. Once at college or university,
graduate from undergraduate institutions in the United States annually). 41 See, e.g., Eleanor J. Bader, As End of DACA Looms, Colleges and Organizers Ramp Up Efforts to Protect Undocumented Students, NACLA (Jan. 27, 2017), https://nacla.org/news/2017/01/27/end-daca-looms-colleges-and-organizers-rampefforts-protect-undocumented-students.
18

DACA recipients are among the most engaged both academically and otherwise. They work hard in the classroom and become deeply engaged in extracurricular activities. Moreover, our DACA students are deeply committed to giving back to their communities and, more broadly, the country they love. These are not the types of individuals we should be pushing out of the country, or returning to a life in the shadows. As institutions of higher education, we see every day the achievement and potential of these young people, and we think it imperative that they be allowed to remain here and live out their dreams. Indeed, it defies rationality to prevent the government from utilizing its discretion to protect this set of young people from removal. For these reasons, we urge the Court to affirm the district court’s order in favor of Plaintiffs-Appellees.

Dated: March 20, 2018

Respectfully submitted,
/s/ Lindsay C. Harrison Lindsay C. Harrison JENNER & BLOCK LLP Counsel for Amici Curiae Institutions of Higher Education Email: LHarrison@jenner.com

19

Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number

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(a) and is

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App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and

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Signature of Attorney or Unrepresented Litigant

/s/

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C.

Harrison

("s/" plus typed name is acceptable for electronically-filed documents)

Date 3/20/2018
(Rev.12/1/16)

CERTIFICATE OF SERVICE I hereby certify that on March 20, 2018, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth 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.

Date: March 20, 2018

/s/ Lindsay C. Harrison JENNER & BLOCK LLP Counsel for Amici Curiae Institutions of Higher Education Email: LHarrison@jenner.com

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134 —–——–—–——
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., PlaintiffsAppellees, v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., DefendantsAppellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRIEF OF AMICI CURIAE EIGHTEEN UNIVERSITIES IN SUPPORT OF PLAINTIFF-APPELLEES AND FOR AFFIRMANCE
ANTON METLITSKY JENNIFER B. SOKOLER O’MELVENY & MYERS LLP 7 TIMES SQUARE NEW YORK, NY 10036 TELEPHONE: (212) 326-2000 FACSIMILE: (212) 326-2061 Attorneys for Amici

CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, counsel for amici

curiae Brown University, California Institute of Technology, Columbia University,

Cornell University, Dartmouth College, Duke University, Emory University,

Georgetown University, George Washington University, Harvard University,

Massachusetts Institute of Technology, Northwestern University, Stanford

University, University of Chicago, the University of Pennsylvania, Vanderbilt

University, Washington University in St. Louis, and Yale University certifies that

amici, respectively, are not publicly held corporations, that amici, respectively, do

not have a parent corporation, and that no publicly held corporation owns 10

percent or more of amici’s respective stock. Dated: March 20, 2018

By: /s/ Anton Metlitsky Anton Metlitsky
Attorney for Amici

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TABLE OF CONTENTS Page
STATEMENT OF INTEREST..................................................................................1 INTRODUCTION .....................................................................................................2 ARGUMENT .............................................................................................................5
I. DACA Students Enrolled at Amici Institutions Are Some of the Most Gifted and Motivated Young People in the World ......................5
II. Rescinding DACA Harms Amici’s Students and Alumni, and Deprives Both Amici Institutions and the Country of Their Promise ................................................................................................11 A. The September Memorandum Has a Devastating Impact on DACA Recipients ................................................................11 B. Rescinding DACA Prevents Undocumented Students From Fully Benefitting From and Contributing To Amici’s Institutions ...................................................................14 C. Rescinding DACA Deprives the Nation of Invaluable Resources ..................................................................................16
CONCLUSION ........................................................................................................20
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Cases

TABLE OF AUTHORITIES

Page(s)

Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 2018) ................................................................13

Plyler v. Doe, 457 U.S. 202 (1982)............................................................................................14

Regents of Univ. of California v. United States Dep't of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018)..........................................................4, 13

Sweezy v. New Hampshire, 354 U.S. 234 (1957)..............................................................................................6

Other Authorities

Amanda Mott, Inaugural President’s Innovation Prize Winners Announced at Penn, PENNNEWS (Apr. 20, 2016), https://news.upenn.edu/news/inaugural-president-s-innovationprize-winners-announced-penn ...........................................................................18

Brown President Urges Trump to Continue DACA, BROWN UNIV. NEWS (Aug. 30, 2017), https://news.brown.edu/articles/2017/08/daca ....................................................20

Brown University, Undergraduate Admission, https://www.brown.edu/admission/undergraduate/apply .....................................7

Columbia Undergraduate Admissions, Undocumented Students and DACA, https://undergrad.admissions.columbia.edu/applyfirst-year/ undocumented-students ........................................................................................8

Cornell University, About Cornell University, https://www.cornell.edu/about/mission.cfm.........................................................6

Dartmouth College, Dartmouth College Mission Statement, http://home.dartmouth.edu/mission-statement .....................................................6

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TABLE OF AUTHORITIES (continued)

Page(s)

Duke University, Indenture of James B. Duke Establishing the Duke Endowment (1924), https://archive.org/details/indentureofjames00slsn ..............................................6

Durbin: Let’s Show The American Dream Is Still Alive By Passing The Dream Act (Sept. 12, 2017), https://www.durbin.senate.gov/newsroom/press-releases/durbinlets-show-the-american-dream-is-still-alive-by-passing-the-dreamact ........................................................................................................................18

Greg Lee, Undocumented Santa Ana Scholar Accepted to Harvard Medical School, ABC NEWS (June 16, 2016), http://abc7.com/news/undocumented-santa-ana-scholar-acceptedto-harvard-medical-school/1388040/ ..................................................................19

Harvard College Admissions & Financial Aid, What We Look For, https://college.harvard.edu/admissions/application-process/whatwe-look .................................................................................................................7

Harvard College Financial Aid Office, How Aid Works, https://college.harvard.edu/financial-aid/how-aid-works .....................................7

Harvard University, The Charter of the President and Fellows of Harvard College, Under the Seal of the Colony of Massachusetts Bay, and Bearing the Date May 31st A.D. 1650, https://library.harvard.edu/university-archives/using-thecollections/online-resources/charter-of-1650 .......................................................6

Institute for Immigration, Globalization, & Education, In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform (2015), http://www.undocuscholars.org/assets/ undocuscholarsreport2015.pdf ............................................................................10

Jake Miller, White Coats for DACA, HARVARD MED. SCH. NEWS (Sept. 14, 2017), https://hms.harv ard.edu/news/white-coats-daca ............. 19, 20

L. Rafael Reif, President of MIT, Trump Should Not Repeal DACA, BOSTON GLOBE (Aug. 31, 2017), https://www.bostonglobe.com/

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TABLE OF AUTHORITIES (continued)

Page(s)

opinion/2017/08/31/trump-shouldn-repeal-daca/ 9sqIjciw0UseCKGTSVCRlK/story.html........................................................5, 17

Laura Anthony, Two Years Later, Tania Chairez Still ‘Undocumented and Unapologetic’, DAILY PENNSYLVANIAN (April 17, 2014), http://www.thedp.com/article/2014/04/q-a-with-tania-chairez ..........................16

Letter from Caltech President Thomas F. Rosenbaum to The Caltech Community (Sept. 5, 2017), http://www.caltech.edu/content/statement-daca ...................................................3

Letter from Cornell University President Martha E. Pollack to President Donald J. Trump (Aug. 31, 2017), http://news.cornell.edu/stories/2017/09/pollack-urges-trumpsupport-daca-program ...........................................................................................3

Letter from Harvard University President Drew Gilpin Faust to President Donald J. Trump Regarding DACA (Aug. 28, 2017), https://www.harvard.edu/president/news/2017/letter-to-presidenttrump-regarding-daca......................................................................................3, 20

Liz Mineo, Ask the Undocumented, HARVARD GAZETTE (May 4, 2017), https://news.harvard.edu/gazette/story/2017/05/4undocumented-harvard-college-students-recount-their-journeysand-their-hopes/ ......................................................................................... 8, 9, 11

MIT Student Financial Services, Financial Aid at MIT, https://sfs.mit.edu/financial-aid-mit......................................................................7

MIT, MIT Mission, http://www.mit.edu/aboutmit/....................................................6

Northwestern University, Why Study Abroad?, http://www.northwestern.edu/studyabroad/prospective-students/ why-study-abroad/index.html .............................................................................14

Penn for Immigrant Rights, Founders Statement, https://upenn4immigrantrights.wordpress.com/blog/ .........................................16

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TABLE OF AUTHORITIES (continued)

Page(s)

Roberto Torres, These 3 Companies Are Coming to the Pennovation Center, TECHNICAL.LY (June 30, 2016), https://technical.ly/philly/ 2016/06/30/pennovation-center-cosy-xeed-fever-smart/ ...................................19

Santiago Tobar Potes, DACA Student: Deporting Me and 800,000 Dreamers Is a Man-Made Disaster That Will Be Terrible for US, FOX NEWS (Sept. 5, 2017), http://www.foxnews.com/opinion/2017/ 09/05/daca-student-deporting-me-and-800000-dreamers-is-manmade-disaster-that-will-be-terrible-for-us.html ....................................................8

Stanford University, The Founding Grant with Amendments, Legislation, and Court Decrees (1885), https://stacks.stanford.edu/ file/druid:bz978md4965/su_founding_grand.pdf.................................................6

Stephanie Leutert, Undocumented in the Ivy League, AM. Q. (May 5, 2012), http://www.americasquarterly.org/content/undocumentedivy-league ............................................................................................................10

Teach for America, Teach for America Urges Congress To Pass The DREAM Act (Sept. 5, 2017), https://www.teachforamerica.org/topstories/daca-dream-act-how-you-can-stand-tfa-dreamer-teachersand-undocumented-students ...............................................................................18

Troy Parks, Med Student ʻDreamersʼ Speak Out on Maintaining DACA Protections, AMA WIRE (Feb. 13, 2017), https://wire.amaassn.org/ama-news/med-student-dreamers-speak-out-maintainingdaca-protections ..................................................................................................19

Yale Admissions, What Yale Looks For, https://admissions.yale.edu/what-yale-looks-for ..................................................7

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STATEMENT OF INTEREST Amici are eighteen distinguished American institutions of higher education: Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, George Washington University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, the University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, and Yale University. Though important differences exist between them, amici share a common mission to educate the next generation of leaders with the talent, creativity and drive to solve society’s most pressing problems. In furtherance of that objective, amici have admitted undocumented students who benefitted from the protections and opportunities provided by the Deferred Action for Childhood Arrival (“DACA”) program. Like their classmates, the DACA students on amici’s campuses make enormous contributions to our campuses and our country. The universities that are signatories to this brief have an interest in each of their undocumented students’ welfare and ability to obtain a full and complete higher education. Amici also have an interest in ensuring that when these students graduate, they are able to put their education to its highest use. The Department of
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Homeland Security’s September 5, 2017 Memorandum (“September Memorandum”) jeopardizes amici’s interests by harming their students.1
INTRODUCTION Amici have educated and helped launch the careers of many celebrated leaders and innovators in all fields, including more than 200 Nobel Prize recipients, half of the astronauts who have walked on the moon, dozens of Fortune 500 CEOs, and numerous Academy Award and Pulitzer Prize-winning artists and authors. And every day, amici’s alumni can be found teaching in our schools, performing cutting-edge research, discovering ground-breaking technology, healing patients in our hospitals, starting businesses, leading our armed forces, and reporting on current events for local and global news outlets. This is no coincidence, but a reflection of amici’s principal objective: To improve the human condition by educating the next generation of people with the talent, drive, and heart needed to identify and solve society’s most pressing problems. In furtherance of this mission, all amici institutions have admitted students who have applied for and been granted participation in the DACA program. “[L]ike their peers,” the DACA students on amici’s campuses “are extraordinarily
1 Amici hereby certify that no party’s counsel authored the brief in whole or in part, no party or party’s counsel contributed money intended to fund preparation or submission of this brief, and no person other than amici and their counsel contributed money intended to fund preparation or submission of the brief. The parties have consented to the filing of this amicus brief.
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talented young people who . . . aspire to be leaders in public service, science,
business, medicine, and the arts. They embody the drive and determination that
has made the United States the most prosperous and innovative country in the
world.”2 And by virtue of the DACA program—which protects participants
against near-term deportation, allows them to work lawfully, and enables them to
travel abroad—these students have been able for the first time to access
educational and life opportunities on nearly equal terms with their peers.
The September Memorandum rescinding DACA deters young people from
pursuing higher education and precludes the remarkable students enrolled at amici
institutions from deriving the full benefit of their time on our campuses. The
government’s action threatens amici’s ability to attract and educate the most
talented individuals and so undermines their educational missions.3 Indeed, ending
2 Letter from Harvard University President Drew Gilpin Faust to President Donald J. Trump Regarding DACA (Aug. 28, 2017), https://www.harvard.edu/president/ news/2017/letter-to-president-trump-regarding-daca. See also, e.g., Letter from Cornell University President Martha E. Pollack to President Donald J. Trump (Aug. 31, 2017), http://news.cornell.edu/stories/2017/09/pollack-urges-trumpsupport-daca-program (“I believe that our DACA students are ‘incredible kids.’ . . . It would be more than a shame if you . . . extinguish so many bright and productive futures just as they are getting started.”). 3 Letter from Caltech President Thomas F. Rosenbaum to The Caltech Community (Sept. 5, 2017), http://www.caltech.edu/content/statement-daca (ending DACA “cuts to the core of what we stand for as an educational institution: to identify, attract, and support talented individuals, and to create a community where students, staff, and faculty alike can learn from each other and thrive”).
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DACA forces future scholars, innovators, and leaders to choose between withdrawing to the margins of our society and national economy or returning to countries that they have never called home. Whatever they choose, their gifts and education are lost to this nation. Amici therefore urge this Court to affirm the District Court’s order granting provisional relief to Plaintiffs-Appellees (“Plaintiffs”) and enjoining the government from rescinding the DACA program. Regents of Univ. of California v. United States Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1048 (N.D. Cal. 2018).
Amici submit this brief to inform the Court about their experiences with the DACA students on their campuses and to warn of the consequences—to the students, amici, and the country—of rescinding the DACA program. At this time of profound challenges—from global pandemics and insoluble conflicts, to climate change and income inequality—the importance of amici’s shared mission of advancing and improving the human condition through teaching and research comes into sharper focus. To achieve their ambitious goals of advancing knowledge and transforming our society, schools must be able to identify and educate the very best students, and those students must be able to work after graduation. Ending DACA unjustly sidelines a discrete group of students. As one of amici’s Presidents put it, no student—amici’s or otherwise—should be forced to live in constant fear of “losing the opportunities they earned, the communities they
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think of as home, and the nation they love.”4 Nor should the nation lose the benefits of that student’s full participation in our society.
ARGUMENT I. DACA STUDENTS ENROLLED AT AMICI INSTITUTIONS ARE
SOME OF THE MOST GIFTED AND MOTIVATED YOUNG PEOPLE IN THE WORLD Although important differences exist from school to school, amici are united in a core mission: to educate extraordinary students from diverse backgrounds and prepare them for leadership, active citizenship, and achievement in every field of human endeavor. Each of amici’s schools, to borrow from one, “educates the most promising students and prepares them for a lifetime of learning and of responsible
4 L. Rafael Reif, President of MIT, Trump Should Not Repeal DACA, BOSTON GLOBE (Aug. 31, 2017), https://www.bostonglobe.com/opinion/2017/08/31/trumpshouldn-repeal-daca/9sqIjciw0UseCKGTSVCRlK/story.html.
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leadership.”5 From their founding charters6 to their current websites,7 these clearly
stated educational objectives govern how amici “determine for [themselves] on
academic grounds who may teach, what may be taught, how it shall be taught, and
who may be admitted to study.” Sweezy v. New Hampshire, 354 U.S. 234, 263
(1957) (Frankfurter, J., conc’g) (quotation omitted).
To fulfill their missions, amici devote substantial resources to identifying,
recruiting, and retaining exceptional young people from around the globe. Of
5 Dartmouth College, Dartmouth College Mission Statement, http://home.dartmouth.edu/mission-statement (last visited Oct. 31, 2017). 6 See, e.g., Duke University, Indenture of James B. Duke Establishing the Duke Endowment, at 24 (1924), https://archive.org/details/indentureofjames00slsn (calling for courses of instruction in areas that “can do most to uplift mankind” and “help to develop our resources, increase our wisdom and promote human happiness”); Stanford University, The Founding Grant with Amendments, Legislation, and Court Decrees, at 24 (1885), https://stacks.stanford.edu/file/ druid:bz978md4965/su_founding_grant.pdf (Stanford University’s “chief object is the instruction of students with a view to producing leaders and educators in every field of science and industry”); Harvard University, The Charter of the President and Fellows of Harvard College, Under the Seal of the Colony of Massachusetts Bay, and Bearing the Date May 31st A.D. 1650, https://library.harvard.edu/ university-archives/using-the-collections/online-resources/charter-of-1650 (last visited Oct. 31, 2017) (Harvard’s mission includes “the advancement of all good literature, arts, and sciences”). 7 See, e.g., Cornell University, About Cornell University, https://www.cornell.edu/ about/mission.cfm (last visited Oct. 31, 2017) (Cornell University’s “mission is to discover, preserve and disseminate knowledge, to educate the next generation of global citizens, and to promote a culture of broad inquiry throughout and beyond the Cornell community”); MIT, MIT Mission, http://www.mit.edu/aboutmit/ (last visited Oct. 31, 2017) (MIT’s goal “is to advance knowledge and educate students in science, technology, and other areas of scholarship that will best serve the nation and the world in the 21st century”).
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course, amici seek students with the scholarship record to excel in their
classrooms, but given the great number of applications that amici receive—well in
excess of the number of students they can admit—academic merit alone is
insufficient for admission. Amici therefore undertake an intensive application
review process to identify those students “who w[ill] make the most of the
extraordinary resources” they have to offer, “those with a zest to stretch the limits
of their talents, and those with an outstanding public motivation—in other words,
applicants with a concern for something larger than themselves.”8 Additionally,
amici have worked to ensure that the most qualified students can enroll in their
institutions, irrespective of their socioeconomic and immigration status.9
8 Yale Admissions, What Yale Looks For, https://admissions.yale.edu/what-yalelooks-for (last visited Oct. 31, 2017); see also Harvard College Admissions & Financial Aid, What We Look For, https://college.harvard.edu/admissions/ application-process/what-we-look (last visited Oct. 31, 2017) (“We seek to identify students who will be the best educators of one another and their professors— individuals who will inspire those around them during their college years and beyond.”); Brown University, Undergraduate Admission, https://www.brown.edu/admission/undergraduate/apply (last visited Oct. 31, 2017) (“We will consider how your unique talents, accomplishments, energy, curiosity, perspective, and identity might weave into the ever-changing tapestry that is Brown University.”). 9 Indeed, many of amici provide at least their undergraduate students complete, need-based financial aid. See, e.g., Harvard College Financial Aid Office, How Aid Works, https://college.harvard.edu/financial-aid/how-aid-works (last visited Oct. 31, 2017) (Harvard is “committed to meeting 100 percent of demonstrated financial need for all four years” of undergraduate education irrespective of citizenship status); MIT Student Financial Services, Financial Aid at MIT, https://sfs.mit.edu/financial-aid-mit (last visited Oct. 31, 2017) (MIT promises its undergraduate applicants that once they are admitted, the university will “meet
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The DACA students at amici institutions were selected because they are
outstanding students. Like their classmates, these young people were
valedictorians, student government leaders, varsity athletes, inventors, academic
award winners, accomplished artists, and role models for younger children in their
communities. And like many of their classmates, they are the pride of the
neighborhoods in which they grew up—“local kids who made good.” To take just
a few examples: • Santiago Tobar Potes, a sophomore at Columbia University, was a straight-A student in high school, scored at the highest levels on state and national academic tests, speaks six languages and is an accomplished violinist who gave free lessons to impoverished youth in his hometown of Miami, Florida.10 • Laura Veira-Ramirez, a sophomore at Harvard, concentrating in chemistry with a secondary on ethnicity, migration, and rights, had the highest grade point average in her high school class in Connecticut.11 At graduation, she gave a speech that revealed her undocumented status to many of her classmates for the first time, precisely because she “wanted
[their] full financial need for all four years of [their] undergraduate career.); Columbia Undergraduate Admissions, Undocumented Students and DACA, https://undergrad.admissions.columbia.edu/apply/first-year/undocumented-students (last visited Oct. 31, 2017) (Columbia is “committed to meeting 100% of the demonstrated financial need of all students admitted as first-years or transfer students pursuing their first degree, regardless of citizenship status”). 10 Santiago Tobar Potes, DACA Student: Deporting Me and 800,000 Dreamers Is a Man-Made Disaster That Will Be Terrible for US, FOX NEWS (Sept. 5, 2017), http://www.foxnews.com/opinion/2017/09/05/daca-student-deporting-me-and800000-dreamers-is-man-made-disaster-that-will-be-terrible-for-us.html. 11 Liz Mineo, Ask the Undocumented, HARVARD GAZETTE (May 4, 2017), https://news.harvard.edu/gazette/story/2017/05/4-undocumented-harvard-collegestudents-recount-their-journeys-and-their-hopes/.
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to show how much you [can] accomplish even though you may be undocumented.”12 • Luis Gonzalez, a junior at Georgetown majoring in American Studies, graduated from high school in California, with a 4.69 grade point average and with passing scores on all nine of the Advanced Placement exams that he took. As the secretary of his high school’s National Honor Society chapter, he helped organize an anti-bullying campaign in the elementary school he had attended and spent most of his Saturdays tutoring classmates in math. • Luke Hwang, a current PhD candidate in chemistry at the University of Chicago, graduated from a competitive math and sciences magnet high school in Bergen County, New Jersey, where he won a number of awards at regional science fairs and volunteered as an Emergency Medical Technician in his local ambulance corps. Luke was next accepted as a University Scholar in the Macaulay Honors College at the City College of New York, from which he received a Bachelor’s of Science in Chemistry. In addition to graduating summa cum laude, Luke received an award for obtaining the highest grade point average of any chemistry major. • Barbara Olachea Lopez Portillo is a junior at Dartmouth, where she is majoring in sociology, minoring in international relations, and devoting substantial time to learning media production. She was the valedictorian of her high school class in Phoenix, Arizona, the secretary of her schools’ student government, and an active participant in various other extracurricular activities, including Inspire Arizona, an organization that promotes civic engagement. • Johan Villanueva, a sophomore at MIT majoring in chemical engineering, graduated second in his class from the largest public high school in Chicago. In addition to being the co-captain of his high school’s Math Team, Johan was involved in Homeland Helpers, a student group dedicated to assisting the city’s homeless population, the Environmental Club, and the National Honor Society. DACA students’ presence on amici’s campuses is all the more notable given the enormous challenges that undocumented youth face in order to obtain a higher education. To start, the vast majority of these students have grown up in households that survive on incomes far below the federal poverty line, and most
12 Id.
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are the first persons in their families to attend college.13 Additionally, these
students often cope with family instability and anxiety relating to their undocumented status.14 As one DACA student at Yale explained:
[The] challenges . . . start in high school—when many undocumented students, seeing no way out of their limbo status, lose motivation. Others pick up jobs on the side to financially help their families, slowly drifting away from their classwork. Even for those who remain dedicated to their classes, studies show a lack of information regarding university options and an inability to obtain financial aid obstructs the path to higher education.15 Given the significant adversity that DACA students have surmounted prior
to even applying to amici institutions, it is no surprise that DACA recipients have
also excelled on amici’s campuses. Jin Park was born in South Korea and came to
New York City at age 7. Growing up, Park understood that his family was
different: “I knew that my family couldn’t get a car, that we didn’t have health
care, and that we should avoid busy streets, where immigration raids often take
13 See Institute for Immigration, Globalization, & Education, In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform 7 (2015), http://www.undocuscholars.org/assets/ undocuscholarsreport2015.pdf (reporting on a survey of undocumented students that found “61.3% . . . had an annual household income below $30,000” and 67.6% were first-generation college students). 14 Id. at 2 (“[Undocumented youth] are disproportionately more likely to grow up in poverty, crowded housing, lacking health care, and residing in households where families have trouble paying rent and affording food.”). 15 Stephanie Leutert, Undocumented in the Ivy League, AM. Q. (May 5, 2012), http://www.americasquarterly.org/content/undocumented-ivy-league.
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place[,] . . . but I didn’t quite understand it.”16 He found out about his legal status when a Manhattan hospital rejected him from an internship program on that basis. Park credits DACA with giving him the confidence to apply to college to pursue his dream of becoming a “doctor to work on policies to help the most vulnerable.”17 Indeed, his professional goals are an outgrowth of his experience growing up undocumented: “When I was 11, I had to search online how to treat a burn at home because my father had been burned at work and couldn’t go to the hospital.”18 Now a molecular and cellular biology concentrator at Harvard College conducting immunology research at Harvard Medical School, Park was recently nominated by Harvard for both a Rhodes and Marshall Scholarship. II. RESCINDING DACA HARMS AMICI’S STUDENTS AND ALUMNI,
AND DEPRIVES BOTH AMICI INSTITUTIONS AND THE COUNTRY OF THEIR PROMISE A. The September Memorandum Has a Devastating Impact on
DACA Recipients DACA recipients are American in everything except immigration status. They have come of age in this country, excelling in our elementary, middle and high schools, praying in our houses of worship, playing on our little league teams, and celebrating our national holidays. Still more, an amazing number of these
16 Mineo, supra note 11. 17 Id. 18 Id.
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young people have demonstrated their dedication to this country’s ideals by actively engaging in its civic life to the full extent permitted by law. Even before their arrival on our campuses, many of amici’s students and alumni led voter registration drives, carried petitions, testified before state and federal legislative bodies, wrote letters to the editor and participated in documentary film projects. And they continue to do so today—despite the potential consequences for themselves, their friends, and their loved ones. In short, many of these young people have engaged in precisely the kind of courageous civic activities that are crucial to the continued vitality of our democracy.
While DACA did not provide our students and alumni a path to citizenship, it did offer them a measure of security and access to opportunities for educational and professional development. As Juan Jose Martinez-Guevera, a sophomore at Georgetown, whose goal is someday to “work for the government—to help achieve what is best for America in the world and to help make the world a safer place”—put it:
Thanks to DACA, I now have a part-time job on campus and can help ease the cost of college on my parents. Thanks to DACA I can feel safe and confident while traveling, whether it be to attend school or to visit my family. Thanks to DACA I can focus on my studies without worrying that it may all be taken away from me at any second. I have always thought of myself as an American, but it is thanks to DACA that I can begin to truly feel like one, too.
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Rescinding DACA wrests from Juan and hundreds of thousands of strivers like him the sense of safety and possibility that they deserve and have come to rely on. Regents of Univ. of California, 279 F. Supp. 3d at 1046 (“DACA recipients, their employers, their colleges, and their communities all developed expectations based on the possibility that DACA recipients could renew their deferred action and work authorizations for additional two-year periods.”); see also Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 431 (E.D.N.Y. 2018) (“[E]ducational institutions have enrolled DACA recipients who, if they lose their DACA benefits, may be forced to leave the United States or may see little need to continue pursuing educational opportunities.”). Now, through no fault of their own, these young people face the terrifying prospect of having to return to a life in which they have little chance of making the best use of their hard-earned skills and knowledge, or, worse still, being removed altogether and forced to make their way in a country that is wholly foreign to them.
The September Memorandum also sends a clear message to the more than one million undocumented children in the United States that the trails amici’s students and alumni have blazed lead nowhere and are not worth following. That message is antithetical to the commitment to equal opportunity on which this country was founded, raising “the specter of a permanent caste of undocumented [immigrants] . . . denied the benefits that our society makes available to citizens
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and lawful residents.” Plyler v. Doe, 457 U.S. 202, 218–19 (1982). Rather than serving our country’s interests, rescinding DACA will deprive our society of the many contributions these young people are prepared and eager to make.
B. Rescinding DACA Prevents Undocumented Students From Fully Benefitting From and Contributing To Amici’s Institutions
Consistent with their missions, amici are committed to providing a full and complete education to all of their enrolled students—anything less is insufficient to prepare them to identify and solve the consequential problems that amici expect them to address over the course of their careers. DACA helped amici achieve this objective by making it possible for undocumented students to participate fully in educational work opportunities, such as off-campus internships and on-campus research with university faculty. It also allowed them to conduct field work outside of the United States and participate in amici’s varied study abroad programs.19 By participating in these experiences, students generate questions for further exploration during their time on campus and begin to chart their course for after graduation.
19 Indeed, amici have emphasized the importance of study abroad programs to better prepare students to “build global competence” and navigate careers in an interconnected world. See, e.g., Northwestern University, Why Study Abroad?, http://www.northwestern.edu/studyabroad/prospective-students/why-study-abroad/ index.html (last visited Oct. 31, 2017).
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For instance, during his time at MIT, Jose Gomez, who came to the United States from northern Mexico when he was five years old, participated in MIT’s Undergraduate Research Opportunity Program at the MIT Space Systems Laboratory, where, among other things, he participated as a flyer in a NASA reduced gravity flight. This work in turn resulted in Jose co-authoring a paper that was presented at an international conference in Vienna, Austria. Separately, due to his DACA status, Jose was eligible to participate in an externship at a startup company that develops robots to improve the efficiency of e-commerce order fulfillment. During this externship, Jose led the development of a tactile sensor kit for a robotic hand and designed and prototyped robotic finger mechanical components using 3D printed parts and rubber casting. Given this achievement, it is no surprise that the startup asked Jose to return as an applications engineer after he graduated with a Bachelor of Aerospace Engineering this past June. Without DACA, Jose’s story would not have been possible.
In addition to unlocking the full array of enriching activities that comprise a world-class higher education, DACA’s promise of deferred action empowered undocumented students to talk about their lived experiences without fear of retribution, adding meaningfully to the robust exchange of ideas that amici seek to cultivate on their campuses. For instance, while attending the University of Pennsylvania’s Wharton School of Business, recent alumna and DACA recipient
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Tania Chairez founded Penn for Immigrant Rights (“PIR”), an organization intended to “debunk misconceptions and connect immigration to current events.”20 Under her leadership, PIR conducted “undocu-trainings . . . [to] mak[e] sure as many student leaders as possible know what it even means to be an undocumented person.”21
True, numerous DACA recipients have continued to speak publicly about their legal status despite the September Memorandum—including the many students who agreed to the use of their name in this brief. But the policy reversal places these students, and the many more whom it has silenced, in a position wholly at odds with the principles of academic freedom to which amici are fervently committed. These students should not have to risk their own physical liberty—and that of their families—in order to tell their stories.
C. Rescinding DACA Deprives the Nation of Invaluable Resources The DACA students at amici institutions—and the many thousands more enrolled at other colleges and universities—are by definition the product of this nation’s education system and the communities that support it. Through the opportunities provided by American institutions of higher education all over this
20 Penn for Immigrant Rights, Founders Statement, https://upenn4immigrantrights. wordpress.com/blog/ (last visited Oct. 31, 2017). 21 Laura Anthony, Two Years Later, Tania Chairez Still ‘Undocumented and Unapologetic’, DAILY PENNSYLVANIAN (April 17, 2014), http://www.thedp.com/ article/2014/04/q-a-with-tania-chairez.
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country, including amici’s, these young people now have the skills to give back— in ways big and small—to the country that raised them. And they want nothing more than the opportunity to do so. “[D]riving them out” now “would be throwing away a tremendous national investment” for no discernible benefit.22
Take Cristina Velasquez, whose mother brought her to Madison, Wisconsin, when she was six years old. In a letter to Senator Richard Durbin of Illinois, Cristina wrote that her values and attitude were shaped by the people surrounding her during her childhood, especially their “compassion, patience and hard work.” During middle school, Cristina’s family relocated to Florida, where she went on to graduate from high school with impeccable grades and a track record of community engagement, but she could not afford to attend college. After taking a gap year to focus on saving money, Cristina enrolled at Miami-Dade Community College before transferring to the Georgetown School of Foreign Service, from which she graduated a few months ago. While at Georgetown, Cristina spent both of her summers working with high-achieving, low-income middle school students, and received several awards for her academic achievement and commitment to public service. This year, Cristina will return to the classroom as one of 190
22 Reif, supra note 4. -17-

DACA recipients who will be teaching some of our nation’s most marginalized and vulnerable youth through Teach for America.23
Consider, too, Alfredo Muniz, who arrived with his parents in Houston, Texas when he was only a year old and went on to earn a full scholarship to attend the University of Pennsylvania, from which he graduated in 2016 with undergraduate and graduate degrees in mechanical engineering and robotics.24 While at Penn, Alfredo and a classmate developed XEED, a sensor-based system that collects and transmits data about limb movement in individuals with Parkinson’s disease.25 Healthcare professionals and patients can use this information to better assess the disease’s progress and the effectiveness of treatment. The project, which has the potential to help hundreds of thousands of patients around the world, was awarded the 2016 University of Pennsylvania
23 Durbin: Let’s Show The American Dream Is Still Alive By Passing The Dream Act (Sept. 12, 2017), https://www.durbin.senate.gov/newsroom/pressreleases/durbin-lets-show-the-american-dream-is-still-alive-by-passing-the-dreamact; Teach for America, Teach for America Urges Congress To Pass The DREAM Act (Sept. 5, 2017), https://www.teachforamerica.org/top-stories/daca-dream-acthow-you-can-stand-tfa-dreamer-teachers-and-undocumented-students. 24 Amanda Mott, Inaugural President’s Innovation Prize Winners Announced at Penn, PENNNEWS (Apr. 20, 2016), https://news.upenn.edu/news/inauguralpresident-s-innovation-prize-winners-announced-penn. 25 Id.
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President’s Innovation Prize, which was accompanied by $100,000 to support its further development.26
And as a final example, take Blanca Morales. Blanca arrived in the United
States when she was five years old. She “believed [her] teachers when they said that if [she] just worked hard enough, [she] could achieve great things.”27 Heeding
their advice, Blanca graduated as the valedictorian of her high school class and
with honors from the University of California, Irvine, before receiving a full scholarship to attend Harvard Medical School. 28 Blanca’s ultimate goal is to
return to Santa Ana, California, the town where she grew up, to give back to its
current residents the “opportunities” and “encouragement” that they gave her.29
But with the end of DACA, Blanca is “left to wonder if [she] will be deported” before she has the opportunity to do so.30 “When I received this white coat, I took
26 Roberto Torres, These 3 Companies Are Coming to the Pennovation Center, TECHNICAL.LY (June 30, 2016), https://technical.ly/philly/2016/06/30/pennovationcenter-cosy-xeed-fever-smart/. 27 Troy Parks, Med Student ‘Dreamers’ Speak Out on Maintaining DACA Protections, AMA WIRE (Feb. 13, 2017), https://wire.ama-assn.org/amanews/med-student-dreamers-speak-out-maintaining-daca-protections. 28 Id. 29 Greg Lee, Undocumented Santa Ana Scholar Accepted to Harvard Medical School, ABC NEWS (June 16, 2016), http://abc7.com/news/undocumented-santaana-scholar-accepted-to-harvard-medical-school/1388040/. 30 Jake Miller, White Coats for DACA, HARVARD MED. SCH. NEWS (Sept. 14, 2017), https://hms.harvard.edu/news/white-coats-daca.
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an oath to act whenever there are injustices and to embrace my duty to advocate for patients,” Blanca said. “The end of DACA is an injustice to my future patients, because it threatens my ability to treat diabetes, to perform heart surgery or perhaps even cure cancer as a future physician.”31
Cristina, Alfredo, Blanca, and countless others like them have “bound” themselves to this nation through their “hard work, perseverance, grit and determination to succeed.”32 And this nation, in turn, has bound itself to them. The United States now stands to benefit greatly by permitting the young people that it has raised “to put their skills to their highest use.”33 “[F]orcing them to return to the shadows of our society” by rescinding DACA would be a tragic mistake.34
CONCLUSION For the foregoing reasons, the September Memorandum impedes amici’s ability to advance their missions, imposes a direct harm on their current students and alumni, and deprives the United States of the benefit of DACA students’ considerable talents. The District Court correctly decided that Plaintiffs have
31 Id. 32 Brown President Urges Trump to Continue DACA, BROWN UNIV. NEWS (Aug. 30, 2017), https://news.brown.edu/articles/2017/08/daca. 33 Faust, supra note 2. 34 Id.
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shown a likelihood of success on their claim that the September Memorandum is

arbitrary and capricious and that Plaintiffs will suffer serious irreparable harm in

the absence of provisional relief. Accordingly, this Court should affirm the

District Court’s order. Dated: March 20, 2018

Respectfully submitted,

By: /s/ Anton Metlitsky Anton Metlitsky Jennifer B. Sokoler

O’MELVENY & MYERS LLP Times Square Tower 7 Times Square New York, New York 10036-6537 Telephone: (212) 326-2000 Facsimile: (212) 326 2061 ametlitsky@omm.com jsokoler@omm.com Attorneys for Amici

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18-15068, 18-15069, 18-15070, 9th Circuit Case Number(s) 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

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pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or Unrepresented Litigant

s/

Anton

Metlitsky

("s/" plus typed name is acceptable for electronically-filed documents)

Date Mar 20, 2018
(Rev.12/1/16)

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134 —–——–—–——
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., PlaintiffsAppellees, v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., DefendantsAppellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRIEF OF AMICI CURIAE EIGHTEEN UNIVERSITIES IN SUPPORT OF PLAINTIFF-APPELLEES AND FOR AFFIRMANCE
ANTON METLITSKY JENNIFER B. SOKOLER O’MELVENY & MYERS LLP 7 TIMES SQUARE NEW YORK, NY 10036 TELEPHONE: (212) 326-2000 FACSIMILE: (212) 326-2061 Attorneys for Amici

CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, counsel for amici

curiae Brown University, California Institute of Technology, Columbia University,

Cornell University, Dartmouth College, Duke University, Emory University,

Georgetown University, George Washington University, Harvard University,

Massachusetts Institute of Technology, Northwestern University, Stanford

University, University of Chicago, the University of Pennsylvania, Vanderbilt

University, Washington University in St. Louis, and Yale University certifies that

amici, respectively, are not publicly held corporations, that amici, respectively, do

not have a parent corporation, and that no publicly held corporation owns 10

percent or more of amici’s respective stock. Dated: March 20, 2018

By: /s/ Anton Metlitsky Anton Metlitsky
Attorney for Amici

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TABLE OF CONTENTS Page
STATEMENT OF INTEREST..................................................................................1 INTRODUCTION .....................................................................................................2 ARGUMENT .............................................................................................................5
I. DACA Students Enrolled at Amici Institutions Are Some of the Most Gifted and Motivated Young People in the World ......................5
II. Rescinding DACA Harms Amici’s Students and Alumni, and Deprives Both Amici Institutions and the Country of Their Promise ................................................................................................11 A. The September Memorandum Has a Devastating Impact on DACA Recipients ................................................................11 B. Rescinding DACA Prevents Undocumented Students From Fully Benefitting From and Contributing To Amici’s Institutions ...................................................................14 C. Rescinding DACA Deprives the Nation of Invaluable Resources ..................................................................................16
CONCLUSION ........................................................................................................20
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Cases

TABLE OF AUTHORITIES

Page(s)

Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 2018) ................................................................13

Plyler v. Doe, 457 U.S. 202 (1982)............................................................................................14

Regents of Univ. of California v. United States Dep't of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018)..........................................................4, 13

Sweezy v. New Hampshire, 354 U.S. 234 (1957)..............................................................................................6

Other Authorities

Amanda Mott, Inaugural President’s Innovation Prize Winners Announced at Penn, PENNNEWS (Apr. 20, 2016), https://news.upenn.edu/news/inaugural-president-s-innovationprize-winners-announced-penn ...........................................................................18

Brown President Urges Trump to Continue DACA, BROWN UNIV. NEWS (Aug. 30, 2017), https://news.brown.edu/articles/2017/08/daca ....................................................20

Brown University, Undergraduate Admission, https://www.brown.edu/admission/undergraduate/apply .....................................7

Columbia Undergraduate Admissions, Undocumented Students and DACA, https://undergrad.admissions.columbia.edu/applyfirst-year/ undocumented-students ........................................................................................8

Cornell University, About Cornell University, https://www.cornell.edu/about/mission.cfm.........................................................6

Dartmouth College, Dartmouth College Mission Statement, http://home.dartmouth.edu/mission-statement .....................................................6

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TABLE OF AUTHORITIES (continued)

Page(s)

Duke University, Indenture of James B. Duke Establishing the Duke Endowment (1924), https://archive.org/details/indentureofjames00slsn ..............................................6

Durbin: Let’s Show The American Dream Is Still Alive By Passing The Dream Act (Sept. 12, 2017), https://www.durbin.senate.gov/newsroom/press-releases/durbinlets-show-the-american-dream-is-still-alive-by-passing-the-dreamact ........................................................................................................................18

Greg Lee, Undocumented Santa Ana Scholar Accepted to Harvard Medical School, ABC NEWS (June 16, 2016), http://abc7.com/news/undocumented-santa-ana-scholar-acceptedto-harvard-medical-school/1388040/ ..................................................................19

Harvard College Admissions & Financial Aid, What We Look For, https://college.harvard.edu/admissions/application-process/whatwe-look .................................................................................................................7

Harvard College Financial Aid Office, How Aid Works, https://college.harvard.edu/financial-aid/how-aid-works .....................................7

Harvard University, The Charter of the President and Fellows of Harvard College, Under the Seal of the Colony of Massachusetts Bay, and Bearing the Date May 31st A.D. 1650, https://library.harvard.edu/university-archives/using-thecollections/online-resources/charter-of-1650 .......................................................6

Institute for Immigration, Globalization, & Education, In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform (2015), http://www.undocuscholars.org/assets/ undocuscholarsreport2015.pdf ............................................................................10

Jake Miller, White Coats for DACA, HARVARD MED. SCH. NEWS (Sept. 14, 2017), https://hms.harv ard.edu/news/white-coats-daca ............. 19, 20

L. Rafael Reif, President of MIT, Trump Should Not Repeal DACA, BOSTON GLOBE (Aug. 31, 2017), https://www.bostonglobe.com/

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TABLE OF AUTHORITIES (continued)

Page(s)

opinion/2017/08/31/trump-shouldn-repeal-daca/ 9sqIjciw0UseCKGTSVCRlK/story.html........................................................5, 17

Laura Anthony, Two Years Later, Tania Chairez Still ‘Undocumented and Unapologetic’, DAILY PENNSYLVANIAN (April 17, 2014), http://www.thedp.com/article/2014/04/q-a-with-tania-chairez ..........................16

Letter from Caltech President Thomas F. Rosenbaum to The Caltech Community (Sept. 5, 2017), http://www.caltech.edu/content/statement-daca ...................................................3

Letter from Cornell University President Martha E. Pollack to President Donald J. Trump (Aug. 31, 2017), http://news.cornell.edu/stories/2017/09/pollack-urges-trumpsupport-daca-program ...........................................................................................3

Letter from Harvard University President Drew Gilpin Faust to President Donald J. Trump Regarding DACA (Aug. 28, 2017), https://www.harvard.edu/president/news/2017/letter-to-presidenttrump-regarding-daca......................................................................................3, 20

Liz Mineo, Ask the Undocumented, HARVARD GAZETTE (May 4, 2017), https://news.harvard.edu/gazette/story/2017/05/4undocumented-harvard-college-students-recount-their-journeysand-their-hopes/ ......................................................................................... 8, 9, 11

MIT Student Financial Services, Financial Aid at MIT, https://sfs.mit.edu/financial-aid-mit......................................................................7

MIT, MIT Mission, http://www.mit.edu/aboutmit/....................................................6

Northwestern University, Why Study Abroad?, http://www.northwestern.edu/studyabroad/prospective-students/ why-study-abroad/index.html .............................................................................14

Penn for Immigrant Rights, Founders Statement, https://upenn4immigrantrights.wordpress.com/blog/ .........................................16

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TABLE OF AUTHORITIES (continued)

Page(s)

Roberto Torres, These 3 Companies Are Coming to the Pennovation Center, TECHNICAL.LY (June 30, 2016), https://technical.ly/philly/ 2016/06/30/pennovation-center-cosy-xeed-fever-smart/ ...................................19

Santiago Tobar Potes, DACA Student: Deporting Me and 800,000 Dreamers Is a Man-Made Disaster That Will Be Terrible for US, FOX NEWS (Sept. 5, 2017), http://www.foxnews.com/opinion/2017/ 09/05/daca-student-deporting-me-and-800000-dreamers-is-manmade-disaster-that-will-be-terrible-for-us.html ....................................................8

Stanford University, The Founding Grant with Amendments, Legislation, and Court Decrees (1885), https://stacks.stanford.edu/ file/druid:bz978md4965/su_founding_grand.pdf.................................................6

Stephanie Leutert, Undocumented in the Ivy League, AM. Q. (May 5, 2012), http://www.americasquarterly.org/content/undocumentedivy-league ............................................................................................................10

Teach for America, Teach for America Urges Congress To Pass The DREAM Act (Sept. 5, 2017), https://www.teachforamerica.org/topstories/daca-dream-act-how-you-can-stand-tfa-dreamer-teachersand-undocumented-students ...............................................................................18

Troy Parks, Med Student ʻDreamersʼ Speak Out on Maintaining DACA Protections, AMA WIRE (Feb. 13, 2017), https://wire.amaassn.org/ama-news/med-student-dreamers-speak-out-maintainingdaca-protections ..................................................................................................19

Yale Admissions, What Yale Looks For, https://admissions.yale.edu/what-yale-looks-for ..................................................7

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STATEMENT OF INTEREST Amici are eighteen distinguished American institutions of higher education: Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, George Washington University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, the University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, and Yale University. Though important differences exist between them, amici share a common mission to educate the next generation of leaders with the talent, creativity and drive to solve society’s most pressing problems. In furtherance of that objective, amici have admitted undocumented students who benefitted from the protections and opportunities provided by the Deferred Action for Childhood Arrival (“DACA”) program. Like their classmates, the DACA students on amici’s campuses make enormous contributions to our campuses and our country. The universities that are signatories to this brief have an interest in each of their undocumented students’ welfare and ability to obtain a full and complete higher education. Amici also have an interest in ensuring that when these students graduate, they are able to put their education to its highest use. The Department of
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Homeland Security’s September 5, 2017 Memorandum (“September Memorandum”) jeopardizes amici’s interests by harming their students.1
INTRODUCTION Amici have educated and helped launch the careers of many celebrated leaders and innovators in all fields, including more than 200 Nobel Prize recipients, half of the astronauts who have walked on the moon, dozens of Fortune 500 CEOs, and numerous Academy Award and Pulitzer Prize-winning artists and authors. And every day, amici’s alumni can be found teaching in our schools, performing cutting-edge research, discovering ground-breaking technology, healing patients in our hospitals, starting businesses, leading our armed forces, and reporting on current events for local and global news outlets. This is no coincidence, but a reflection of amici’s principal objective: To improve the human condition by educating the next generation of people with the talent, drive, and heart needed to identify and solve society’s most pressing problems. In furtherance of this mission, all amici institutions have admitted students who have applied for and been granted participation in the DACA program. “[L]ike their peers,” the DACA students on amici’s campuses “are extraordinarily
1 Amici hereby certify that no party’s counsel authored the brief in whole or in part, no party or party’s counsel contributed money intended to fund preparation or submission of this brief, and no person other than amici and their counsel contributed money intended to fund preparation or submission of the brief. The parties have consented to the filing of this amicus brief.
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talented young people who . . . aspire to be leaders in public service, science,
business, medicine, and the arts. They embody the drive and determination that
has made the United States the most prosperous and innovative country in the
world.”2 And by virtue of the DACA program—which protects participants
against near-term deportation, allows them to work lawfully, and enables them to
travel abroad—these students have been able for the first time to access
educational and life opportunities on nearly equal terms with their peers.
The September Memorandum rescinding DACA deters young people from
pursuing higher education and precludes the remarkable students enrolled at amici
institutions from deriving the full benefit of their time on our campuses. The
government’s action threatens amici’s ability to attract and educate the most
talented individuals and so undermines their educational missions.3 Indeed, ending
2 Letter from Harvard University President Drew Gilpin Faust to President Donald J. Trump Regarding DACA (Aug. 28, 2017), https://www.harvard.edu/president/ news/2017/letter-to-president-trump-regarding-daca. See also, e.g., Letter from Cornell University President Martha E. Pollack to President Donald J. Trump (Aug. 31, 2017), http://news.cornell.edu/stories/2017/09/pollack-urges-trumpsupport-daca-program (“I believe that our DACA students are ‘incredible kids.’ . . . It would be more than a shame if you . . . extinguish so many bright and productive futures just as they are getting started.”). 3 Letter from Caltech President Thomas F. Rosenbaum to The Caltech Community (Sept. 5, 2017), http://www.caltech.edu/content/statement-daca (ending DACA “cuts to the core of what we stand for as an educational institution: to identify, attract, and support talented individuals, and to create a community where students, staff, and faculty alike can learn from each other and thrive”).
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DACA forces future scholars, innovators, and leaders to choose between withdrawing to the margins of our society and national economy or returning to countries that they have never called home. Whatever they choose, their gifts and education are lost to this nation. Amici therefore urge this Court to affirm the District Court’s order granting provisional relief to Plaintiffs-Appellees (“Plaintiffs”) and enjoining the government from rescinding the DACA program. Regents of Univ. of California v. United States Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1048 (N.D. Cal. 2018).
Amici submit this brief to inform the Court about their experiences with the DACA students on their campuses and to warn of the consequences—to the students, amici, and the country—of rescinding the DACA program. At this time of profound challenges—from global pandemics and insoluble conflicts, to climate change and income inequality—the importance of amici’s shared mission of advancing and improving the human condition through teaching and research comes into sharper focus. To achieve their ambitious goals of advancing knowledge and transforming our society, schools must be able to identify and educate the very best students, and those students must be able to work after graduation. Ending DACA unjustly sidelines a discrete group of students. As one of amici’s Presidents put it, no student—amici’s or otherwise—should be forced to live in constant fear of “losing the opportunities they earned, the communities they
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think of as home, and the nation they love.”4 Nor should the nation lose the benefits of that student’s full participation in our society.
ARGUMENT I. DACA STUDENTS ENROLLED AT AMICI INSTITUTIONS ARE
SOME OF THE MOST GIFTED AND MOTIVATED YOUNG PEOPLE IN THE WORLD Although important differences exist from school to school, amici are united in a core mission: to educate extraordinary students from diverse backgrounds and prepare them for leadership, active citizenship, and achievement in every field of human endeavor. Each of amici’s schools, to borrow from one, “educates the most promising students and prepares them for a lifetime of learning and of responsible
4 L. Rafael Reif, President of MIT, Trump Should Not Repeal DACA, BOSTON GLOBE (Aug. 31, 2017), https://www.bostonglobe.com/opinion/2017/08/31/trumpshouldn-repeal-daca/9sqIjciw0UseCKGTSVCRlK/story.html.
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leadership.”5 From their founding charters6 to their current websites,7 these clearly
stated educational objectives govern how amici “determine for [themselves] on
academic grounds who may teach, what may be taught, how it shall be taught, and
who may be admitted to study.” Sweezy v. New Hampshire, 354 U.S. 234, 263
(1957) (Frankfurter, J., conc’g) (quotation omitted).
To fulfill their missions, amici devote substantial resources to identifying,
recruiting, and retaining exceptional young people from around the globe. Of
5 Dartmouth College, Dartmouth College Mission Statement, http://home.dartmouth.edu/mission-statement (last visited Oct. 31, 2017). 6 See, e.g., Duke University, Indenture of James B. Duke Establishing the Duke Endowment, at 24 (1924), https://archive.org/details/indentureofjames00slsn (calling for courses of instruction in areas that “can do most to uplift mankind” and “help to develop our resources, increase our wisdom and promote human happiness”); Stanford University, The Founding Grant with Amendments, Legislation, and Court Decrees, at 24 (1885), https://stacks.stanford.edu/file/ druid:bz978md4965/su_founding_grant.pdf (Stanford University’s “chief object is the instruction of students with a view to producing leaders and educators in every field of science and industry”); Harvard University, The Charter of the President and Fellows of Harvard College, Under the Seal of the Colony of Massachusetts Bay, and Bearing the Date May 31st A.D. 1650, https://library.harvard.edu/ university-archives/using-the-collections/online-resources/charter-of-1650 (last visited Oct. 31, 2017) (Harvard’s mission includes “the advancement of all good literature, arts, and sciences”). 7 See, e.g., Cornell University, About Cornell University, https://www.cornell.edu/ about/mission.cfm (last visited Oct. 31, 2017) (Cornell University’s “mission is to discover, preserve and disseminate knowledge, to educate the next generation of global citizens, and to promote a culture of broad inquiry throughout and beyond the Cornell community”); MIT, MIT Mission, http://www.mit.edu/aboutmit/ (last visited Oct. 31, 2017) (MIT’s goal “is to advance knowledge and educate students in science, technology, and other areas of scholarship that will best serve the nation and the world in the 21st century”).
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course, amici seek students with the scholarship record to excel in their
classrooms, but given the great number of applications that amici receive—well in
excess of the number of students they can admit—academic merit alone is
insufficient for admission. Amici therefore undertake an intensive application
review process to identify those students “who w[ill] make the most of the
extraordinary resources” they have to offer, “those with a zest to stretch the limits
of their talents, and those with an outstanding public motivation—in other words,
applicants with a concern for something larger than themselves.”8 Additionally,
amici have worked to ensure that the most qualified students can enroll in their
institutions, irrespective of their socioeconomic and immigration status.9
8 Yale Admissions, What Yale Looks For, https://admissions.yale.edu/what-yalelooks-for (last visited Oct. 31, 2017); see also Harvard College Admissions & Financial Aid, What We Look For, https://college.harvard.edu/admissions/ application-process/what-we-look (last visited Oct. 31, 2017) (“We seek to identify students who will be the best educators of one another and their professors— individuals who will inspire those around them during their college years and beyond.”); Brown University, Undergraduate Admission, https://www.brown.edu/admission/undergraduate/apply (last visited Oct. 31, 2017) (“We will consider how your unique talents, accomplishments, energy, curiosity, perspective, and identity might weave into the ever-changing tapestry that is Brown University.”). 9 Indeed, many of amici provide at least their undergraduate students complete, need-based financial aid. See, e.g., Harvard College Financial Aid Office, How Aid Works, https://college.harvard.edu/financial-aid/how-aid-works (last visited Oct. 31, 2017) (Harvard is “committed to meeting 100 percent of demonstrated financial need for all four years” of undergraduate education irrespective of citizenship status); MIT Student Financial Services, Financial Aid at MIT, https://sfs.mit.edu/financial-aid-mit (last visited Oct. 31, 2017) (MIT promises its undergraduate applicants that once they are admitted, the university will “meet
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The DACA students at amici institutions were selected because they are
outstanding students. Like their classmates, these young people were
valedictorians, student government leaders, varsity athletes, inventors, academic
award winners, accomplished artists, and role models for younger children in their
communities. And like many of their classmates, they are the pride of the
neighborhoods in which they grew up—“local kids who made good.” To take just
a few examples: • Santiago Tobar Potes, a sophomore at Columbia University, was a straight-A student in high school, scored at the highest levels on state and national academic tests, speaks six languages and is an accomplished violinist who gave free lessons to impoverished youth in his hometown of Miami, Florida.10 • Laura Veira-Ramirez, a sophomore at Harvard, concentrating in chemistry with a secondary on ethnicity, migration, and rights, had the highest grade point average in her high school class in Connecticut.11 At graduation, she gave a speech that revealed her undocumented status to many of her classmates for the first time, precisely because she “wanted
[their] full financial need for all four years of [their] undergraduate career.); Columbia Undergraduate Admissions, Undocumented Students and DACA, https://undergrad.admissions.columbia.edu/apply/first-year/undocumented-students (last visited Oct. 31, 2017) (Columbia is “committed to meeting 100% of the demonstrated financial need of all students admitted as first-years or transfer students pursuing their first degree, regardless of citizenship status”). 10 Santiago Tobar Potes, DACA Student: Deporting Me and 800,000 Dreamers Is a Man-Made Disaster That Will Be Terrible for US, FOX NEWS (Sept. 5, 2017), http://www.foxnews.com/opinion/2017/09/05/daca-student-deporting-me-and800000-dreamers-is-man-made-disaster-that-will-be-terrible-for-us.html. 11 Liz Mineo, Ask the Undocumented, HARVARD GAZETTE (May 4, 2017), https://news.harvard.edu/gazette/story/2017/05/4-undocumented-harvard-collegestudents-recount-their-journeys-and-their-hopes/.
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to show how much you [can] accomplish even though you may be undocumented.”12 • Luis Gonzalez, a junior at Georgetown majoring in American Studies, graduated from high school in California, with a 4.69 grade point average and with passing scores on all nine of the Advanced Placement exams that he took. As the secretary of his high school’s National Honor Society chapter, he helped organize an anti-bullying campaign in the elementary school he had attended and spent most of his Saturdays tutoring classmates in math. • Luke Hwang, a current PhD candidate in chemistry at the University of Chicago, graduated from a competitive math and sciences magnet high school in Bergen County, New Jersey, where he won a number of awards at regional science fairs and volunteered as an Emergency Medical Technician in his local ambulance corps. Luke was next accepted as a University Scholar in the Macaulay Honors College at the City College of New York, from which he received a Bachelor’s of Science in Chemistry. In addition to graduating summa cum laude, Luke received an award for obtaining the highest grade point average of any chemistry major. • Barbara Olachea Lopez Portillo is a junior at Dartmouth, where she is majoring in sociology, minoring in international relations, and devoting substantial time to learning media production. She was the valedictorian of her high school class in Phoenix, Arizona, the secretary of her schools’ student government, and an active participant in various other extracurricular activities, including Inspire Arizona, an organization that promotes civic engagement. • Johan Villanueva, a sophomore at MIT majoring in chemical engineering, graduated second in his class from the largest public high school in Chicago. In addition to being the co-captain of his high school’s Math Team, Johan was involved in Homeland Helpers, a student group dedicated to assisting the city’s homeless population, the Environmental Club, and the National Honor Society. DACA students’ presence on amici’s campuses is all the more notable given the enormous challenges that undocumented youth face in order to obtain a higher education. To start, the vast majority of these students have grown up in households that survive on incomes far below the federal poverty line, and most
12 Id.
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are the first persons in their families to attend college.13 Additionally, these
students often cope with family instability and anxiety relating to their undocumented status.14 As one DACA student at Yale explained:
[The] challenges . . . start in high school—when many undocumented students, seeing no way out of their limbo status, lose motivation. Others pick up jobs on the side to financially help their families, slowly drifting away from their classwork. Even for those who remain dedicated to their classes, studies show a lack of information regarding university options and an inability to obtain financial aid obstructs the path to higher education.15 Given the significant adversity that DACA students have surmounted prior
to even applying to amici institutions, it is no surprise that DACA recipients have
also excelled on amici’s campuses. Jin Park was born in South Korea and came to
New York City at age 7. Growing up, Park understood that his family was
different: “I knew that my family couldn’t get a car, that we didn’t have health
care, and that we should avoid busy streets, where immigration raids often take
13 See Institute for Immigration, Globalization, & Education, In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform 7 (2015), http://www.undocuscholars.org/assets/ undocuscholarsreport2015.pdf (reporting on a survey of undocumented students that found “61.3% . . . had an annual household income below $30,000” and 67.6% were first-generation college students). 14 Id. at 2 (“[Undocumented youth] are disproportionately more likely to grow up in poverty, crowded housing, lacking health care, and residing in households where families have trouble paying rent and affording food.”). 15 Stephanie Leutert, Undocumented in the Ivy League, AM. Q. (May 5, 2012), http://www.americasquarterly.org/content/undocumented-ivy-league.
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place[,] . . . but I didn’t quite understand it.”16 He found out about his legal status when a Manhattan hospital rejected him from an internship program on that basis. Park credits DACA with giving him the confidence to apply to college to pursue his dream of becoming a “doctor to work on policies to help the most vulnerable.”17 Indeed, his professional goals are an outgrowth of his experience growing up undocumented: “When I was 11, I had to search online how to treat a burn at home because my father had been burned at work and couldn’t go to the hospital.”18 Now a molecular and cellular biology concentrator at Harvard College conducting immunology research at Harvard Medical School, Park was recently nominated by Harvard for both a Rhodes and Marshall Scholarship. II. RESCINDING DACA HARMS AMICI’S STUDENTS AND ALUMNI,
AND DEPRIVES BOTH AMICI INSTITUTIONS AND THE COUNTRY OF THEIR PROMISE A. The September Memorandum Has a Devastating Impact on
DACA Recipients DACA recipients are American in everything except immigration status. They have come of age in this country, excelling in our elementary, middle and high schools, praying in our houses of worship, playing on our little league teams, and celebrating our national holidays. Still more, an amazing number of these
16 Mineo, supra note 11. 17 Id. 18 Id.
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young people have demonstrated their dedication to this country’s ideals by actively engaging in its civic life to the full extent permitted by law. Even before their arrival on our campuses, many of amici’s students and alumni led voter registration drives, carried petitions, testified before state and federal legislative bodies, wrote letters to the editor and participated in documentary film projects. And they continue to do so today—despite the potential consequences for themselves, their friends, and their loved ones. In short, many of these young people have engaged in precisely the kind of courageous civic activities that are crucial to the continued vitality of our democracy.
While DACA did not provide our students and alumni a path to citizenship, it did offer them a measure of security and access to opportunities for educational and professional development. As Juan Jose Martinez-Guevera, a sophomore at Georgetown, whose goal is someday to “work for the government—to help achieve what is best for America in the world and to help make the world a safer place”—put it:
Thanks to DACA, I now have a part-time job on campus and can help ease the cost of college on my parents. Thanks to DACA I can feel safe and confident while traveling, whether it be to attend school or to visit my family. Thanks to DACA I can focus on my studies without worrying that it may all be taken away from me at any second. I have always thought of myself as an American, but it is thanks to DACA that I can begin to truly feel like one, too.
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Rescinding DACA wrests from Juan and hundreds of thousands of strivers like him the sense of safety and possibility that they deserve and have come to rely on. Regents of Univ. of California, 279 F. Supp. 3d at 1046 (“DACA recipients, their employers, their colleges, and their communities all developed expectations based on the possibility that DACA recipients could renew their deferred action and work authorizations for additional two-year periods.”); see also Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 431 (E.D.N.Y. 2018) (“[E]ducational institutions have enrolled DACA recipients who, if they lose their DACA benefits, may be forced to leave the United States or may see little need to continue pursuing educational opportunities.”). Now, through no fault of their own, these young people face the terrifying prospect of having to return to a life in which they have little chance of making the best use of their hard-earned skills and knowledge, or, worse still, being removed altogether and forced to make their way in a country that is wholly foreign to them.
The September Memorandum also sends a clear message to the more than one million undocumented children in the United States that the trails amici’s students and alumni have blazed lead nowhere and are not worth following. That message is antithetical to the commitment to equal opportunity on which this country was founded, raising “the specter of a permanent caste of undocumented [immigrants] . . . denied the benefits that our society makes available to citizens
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and lawful residents.” Plyler v. Doe, 457 U.S. 202, 218–19 (1982). Rather than serving our country’s interests, rescinding DACA will deprive our society of the many contributions these young people are prepared and eager to make.
B. Rescinding DACA Prevents Undocumented Students From Fully Benefitting From and Contributing To Amici’s Institutions
Consistent with their missions, amici are committed to providing a full and complete education to all of their enrolled students—anything less is insufficient to prepare them to identify and solve the consequential problems that amici expect them to address over the course of their careers. DACA helped amici achieve this objective by making it possible for undocumented students to participate fully in educational work opportunities, such as off-campus internships and on-campus research with university faculty. It also allowed them to conduct field work outside of the United States and participate in amici’s varied study abroad programs.19 By participating in these experiences, students generate questions for further exploration during their time on campus and begin to chart their course for after graduation.
19 Indeed, amici have emphasized the importance of study abroad programs to better prepare students to “build global competence” and navigate careers in an interconnected world. See, e.g., Northwestern University, Why Study Abroad?, http://www.northwestern.edu/studyabroad/prospective-students/why-study-abroad/ index.html (last visited Oct. 31, 2017).
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For instance, during his time at MIT, Jose Gomez, who came to the United States from northern Mexico when he was five years old, participated in MIT’s Undergraduate Research Opportunity Program at the MIT Space Systems Laboratory, where, among other things, he participated as a flyer in a NASA reduced gravity flight. This work in turn resulted in Jose co-authoring a paper that was presented at an international conference in Vienna, Austria. Separately, due to his DACA status, Jose was eligible to participate in an externship at a startup company that develops robots to improve the efficiency of e-commerce order fulfillment. During this externship, Jose led the development of a tactile sensor kit for a robotic hand and designed and prototyped robotic finger mechanical components using 3D printed parts and rubber casting. Given this achievement, it is no surprise that the startup asked Jose to return as an applications engineer after he graduated with a Bachelor of Aerospace Engineering this past June. Without DACA, Jose’s story would not have been possible.
In addition to unlocking the full array of enriching activities that comprise a world-class higher education, DACA’s promise of deferred action empowered undocumented students to talk about their lived experiences without fear of retribution, adding meaningfully to the robust exchange of ideas that amici seek to cultivate on their campuses. For instance, while attending the University of Pennsylvania’s Wharton School of Business, recent alumna and DACA recipient
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Tania Chairez founded Penn for Immigrant Rights (“PIR”), an organization intended to “debunk misconceptions and connect immigration to current events.”20 Under her leadership, PIR conducted “undocu-trainings . . . [to] mak[e] sure as many student leaders as possible know what it even means to be an undocumented person.”21
True, numerous DACA recipients have continued to speak publicly about their legal status despite the September Memorandum—including the many students who agreed to the use of their name in this brief. But the policy reversal places these students, and the many more whom it has silenced, in a position wholly at odds with the principles of academic freedom to which amici are fervently committed. These students should not have to risk their own physical liberty—and that of their families—in order to tell their stories.
C. Rescinding DACA Deprives the Nation of Invaluable Resources The DACA students at amici institutions—and the many thousands more enrolled at other colleges and universities—are by definition the product of this nation’s education system and the communities that support it. Through the opportunities provided by American institutions of higher education all over this
20 Penn for Immigrant Rights, Founders Statement, https://upenn4immigrantrights. wordpress.com/blog/ (last visited Oct. 31, 2017). 21 Laura Anthony, Two Years Later, Tania Chairez Still ‘Undocumented and Unapologetic’, DAILY PENNSYLVANIAN (April 17, 2014), http://www.thedp.com/ article/2014/04/q-a-with-tania-chairez.
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country, including amici’s, these young people now have the skills to give back— in ways big and small—to the country that raised them. And they want nothing more than the opportunity to do so. “[D]riving them out” now “would be throwing away a tremendous national investment” for no discernible benefit.22
Take Cristina Velasquez, whose mother brought her to Madison, Wisconsin, when she was six years old. In a letter to Senator Richard Durbin of Illinois, Cristina wrote that her values and attitude were shaped by the people surrounding her during her childhood, especially their “compassion, patience and hard work.” During middle school, Cristina’s family relocated to Florida, where she went on to graduate from high school with impeccable grades and a track record of community engagement, but she could not afford to attend college. After taking a gap year to focus on saving money, Cristina enrolled at Miami-Dade Community College before transferring to the Georgetown School of Foreign Service, from which she graduated a few months ago. While at Georgetown, Cristina spent both of her summers working with high-achieving, low-income middle school students, and received several awards for her academic achievement and commitment to public service. This year, Cristina will return to the classroom as one of 190
22 Reif, supra note 4. -17-

DACA recipients who will be teaching some of our nation’s most marginalized and vulnerable youth through Teach for America.23
Consider, too, Alfredo Muniz, who arrived with his parents in Houston, Texas when he was only a year old and went on to earn a full scholarship to attend the University of Pennsylvania, from which he graduated in 2016 with undergraduate and graduate degrees in mechanical engineering and robotics.24 While at Penn, Alfredo and a classmate developed XEED, a sensor-based system that collects and transmits data about limb movement in individuals with Parkinson’s disease.25 Healthcare professionals and patients can use this information to better assess the disease’s progress and the effectiveness of treatment. The project, which has the potential to help hundreds of thousands of patients around the world, was awarded the 2016 University of Pennsylvania
23 Durbin: Let’s Show The American Dream Is Still Alive By Passing The Dream Act (Sept. 12, 2017), https://www.durbin.senate.gov/newsroom/pressreleases/durbin-lets-show-the-american-dream-is-still-alive-by-passing-the-dreamact; Teach for America, Teach for America Urges Congress To Pass The DREAM Act (Sept. 5, 2017), https://www.teachforamerica.org/top-stories/daca-dream-acthow-you-can-stand-tfa-dreamer-teachers-and-undocumented-students. 24 Amanda Mott, Inaugural President’s Innovation Prize Winners Announced at Penn, PENNNEWS (Apr. 20, 2016), https://news.upenn.edu/news/inauguralpresident-s-innovation-prize-winners-announced-penn. 25 Id.
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President’s Innovation Prize, which was accompanied by $100,000 to support its further development.26
And as a final example, take Blanca Morales. Blanca arrived in the United
States when she was five years old. She “believed [her] teachers when they said that if [she] just worked hard enough, [she] could achieve great things.”27 Heeding
their advice, Blanca graduated as the valedictorian of her high school class and
with honors from the University of California, Irvine, before receiving a full scholarship to attend Harvard Medical School. 28 Blanca’s ultimate goal is to
return to Santa Ana, California, the town where she grew up, to give back to its
current residents the “opportunities” and “encouragement” that they gave her.29
But with the end of DACA, Blanca is “left to wonder if [she] will be deported” before she has the opportunity to do so.30 “When I received this white coat, I took
26 Roberto Torres, These 3 Companies Are Coming to the Pennovation Center, TECHNICAL.LY (June 30, 2016), https://technical.ly/philly/2016/06/30/pennovationcenter-cosy-xeed-fever-smart/. 27 Troy Parks, Med Student ‘Dreamers’ Speak Out on Maintaining DACA Protections, AMA WIRE (Feb. 13, 2017), https://wire.ama-assn.org/amanews/med-student-dreamers-speak-out-maintaining-daca-protections. 28 Id. 29 Greg Lee, Undocumented Santa Ana Scholar Accepted to Harvard Medical School, ABC NEWS (June 16, 2016), http://abc7.com/news/undocumented-santaana-scholar-accepted-to-harvard-medical-school/1388040/. 30 Jake Miller, White Coats for DACA, HARVARD MED. SCH. NEWS (Sept. 14, 2017), https://hms.harvard.edu/news/white-coats-daca.
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an oath to act whenever there are injustices and to embrace my duty to advocate for patients,” Blanca said. “The end of DACA is an injustice to my future patients, because it threatens my ability to treat diabetes, to perform heart surgery or perhaps even cure cancer as a future physician.”31
Cristina, Alfredo, Blanca, and countless others like them have “bound” themselves to this nation through their “hard work, perseverance, grit and determination to succeed.”32 And this nation, in turn, has bound itself to them. The United States now stands to benefit greatly by permitting the young people that it has raised “to put their skills to their highest use.”33 “[F]orcing them to return to the shadows of our society” by rescinding DACA would be a tragic mistake.34
CONCLUSION For the foregoing reasons, the September Memorandum impedes amici’s ability to advance their missions, imposes a direct harm on their current students and alumni, and deprives the United States of the benefit of DACA students’ considerable talents. The District Court correctly decided that Plaintiffs have
31 Id. 32 Brown President Urges Trump to Continue DACA, BROWN UNIV. NEWS (Aug. 30, 2017), https://news.brown.edu/articles/2017/08/daca. 33 Faust, supra note 2. 34 Id.
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shown a likelihood of success on their claim that the September Memorandum is

arbitrary and capricious and that Plaintiffs will suffer serious irreparable harm in

the absence of provisional relief. Accordingly, this Court should affirm the

District Court’s order. Dated: March 20, 2018

Respectfully submitted,

By: /s/ Anton Metlitsky Anton Metlitsky Jennifer B. Sokoler

O’MELVENY & MYERS LLP Times Square Tower 7 Times Square New York, New York 10036-6537 Telephone: (212) 326-2000 Facsimile: (212) 326 2061 ametlitsky@omm.com jsokoler@omm.com Attorneys for Amici

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18-15068, 18-15069, 18-15070, 9th Circuit Case Number(s) 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

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 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL., Plaintiffs/Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., Defendants/Appellants.

On Appeal from the United States District Court for the Northern District of California, Honorable William H. Alsup

BRIEF OF AMICUS CURIAE THE BAR ASSOCIATION OF SAN FRANCISCO IN SUPPORT OF
PLAINTIFFS-APPELLEES

Daniel J. McCoy (CSB No. 206099) dmccoy@fenwick.com John-Paul S. Deol (CSB No. 284893) jpdeol@fenwick.com FENWICK & WEST LLP 801 California Street Mountain View, CA 94041 Telephone: 650.988.8500 Facsimile: 650.938.5200

Neil A.F. Popović (CSB No. 132404) npopovic@sheppardmullin.com James L. McGinnis (CSB No. 95788) jmcginnis@sheppardmullin.com Mark S. Ross (CSB No. 64812) mross@sheppardmullin.com SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Four Embarcadero Center, 17th Floor San Francisco, CA 94111 Telephone: (415) 434-9100 Facsimile: (415) 434-3947

Attorneys for Amicus Curiae the Bar Association of San Francisco

CORPORATE DISCLOSURE STATEMENT I, John-Paul S. Deol,1 attorney for Amicus Curiae the Bar Association of San Francisco (“BASF”), certify that BASF is a not-for-profit organization. BASF has no parent corporation; nor does it issue stock; nor does there exist a publicly held corporation that owns 10% or more of the stock of BASF.
1 Pursuant to Fed. R. App. P. 29(a)(4)(E), BASF represents that its counsel drafted this brief in its entirety. BASF’s counsel has covered the incidental costs required to submit this brief, but neither BASF nor any other individuals or entities have otherwise contributed money to fund the preparation of this brief.
i

TABLE OF CONTENTS Page
CORPORATE DISCLOSURE STATEMENT ..........................................................i I. INTEREST OF AMICUS CURIAE.......................................................................1 II. SUMMARY OF ARGUMENT ............................................................................3 III. ARGUMENT .......................................................................................................4
A. Termination of the DACA Program Would Impact Lawyers, Law Students, and Those That Depend on Them. ................................4 1. DACA Lawyers Are Making Tangible Contributions to the Profession...................................................6 2. Like Their Licensed Counterparts, DACA Law Students Are Also Making Key Contributions to the Legal Profession. .....................................10 3. Clients Will Suffer If the Government Terminates the DACA Program. .........................13
B. The End of the DACA Program Would Be Detrimental to Diversity and Excellence in the Legal Profession. .............................15 1. DACA Recipients Make The Legal Profession More Diverse, Benefitting the Profession as a Whole. ......................15 2. DACA Legal Professionals’ Unique Traits of Empathy and Compassion..........................................20
IV. CONCLUSION..................................................................................................22 CERTIFICATE OF COMPLIANCE.......................................................................24 CERTIFICATE OF SERVICE ................................................................................25
ii

TABLE OF AUTHORITIES

CASES

Page(s)

Fisher v. Univ. of Texas at Austin, 136 S. Ct. 2198 (2016)........................................................................................16

Grutter v. Bollinger, 539 U.S. 306 (2003)......................................................................................17, 18

In re Dale, No. 00-O-14350, 2005 WL 1389226 (Cal. Bar Ct. May 6, 2005) .....................14

In re Vargas, 131 A.D.3d 4 (N.Y. App. Div. 2015) ...........................................................5, 7, 8

Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) ...............................................................................10

Mendoza v. Ruesga, 169 Cal. App. 4th 270 (2008) .............................................................................14

STATUTES 705 Ill. Comp. Stat. Ann. 205/2 .................................................................................5 Cal. Bus. & Prof. Code § 6064(b)..............................................................................5 Fla. Stat. Ann. § 454.021 ...........................................................................................5 Neb. Rev. Stat. Ann. § 4-111 .....................................................................................5 Wyo. Stat. Ann. § 33-5-105 .......................................................................................5

RULES Fed. R. App. P. 29(a)(4)(D) .......................................................................................2

iii

TABLE OF AUTHORITIES (continued)

OTHER AUTHORITIES

Page(s)

A.B.A. Resolution 108 (2017) ...................................................................................6

Bar Association of San Francisco, About Us: Our Mission, http://www.sfbar.org/ about/ (last visited October 30, 2017)...............................1

BUREAU OF LABOR STATISTICS, Labor Force Statistics from the Current Population Survey, https://www.bls.gov/cps/cpsaat11.htm (last visited October 29, 2017)............................................................................15

Doug Criss, For the First Time, California Appoints an Undocumented Immigrant to a State Post, CNN (Mar. 16, 2018), https://www.cnn.com/2018/03/16/politics/californiaundocumented-appointment-trnd/index.html .......................................................9

Eli Wald, A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who Is Responsible for Pursuing Diversity and Why, 24 GEO. J. LEGAL ETHICS 1079 (2011) ...................18, 19, 20

Gustavo Lopez, Key Facts About Unauthorized Immigrants Enrolled in DACA, PEW RESEARCH CENTER (Sept. 25, 2017), http://www.pewresearch.org/fact-tank/2017/09/25/keyfacts-about-unauthorized-immigrants-enrolled-in-daca/ ....................................16

Jennifer Medina, A Defender of the Constitution, With No Legal Right to Live Here, N.Y. TIMES (Jul. 17, 2017), https://www.nytimes.com/ 2017/07/17/us/undocumented-immigrants-illegal-citizenship.html.................8, 9

Joshua Rosenberg, Interpersonal Dynamics: Helping Lawyers Learn the Skills, and the Importance, of Human Relationships in the Practice of Law, 58 U. MIAMI L. REV. 1225 (2004).................................21

Kristin Gerdy, Clients, Empathy, and Compassion: Introducing First-Year Students to the “Heart” of Lawyering, 87 NEB. L. REV. 1 (2008) .....................20

iv

TABLE OF AUTHORITIES (continued)
Page(s)
Mike McPhate, California Today: They’re Lawyers, and at Risk of Deportation, N.Y. TIMES (Jul. 18, 2017), https://www.nytimes.com/ 2017/07/18/us/california-todayundocumented-immigrants-lawyers.html ...........9
Nicole Negowetti, Implicit Bias and the Legal Profession’s “Diversity Crisis”: A Call for Self-Reflection, 15 NEV. L.J. 930 (2015) ...........18
PANGEA LEGAL SERVICES, Luis Angel Reyes Savalza, http://www.pangealegal.org/ luis-angel-reyes-savalza (last visited October 29, 2017)............................................................................10
Rebecca Klein, An Undocumented Teen Gains Asylum With The Help Of His Undocumented Lawyer, HUFFINGTON POST (Jul. 22, 2017), https://www.huffingtonpost.com/entry/cesar-vargas-undocumentedlawyer-client_us_59727244e4b09e5f6ccf6cf6 ..................................................... 6
Tom Wong, New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, CENTER FOR AMERICAN PROGRESS (Oct. 18, 2016), https://www.americanprogress. org/issues/immigration/news/2016/10/18/146290/new-study-of-dacabeneficiaries-shows-positive-economic-and-educational-outcomes/ ................. 15
White Paper, How Foreign-Born Workers Make America More Competitive and Benefit American Workers, HR POLICY ASSOCIATION (2017) ....................19
Yvette Cabrera, The Unlikely Story of the Undocumented Attorneys Fighting for the Lives of Their Undocumented Clients, THINKPROGRESS (Aug. 15, 2017), https://thinkprogress.org/the-unlikely-story-of-theundocumented-attorneys-fighting-for-the-lives-of-their-undocumentedclients-07209cb95282/ ........................................................................................ 11
v

I. INTEREST OF AMICUS CURIAE The Bar Association of San Francisco (“BASF”) is a nonprofit organization with a membership of over seven thousand legal professionals in the Bay Area. Founded in 1872 by pioneers and Civil War veterans, BASF is a leader in the formation and improvement of the legal system in San Francisco, California and the United States. BASF’s mission statement is as follows: The Bar Association of San Francisco champions equal access to justice and promotes humanity, excellence, and diversity in the legal profession. We provide legal services to disadvantaged and underserved individuals in San Francisco. We create opportunities for legal service in the community and encourage participation by our members. We advance professional growth and education, and elevate the standards of integrity, honor, and respect in the practice of law. We cultivate diversity and equality in the legal profession, provide a collective voice for public advocacy, and pioneer constructive change in society. Bar Association of San Francisco, About Us: Our Mission, http://www.sfbar.org/ about/ (last visited October 30, 2017). BASF submits this brief to assist the Court in understanding that the termination of the Deferred Action for Childhood Arrivals (“DACA”) program would have a severe and detrimental impact on the American legal profession. In so doing, BASF highlights the benefits that DACA-authorized legal professionals
1

confer on the profession through their unique perspectives and work with clients in need, including undocumented immigrants and others.
BASF has a direct and substantial interest in the outcome of this case, as it is an organization devoted to advocating for equal access to justice, as well as humanity, excellence, and diversity in the legal profession. DACA legal professionals often undertake legal representation of the neediest residents surviving on the margins of our community, and by doing so, assist BASF in advancing access to justice. BASF is therefore qualified to inform the Court about the devastating impact the termination of the DACA program would have on its own members and on others in the legal profession and the community.2
2 Pursuant to Fed. R. App. P. 29(a)(4)(D), BASF represents that Plaintiffs/Appellees and Defendants/Appellants have consented to the filing of this brief.
2

II. SUMMARY OF ARGUMENT In September 2017, the Trump administration announced its plan to terminate the DACA program in March 2018, leaving close to 800,000 work-authorized and legally present immigrants brought to this country by their parents without any certainty as to whether they will be able to remain in the United States. As there are numerous DACA recipients and DACA-eligible individuals currently engaged in the practice of law or studying to become lawyers, the termination of the program will severely hamper their ability to represent their clients and contribute their unique skills and attributes to the legal profession. This loss will inevitably harm the legal profession as a whole, as well as the individuals, communities, organizations and businesses served by the legal profession. And it will reverse the progress that has been made by these courageous attorneys and law students who have sacrificed and persevered to enter a profession not long ago completely off limits to them. The first part of this brief explains some of the many contributions DACA attorneys and law students have made in the short time they have been allowed to practice law in California, Florida, Illinois, Nebraska, New York, and Wyoming. It also describes the impact that a sudden termination of the DACA program would have on the clients of these individuals, many of whom are of modest means and themselves undocumented immigrants.
3

The second part of this brief reaches beyond the readily identifiable, tangible contributions that DACA attorneys and law students have made and continue to make in their practices, illustrating how these individuals contribute to the diversity of the legal profession in ways that others cannot, sharing their experiences, opinions, and viewpoints as previously undocumented immigrants themselves. They have the critical ability to empathize with and have compassion for their clients, including but not limited to undocumented individuals of color who would otherwise have no access to lawyers with these crucial attributes.3
For these reasons and those discussed below, BASF respectfully requests that this Court affirm the district court’s orders granting a preliminary injunction and denying in part the government’s motion to dismiss and that it reverse the district court’s order granting in part the government’s motion to dismiss.
III. ARGUMENT A. Termination of the DACA Program Would Impact Lawyers, Law
Students, and Those That Depend on Them. As a result of the federal government’s DACA program, lawyers and law students participating in DACA have become fully integrated members of the legal profession. Some of the nation’s most populous states have grappled with the issue
3 To be clear, DACA attorneys have much to offer all clients, undocumented or not; and non-DACA attorneys are certainly capable of effectively representing undocumented immigrants.
4

of whether law school graduates in the DACA program should be admitted to their
respective state bars, and have concluded that admitting these aspiring lawyers to
practice is both fair to the individuals and a benefit to the profession. As of this year,
California, Florida, Illinois, Nebraska, New York, and Wyoming now allow
undocumented immigrants the opportunity to obtain a license to practice law under
certain conditions, including, in some states, the condition that the applicant possess
a valid work permit from the federal government or have been granted DACA relief.4
With these states leading the way, the tide of popular opinion is also shifting.
This year, the American Bar Association passed a resolution stating that it supports
“the principle that bar admission should not be denied based solely on immigration
4 Cal. Bus. & Prof. Code § 6064(b) (“Upon certification by the examining committee that an applicant who is not lawfully present in the United States has fulfilled the requirements for admission to practice law, the Supreme Court may admit that applicant as an attorney at law in all the courts of this state.”); Fla. Stat. Ann. § 454.021 (“Upon certification by the Florida Board of Bar Examiners that an applicant who is an unauthorized immigrant … has fulfilled all requirements for admission to practice law in this state, the Supreme Court of Florida may admit that applicant as an attorney at law authorized to practice in this state.”); 705 Ill. Comp. Stat. Ann. 205/2 (“No person shall be prohibited from receiving a license solely because he or she is not a citizen of the United States.”); Neb. Rev. Stat. Ann. § 4111 (“The Legislature finds that it is in the best interest of the State of Nebraska to make full use of the skills and talents in the state by ensuring that a person who is work-authorized is able to obtain a professional or commercial license and practice his or her profession.”); In re Vargas, 131 A.D.3d 4, 27–28 (N.Y. App. Div. 2015) (“Finding no legal impediment or rational basis for withholding the privilege of practicing law in the State of New York from undocumented immigrants who have been granted DACA relief, we … declare that such persons may be admitted to the practice of law.”); Wyo. Stat. Ann. § 33-5-105 (removing the requirement that an applicant for a law license be a U.S. citizen).
5

status,” and urging Congress to amend federal law to state affirmatively that “[a] state court vested with exclusive authority to regulate admission to the bar may, by rule, order, or other affirmative act, permit an undocumented alien seeking legal status to obtain a professional license to practice law in that jurisdiction.” A.B.A. Resolution 108 (2017).
These recent changes in policy have opened the door for work authorized immigrants, particularly those participating in DACA, to practice law despite their otherwise unsettled immigration status. Since being granted the ability to engage in their chosen profession, these newly admitted professionals, and the law students following in their footsteps, have made significant impacts on the lives of their clients and on the legal profession as a whole.
1. DACA Lawyers Are Making Tangible Contributions to the Profession.
In the relatively short amount of time they have been admitted to practice law, DACA attorneys have made powerful contributions to the legal profession and to the lives of their clients. The case of New York DACA recipient and attorney Cesar Vargas is illustrative. In early 2016, almost five years after he passed the state’s bar examination and fought a protracted legal battle in the courts, Mr. Vargas was finally admitted to practice law in New York. Rebecca Klein, An Undocumented Teen Gains Asylum With The Help Of His Undocumented Lawyer, HUFFINGTON POST (Jul. 22, 2017), https://www.huffingtonpost.com/entry/cesar-vargas-undocumented-
6

lawyer-client_us_59727244e4b09e5f6ccf6cf6. Born in Puebla, Mexico in September of 1983, Mr. Vargas came to the United States with his siblings and mother when he was five-and-a-half years old, without lawful documentation to enter or remain in the country. In re Vargas, 131 A.D.3d at 6–7. Mr. Vargas attended elementary school and high school in the New York City public school system, and then attended college in Brooklyn, New York, graduating in December of 2005. Id. He was then accepted to law school at the City University of New York School of Law. Id. During his time in law school, he undertook a number of prestigious internships, working for Main Street Legal Services, Inc., the Office of the District Attorney of Kings County, a New York State Supreme Court Justice, and even a member of Congress. Id.
Since being admitted to practice law in 2016, Mr. Vargas has taken on several pro bono projects to provide legal representation to immigrants in need of legal assistance. Klein, supra. The most prominent example of his pro bono work is his recent representation of Ivan Ruiz, an undocumented sixteen-year-old Honduran immigrant seeking asylum. Id. Mr. Ruiz is a member of the Garifuna ethnic group, an Afro-indigenous people often subjected to intense discrimination in Honduras. Id. While still living in that country, Mr. Ruiz was barely fed, was forced to work long hours, and was frequently beaten because of his ethnic background. Id. This discriminatory treatment prompted him to flee Honduras for the United States, which
7

he entered without documentation in 2016. Id. Based on the pro bono work of Mr. Vargas, Mr. Ruiz was granted asylum. Id. He now pursues summer school classes, studies English, and lives the normal life of a teenager. Id. Despite his victory for Mr. Ruiz, Mr. Vargas recognizes the reality that, given his now uncertain DACA status, Mr. Ruiz “is probably going to have a much more permanent immigration status than his attorney.” Id.
Mr. Vargas is but one of many DACA attorneys giving back to the profession they only recently were allowed to enter. California attorneys Luis Angel Reyes Savalza and Lizbeth Mateo were brought to the United States from Mexico when they were children. Jennifer Medina, A Defender of the Constitution, With No Legal Right to Live Here, N.Y. TIMES (Jul. 17, 2017), https://www.nytimes.com/ 2017/07/17/us/undocumented-immigrants-illegal-citizenship.html. Having both been admitted to the State Bar of California, they now practice immigration law, primarily focusing on representing undocumented immigrants such as themselves. Id.
Ms. Mateo spends her days preparing legal strategies to help undocumented immigrants remain in the United States. Id. Despite her admission to practice law and her important work assisting new immigrants obtain legal status, Ms. Mateo herself is subject to removal at the government’s whim. Id. That threat, however, has not stopped her from pursuing justice for others. Because she has not yet
8

received DACA relief, she does not have authorization to work for a law firm or company. Id. Nevertheless, Ms. Mateo plans to open her own practice in order to continue representing her clients, including undocumented immigrants. Id. In the meantime, she represents her clients from an office at a center for day laborers in Pasadena, California. Id.5
Mr. Reyes Savalza is Ms. Mateo’s lawyer and himself a DACA recipient. Id. For the past two years, he has worked at a prominent nonprofit firm in San Francisco, California, where he defends immigrants from the federal government’s attempts to deport them. Id. With the end of DACA, Mr. Reyes Savalza may himself soon be subject to removal, despite the invaluable contributions he has made to the lives of his clients. Like his colleagues Mr. Vargas and Ms. Mateo, Mr. Reyes Savalza was inspired to become an immigration lawyer because of his own family’s entanglement with the immigration system. Mike McPhate, California Today: They’re Lawyers, and at Risk of Deportation, N.Y. TIMES (Jul. 18, 2017), https://www.nytimes.com/ 2017/07/18/us/california-todayundocumented-immigrants-lawyers.html.
5 Ms. Mateo was also recently appointed to the Student Opportunity and Access Program Project Grant Advisory Committee, a California state senate committee that seeks to increase college opportunities for low-income students. Doug Criss, For the First Time, California Appoints an Undocumented Immigrant to a State Post, CNN (Mar. 16, 2018), https://www.cnn.com/2018/03/16/politics/californiaundocumented-appointment-trnd/index.html.
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Mr. Reyes Savalza’s background is impressive. He attended New York University School of Law, where he worked with immigrants facing deportation as part of the school’s Immigrant Rights and Advanced Immigrant Rights Clinics. PANGEA LEGAL SERVICES, Luis Angel Reyes Savalza, http://www.pangealegal.org/ luis-angel-reyes-savalza (last visited October 29, 2017). During law school, he also served as an articles editor of the NYU Law Review. Id. In his last year of school, he argued before the U.S. Court of Appeals for the Second Circuit, successfully persuading the court that immigrants subject to mandatory detention must be provided with a bail hearing within six months of their detention. Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir. 2015).
Ms. Mateo and Messrs. Vargas and Reyes Savalza are just three examples of the many DACA lawyers doing important work and making tangible contributions to the legal profession, despite their short tenures as lawyers and their own uncertain legal status. There are many more examples of such dedication throughout the nation, and if DACA remains in effect, many more to come.
2. Like Their Licensed Counterparts, DACA Law Students Are Also Making Key Contributions to the Legal Profession.
DACA attorneys are not the only immigrants contributing to the betterment of the legal profession despite their uncertain immigration status. There are many DACA law students across the nation who seek nothing more than to become lawyers so they can also participate in the noble profession of law. In some cases,
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these individuals are not simply pursuing their studies, they are actively engaged in representing clients, even while in school. Cristel Martinez Medina and Alfonso Maldonado Silva are two key examples. Both DACA recipients, Ms. Martinez Medina and Mr. Maldonado Silva graduated from Western State College of Law with honors in May of 2017 and are currently awaiting admission to the State Bar. Yvette Cabrera, The Unlikely Story of the Undocumented Attorneys Fighting for the Lives of Their Undocumented Clients, THINKPROGRESS (Aug. 15, 2017), https://thinkprogress.org/the-unlikely-story-of-the-undocumented-attorneysfighting-for-the-lives-of-their-undocumented-clients-07209cb95282/. While in law school, Ms. Martinez Medina and Mr. Maldonado Silva worked in their school’s legal clinics. They even represented a client before the U.S. Court of Appeals for the Ninth Circuit, argued the case and obtained a remand to the Board of Immigration Appeals, thus giving their undocumented client the opportunity to challenge his removal order and apply for other immigration relief. Id. Having now graduated from law school, both are dedicated to the pursuit of justice for undocumented immigrants. Nevertheless, like Mr. Vargas in New York, both students recognize the irony that while they have saved their client from deportation, they themselves are at risk of being removed if the government terminates the DACA program. Id.
While Ms. Martinez Medina and Mr. Maldonado Silva’s work advancing justice for immigrants is impressive, the benefits that these law students bring to the
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legal profession are not limited to the field of immigration law, nor to protecting the interests of the undocumented. One student, N, who was interviewed in the course of drafting this brief, intends to work in healthcare law after graduating from the University of California, Berkeley Law School.6 N was brought to the United States at the age of ten. While growing up undocumented in the Bay Area, he experienced homelessness and a chronic lack of access to quality healthcare, largely because of his undocumented status (and that of his family).
N applied for the DACA program immediately after it became available in 2012. In 2013, while a college student at the University of California at Santa Cruz pursuing dual degrees in sociology and politics, he was granted DACA status and received work authorization from the federal government. N used his work authorization to take part in his school’s work study program. After he graduated from college in 2014, N worked for Covered California, enrolling eligible individuals in health insurance plans. After working for Covered California, N took on a role with the San Francisco AIDS Foundation, where he helped Latinos and other people of color apply for, understand, and utilize healthcare benefits. Of particular interest to N was the fact that many immigrants and individuals of color, especially those in the LGBT community, either did not know about or had difficulty
6 To respect the privacy of the interviewee, he will be referred to as “N.”
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obtaining important medications, such as PrEP and PEP.7 Some had trouble obtaining insurance coverage for these medications, even though they obtained valid prescriptions.
Working through the San Francisco AIDS Foundation, N also represented clients before the California Department of Managed Healthcare in challenging denials of benefits for PrEP and PEP. This experience, and his own personal life experiences, inspired him to apply to law school. While he has two-and-a-half years of school remaining, N expects to graduate from Berkeley Law and work in healthcare law in order to assist individuals like himself and his family obtain the healthcare benefits to which they are entitled. With his current work authorization, N is currently participating in his school’s clinical programs, advising undocumented individuals in tenants’ and workers’ rights matters. Without DACA, N will be forced to cease his work in those clinics and, without lawful status, may be subject to removal himself, thus ending a promising legal career before it has even begun.
3. Clients Will Suffer If the Government Terminates the DACA Program.
Subjecting attorneys with DACA status to removal would destroy critical attorney-client relationships. The harm would be permanent and irreversible. The
7 PrEP and PEP are pre-exposure and post-exposure prophylactic medications for those who might come into contact or have recently come into contact with HIV.
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detention and/or removal of affected attorneys would leave their clients without legal representation when they are at their most vulnerable and in need of their legal representatives. See Mendoza v. Ruesga, 169 Cal. App. 4th 270, 274 (2008) (“[I]mmigrants seeking legal residency in the United States” are a “particularly vulnerable population.”); In re Dale, No. 00-O-14350, 2005 WL 1389226, at *11 (Cal. Bar Ct. May 6, 2005) (recognizing the particular vulnerability of criminal defendants).8
Having built strong, longstanding relationships of trust with their lawyers, these clients would be forced to start over with new, unfamiliar counsel, perhaps in the middle of their legal travails, whether they be business dealings, civil litigation, removal proceedings or criminal cases. Clients placed in such a situation may not have the means to afford new legal representation, having spent what they had on their previous lawyer. Even under the best of circumstances, having to change counsel midstream involves disruption, added expense and lost time, and it is difficult to imagine a more disruptive and terrifying event than for an undocumented client to have her lawyer detained pending deportation by the U.S. government.
8 By way of example, Ms. Mateo and Mr. Reyes Savalza alone currently represent more than a dozen clients. Medina, supra. This is in addition to the clients represented by the numerous other DACA-qualified legal professionals now admitted to practice law (or allowed to practice under the supervision of their professors).
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B. The End of the DACA Program Would Be Detrimental to Diversity and Excellence in the Legal Profession. 1. DACA Recipients Make The Legal Profession More Diverse, Benefitting the Profession as a Whole. The legal profession is already one of the nation’s least diverse professions.
Only approximately 14.7% of lawyers are African-American, Asian-American, or Latino, with Latino lawyers making up only 5.6% of the total population of U.S. lawyers. BUREAU OF LABOR STATISTICS, Labor Force Statistics from the Current Population Survey, https://www.bls.gov/cps/cpsaat11.htm (last visited October 29, 2017).
Termination of the DACA program would disproportionately affect Latinos and reduce the numbers of Latinos already in the legal profession, in addition to those who might pursue a law degree in the future. As of 2016, approximately 741,546 undocumented young people had received DACA status. Tom Wong, New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, CENTER FOR AMERICAN PROGRESS (Oct. 18, 2016), https://www.americanprogress. org/issues/immigration/news/2016/10/18/146290/new-study-of-daca-beneficiariesshows-positive-economic-and-educational-outcomes/. Almost all DACA recipients (i.e., 94%) were born in Mexico or Central or South America. Gustavo Lopez, Key Facts About Unauthorized Immigrants Enrolled in DACA, PEW RESEARCH CENTER (Sept. 25, 2017), http://www.pewresearch.org/fact-tank/2017/09/25/key-facts-
15

about-unauthorized-immigrants-enrolled-in-daca/. According to a recent survey conducted by Tom K. Wong, a political science professor at the University of California at San Diego, approximately 46% of DACA recipients are currently in school. Wong, supra. Seventy percent of those individuals are pursuing a bachelor’s degree or higher. Id. This includes individuals pursuing master’s degrees, Ph.D. degrees, and professional degrees, some of whom may wish to become lawyers. Id.
DACA recipients bring with them unique backgrounds, experiences, opinions, and viewpoints, all of which contribute to the diversity of the legal profession. While the legal profession may already include people of color, diversity is not limited solely to race or gender. As the Supreme Court has pointed out, “diversity takes many forms.” Fisher v. Univ. of Texas at Austin, 136 S. Ct. 2198, 2210 (2016). Given their backgrounds, these attorneys and law students bring an important set of experiences and perspectives to the profession. They are different, even from their other immigrant counterparts, who may share their cultural backgrounds and countries of origin, but who do not share the experience of having lived in the United States without legal status and without the benefits such status brings with it. Indeed, it is not simply that the individuals in question are largely persons of color that makes them special, although their cultural backgrounds are vitally important. Instead, it is that these individuals have perspectives, opinions, and experiences that no other
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lawyers have, because they are DACA recipients, which makes them invaluable to the legal profession.
The Supreme Court has recognized that the benefits of diversity are “not theoretical, but real” and that they are “substantial.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003). The benefits to the legal profession that come from the diversity of its membership are similar to the benefits a diverse student body confers on public education. As the Supreme Court reasoned in Grutter, diversity promotes “crossracial understanding, helps to break down racial stereotypes, and enables [individuals] to better understand persons of different races,” enriching the educational environment for all concerned, including other students and faculty. Id. at 330 (internal quotation marks omitted). Furthermore, “major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Id. (emphasis added). “Effective participation by members of all … groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.” Id. at 332. As Justice O’Connor put it in Grutter:
In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools cannot be effective in
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isolation from the individuals and institutions with which the law interacts. Access to legal education (and thus the legal profession) must be inclusive … so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America. Id. at 332–33 (internal citations and quotation marks omitted). While diversity of every kind is crucial to the success of public education, it is particularly crucial in the legal profession. “Diversity and inclusion strengthens the profession and enhances its ability to serve clients, solve problems, resolve conflicts, and dispense justice.” Nicole Negowetti, Implicit Bias and the Legal Profession’s “Diversity Crisis”: A Call for Self-Reflection, 15 NEV. L.J. 930, 949– 50 (2015). Indeed, as Eli Wald, a professor at the University of Denver Strum College of Law has explained, “[L]aw is the social glue of our society” and “is premised on the fundamental values of equality, fairness, and the rule of law.” Eli Wald, A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who Is Responsible for Pursuing Diversity and Why, 24 GEO. J. LEGAL ETHICS 1079, 1101–02 (2011). “[A]s long as lawyers claim to be public citizens and servants of the public interest, and purport to have a special relationship with and owe fiduciary duties to pursue equality and justice, they owe a duty to combat underrepresentation based on inequalities, cultural perceptions, and past and current discrimination.” Id. DACA lawyers with their rich diversity of experiences, backgrounds, opinions, and viewpoints are uniquely positioned to aid the legal
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profession in fulfilling its duty to promote equality, fairness, and the rule of law, no matter what type of law they practice.9 Losing these individuals would mean losing their unique attributes and their important contributions to the profession, with lasting consequences.
A reduction in the diversity of the profession would also mean losing credibility with the individuals the law seeks to serve, including undocumented immigrants. As Professor Wald persuasively reasons, “a diverse bar is more likely to be able to meet, and be perceived as able to meet the goals of access to lawyers, justice, and effective representation. [T]he very essence of a just legal system is … in the identity of the legal actors who make and enforce [the laws].” Id. This can affect the public’s perception of equal treatment and fairness by the legal system. Id. Indeed, a study undertaken by the National Center for State Courts found that a majority of those asked stated that African Americans and Latinos usually receive less favorable results in court than others and that approximately two-thirds of those asked believed that non-English speakers also receive less favorable results. Negowetti, supra at 950. If, however, DACA attorneys are granted the ability to represent (and to continue to represent) their clients, including those in
9 Studies have shown that, of those responsible for some of the most important business innovations in the United States, over a third are foreign-born, while seventeen percent are not U.S. citizens. White Paper, How Foreign-Born Workers Make America More Competitive and Benefit American Workers, HR POLICY ASSOCIATION (2017).
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circumstances similar to their own, such attorney-client relationships would engender trust and confidence in the profession by those who have traditionally been skeptical of it.
2. DACA Legal Professionals’ Unique Traits of Empathy and Compassion.
Intertwined with their diverse experiences, backgrounds, opinions, and viewpoints is DACA legal professionals’ ability to empathize with and show compassion for their clients, particularly clients who, like them, are undocumented and/or individuals of color. In discussing her work representing an undocumented immigrant before the Ninth Circuit, Ms. Martinez Medina explained, “I’ve always said, you can talk about poverty, but if you haven’t been poor you really don’t understand what poverty is.” Cabrera, supra. Ms. Martinez Medina credits her success in obtaining her clients’ trust to her own experience as an undocumented immigrant of humble means, acknowledging that undocumented clients are much more likely to open up to her knowing that she has walked a similar path. Id.
As Kristin Gerdy, a professor at Brigham Young University’s Reuben Clark Law School points out, “[E]mpathy and compassion must go hand in hand with ‘thinking like a lawyer’ and in fact, caring actually makes analysis stronger.” Kristin Gerdy, Clients, Empathy, and Compassion: Introducing First-Year Students to the “Heart” of Lawyering, 87 NEB. L. REV. 1, 15 (2008). Indeed, “success in law (as in other fields) correlates significantly more with relationship skills than it does with
20

intelligence, writing ability, or any other known factor.” Joshua Rosenberg, Interpersonal Dynamics: Helping Lawyers Learn the Skills, and the Importance, of Human Relationships in the Practice of Law, 58 U. MIAMI L. REV. 1225, 1229 (2004). “To experience empathy means to share or at least understand a client’s feelings, to imagine and thereby nonjudgmentally understand what it would be like to be in the client’s position. And once the lawyer has developed empathy for the client, she can more effectively exercise her other skills on the client’s behalf.” Gerdy, supra at 18. Empathy aids a lawyer in building rapport with the client, fosters open and complete communication, leads to more thorough legal analysis, and improves the image of the legal profession. Id. at 19-20.
In addition to empathy, compassion is also a crucial lawyering skill. “When a client feels that a lawyer … is compassionate, she feels that the lawyer is loyal to her cause and can be a source of emotional sustenance, particularly for those clients whose legal problems are as painful as they are complex. [And] [w]ith the emotional support of a compassionate lawyer, the client may be better equipped to face a long, difficult legal battle.” Id. at 26-27.
While a U.S.-born attorney, for example, might be perfectly competent in immigration law, he or she can never know what it is like to have immigrated to this country, oftentimes under precarious conditions. He or she can never know what it is like to go without the benefits afforded to American citizens simply by virtue of
21

their birth on American soil. He or she can never know what it is like to live in constant fear of detention and/or deportation. All of these experiences give undocumented legal professionals a unique perspective to contribute to the practice of law and to the service of their clients, just as lawyers from other backgrounds bring their own unique perspectives to the job. Rather than simply listening to their client’s stories and relaying them to the court, these legal professionals have lived these same stories, giving them the distinctive ability to understand what it is like to walk in the client’s shoes. This, in turn, provides them with a special understanding of their clients’ goals and interests, thus enhancing their ability to represent their clients effectively.
Further, the participation of DACA professionals enriches the profession well beyond their unique ability to represent their clients. Not every undocumented individual will be able to retain a DACA lawyer, but those lawyers can mentor others and spread their singular insights throughout the legal profession. Conversely, not every DACA attorney will represent undocumented clients, but those attorneys can spread the benefits of diversity to other clients and practice areas as well.
IV. CONCLUSION For the reasons set forth above and in the briefs submitted by Plaintiffs/Appellees, and for the benefit of Plaintiffs/Appellees, the legal profession and the surrounding community, amicus curiae the Bar Association of San Francisco
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respectfully requests the Court affirm the district court’s orders granting a

preliminary injunction and denying in part the government’s motion to dismiss and

that it reverse the district court’s order granting in part the government’s motion to

dismiss.

Dated: March 20, 2018

Respectfully submitted,

By: s/John-Paul S. Deol John-Paul S. Deol
Daniel J. McCoy (CSB No. 206099) dmccoy@fenwick.com John-Paul S. Deol (CSB No. 284893) jpdeol@fenwick.com FENWICK & WEST LLP 801 California Street Mountain View, CA 94041 Telephone: 650.988.8500 Facsimile: 650.938.5200
Neil A.F. Popović (CSB No. 132404) npopovic@sheppardmullin.com James L. McGinnis (CSB No. 95788) jmcginnis@sheppardmullin.com Mark S. Ross (CSB No. 64812) mross@sheppardmullin.com SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Four Embarcadero Center, 17th Floor San Francisco, CA 94111 Telephone: (415) 434-9100 Facsimile: (415) 434-3947
Attorneys for Amicus Curiae THE BAR ASSOCIATION OF SAN FRANCISCO

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CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to Federal Rules of Appellate Procedure 28.1

and 29 the attached BRIEF OF AMICUS CURIAE THE BAR ASSOCIATION

OF SAN FRANCISCO IN SUPPORT OF PLAINTIFFS-APPELLEES is

proportionately spaced, has a typeface of 14 points or more, and contains 5,252

words (based on the word processing system used to prepare the brief).

Dated: March 20, 2018

FENWICK & WEST LLP

By: s/John-Paul S. Deol
John-Paul S. Deol Attorneys for Amicus Curiae THE BAR ASSOCIATION OF SAN FRANCISCO

24

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on March 20, 2018.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

Dated: March 20, 2018

FENWICK & WEST LLP

By: s/John-Paul S. Deol
John-Paul S. Deol Attorneys for Amicus Curiae THE BAR ASSOCIATION OF SAN FRANCISCO

25

 
 No. 18-15068
Consolidated Case Nos. 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 1815133, 18-15134
__________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
Plaintiffs-Appellees, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the Northern District of California No. 3:17cv5211-WHA
BRIEF OF FORMER FEDERAL IMMIGRATION AND HOMELAND SECURITY OFFICIALS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE

Albert Giang SBN: 224332 BOIES SCHILLER FLEXNER LLP 725 S. Figueroa Street, 31st Floor Los Angeles, CA 90017 (213) 629-9040
Juan P. Valdivieso BOIES SCHILLER FLEXNER LLP 1999 Harrison Street Oakland, CA 94612 (510) 874-1000

Joshua Riley J. Wells Harrell BOIES SCHILLER FLEXNER LLP 1401 New York Avenue NW Washington, DC 20005 (202) 237-2727
Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................... ii
INTEREST OF AMICI CURIAE..............................................................................1
SUMMARY OF ARGUMENT .................................................................................3
ARGUMENT .............................................................................................................8
I. DEFERRED ACTION POLICIES HAVE BEEN AN INTEGRAL COMPONENT OF IMMIGRATION ENFORCEMENT FOR DECADES .......................................................................................................8
II. DEFERRED ACTION POLICIES ADVANCE IMPORTANT POLICY OBJECTIVES, INCLUDING THE EFFECTIVE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS .......................16
A. Deferred Action Policies Make the Most Efficient Use of Limited Enforcement Resources .........................................................17
B. Deferred Action Policies Promote Humanitarian Values ...................20
C. Deferred Action Policies Promote Consistent Enforcement of Federal Immigration Law ....................................................................22
CONCLUSION ........................................................................................................25

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TABLE OF AUTHORITIES

Page(s)

Cases
Arizona Dream Act Coalition v. Brewer, 855 F.3d 957 (9th Cir. 2017) ...............3, 8
Hotel & Rest. Employees Union, Local 25 v. Smith, 846 F.2d 1499 (D.C. Cir. 1988) ............................................................................................................10
Reno v. Am.-Arab Anti-Discrimination Comm’tee, 525 U.S. 471 (1999) .................8
Texas v. United States, 809 F.3d 134 (5th Cir. 2015)................................................7
Federal Cases
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990) .................14
Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. 3359 (1986) ..................................................................................................................11
State Cases
Alan C. Nelson, Legalization and Family Fairness: An Analysis (Oct. 21, 1987), reprinted as 64 No. 41 Interpreter Releases 1191............................ 11, 12
Bo Cooper, INS Exercise of Prosecutorial Discretion (July 11, 2000)...... 17, 23, 24
Doris Meissner, Exercising Prosecutorial Discretion (Nov. 17, 2000), reprinted as 77 No. 46 Interpreter Releases 1661 ....................................... 18, 24
Gene McNary, Family Fairness (Feb. 2, 1990), reprinted as 67 No. 6 Interpreter Releases 153............................................................................... 13, 20
INS Reverses Family Fairness Policy, 67 No. 6 Interpreter Releases 153 (Feb. 5, 1990) ......................................................................................................11
Janet A. Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (Jun. 15, 2012) .................................................................................................. 4, 18, 21, 22
Jeff Weiss, Guidelines for Children’s Asylum Claims (Dec. 10, 1998) ..................21

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Jeh C. Johnson, Exercising Prosecutorial Discretion (Nov. 20, 2014)...................20
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) ....................21
Julie L. Myers, Prosecutorial and Custody Discretion (Nov. 7, 2007) ..................21
Paul W. Virtue, Supplemental Guidance on Battered Alien SelfPetitioning Process and Related Issues (May 6, 1997)......................................14
President Dwight D. Eisenhower, Statement by the President Concerning the Entry into the United States of Adopted Foreign-Born Orphans (Oct. 26, 1956) ......................................................................................................9
President George H.W. Bush, Statement on Signing the Immigration Act of 1990 (Nov. 29, 1990)......................................................................................14
President Ronald Reagan, Statement on Signing the Immigration Reform and Control Act of 1986 (Nov. 6, 1986).............................................................23
U.S. Citizenship and Immig. Serv., Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina, Frequently Asked Questions (Nov. 25, 2005).....................................................15
U.S. Dep’t of Justice, Circular Letter No. 107 (Sep. 20, 1909), quoted in Sam Bernsen, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion (Jul. 15, 1976) ............................................................17
William J. Howard, Prosecutorial Discretion (Oct. 24, 2005) ........................ 19, 24
William R. Yates, Assessment of Deferred Action in Requests for Interim Relief from U Nonimmigrant Status Eligible Aliens in Removal Proceedings (May 6, 2004) ................................................................................16
Statutes
American Immigration Council, Executive Grants of Temporary Immigration Relief, 1956-Present (Oct. 2014) ...............................................9, 10
Andorra Bruno et al., Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who
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Came to the United States as Children, Cong. Research Serv. (July 13, 2012) .................................................................................................. 9, 10, 15
Elise Viebeck et al., Trump’s Immigration Talks with Democrats Attract Cautious Support, Wash. Post (Sept. 14, 2017) ...................................................5
Jeffrey S. Passel et al., As Growth Stalls, Unauthorized Immigrant Population Becomes More Settled, Pew Research Center (Sept. 2014) ............13
Michael D. Shear & Julie Hirschfeld Davis, Trump Moves to End DACA and Calls on Congress to Act, N.Y. Times (Sept. 5, 2017)..................................6
Tal Kopan, Trump Ends DACA But Gives Congress Window to Save It, CNN (Sept. 5, 2017) .............................................................................................6
Federal Statutes
46 Fed. Reg. 25,080 (May 5, 1981) .........................................................................10
72 Fed. Reg. 53,014 (Sept. 17, 2007) ......................................................................16
72 Fed. Reg. 53,596 (Sept. 19, 2007) ......................................................................15
8 C.F.R. § 214.14(d)(3)............................................................................................16
8 C.F.R. § 274a.12(a)(11) ........................................................................................10
8 C.F.R. § 274a.12(c)(14) ........................................................................................10
Other Authorities
Immigration Act of 1989: Hearing before the Subcomm. on Immigration, Refugees, and International Law of the H. Comm. on the Judiciary, 101st Cong. (Feb. 21, 1990) ...............................................................................13
Written Testimony of Stephen H. Legomsky before the Committee on the Judiciary, U.S. House of Representatives (Feb. 25, 2015).......................... 13, 20
Rules
Donald J. Trump (@realDonaldTrump), Twitter (Feb. 10, 2018, 1:50PM)..............5
Donald J. Trump (@realDonaldTrump), Twitter (Mar. 20, 2018, 8:28PM) .............6
-iv-

Donald J. Trump (@realDonaldTrump), Twitter (Sept. 14, 2017, 6:28 AM) .......................................................................................................................4
Donald J. Trump (@realDonaldTrump), Twitter (Sept. 14, 2017, 6:35 AM) .......................................................................................................................5
Donald J. Trump (@realDonaldTrump), Twitter (Sept. 5, 2017, 8:38 PM)..............5
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INTEREST OF AMICI CURIAE1 Amici served in senior positions in the federal agencies charged with enforcement of U.S. immigration laws under both Democratic and Republican administrations. T. Alexander Aleinikoff served as the General Counsel, and then the executive associate commissioner for programs, of the Immigration and Naturalization Service (“INS”) from 1994 to 1997. INS is the predecessor agency to the federal offices within the U.S. Department of Homeland Security (“DHS”) that now have responsibility for enforcing the nation’s immigration laws. Roxana Bacon served as Chief Counsel of U.S. Citizenship and Immigration Services (“USCIS”) from 2009 to 2011. Seth Grossman served as Chief of Staff to the General Counsel of DHS from 2010 to 2011, Deputy General Counsel of DHS from 2011 to 2013, and as Counselor to the Secretary at the same agency in 2013.
1 Amici submit this brief pursuant to Federal Rule of Appellate Procedure 29(a)(2) and state that all parties have consented to its timely filing. Amici further state, pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), that no counsel for a party authored this brief in whole or in part, and no person other than the amicus curiae or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.
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Stephen H. Legomsky served as Chief Counsel of USCIS from 2011 to 2013 and as Senior Counselor to the Secretary of DHS on immigration issues from July to October 2015.
John R. Sandweg served as Acting Director of Immigration and Customs Enforcement (“ICE”) from 2013 to 2014, as Acting General Counsel of DHS from 2012 to 2013, as Senior Counselor to the Secretary of DHS from 2010 to 2012, and as Chief of Staff to the General Counsel of the same agency from 2009 to 2010.
Paul Virtue served as General Counsel of the INS from 1998 to 1999. He also served as Executive Associate Commissioner of INS from 1997 until 1998 and as Deputy General Counsel from 1988 until 1997.
As former leaders of the nation’s primary immigration enforcement agencies, amici are familiar with the historical underpinnings of deferred action policies like DACA. Amici’s relevant experience includes first-hand administration of other deferred action policies and testimony before Congress explaining these policies and their benefits. Amici’s experience reveals the vital role that these policies play in facilitating the rational and humane enforcement of federal immigration law, which has historically established laudable policy objectives that have been backed with inadequate resources. Because the Executive Branch has lacked the resources to take action against every person residing in the United States who may be removable, it has seen fit to prioritize enforcement
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against those who pose threats to public safety or national security over enforcement as to others. Amici’s experience thereby teaches that reasoned use of deferred action policies in the immigration context can further the national security interests, humanitarian values, and rule of law principles underlying federal immigration legislation.
SUMMARY OF ARGUMENT For more than half of a century, Administrations of both Republican and Democratic Presidents have implemented policies designed to delay—in many cases indefinitely—the enforcement of deportation and other requirements created by federal immigration legislation. As this Court has recognized, “it is well settled that the Secretary can exercise deferred action” in the immigration context. Arizona Dream Act Coalition v. Brewer, 855 F.3d 957, 967 (9th Cir. 2017). The Executive Branch has relied on these “deferred action” policies to improve the efficiency and effectiveness of immigration law enforcement by focusing scarce resources on the highest-priority cases. These deferred action policies are rational and humane, and they serve important national interests. The Deferred Action for Childhood Arrivals (“DACA”) program is a prime example of such a policy. Announced in a June 15, 2012 memorandum from thenSecretary of Homeland Security Janet Napolitano, DACA has deferred deportation and other enforcement proceedings for children and young adults who have lived
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in this country continuously since mid-2007 and who have met certain other

conditions. See Janet A. Napolitano, Exercising Prosecutorial Discretion with

Respect to Individuals Who Came to the United States as Children (Jun. 15, 2012),

available at https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-

discretion-individuals-who-came-to-us-as-children.pdf

(“Napolitano

Memorandum”). As the Napolitano Memorandum explains, the “exercise of

prosecutorial discretion” is “especially justified” as to these young people—widely

known as Dreamers—because they “were brought to this country as children and

know only this country as home” and generally “lacked the intent to violate the

law,” and as such are “low priority cases[.]” Id. at 1–2. The Napolitano

Memorandum also explains that “many of these young people have already

contributed to our country in significant ways.” Id. at 2.

President Donald J. Trump apparently agrees. Consistent with the

Napolitano Memorandum, President Trump has publicly recognized that Dreamers

were brought into the United States at a young age through no fault of their own,

that they have contributed to our nation as students, employees, and military

personnel, and that they deserve protection from deportation and other enforcement

actions. See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Sept. 14, 2017,

6:28 AM), available at https://goo.gl/x8BicA (“Does anybody really want to throw

out good, educated and accomplished young people who have jobs, some serving

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in the military? Really!.....”); Donald J. Trump (@realDonaldTrump), Twitter (Sept. 14, 2017, 6:35 AM), available at https://goo.gl/oGpm54 (“...They have been in our country for many years through no fault of their own - brought in by parents at young age[.]”); Elise Viebeck et al., Trump’s Immigration Talks with Democrats Attract Cautious Support, Wash. Post (Sept. 14, 2017), available at https://goo.gl/P8UVct (statement of Donald J. Trump) (“We’re talking about taking care of people, people who were brought here, people who’ve done a good job.”); id. (statement of Donald J. Trump) (“Look, 92 percent of the people agree on DACA[.]”).
The only objection that President Trump has publicly lodged against DACA is not one of policy but rather of process: he apparently believes that DACA should be codified in statute through legislation passed by Congress. See Donald J. Trump (@realDonaldTrump), Twitter (Sept. 5, 2017, 8:38 PM), available at https://goo.gl/2xtSey (calling on “Congress” to “legalize DACA” within “6 months”); Donald J. Trump (@realDonaldTrump), Twitter (Feb. 10, 2018, 1:50PM), available at https://goo.gl/3Q9uqW (“Republicans want to fix DACA far more than Democrats do”); Donald J. Trump (@realDonaldTrump), Twitter (Mar.
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20, 2018, 8:28PM), available at https://goo.gl/G184fa (“The Democrats do not want to help DACA. Would be so easy to make a deal!”).2
Then-acting Secretary of Homeland Security Elaine Duke purported to rescind DACA in a September 5, 2017 memorandum, arguing that DACA is not legally authorized. See Elaine Duke, Memorandum on Rescission of Deferred Action for Childhood Arrivals (Sept. 5, 2017) (ECF No. 1-1) (“Duke Memorandum”). According to the Duke Memorandum, “it is clear that the . . . DACA program should be terminated” based on: (i) a one-page letter from the Attorney General dated the day before the Duke Memorandum arguing that DACA was “effectuated . . . through executive action, without proper statutory authority” and (ii) “the Supreme Court’s and the Fifth Circuit’s rulings” in Texas v. United States, in which an equally divided Supreme Court issued a one-sentence opinion affirming the Fifth Circuit’s split decision that an entirely different deferred-action
2 See also Michael D. Shear & Julie Hirschfeld Davis, Trump Moves to End DACA and Calls on Congress to Act, N.Y. Times (Sept. 5, 2017), available at https://goo.gl/UzemAv (statement of Donald J. Trump) (“I have a love for these people, and hopefully now Congress will be able to help them and do it properly[.]”); Tal Kopan, Trump Ends DACA But Gives Congress Window to Save It, CNN (Sept. 5, 2017), available at https://goo.gl/v2uSiY (statement of Donald J. Trump) (“It is now time for Congress to act! . . . As I’ve said before, we will resolve the DACA issue with heart and compassion—but through the lawful Democratic process[.]”).
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program announced years after DACA was not supported by statute. 809 F.3d 134 (5th Cir. 2015), aff’d by equally divided court, 136 S. Ct. 2271 (2016).3
The Duke Memorandum cannot be squared with the historical precedent in which DACA is well-rooted. As we explain below, the Executive Branch in both Republican and Democratic Administrations repeatedly has implemented deferred action policies, like DACA, based on the common-sense proposition that federal authorities should focus their limited resources on apprehending and deporting those who are a threat to national security, public safety, or the employment markets—not those who pose no such threats and, indeed, are making meaningful contributions to American society. This brief places DACA within that historical context, which demonstrates that the rescission of DACA is arbitrary and capricious and should be enjoined on that ground.
3 While the legal merits of Texas v. United States are outside the scope of this brief, Amici note that the Duke Memorandum fails to mention that the Fifth Circuit distinguished the deferred action program at issue there (Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”)) from the one at issue in this case (DACA, which was not challenged in Texas v. United States). 809 F.3d at 173–74 (noting material differences between DACA and DAPA and cautioning that “any extrapolation from DACA must be done carefully”).
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ARGUMENT I. DEFERRED ACTION POLICIES HAVE BEEN AN INTEGRAL
COMPONENT OF IMMIGRATION ENFORCEMENT FOR DECADES For more than half a century, federal immigration officials have carefully exercised enforcement discretion for various classes of non-citizens through policies of “deferred action,” “extended voluntary departure,” “parole,” or “deferred enforced departure.” Notwithstanding the variation in terminology, these programs are fundamentally alike: all enable certain classes of otherwise deportable people to remain in (or, in the case of parole, to enter) the United States and, in most cases, to support themselves while they are present by working lawfully. As this Court has recognized, “it is well settled that the Secretary can exercise deferred action, a form of prosecutorial discretion whereby the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the United States.” Brewer, 855 F.3d at 967 (citing Reno v. Am.-Arab Anti-Discrimination Comm’tee, 525 U.S. 471, 483–84 (1999) (“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”)). Amici have identified dozens of examples of deferred action policies. See, e.g., Andorra Bruno et al., Analysis of June 15, 2012 DHS Memorandum,
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Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the

United States as Children at 20–23, Cong. Research Serv. (July 13, 2012),

available at https://edsource.org/wp-content/uploads/old/Deferred-Action-

Congressional-Research-Service-Report1.pdf (“CRS Analysis”). Amici highlight

here a handful of salient examples.

Eisenhower Administration. In 1956, President Eisenhower “paroled”

approximately one thousand foreign-born children who had been adopted by

American citizens overseas but who were barred entry into the United States by

statutory quotas. See American Immigration Council, Executive Grants of

Temporary Immigration Relief, 1956-Present at 3 (Oct. 2014), available at

https://www.americanimmigrationcouncil.org/sites/default/files/research/executive

_grants_of_temporary_immigration_relief_1956-present_final_0.pdf

(“AIC

Report”); President Dwight D. Eisenhower, Statement by the President Concerning

the Entry into the United States of Adopted Foreign-Born Orphans (Oct. 26, 1956),

available at https://goo.gl/Ff9nCL (“Eisenhower Statement”). The President

explained that he had been “particularly concerned over the hardship” the quotas

imposed, especially on members of the Armed Forces who were “forced to leave

their adopted children behind” after completing tours of duty. Eisenhower

Statement. The President adopted the parole policy “pending action by Congress to

amend the law.” Id.

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As the Cold War entered its second decade, the Eisenhower Administration began to use the parole power as an instrument of foreign policy. For example, President Eisenhower ordered the parole of Cubans fleeing their country’s oppressive communist regime. The Kennedy, Johnson, and Nixon Administrations continued that parole program, which ultimately allowed over six hundred thousand otherwise ineligible persons to enter the United States. See AIC Report at 3.
Ford & Carter Administrations. The Ford and Carter Administrations each granted “extended voluntary departure” to certain classes of immigrants, many of whom came from war-torn or communist countries. Under the Ford and Carter Administrations’ deferred action policies, immigration officials “temporarily suspend[ed] enforcement” of the immigration laws for “particular group[s] of aliens.” Hotel & Rest. Employees Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc); accord AIC Report at 3–5; CRS Analysis at 20–21.
Reagan Administration. The Reagan Administration continued and broadened the use of deferred action. CRS Analysis at 21–22. Under the Reagan Administration, the INS promulgated a regulation enabling beneficiaries of deferred action to apply for work authorization. 46 Fed. Reg. 25,080, 25,081 (May 5, 1981). This regulation remains in effect and applies to present-day deferred action recipients. 8 C.F.R. § 274a.12(c)(14); see also 8 C.F.R. § 274a.12(a)(11)
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(allowing work authorization for persons “whose enforced departure from the United States has been deferred”).
President Reagan’s Administration also established the “Family Fairness” program following passage of the Immigration Reform and Control Act (“IRCA”), Pub. L. No. 99-603, § 201, 100 Stat. 3359, 3445 (1986). At the time, IRCA provided a pathway to lawful status for certain people who otherwise were illegally present in the United States, see id., but the statute was silent as to whether INS should continue to deport the relatives of people who might qualify for lawful status under the new law. See INS Reverses Family Fairness Policy, 67 No. 6 Interpreter Releases 153 (Feb. 5, 1990), available at https://www.prwatch.org/files/interpreter_ releases_feb_5_1990.pdf (“What to do when some but not all members of an alien family qualify for legalization has been a controversial issue since the beginning of the amnesty program.”).
Confronted with that issue, INS Commissioner Alan Nelson acknowledged that there was “nothing in [IRCA or the legislative history] that would indicate Congress wanted to provide immigration benefits to others who didn’t meet the basic criteria, including the families of legalized aliens.” Alan C. Nelson, Legalization and Family Fairness: An Analysis (Oct. 21, 1987), reprinted as 64 No. 41 Interpreter Releases 1191, 1201 (“Nelson Statement”). INS therefore lacked
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express statutory authority to grant resident status to anyone who did not qualify
for it on their own merits. Id. Under the reasoning of the Duke Memorandum, this
would have ended the inquiry.
The Reagan Administration, however, knew that INS was not legally
required to deport all such persons, even if INS was prohibited from granting them
permission to work. That is, the Reagan Administration recognized the distinction
between: (a) granting individuals permanent resident status, which the Attorney
General could not do without express statutory authorization, and (b) merely
deferring removal actions against certain persons unlawfully present, which the
Attorney General was empowered to do by law. See Nelson Statement. As
Commissioner Nelson stated:
INS is exercising the Attorney General’s discretion by allowing minor children to remain in the United States even though they do not qualify on their own, but whose parents (or single parent in the case of divorce or death of spouse) have qualified under the provisions of IRCA. The same discretion is to be exercised as well in other cases which have specific humanitarian considerations. Id.
G.H.W. Bush Administration. President George H.W. Bush’s
Administration expanded the Family Fairness Program in 1990, when INS
Commissioner Gene McNary instructed that “[v]oluntary departure will be granted
to the spouse and to unmarried children under 18 years of age, living with the
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legalized alien, who can establish” that they meet certain criteria, including

residence in the United States for a specified period of time and the lack of a

felony conviction. Gene McNary, Family Fairness at 1 (Feb. 2, 1990), reprinted as

67 No. 6 Interpreter Releases 153, 165 App’x I (“McNary Memorandum”). The

INS also made clear that anyone who qualified under the Family Fairness program

was eligible to work. Id. Contemporaneous government estimates indicated that as

many as 1.5 million people would be eligible under the expanded program. See

Immigration Act of 1989: Hearing before the Subcomm. on Immigration, Refugees,

and International Law of the H. Comm. on the Judiciary at 49, 101st Cong. (Feb.

21, 1990); see also id. at 56. Publicly available estimates indicate that this figure

equates to approximately 40% of immigrants without documentation in the United

States at the time. See Jeffrey S. Passel et al., As Growth Stalls, Unauthorized

Immigrant Population Becomes More Settled at 4 & 7, Pew Research Center (Sept.

2014),

available

at

http://assets.pewresearch.org/wp-

content/uploads/sites/7/2014/09/2014-09-03_Unauthorized-Final.pdf.4

4 Although fewer people ultimately applied for Family Fairness than the Administration predicted—largely because the subsequently-enacted Immigration Act of 1990 offered preferable remedies—neither the Administration nor Congress viewed the anticipated scale of the program as undermining its legality. See Written Testimony of Stephen H. Legomsky before the Committee on the Judiciary, U.S. House of Representatives, at 24–25 (Feb. 25, 2015), available at https://judiciary.house.gov/wp-content/uploads/2016/02/Legomsky-Testimony.pdf (“Legomsky Testimony”). Professor Legomsky’s testimony, id. at 23–24, also
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President Bush later reaffirmed the Executive’s prosecutorial discretion in a

signing statement accompanying his approval of the Immigration Act of 1990. The

underlying Act authorized the Attorney General to grant “temporary protected

status” to allow otherwise deportable persons to remain in the United States

“because of their particular nationality or region of foreign state of nationality.”

Pub. L. No. 101-649, § 302, 104 Stat. 4978 (1990). President Bush objected to

language purporting to make this the “exclusive” avenue for providing such relief,

stating: “I do not interpret this provision as detracting from any authority of the

executive branch to exercise prosecutorial discretion in suitable immigration cases.

Any attempt to do so would raise serious constitutional questions.” See President

George H.W. Bush, Statement on Signing the Immigration Act of 1990 (Nov. 29,

1990), available at https://goo.gl/utuLxg.

Clinton Administration. President Clinton’s Administration deferred action

as to persons without documentation who might prove eligible for permanent relief

through the Violence Against Women Act. See Paul W. Virtue, Supplemental

Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May

6,

1997),

available

at

http://library.niwap.org/wp-

content/uploads/2015/pdf/CONF-VAWA-Gov-SuppltlGuidanceSec384-

rebuts the criticism that the Family Fairness program as administered by the G.H.W. Bush Administration was merely an attempt to fill an inadvertent statutory gap.

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05.06.1997.pdf (“Virtue Memorandum”) (noting that “[b]y their nature, VAWA cases generally possess factors that warrant consideration for deferred action”).
President Clinton also directed the Attorney General to defer enforced departure of Liberian nationals who had received temporary protected status and were living in the United States. CRS Analysis at 23.
G.W. Bush Administration. President George W. Bush continued the Clinton Administration’s deferred action policy toward certain Liberians by directing the Secretary of Homeland Security to defer the enforced departure of Liberian nationals and certain habitual residents of Liberia who were present in the United States under temporary protected status as of September 12, 2007. 72 Fed. Reg. 53,596 (Sept. 19, 2007).
President Bush also deferred action as to foreign students affected by Hurricane Katrina who were unable to fulfill their F-1 visa full-time student requirement, and he simultaneously suspended employer verification requirements for those students as well. U.S. Citizenship and Immig. Serv., Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina, Frequently Asked Questions (Nov. 25, 2005), available at https://www. uscis.gov/sites/default/files/files/pressrelease/F1Student_11_25_05_FAQ.pdf.
Additionally, the George W. Bush Administration enacted regulations that deferred action as to crime victims petitioning for U nonimmigrant status, allowing
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those petitioners to apply for employment authorization and shielding them from

accruing unlawful presence while their petitions are pending. 72 Fed. Reg. 53,014,

53,027 (Sept. 17, 2007); see 8 C.F.R. § 214.14(d)(3). Before these regulations were

enacted, USCIS issued guidance clarifying that U nonimmigrant status petitioners

could receive deferred action even while in removal proceedings. William R.

Yates, Assessment of Deferred Action in Requests for Interim Relief from U

Nonimmigrant Status Eligible Aliens in Removal Proceedings at 1 (May 6, 2004),

available

at

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_M

emoranda/Archives%201998-2008/2004/uprcd050604.pdf.

II. DEFERRED ACTION POLICIES ADVANCE IMPORTANT POLICY OBJECTIVES, INCLUDING THE EFFECTIVE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS
Administrations of both political parties repeatedly have defended deferred

action policies by invoking straightforward and consistent legal and policy

arguments. As Executive Branch officials charged with enforcing U.S.

immigration laws have explained, deferred action policies make the most efficient

use of limited enforcement resources, promote humanitarian values, and promote

consistent enforcement of federal immigration laws.

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A. Deferred Action Policies Make the Most Efficient Use of Limited Enforcement Resources
Congress has not allocated to DHS and DOJ sufficient resources to remove every single person who has violated our nation’s immigration laws. See Bo Cooper, INS Exercise of Prosecutorial Discretion at 2 (July 11, 2000), available at http://library.niwap.org/wp-content/uploads/2015/IMM-Gov-ProsDisc-7.11.00.pdf (“Cooper Memorandum”) (“[L]imitations in available enforcement resources . . . make it impossible for a law enforcement agency to prosecute all offenses that come to its attention.”); U.S. Dep’t of Justice, Circular Letter No. 107 (Sep. 20, 1909), quoted in Sam Bernsen, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion at 1 (Jul. 15, 1976), available at https://www.ice.gov/doclib/foia/ prosecutorial-discretion/service-exercise-pd.pdf (“Bernsen Memorandum”) (“There simply are not enough resources to enforce all of the rules and regulations presently on the books.”). Administrations therefore have been put to a choice as to which cases warrant attention and resources.
The Executive Branch historically has chosen to focus scarce resources on the most pressing cases. As early as 1909, a Department of Justice (“DOJ”) circular advised officers not to proceed in immigration cases unless “some substantial results are to be achieved thereby in the way of betterment of the citizenship of the country.” See Bernsen Memorandum at 4. More recent deferred
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action policies have reflected a similar judgment. See, e.g., Napolitano Memorandum at 1 (“[A]dditional 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.”); Doris Meissner, Exercising Prosecutorial Discretion at 4 (Nov. 17, 2000), reprinted as 77 No. 46 Interpreter Releases 1661, App. I, available at http://library.niwap.org/wp-content/uploads/2015/IMM-Memo-ProsDiscretion.pdf (“Meissner Memorandum”) (“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. . . . 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.”).
DACA, too, reflects a choice to focus law enforcement resources on the highest priority cases. Thus, like the deferred action policies that came before it, DACA directs the government’s limited resources to prosecuting individuals who pose the greatest threats to public safety instead of those who do not pose such
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threats, who belong to families residing in the United States, who often have come

to the United States through no fault of their own, and who have developed strong

ties to this country and to their communities.

The need for deliberate resource management and prioritization has grown

more acute as increasingly sophisticated threats to the United States have emerged,

and thus the number of potential targets for enforcement actions has surged. In the

years after the September 11, 2001 terrorist attacks, the Principal Legal Advisor of

ICE under President George W. Bush, William J. Howard, emphasized that “we

must prioritize our cases to allow us to place greatest emphasis on our national

security and criminal alien dockets[.]” William J. Howard, Prosecutorial

Discretion at 1 (Oct. 24, 2005), available at http://library.niwap.org/wp-

content/uploads/IMM-Gov-ICEMemoProsDiscretion-10.24.05.pdf

(“Howard

Memorandum”). He elaborated:

Id. at 8.

It is clearly DHS policy that national security violators, human rights abusers, spies, traffickers in both narcotics and people, sexual predators and other criminals are removal priorities. It is wise to remember that cases that do not fall within these categories sometimes require that we balance the cost of an action versus the value of the result. Our reasoned determination in making prosecutorial discretion decisions can be a significant benefit to the efficiency and fairness of the removal process.

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Deferred action policies advance homeland security and public safety objectives by drawing the recipients out of the shadows and into the open. “These individuals provide their names, addresses, and histories, and the government performs background checks to assure public safety.” Legomsky Testimony at 29. Communities are safer when individuals, including immigrants without documentation, who are either victims of crimes or witnesses to crimes “feel secure enough to report the crimes to the police rather than avoid contact for fear of being deported.” See id. DACA, which prioritizes “threats to national security, public safety, and border security,” is consistent with this approach. Jeh C. Johnson, Exercising Prosecutorial Discretion, at 3 (Nov. 20, 2014), available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_acti on.pdf.
B. Deferred Action Policies Promote Humanitarian Values Sound enforcement of the immigration laws also requires attention to humanitarian values. As Gene McNary, the INS Commissioner under President George H.W. Bush, explained: “It is vital that we enforce the law against illegal entry. However, we can enforce the law humanely.” McNary Memorandum at 1. Immigration officials at all levels have been called upon for decades to exercise prosecutorial discretion in a manner that is effective, humane, and faithful to the rule of law. See, e.g., Julie L. Myers, Prosecutorial and Custody Discretion at 1
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(Nov. 7, 2007), available at http://library.niwap.org/wp-
content/uploads/2015/IMM-Memo-MyersCustody.pdf (“Myers Memorandum”)
(discussing treatment of nursing mothers and stating that “[f]ield agents and
officers are not only authorized by law to exercise discretion within the authority
of the agency, but are expected to do so in a judicious manner at all stages of the
enforcement process”); see supra Part I (discussing the Family Fairness program).
The Napolitano Memorandum makes a similar argument with respect to DACA:
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.
Napolitano Memorandum at 2.
Children, in particular, have been the subject of special treatment in the
enforcement of immigration laws. See, e.g., John Morton, Exercising Prosecutorial
Discretion Consistent with the Civil Immigration Enforcement Priorities of the
Agency for the Apprehension, Detention, and Removal of Aliens at 5 (June 17,
2011), available at http://library.niwap.org/wp-content/uploads/2015/IMM-Memo-
MortonProsDiscretion.pdf (noting that “individuals present in the United States
since childhood” warrant “particular care and consideration”); see also Jeff Weiss,
Guidelines for Children’s Asylum Claims at 2 (Dec. 10, 1998), available at
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https://www.uscis.gov/sites/default/files/USCIS/Laws%20and%20Regulations/Me

moranda/Ancient%20History/ChildrensGuidelines121098.pdf

(providing

“guidance on adjudicating children’s asylum claims” because of “the unique

vulnerability and circumstances of children”).

DACA, too, is rooted in the recognition that there are “certain young people

who were brought to this country as children and know only this country as home”

and that these young people generally “lacked the intent to violate the law” and

thus represented a “low priority” for enforcement. Napolitano Memorandum at 1;

see also id. (excluding from consideration any individual “convicted of a felony

offense, a significant misdemeanor offense, multiple misdemeanor offenses, or

[who] otherwise poses a threat to national security or public safety”). In amici’s

experience, the best approach to achieving rational and effective enforcement of

our immigration laws is to prioritize threats to public safety and national security,

while simultaneously demonstrating compassion for young people who pose no

substantial risks and who have developed ties to the communities in which they

have lived for most of their lives.

C. Deferred Action Policies Promote Consistent Enforcement of Federal Immigration Law
The U.S. immigration system depends on the dedicated efforts of tens of

thousands of federal employees—from border patrol agents and career prosecutors

to the Attorney General and the Secretary of Homeland Security. These employees -22-

frequently are called upon to make important decisions that shape the implementation and enforcement of the law, the security of the nation, the safety of the public, and the future of families. See Cooper Memorandum at 3 (“INS . . . exercises prosecutorial discretion thousands of times every day.”).
Policy statements setting forth the Administration’s enforcement priorities are necessary to coordinate these efforts in service of a common objective, namely, “to establish a reasonable, fair, orderly, and secure system of immigration into this country and not to discriminate in any way against particular nations or people.” President Ronald Reagan, Statement on Signing the Immigration Reform and Control Act of 1986 (Nov. 6, 1986), available at http://www. presidency.ucsb.edu/ws/?pid=36699. Amici’s experience is that policy statements such as those contained in DACA are necessary to prevent the U.S. immigration system from treating similarly situated people differently based solely on happenstance.
Policy statements that guide enforcement discretion have played an important role in promoting consistency in the treatment of individuals in the immigration system. When the Family Fairness program was created, the INS Commissioner explained that a policy statement was necessary “to assure uniformity in the granting of voluntary departure and work authorization for the ineligible spouses and children of legalized aliens.” McNary Memorandum at 1.
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Senior officials in subsequent Administrations similarly have noted the importance of deferred action policy statements as an effective tool to promote uniformity and consistency in the enforcement of the law. See, e.g., Meissner Memorandum at 2 (“A statement of principles concerning discretion . . . contribute[s] to more effective management of the Government’s limited prosecutorial resources by promoting greater consistency among the prosecutorial activities of different offices[.]”); Howard Memorandum at 3 (“[I]t is important that we all apply sound principles of prosecutorial discretion, uniformly throughout our offices and in all of our cases, to ensure that the cases we litigate on behalf of the United States, whether at the administrative level or in the federal courts, are truly worth litigating.”); Cooper Memorandum at 8 (“[A]ppropriate policy guidance, reinforced by training, is necessary in order for a law enforcement agency to carry out an enforcement function properly. Such guidance serves a variety of policy goals, including promoting public confidence in the fairness and consistency of the agency’s enforcement action[.]”).
* * *
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CONCLUSION The district court’s preliminary injunction order should be affirmed.

Dated: March 20, 2018

Respectfully submitted,
/s/ Albert Giang
Albert Giang SBN: 224332 BOIES SCHILLER FLEXNER LLP 725 South Figueroa Street, 31st Floor Los Angeles, CA 90017 (213) 629-9040
Joshua Riley J. Wells Harrell BOIES SCHILLER FLEXNER LLP 1401 New York Avenue NW Washington, DC 20005 (202) 237-2727
Juan P. Valdivieso BOIES SCHILLER FLEXNER LLP 1999 Harrison Street Oakland, CA 94612 (510) 874-1000
Counsel for Amici Curiae

-25-

CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that this brief uses a proportionally spaced

Times New Roman typeface, 14-point, and that the text of the brief contains 5,974

words according to the word count provided by Microsoft Word, as required by

Federal Rule of Appellate Procedure 32.

Dated: March 20, 2018

/s/ Albert Giang

Albert Giang SBN: 224332 BOIES SCHILLER FLEXNER LLP 725 South Figueroa Street, 31st Floor Los Angeles, CA 90017 (213) 629-9040

Joshua Riley J. Wells Harrell BOIES SCHILLER FLEXNER LLP 1401 New York Avenue NW Washington, DC 20005 (202) 237-2727

Juan P. Valdivieso BOIES SCHILLER FLEXNER LLP 1999 Harrison Street Oakland, CA 94612 (510) 874-1000

Counsel for Amici Curiae

-26-

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 Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the Northern District of California
BRIEF OF PARTNERSHIP FOR EDUCATIONAL JUSTICE, DELAWARECAN: THE DELAWARE CAMPAIGN FOR
ACHIEVEMENT NOW, HAWAIIKIDSCAN, NEWMEXICOKIDSCAN, AND VIRGIANPIPAEELXLCEEELSS, AANSDAFMOICRIACFUFRIIRAMEAINNCSEUPPORT OF
WILLIAM J. SCHWARTZ KAITLAND M. KENNELLY COOLEY LLP 1114 Avenue of the Americas New York, New York 10036-7790 Telephone: (212) 479-6000 Email: wschwartz@cooley.com
kkennelly@cooley.com

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................. iii
STATEMENT OF CORPORATE DISCLOSURE ..................................................1
STATEMENT OF INTEREST.................................................................................1
PRELIMINARY STATEMENT ..............................................................................2
ARGUMENT ............................................................................................................4
I. ENDING DACA WILL CAUSE IRREPARABLE EDUCATIONAL INJURY TO K-12 STUDENTS WHO HAVE ALREADY RECEIVED DACA OR WHO WOULD HAVE BEEN ELIGIBLE TO RECEIVE DACA.....................................................................................4
A. If the District Court’s Order Is Not Affirmed, Barriers to Higher Education and Legal Employment Will Decrease Motivation and Academic Engagement Among K-12 Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA.....................................................................................5
B. If the District Court’s Order is Not Affirmed, K-12 Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA Will Be Forced Out of Mainstream American Society, Irreparably Impairing Their Educational Opportunities..................................................................11
C. If the District Court’s Order is Not Affirmed, K-12 Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA Will Suffer from Mental and Physical Health Issues That Negatively Affect Academic Performance ........................................................................................ 14
II. ENDING DACA WILL IRREPARABLY HARM K-12 STUDENTS WHOSE PARENTS ARE DACA RECIPIENTS OR WHOSE PARENTS WOULD HAVE BEEN ELIGIBLE TO RECEIVE DACA .....19
A. If the District Court’s Order is Not Affirmed, Adult DACA Recipients Will Have Greater Difficulty Providing for Their U.S.-Born Children, Leading to Poorer Academic Performance.......20
B. If the District Court’s Order is Not Affirmed, U.S.-Born Children of Adult DACA Recipients Will Experience Health Issues That Negatively Affect Academic Performance .....................23
i

III. ENDING DACA WILL IRREPARABLY HARM K-12 STUDENTS WHOSE TEACHERS ARE DACA RECIPIENTS .....................................25 A. If the District Court’s Order is Not Affirmed, DACA-Recipient K-12 Teachers Will be Forced to Abruptly Leave Their Jobs, Destabilizing Classroom Environments and Worsening the Teacher Shortage................................................................................26 B. If the District Court’s Order is Not Affirmed, K-12 Students Will Be Deprived of Access to Uniquely Qualified DACARecipient Teachers .............................................................................29
CONCLUSION .......................................................................................................32
ii

TABLE OF AUTHORITIES
Page(s)
Cases Brown v. Board of Education,
347 U. S. 483 (1954).........................................................................................2, 4
Plyler v. Doe, 457 U.S. 202 (1982)..........................................................................................2, 4
Other Authorities Caitlin Patler & Whitney Laster Pirtle, From Undocumented to
Lawfully Present: Do Changes to Legal Status Impact Psychological Wellbeing Among Latino Immigrant Young Adults? Social Science & Medicine (2017) .....................................................................15
DACA – Federal Policy and Examples of State Actions, National Conference of State Legislatures (Sept. 5, 2017) ...............................................13
Desiree Carver-Thomas and Linda Darling-Hammond, Teacher Turnover: Why It Matters and What We Can Do About It, Learning Policy Institute (August 2017)............................................................................26
Emily Greenman & Matthew Hall, Legal Status and Educational Transitions for Mexican and Central American Immigrant Youth 91 Social Forces (April 22, 2013).....................................................................7, 8
Ginette Magana, DACAmented Teachers: Educating and Enriching Their Communities, The Obama White House (Aug. 4, 2015) ..........................30
Grace Chen, Parental Involvement is Key to Student Success, Public School Review (July 2, 2017).......................................................................23, 24
Hedy N. Change and Mariajosé Romero, Present, Engaged, and Accounted For: The Critical Importance of Addressing Chronic Absence in the Early Grades, National Center for Children in Poverty (Sept. 2008) ...........................................................................................21
Hirokazu Yoshiwaka, Immigrants Raising Citizens: Undocumented Parents and Their Young Children (2011) .............................................20, 22, 24
Hirokazu Yoshikawa, et al., Unauthorized Status and Youth Development in the United States, Journal of Research on Adolescence (2016) ..............................................................................................7
iii

Jens Hainmueller et al., Protecting Unauthorized Immigrant Mothers Improves Their Children’s Mental Health, 357 Science (Sept. 8, 2017) ...................................................................................................................15
Jie Zong, et al., A Profile of Current DACA Recipients by Education, Industry, and Occupation, MPI Fact Sheet (Nov. 2017)......................................5
Joanna Dreby, Everyday Illegal: When Policies Undermine Immigrant Families (2015) ............................................................................................passim
Join TFA as a DACA Recipient, Teach for America, https://www.teachforamerica.org/join-tfa/daca-recipients .................................31
Jonathan Blitzer, After an Immigration Raid, a City’s Students Vanish, The New Yorker (March 23, 2017) ....................................................................11
Jonathan Blitzer, Undocumented Immigrants Brace for the Trump Administration, The New Yorker (Dec. 19, 2016) .............................................18
Laura Bornfreund, Study Finds Drop in Preschool Enrollment for Latino Children, New America (April 14, 2011) ...............................................22
Leib Sutcher, Desiree Carver-Thomas, and Linda Darling-Hammond, Understaffed and Underprepared: California Districts Report Ongoing Teacher Shortages, Learning Policy Institute (Feb. 5, 2018) ...................................................................................................................28
Liz Robbins, Once Accepted, Soon Rejected? New York’s Young Immigrants Uncertain Under Trump, The New York Times (Dec. 15, 2016) .............................................................................................................31
Louis Freedberg, Teacher shortages persist in California and getting worse in many communities, EdSource (Feb. 20, 2018) ....................................27
Madeline Will, N.M. Teacher of the Year, a Dreamer, Attended Trump's State of the Union. Here's Her Story, Education Week (Feb. 1, 2018)......................................................................................................31
Maggie Fox, Pediatricians Speak Out Against President Trump’s Immigration Orders, NBC News (Jan. 26, 2017)...............................................15
Matthew Ronfeldt et al., How Teacher Turnover Harms Student Achievement, Am. Educ. Res. J. 4, 31 (2011) ....................................................26
Moriah Balingit, As DACA Winds Down, 20,000 Educators are in Limbo, The Washington Post (Oct. 25, 2017) ....................................................25
Olga Khazan, The Toxic Health Effects of Deportation Threat, The Atlantic (Jan. 27, 2017).................................................................................15, 24
iv

On the Border, a DACAmented Science Teacher Fights On, Teach for America (June 16, 2017).....................................................................................31
Randy Capps, et al., The Education and Work Profiles of the DACA Population, MPI Issue Brief (Aug. 2017) ............................................................5
Robert Balfanz, et al., Preventing Student Disengagement and Keeping Students on the Graduation Path in Urban Middle-Grades Schools, 42 Educational Psychologist 224 (2007)................................................9
Robert Samuels, With Hispanic Students on the Rise, Hispanic Teachers in Short Supply, The Washington Post (Nov. 15, 2011).....................31
Roberto G. Gonzales, DACA’s Beneficiaries Landed Good Jobs, Enrolled in College, and Contributed to Society, Vox (Sept. 5, 2017) ...................................................................................................................14
Roberto G. Gonzales, Lives in Limbo: Undocumented and Coming of Age in America (2016) .................................................................................passim
Roberto G. Gonzales, et al. Becoming DACAmented: Assessing the Short-Term Benefits of Deferred Action for Childhood Arrivals, 58 American Behavioral Scientist (2014)..................................................6, 7, 12, 13
Roberto G. Gonzales, et al., DACA at Year Three: Challenges and Opportunities in Accessing Higher Education and Employment, American Immigration Council (Feb. 1, 2016) ..............................................9, 16
Roberto G. Gonzales & Angie M. Bautista-Chavez, Two Years and Counting: Assessing the Growing Power of DACA, American Immigration Council (June 16, 2014)...........................................................13, 20
Roberto G. Gonzales & Kristina Brant, Analysis: DACA Boosts Young Immigrants’ Well-Being, Mental Health, NBC News (Jun. 15, 2017) ...................................................................................................................10
Roberto G. Gonzales & Sarah A. Rendon-Garcia, Understanding the Deferred Action for Childhood Arrivals (DACA) Impact on Young Adults’ Well-Being, APA (Nov. 2016) .........................................................11, 12
Samantha Michaels, 1 in 4 Dreamers are Parents of US Citizens, Mother Jones (Sept. 7, 2017) ..............................................................................19
Sara Neufeld, Perseverance at a Newark school following midyear teacher turnover, The Hechinger Report (May 28, 2013)..................................27
v

Sarah Hooker and Michael Fix, County-Level View of DACA Population Finds Surprising Amount of Ethnic & Enrollment Diversity, MPI Commentary (Sept. 2014) .........................................................32
Soudi Jiménez, ‘Dreamers’, primero rechazados, ahora esenciales para resolver la falta de profesores bilingües en EEUU (“Dreamers, First Rejected, Now Essential to Solve the Shortage of Bilingual Teachers”), Hoy (Aug. 15, 2016)...................................................29
Stephanie Potochnick and Krista Perreira, Depression and Anxiety among First-Generation Immigrant Latino Youth, 198 Journal of Nervous and Mental Disease (2010)...................................................................14
Teachers Matter: Understanding Teachers’ Impact on Student Achievement, Rand Education ............................................................................25
Valerie Strauss, Teacher Shortages Affecting Every State as 2017-18 School Year Begins, The Washington Post (Aug. 28, 2017) .......................27, 28
Valerie Strauss, The Troubling Shortage of Latino and Black Teachers — And What to Do About It, The Washington Post (May 15, 2016) .................31
Valerie Strauss, Why It’s a Big Problem That So Many Teachers Quit — And What to Do About It, The Washington Post (Nov. 27, 2017).................28
Viridiana Carrizales, Why TFA Supports DACA and Undocumented Students, Teach for America (Feb. 28, 2017)...............................................29, 31
vi

STATEMENT OF CORPORATE DISCLOSURE Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae Partnership for Educational Justice, DelawareCAN: The Delaware Campaign for Achievement Now, HawaiiKidsCAN, NewMexicoKidsCAN, and Virginia Excels, by and through undersigned counsel, state that they are nonprofit organizations and therefore are not publicly held corporations that issue stock, nor do they have parent corporations.

STATEMENT OF INTEREST1 Amici are Partnership for Educational Justice, DelawareCAN: The
Delaware Campaign for Achievement Now, HawaiiKidsCAN,
NewMexicoKidsCAN, and Virginia Excels, each of which is a member of the
education nonprofit 50CAN: 50-State Campaign for Achievement Now. Amici
advocate for a high-quality education for all children, regardless of their
immigration status, home address, or economic background. Amici work to
empower families and improve the quality of public schools by conducting
research, surveying students, teachers, and school administrators, engaging in legal
action, fostering grassroots organizing efforts, and advocating for policies and
practices at the state and local level. Through their research and advocacy efforts,
amici are uniquely situated to articulate the irreparable harm that will be
experienced by kindergarten through twelfth grade (“K-12”) students if the September 5, 2017 DACA Rescission Memorandum2 is enforced. Moreover, the
work performed by amici will be impeded if the District Court’s order granting a
1 The parties have consented to the filing of this amicus brief, and amici file this brief pursuant to that authority. See Fed. R. App. P. 29(a)(2). No party’s counsel authored this brief in whole or in part, no party or party’s counsel contributed money intended to fund preparation or submission of this brief, and no person other than amici and their counsel contributed money intended to fund preparation or submission of this brief. See Fed. R. App. P. 29(a)(4)(E). 2 Memorandum on Rescission of Deferred Action For Childhood Arrivals from Acting Secretary Elaine C. Duke (Sept. 5, 2017) (“Rescission Memorandum”).

preliminary injunction3 is not affirmed, because undocumented students and their parents will be less willing to openly engage with nonprofit organizations if they are vulnerable to deportation.
PRELIMINARY STATEMENT In Plyler v. Doe, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment guarantees all children in the United States the right to a public elementary and secondary education, regardless of immigration status. 457 U.S. 202 (1982). Because it is “doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education . . . [s]uch an opportunity. . . is a right which must be made available to all on equal terms.” Id. at 222-223 (citing Brown v. Board of Education, 347 U. S. 483, 493 (1954)) (emphasis added). If the Rescission Memorandum is enforced, hundreds of thousands of undocumented K-12 students will suffer irreparable educational injury and will be deprived of the ability to obtain a K-12 public education on equal terms with their U.S.-born peers. Prior to the enactment of the “Deferred Action for Childhood Arrivals” (“DACA”) program, the educational prospects of undocumented children were significantly curtailed by their immigration status, which often prevented them
3 See Jan. 9, 2018 Order Den. FRCP 12(b)(1) Dismissal and Granting Provisional Relief, ECF No. 234.
2

from gaining access to many of the academic resources available to their U.S.-born peers. The implementation of DACA in 2012, however, rapidly expanded undocumented young people’s future opportunities, incentivizing them to work harder, complete high school, and gain admission to colleges and universities. DACA has also allowed undocumented adolescents to take part in many rites of passage, such as working legally and securing internships, which position students to pursue long term educational and career goals. Critically, DACA has eliminated the daily fear of arrest and deportation among recipients. As a result, undocumented K-12 students have enjoyed better mental health, allowing them to focus on their studies rather than their worries and anxiety. If the preliminary injunction is not affirmed, undocumented students will be stripped of many resources that supported their academic success in recent years, and schools across the nation will face significant obstacles in educating and mentoring these students.
DACA has also provided significant educational benefits to U.S.-born children. DACA’s work authorization allows parents who are DACA recipients to better provide for their families, helping their children gain access to valuable educational resources. Additionally, parents who are not threatened with deportation are more likely than their undocumented counterparts to take advantage of public benefits that help children thrive and succeed academically. DACA provides psychological relief to children who previously lived in constant
3

fear that their parents would be deported, thereby improving their performance at school. Furthermore, thousands of K-12 students are currently taught by DACArecipient teachers who bring unique skills to the classroom. If DACA ends, U.S.born children of DACA recipients will be more likely to live in poverty and to suffer from mental health problems, impairing their ability to succeed in school, and students who are taught by DACA-recipient teachers will be deprived of highly effective educators at a time when qualified teachers are in particularly short supply.
For all of these reasons, the District Court’s order preliminarily enjoining the enforcement of the Rescission Memorandum serves the public interest and should be affirmed.
ARGUMENT I. ENDING DACA WILL CAUSE IRREPARABLE EDUCATIONAL
INJURY TO K-12 STUDENTS WHO HAVE ALREADY RECEIVED DACA OR WHO WOULD HAVE BEEN ELIGIBLE TO RECEIVE DACA In Plyler v. Doe, the Court recognized that educating the next generation of adults is “perhaps the most important function of state and local governments.” 457 U.S. at 222-223 (citing Brown, 347 U.S. at 493). The Migration Policy Institute (“MPI”) estimates that at least 130,000 DACA recipients are currently in
4

high school,4 and hundreds of thousands of elementary and middle school students
will become eligible to receive DACA in coming years.5 If the preliminary
injunction is not affirmed, these students will lose their motivation to succeed
academically, be ostracized from mainstream society, and will experience
increased mental health problems. As a result, public schools across the country
will encounter significant challenges in fulfilling their duty to educate hundreds of
thousands of K-12 students.
A. If the District Court’s Order Is Not Affirmed, Barriers to Higher Education and Legal Employment Will Decrease Motivation and Academic Engagement Among K-12 Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA
In the pre-DACA era, undocumented young people were discouraged from
excelling academically because they faced substantial obstacles that foreclosed
many of their post-high school opportunities. For example, federal law prohibits
undocumented students from receiving federal financial aid, and state laws
governing access to in-state tuition and state financial aid vary wildly.6 Forced to
work at low-paying jobs, and ineligible for much of the financial aid and
4 Jie Zong, et al., A Profile of Current DACA Recipients by Education, Industry, and Occupation, MPI Fact Sheet, 4 (Nov. 2017). 5 Randy Capps, et al., The Education and Work Profiles of the DACA Population, MPI Issue Brief, 3 (Aug. 2017). 6 I have DACA and I can Use the FAFSA? Say What?!, United We Dream, 4-5 (2016).
5

scholarship money available to their peers, undocumented college students often found it impossible to afford tuition.7 These students were also barred from participating in work-study programs that offset college costs and provide entrylevel professional experience, and they were excluded from any college major or career that required “hands on” training in the form of internships or other programs.8
Even those undocumented students who did manage to obtain some form of higher education were often relegated to “low-end service sector work,” such as “light manufacturing, construction, and private businesses, such as landscaping, housekeeping, and cleaning.”9 These jobs, which rarely matched the education or skill level of undocumented high school graduates, seldom provided benefits, opportunities for advancement, or job security.10 As a result, undocumented high school and college graduates frequently expressed frustration with the “very narrow range of opportunities” available to them.11 As one young woman from southern California put it, “I graduated from high school and have taken some
7 ROBERTO G. GONZALES, Lives in Limbo: Undocumented and Coming of Age in America, 89, 124 (2016). 8 Roberto G. Gonzales, et al. Becoming DACAmented: Assessing the Short-Term Benefits of Deferred Action for Childhood Arrivals, 58 American Behavioral Scientist, 1854 (2014). 9 GONZALES, supra note 7, at 125. 10 Id. 11 Id.
6

college credits. . . . Neither of my parents made it past fourth grade. . . . But I’m right where they are. . . . Why did I even go to school?”12
Predictably, undocumented high school students in the pre-DACA era often became unmotivated as they confronted a severely limited set of educational and professional prospects.13 Before DACA, undocumented high school students dropped out of school more and enrolled in college less than their peers.14 A 2013 study found that almost 84 percent of U.S.-born Hispanic high school students completed high school, whereas only 67 percent of undocumented immigrant high school students born in Mexico and Central America did so.15 Documented high school students were four times as likely as their undocumented peers to enroll in college.16 Undocumented students often found it difficult to believe that investing in their education would provide any significant long-term gains—one researcher who examined the daily lives of undocumented children prior to the enactment of
12 Id. at 124. 13 Hirokazu Yoshikawa, et al., Unauthorized Status and Youth Development in the United States, 27 Journal of Research on Adolescence, 10 (2016). 14 Emily Greenman & Matthew Hall, Legal Status and Educational Transitions for Mexican and Central American Immigrant Youth, 91 Social Forces, 1479 (April 22, 2013). 15 Id. at 1486. 16 Id. at 1490.
7

DACA reported that her subjects spoke of legal status as “the most important factor in decisions related to future college attendance.”17
The threat of deportation deprived undocumented students of key educational resources in the pre-DACA era. Undocumented students were often barred from participating in college preparation programs that required applicants to provide Social Security numbers.18 Undocumented students were less willing than their U.S.-born peers to seek support from teachers and guidance counselors because the “risks of disclosure [of their immigration status] were judged too great.”19 Lacking mentors to help them navigate the college application process, many undocumented young people did not learn about the limited opportunities for scholarships and financial aid that were available to them.20 These students missed out on educational and cultural experiences due to fear of deportation. One young man recalled telling his classmates that his parents would not let him take part in a senior class trip to San Diego, when in reality he could “not risk going through the freeway immigration checkpoints.”21
17 JOANNA DREBY, Everyday Illegal: When Policies Undermine Immigrant Families, 178-179 (2015); GONZALES, supra note 7, at 125. 18 GONZALES, supra note 7, at 98. 19 Id. at 109. 20 Id. 21 Id. at 113.
8

Students who are vulnerable to deportation are more likely to be chronically
absent from school, especially during periods of increased enforcement efforts.22
Poor attendance jeopardizes students’ academic performance, with one study
finding that ninth-graders who experienced prolonged absences dropped out of
high school at higher rates.23 An 18 year-old student in Delaware24 described
feeling extremely anxious whenever family members picked her up or dropped her
off at school before she received DACA because she worried that she or her
relatives might be detained outside of the school entrance.25
Almost overnight, DACA provided undocumented K-12 students with a
remarkably expanded set of options. Encouraged by the prospect of working
toward real careers, high school-aged DACA recipients reported “an immediate
change in their motivation.”26 Attending college and working in their “dream
22 DREBY, supra note 17, at 103. 23 Robert Balfanz, et al., Preventing Student Disengagement and Keeping Students on the Graduation Path in Urban Middle-Grades Schools, 42 Educational Psychologist 224 (2007). 24 To provide the Court with a better understanding of how the DACA rescission will affect the educational prospects of K-12 students, DelawareCAN has shared the perspectives of a number of DACA-recipient students with whom the organization has worked. The names of these students have been withheld to protect their anonymity. 25 Interview of 18 Year-Old Female DACA Recipient from Delaware, Dec. 19, 2017. 26 Roberto G. Gonzales, et al., DACA at Year Three: Challenges and Opportunities in Accessing Higher Education and Employment, American Immigration Council, 2 (Feb. 1, 2016).
9

fields” suddenly became attainable goals.27 As one young woman explained, “My
freshman year and my sophomore year, I did really bad, mostly because I was just
not motivated because . . . all of this is going to be worthless in the end. But then
when DACA came out, I started doing a lot better. . . . I was super motivated.”28
DACA has also allowed these students to come out of the shadows and take full
advantage of the academic resources many U.S.-born students take for granted.
The release of the Rescission Memorandum has already led to decreased
motivation and increased absenteeism among immigrant students. Dr. Marguerite
Oetting, a pediatrician whose practice focuses on immigrant and low-income
patients,29 described treating a 17 year-old DACA recipient who had intended to
enroll in a nursing program, but is now reconsidering her plan because she does not
know whether she will be able to obtain a job after graduating.30 Dr. Oetting also
reported that the aunt of one of her patients, a 15 year-old DACA recipient, refused
27 Id. 28 Roberto G. Gonzales & Kristina Brant, Analysis: DACA Boosts Young Immigrants’ Well-Being, Mental Health, NBC News (Jun. 15, 2017), https://www.nbcnews.com/news/latino/analysis-daca-boosts-young-immigrantswell-being-mental-health-n772431. 29 To provide the Court with a better understanding of how the DACA rescission will affect the health of K-12 students, we interviewed a number of medical professionals who treat immigrant youth. These doctors were interviewed in their individual capacities and did not speak on behalf of any organization with which they are affiliated. We did not solicit or receive any information that could be used to identify their patients. 30 Interview of Dr. Marguerite Oetting, Dec. 18, 2017.
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to allow her nephew to go to school for weeks because she worried that the police
would be called—and he would ultimately be deported—if he happened to get into
a fight with another student.31 Recently, after Immigration and Enforcement
officers conducted a raid in Las Cruces, New Mexico, the town’s public schools
experienced a 60% increase in absences compared to the previous week.32
When students are afraid of being detained or deported, they are less likely
to go to class, seek support from school officials, and apply for scholarships.33 If
the Rescission Memorandum is enforced, the academic opportunities available to
current DACA recipients, as well as those of children who planned to apply for
DACA, will again be curtailed by their immigration status.
B. If the District Court’s Order is Not Affirmed, K-12 Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA Will Be Forced Out of Mainstream American Society, Irreparably Impairing Their Educational Opportunities
A guaranteed K-12 public school education ensures that undocumented
children develop “identities, values, and aspirations that parallel their American
born citizens and peers.”34 Before the enactment of DACA, however,
31 Id. 32 Jonathan Blitzer, After an Immigration Raid, a City’s Students Vanish, The New Yorker (March 23, 2017). 33 GONZALES, supra note 7, at 109; DREBY, supra note 17, at 103. 34 Roberto G. Gonzales & Sarah A. Rendon-Garcia, Understanding the Deferred Action for Childhood Arrivals (DACA) Impact on Young Adults’ Well-Being, APA (Nov. 2016), http://www.apa.org/pi/families/resources/newsletter/2016/11/ deferred-action.aspx.
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undocumented young people began to experience what Harvard professor Roberto Gonzales describes as a “transition to illegality” upon reaching adolescence. Undocumented teenagers found themselves left behind as their U.S.-born peers reached many of the milestones that mark growing up in the United States.35
Prohibited from obtaining driver’s licenses in many states, these adolescents were forced to rely on public transit long after their friends had started driving. In areas lacking reliable public transportation, this could be tremendously isolating, making daily commutes to school difficult and time consuming.36 Obtaining any official form of identification, in fact, posed a significant challenge for undocumented young people in the pre-DACA era, meaning visits to libraries and other educational institutions could be hampered by their immigration status.37
As their friends strengthened their resumes and started saving for college through summer jobs and internships, undocumented young people in the preDACA era were frequently forced to perform unskilled labor for low wages.38 Furthermore, because many financial institutions require customers to provide identification documents, young people without Social Security numbers were
35 Id. 36 Becoming DACAmented, supra note 8, at 1855. 37 GONZALES, supra note 7, at 113. 38 GONZALES, supra note 7, at 125.
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often prevented from opening bank accounts, making saving for higher education, and paying for college applications far more challenging.39
DACA’s work authorization allows undocumented young people to obtain jobs and internships that provide entry-level work experience, build resumes, and strengthen college applications.40 An 18-year old DACA recipient who is currently a freshman at her “dream” university described how DACA’s work authorization allowed her to obtain an internship with a college preparation leadership program. Through this program, she was able to educate over 200 students, including a number of other DACA recipients, about the college application process, which she had successfully navigated herself despite her family’s economic hardships.41
DACA recipients’ increased wages can now be deposited into interestbearing bank accounts, and they can build credit by obtaining credit cards.42 Although 38 states, including New York and Virginia, currently bar undocumented individuals from acquiring driver’s licenses, all 50 states allow DACA recipients to
39 Becoming DACAmented, supra note 8, at 1855. 40 Roberto G. Gonzales & Angie M. Bautista-Chavez, Two Years and Counting: Assessing the Growing Power of DACA, American Immigration Council (June 16, 2014), https://www.americanimmigrationcouncil.org/research/two-years-andcounting-assessing-growing-power-daca. 41 Interview of 18 Year-Old Female DACA Recipient from Delaware, Dec. 19, 2017. 42 Gonzales & Bautista-Chavez, supra note 40.
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do so.43 DACA recipients have seized on the opportunity to join mainstream society—a 2015 survey of 2,700 DACA recipients found that approximately 60% of respondents had found a new job, 20% had gotten a paid internship, 50% had opened their first bank account, 33% had obtained a credit card, and 60% had gotten a driver’s license.44
If the Rescission Memorandum is enforced, current DACA recipients, along with children who planned to apply for DACA, will lose their ability to gain educational and professional experience through legal employment. Moreover, they will be forced to live in the shadows without access to driver’s licenses, bank accounts, or credit cards, making the process of applying to, enrolling in, and paying for college far less manageable.
C. If the District Court’s Order is Not Affirmed, K-12 Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA Will Suffer from Mental and Physical Health Issues That Negatively Affect Academic Performance
Immigration status has a significant effect on children’s mental health, with undocumented children experiencing higher rates of anxiety and depression than
43 DACA – Federal Policy and Examples of State Actions, National Conference of State Legislatures (Sept. 5, 2017), http://www.ncsl.org/research/immigration/ deferred-action.aspx. 44 Roberto G. Gonzales, DACA’s Beneficiaries Landed Good Jobs, Enrolled in College, and Contributed to Society, Vox (Sept. 5, 2017), https://www.vox.com/ 2017/9/2/16244380/daca-benefits-trump-undocumented-immigrants-jobs.
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their U.S.-born peers.45 These conditions impair children’s performance in school
by interfering with their ability to focus on course work and exacerbating
behavioral problems.46 Furthermore, children who are exposed to “unrelenting
turmoil” over a prolonged period of time can experience significant cognitive
delays.47 The President of the American Academy of Pediatrics, Dr. Fernando
Stein, has explained that, “[Fear] can impact [children’s] health and development. .
. . [P]rolonged exposure to serious stress—known as toxic stress—can harm the
developing brain and negatively impact short- and long-term health.”48
In the pre-DACA era, the daily lives of undocumented young people were
often defined by their perpetual fear of deportation, which in turn led to increased
rates of anxiety-related disorders among undocumented youth. As these young
people entered adolescence and began to face “disadvantage due to their . . . legal
status,” they experienced “worries about blocked mobility. . . anxiety, and fear of
45 Stephanie Potochnick and Krista Perreira, Depression and Anxiety among FirstGeneration Immigrant Latino Youth, 198 Journal of Nervous and Mental Disease, 470 (2010). 46 Jens Hainmueller et al., Protecting Unauthorized Immigrant Mothers Improves Their Children’s Mental Health, 357 Science, 1042 (Sept. 8, 2017). 47 Olga Khazan, The Toxic Health Effects of Deportation Threat, The Atlantic (Jan. 27, 2017). 48 Maggie Fox, Pediatricians Speak Out Against President Trump’s Immigration Orders, NBC News (Jan. 26, 2017), https://www.nbcnews.com/storyline/ immigration-border-crisis/pediatricians-speak-out-against-president-trump-simmigration-orders-n712296.
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deportation.”49 For many undocumented adolescents, “fear of getting caught
motivated decisions not to participate.” One young woman explained, “Nothing,
nowhere felt safe. . . . [I was] afraid of walking. . . or [being] outside [my] house”50
The “destabilizing” experience of being undocumented can also lead to
depression and suicidal thoughts in undocumented youth.51 Feelings of
hopelessness were common in undocumented students who encountered barriers to
educational and career goals in the pre-DACA era. One student explained:
When that whole college process started, it definitely hit me hard. It was just really frustrating. I felt like I had put so much work into school, into studying, into making good grades. I went into depression . . . . I started thinking I’m never going to go anywhere and it’s all because of some paper I don’t have. It was really rough. I was angry all the time.52
Another young man described feeling despondent about his future after
learning that he was undocumented, stating, “College and law school were
definitely in my plans. But when my mom told me I wasn’t legal, everything
turned upside down. I didn’t know what to do. I couldn’t see my future
49 Caitlin Patler & Whitney Laster Pirtle, From Undocumented to Lawfully Present: Do Changes to Legal Status Impact Psychological Wellbeing Among Latino Immigrant Young Adults? Social Science & Medicine, 2 (2017). 50 GONZALES, supra note 7, at 102. 51 Rachel Siemons et al., Coming of Age on the Margins: Mental Health and Wellbeing Among Latino Immigrant Young Adults Eligible for Deferred Action for Childhood Arrivals (DACA), 19 Journal of Immigrant and Minority Health, 543544 (2016). 52 DACA at Year Three, supra note 26, at 8.
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anymore.”53 Even middle school students experienced the psychological effects of being undocumented. An 18-year old young man recalled feeling discouraged in middle school because he worried that his immigration status would prevent him from attending college or having a career that interested him. Receiving DACA gave him renewed his hope for the future and inspired him to work harder in school. 54 Similarly, a seventh-grade boy who dreamed of being a chef told one researcher that he felt “[a] lot of stress, a lot of sadness” because of the educational and professional roadblocks he expected to encounter.55 After this boy received DACA a few years later, his mother reported that he was acting like a “new person.”56
The Rescission Memorandum has already had a substantial detrimental impact on the psychological well-being of DACA recipients and children who planned to apply for DACA. Dr. Oetting described treating a 16 year-old DACA recipient who attempted suicide after the Trump administration announced its plans to end DACA. She consistently earned good grades and had been excited to apply to colleges, but she became terrified of what was going happen to her if DACA ended. She told Dr. Oetting that she tried to end her own life she had
53 GONZALES, supra note 7, at 102. 54 Interview of 18 year-old Male DACA Recipient from Delaware, Dec. 20, 2017. 55 DREBY, supra note 17, at 104. 56 Id. at 187.
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listened to her mother cry herself to sleep every night for weeks, and she “did not know what else to do.”57 Dr. Julie Linton, Co-Chair of the American Academy of Pediatrics Immigrant Health Special Interest Group, described treating a 13-yearold boy shortly after the DACA rescission was announced. The boy, who planned to apply for DACA when he turned 15, tearfully described his anxiety to Dr. Linton and told her that he “had no hope for the future.”58 Dr. Janine Young, a pediatrician whose practice focuses on recent immigrants and refugees, described treating a 17-year-old female DACA recipient experiencing severe organ failure. In need of a life-saving surgery and extensive follow up care, the patient became terrified that she would lose her medical coverage when she turned 18 if DACA was rescinded. She stopped eating, and her already reduced weight plummeted. She became withdrawn in school and failed many of her classes. Dr. Young diagnosed her with severe anxiety and depression and ultimately prescribed antidepressants.59
The anxiety, stress, and depression associated with undocumented status can lead to physical health problems, such as stomach ailments, headaches, and sleeping issues, which negatively affect academic performance and school
57 Interview of Dr. Marguerite Oetting, Dec. 18, 2017. 58 Interview of Dr. Julie Linton, Oct. 31, 2017. 59 Interview of Dr. Janine Young, Nov. 30, 2017.
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attendance.60 Since the DACA rescission was announced, doctors who treat immigrant children have reported increased complaints of such symptoms. Dr. Linton described treating a 16 year-old female DACA recipient who had planned to attend college and medical school. The patient explained that she was distressed because the end of DACA meant that she would no longer be able to “pursue her dreams.” She reported that she could not sleep and that she was having trouble concentrating in school.61
DACA has provided significant psychological relief to current DACA recipients, along with children who planned to apply for DACA, by alleviating their daily fear of deportation and expanding their future opportunities. If the Rescission Memorandum is enforced, these students will experience significant health problems that will impair their academic performance. II. ENDING DACA WILL IRREPARABLY HARM K-12 STUDENTS
WHOSE PARENTS ARE DACA RECIPIENTS OR WHOSE PARENTS WOULD HAVE BEEN ELIGIBLE TO RECEIVE DACA A quarter of DACA recipients are parents of U.S.-born children.62 If these parents lose their work authorization, they will be worse off financially and less equipped to provide their U.S.-born children with critical educational resources.
60 Jonathan Blitzer, Undocumented Immigrants Brace for the Trump Administration, The New Yorker (Dec. 19, 2016). 61 Interview of Dr. Julie Linton, Oct. 31, 2017. 62 Samantha Michaels, 1 in 4 Dreamers are Parents of US Citizens, Mother Jones (Sept. 7, 2017).
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Moreover, if DACA recipients lose their protection from deportation, their children will experience increased stress and anxiety due to fears that their parents will be detained or deported. Because poverty and psychological stress are significant causes of poor academic performance and behavioral issues in children, the educational prospects of U.S.-born children of DACA recipients will be irreparably harmed if the preliminary injunction is not affirmed.
A. If the District Court’s Order is Not Affirmed, Adult DACA Recipients Will Have Greater Difficulty Providing for Their U.S.Born Children, Leading to Poorer Academic Performance
No longer relegated to low wage, unskilled labor, DACA recipients have significantly increased their earnings since the policy was enacted, and many have obtained jobs that provide benefits such as health insurance and paid leave.63 If they lose their work authorization, these individuals will once again be consigned to low paying jobs that require them to work long hours away from their children.64 As a result, these parents will be less capable of providing their children with critical resources that accelerate learning, such as educational books and toys, prekindergarten programs, technology, and tutors. Furthermore, being undocumented exacerbates the “economic stressors associated with parenting.”65 One-third of
63 Gonzales & Bautista-Chavez, supra note 40. 64 HIROKAZU YOSHIWAKA, Immigrants Raising Citizens: Undocumented Parents and Their Young Children, 17-18 (2011). 65 DREBY, supra note 17, at 105.
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children born to undocumented parents live in poverty, compared with 18 percent of children with U.S. citizen parents,66 and the average income for families with at least one undocumented parent in 2007 was about 40% lower than that of U.S. citizen families.67
Living in poverty puts children at a severe academic disadvantage. One study found that children who live in impoverished communities are four times more likely than their peers to be chronically absent from school.68 As discussed above in Section II.A, erratic attendance is directly linked to poor academic performance. Additionally, low wages and a lack of identification documents make it incredibly difficult for undocumented parents to obtain adequate, safe housing for their families.69 As a result, housing instability is common among undocumented families—one researcher reported that almost 90% of the mixedstatus families (i.e., U.S.-born children with undocumented parents) she interviewed lived in rented homes.70 Frequent relocation is “most consequential
66 Id. 67 GONZALES, supra note 7, at 64. 68 Hedy N. Change and Mariajosé Romero, Present, Engaged, and Accounted For: The Critical Importance of Addressing Chronic Absence in the Early Grades, National Center for Children in Poverty, 13 (Sept. 2008). 69 GONZALES, supra note 7, at 64. 70 DREBY, supra note 17, at 105.
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for children” and can negatively affect their behavioral patterns and academic performance.71
Many undocumented parents are unwilling to take advantage of public benefits that are available to their U.S.-born children due to fears of government institutions.72 This avoidance results in “low rates of enrollment of citizen children in programs that could help foster their early learning”73 such as publicly funded pre-kindergarten programs.74 Moreover, when children do not receive food benefits that they urgently need, they become vulnerable to hunger and nutritional deficiencies that can impair “thinking skills, behavior, and health, all factors that impact academic performance.”75 Dr. Sarah Stelzner, a pediatrician whose practice focuses in large part on Latin American immigrants, reports that she has already witnessed a drop in the number of WIC and Medicaid renewals among her patients—even for children who are citizens.76
71 GONZALES, supra note 7, at 64. 72 Id. at 63. 73 YOSHIWAKA, supra note 64, at 22. 74 Laura Bornfreund, Study Finds Drop in Preschool Enrollment for Latino Children, New America (April 14, 2011), https://www.newamerica.org/educationpolicy/early-elementary-education-policy/early-ed-watch/study-finds-drop-inpreschool-enrollment-for-latino-children/. 75 Nutrition and Students’ Academic Performance, Wilder Research (Jan. 2014). 76 Interview of Dr. Sarah Stelzner, Dec. 1, 2017.
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Furthermore, undocumented parents frequently have to work longer hours to make ends meet, leaving little time to help children with their schoolwork.77 Forced to hide their status and relegated to the fringes of society, these parents often lack the confidence to navigate the bureaucracy of their children’s educational systems, leading many undocumented parents to minimize their involvement in their children’s schooling.78 The academic prospects of children suffer when their parents disengage from their education—lack of parental involvement is a key factor in poor attendance and performance in school.79
If the Rescission Memorandum is enforced, the U.S.-born children of DACA-recipient parents will suffer significant educational harms due to their families’ economic struggles and the looming threat of deportation.
B. If the District Court’s Order is Not Affirmed, U.S.-Born Children of Adult DACA Recipients Will Experience Health Issues That Negatively Affect Academic Performance
Growing up poor has serious consequences for children’s mental health and cognitive abilities—low-income children have less brain surface area on average than their more affluent peers, and “young adults who [grow] up in poverty have more activity in the brain’s negative emotion centers and less in the self-regulation
77 GONZALES, supra note 7, at 63. 78 DREBY, supra note 17, at 84. 79 Grace Chen, Parental Involvement is Key to Student Success, Public School Review (July 2, 2017), https://www.publicschoolreview.com/blog/parentalinvolvement-is-key-to-tudentsuccess.
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portions.”80 A recent study found that children of undocumented Mexican parents are at a higher risk of developmental delays than children of U.S.-born Caucasian parents.81 Furthermore, when children fear that their parents will be deported, they experience increased stress and anxiety, which, as discussed above in Section II.C, can lead to poor academic performance, erratic attendance, and behavioral issues.82
Because undocumented parents must prepare their children for the possibility that one or both of their parents might be detained without warning, children often learn about their family’s immigration status at a young age.83 Kay Holland, a Licensed Clinical Social Worker whose practice focuses on low-income and immigrant children, reports that a number of her patients’ parents have submitted letters to school administrators instructing them to allow Ms. Holland to collect their children from school if they are unexpectedly detained. Predictably, Ms. Holland has noticed a significant uptick in anxiety-related disorders among her patients since the DACA rescission was announced. In particular, children and teenagers in mixed-status families are experiencing increased rates of anxiety and insomnia, impairing their performance in school.84 Dr. Stelzner described treating a U.S.-born five year-old girl with Downs Syndrome whose older sisters are
80 Khazan, supra note 47. 81 YOSHIWAKA, supra note 64, at 17. 82 DREBY, supra note 17, at 39. 83 Id. at 46. 84 Interview of Kay Holland, LCSW, Dec. 1, 2017.
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DACA recipients. Her family became extremely distressed after the Trump administration announced its plan to end DACA, and the five year-old picked up on the stress that was permeating her home life and began to have behavioral problems at school.85
If the Rescission Memorandum is enforced, the U.S.-born children of DACA recipients will be more likely to experience poverty-related cognitive delays, and they will suffer from heightened stress and anxiety due to fears that their parents will be taken away, irreparably harming their educational opportunities. III. ENDING DACA WILL IRREPARABLY HARM K-12 STUDENTS
WHOSE TEACHERS ARE DACA RECIPIENTS Access to quality teachers is the most important in-school factor affecting student achievement—effective teachers lead to higher standardized test scores and improved graduation and college enrollment rates.86 The MPI estimates that 20,000 DACA recipients are currently working as teachers in public K-12 schools, including 5,000 in California.87 If these educators lose their work authorization, their classes will be disrupted and their students will be deprived of uniquely
85 Interview of Dr. Sarah Stelzner, Dec. 1, 2017. 86 Teachers Matter: Understanding Teachers’ Impact on Student Achievement, Rand Education, https://www.rand.org/education/projects/measuring-teachereffectiveness/teachers-matter.html. 87 Moriah Balingit, As DACA Winds Down, 20,000 Educators are in Limbo, The Washington Post (Oct. 25, 2017).
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qualified educators and role models, irreparably harming these students’ educational prospects and exacerbating the existing teacher shortage.
A. If the District Court’s Order is Not Affirmed, DACA-Recipient K12 Teachers Will be Forced to Abruptly Leave Their Jobs, Destabilizing Classroom Environments and Worsening the Teacher Shortage
It is well established that teacher turnover negatively affects student learning.88 If DACA-recipient teachers lose their work authorization, the classroom environments of K-12 students will be destabilized as teachers abruptly leave at random points in the school year. The departures of DACA-recipient teachers will exacerbate the existing teacher shortage, meaning thousands of K-12 students across the country will lose access to fully certified, qualified educators at a time when these positions are particularly difficult to fill.
Sudden teacher departures can weaken students’ academic performance while increasing the workload on remaining teachers, impairing school-wide achievement.89 Predictably, teacher stability has a positive effect on academic performance—one study found that a reduction in teacher attrition corresponded with a significant increase in student achievement in mathematics.90 Teacher
88 Desiree Carver-Thomas and Linda Darling-Hammond, Teacher Turnover: Why It Matters and What We Can Do About It, Learning Policy Institute (August 2017). 89 Matthew Ronfeldt et al., How Teacher Turnover Harms Student Achievement, Am. Educ. Res. J. 4, 31 (2011). 90 Id. at 21.
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departures can deal “a major psychological blow to the school community”—after a number of teachers unexpectedly left a Newark middle school in the midst of the academic year, students reported feeling “hurt, angry and confused.”91 Moreover, evidence shows that the effects of teacher turnover are most harmful in schools with underserved student populations, such as majority Black and Latino student bodies.92
While every state in the country is currently affected by teacher shortages, California has been particularly hard hit—for the 2016-17 and 2017-18 school years, the state reported shortages in subjects including math, science, and special education.93 As a result of Proposition 58, which reinstated bilingual education in California classrooms, bilingual teachers are in particularly short supply in the state.94 In a 2017 Learning Policy Institute survey, 80% of California school districts reported teacher shortages, with one third of respondents stating that the
91 Sara Neufeld, Perseverance at a Newark school following midyear teacher turnover, The Hechinger Report (May 28, 2013), http://hechingerreport.org/ perseverance-at-a-newark-school-following-midyear-teacher-turnover/. 92 Id. at 22, 25. 93 Valerie Strauss, Teacher Shortages Affecting Every State as 2017-18 School Year Begins, The Washington Post (Aug. 28, 2017); Louis Freedberg, Teacher shortages persist in California and getting worse in many communities, EdSource (Feb. 20, 2018), https://edsource.org/2018/teacher-shortages-persist-in-californiaand-getting-worse-in-many-communities/593853. 94 Id.
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problem had gotten worse since the prior year.95 Schools that serve low-income students, schools with racially and ethnically diverse student bodies, and rural schools are disproportionately affected by the shortage.96
The negative effects of teacher shortages only increase as schools struggle to find “Band-Aids” such as “substitutes, untrained staff, canceled classes, larger class sizes” to address teacher vacancies.97 States throughout the country have loosened requirements for educators in an effort to fill teacher vacancies, potentially depriving K-12 students of adequately prepared teachers.98 In 2017, for example, 40% of newly hired teachers in the Los Angeles Unified district were not fully certified.99 The governor of Arizona recently signed a law permitting anyone who has a bachelor’s degree and five years of “relevant” experience to teach K-12 students—even if they lack formal education training—and parents in one Arizona school district have stepped in to serve as noncertified teachers.100
95 Leib Sutcher, Desiree Carver-Thomas, and Linda Darling-Hammond, Understaffed and Underprepared: California Districts Report Ongoing Teacher Shortages, Learning Policy Institute (Feb. 5, 2018), https://learningpolicyinstitute. org/product/ca-district-teacher-shortage-brief. 96 Id. 97 Valerie Strauss, Why it’s a big problem that so many teachers quit — and what to do about it, The Washington Post (Nov. 27, 2017). 98 Id. 99 Freedberg, supra note 93. 100 Strauss, supra, note 93.
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If the Rescission Memorandum is enforced, thousands of K-12 students
across the country will be deprived of stable learning environments at a time when
qualified teachers are in short supply, irreparably harming the educational
opportunities of these students.
B. If the District Court’s Order is Not Affirmed, K-12 Students Will Be Deprived of Access to Uniquely Qualified DACA-Recipient Teachers
DACA-recipient teachers bring a unique set of skills to the classroom.
Many are bilingual, allowing them to effectively communicate with both U.S.-born
and immigrant students.101 Moreover, DACA-recipient teachers “serve as role
models and navigators for students who face the intersecting challenges of poverty
and undocumented status.”102 Nearly 7% of K-12 students in the United States are
undocumented or have at least one undocumented parent.103 Because of their
backgrounds, DACA-recipient teachers are uniquely capable of “mirroring [these
101 Soudi Jiménez, ‘Dreamers’, primero rechazados, ahora esenciales para resolver la falta de profesores bilingües en EEUU (“Dreamers, First Rejected, Now Essential to Solve the Shortage of Bilingual Teachers”), Hoy (Aug. 15, 2016), http://www.hoylosangeles.com/noticias/local/hoyla-loc-dreamers-en-elcuarto-aniversario-de-daca-inciden-en-la-reduccion-del-deficit-de-profesoresbilingue-story.html. 102 Viridiana Carrizales, Why TFA Supports DACA and Undocumented Students, Teach for America (Feb. 28, 2017), https://www.teachforamerica.org/topstories/why-teach-for-america-supports-daca-and-undocumented-students. 103 Id.
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students’] life experiences.”104 One DACA-recipient teacher explained his
approach to teaching:
I work to inspire my students to see themselves as agents of change, and to be proud of who they are. In my classroom, I work to create a welcoming space where my students can discuss their cultural heritage, feel valued and set goals for the impact they can make within their own communities.105 New Mexico’s 2018 Teacher of the Year, a DACA recipient whose classes
largely consist of children from immigrant families, described feeling devastated
when the DACA rescission was announced because “I realized this has the impact
of taking me away from my students and the job that I love doing—the job that's
truly a calling.”106
Teach for America (“TFA”), an organization that recruits recent college
graduates to teach in low-income schools, actively seeks out DACA recipients to
serve as educators because these individuals provide “additional inspiration and
104 Id. 105 Ginette Magana, DACAmented Teachers: Educating and Enriching Their Communities, The Obama White House (Aug. 4, 2015), https://obamawhitehouse. archives.gov/blog/2015/08/04/dacamented-teachers-educating-and-enriching-theircommunities. 106 Madeline Will, N.M. Teacher of the Year, a Dreamer, Attended Trump's State of the Union. Here's Her Story, Education Week (Feb. 1, 2018), http://blogs. edweek.org/teachers/teaching_now/2018/02/new_mexico_teacher_of_year_dream _trump_state_of_the_union.html.
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offer guidance [to students] based on [their] background.”107 Nearly 200 current
and former DACA-recipient TFA members have taught thousands of students in 18
regions across the country, from Massachusetts to the Bay Area.108 TFA often
places DACA-recipient educators in “shortage-area subjects and hard-to-staff
schools,”109 including inner city charter schools110 and high schools just minutes
from the Mexican border.111
Furthermore, while all children benefit when schools employ teachers from
diverse backgrounds, children of color consistently perform better when taught by
teachers of color, leading to “better attendance, fewer suspensions and higher test
scores.”112 Studies have shown that “teachers of color, relative to their White
colleagues, have higher expectations for and are more likely to improve learning
for students of color.”113 Because the overwhelming majority of DACA-recipient
107 Join TFA as a DACA Recipient, Teach for America, https://www.teachfor america.org/join-tfa/daca-recipients. 108 Id. 109 Carrizales, supra note 102. 110 Liz Robbins, Once Accepted, Soon Rejected? New York’s Young Immigrants Uncertain Under Trump, New York Times (Dec. 15, 2016). 111 On the Border, a DACAmented Science Teacher Fights On, Teach for America (June 16, 2017), https://www.teachforamerica.org/one-day-magazine/borderdacamented-science-teacher-fights. 112 Robert Samuels, With Hispanic Students on the Rise, Hispanic Teachers in Short Supply, The Washington Post (Nov. 15, 2011). 113 Valerie Strauss, The Troubling Shortage of Latino and Black Teachers — and What to Do About It, The Washington Post (May 15, 2016).
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teachers are people of color,114 their presence in the classroom is beneficial to all students of color, regardless of immigration status.
If the Rescission Memorandum is enforced, thousands of K-12 students across the country will be deprived of uniquely qualified educators, irreparably harming their educational opportunities.
CONCLUSION

For the foregoing reasons, the District Court’s order preliminarily enjoining

the enforcement of the Rescission Memorandum should be affirmed to ensure that

public schools throughout the country fulfill their Constitutional obligation to

provide a full and equal education to all K-12 students. A preliminary injunction

prohibiting the Government from enforcing the Rescission Memorandum is in the

public interest and is necessary to prevent irreparable educational injury to the K-

12 population.

Dated:

March 20, 2018

COOLEY LLP By: /s/ William J. Schwartz
William J. Schwartz Kaitland M. Kennelly

1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 479-6000 Email: wschwartz@cooley.com
kkennelly@cooley.com

114 Sarah Hooker and Michael Fix, County-Level View of DACA Population Finds Surprising Amount of Ethnic & Enrollment Diversity, MPI Commentary (Sept. 2014), https://www.migrationpolicy.org/news/county-level-view-daca-populationfinds-surprising-amount-ethnic-enrollment-diversity.
32

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of NINTH CIRCUIT RULE

32-1 and FED. R. APP. P. 29(a)(5) because the brief contains 6,893 words excluding

the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B).

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 in a proportionally spaced typeface using Times New

Roman in Microsoft Word 2016 in Times New Roman, size 14.

Dated:

March 20, 2018

COOLEY LLP

By: /s/ William J. Schwartz William J. Schwartz
Attorney for Amici Curiae

CERTIFICATE OF SERVICE I, Debra Elliott, hereby certify pursuant to NINTH CIRCUIT RULE 25-S (f) that

I electronically filed the foregoing BRIEF OF AMICI CURIAE with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on March 20, 2018 .

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

Dated:

March 20, 2018

COOLEYLLP

By: f ) ~ ~ Debra Elliott
3175 Hanover Street Palo Alto, CA 94304-1130 Telephone: (650) 843-5 000

 
 18-15068 (consol. w/ 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134)
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ________________________
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellants
________________________
On Appeal from the United States District Court for the Northern District of California,
Nos. 17-cv-05211, 17-cv-05235, 17-cv-05329, 17-cv-05380, & 17-cv-05813 Honorable William H. Alsup
________________________
BRIEF OF 40 CITIES AND COUNTIES, THE NATIONAL LEAGUE OF CITIES AND THE UNITED STATES CONFERENCE
OF MAYORS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES AND FOR AFFIRMANCE
________________________
MICHAEL N. FEUER City Attorney, City of Los Angeles
JAMES P. CLARK LEELA A. KAPUR VALERIE L. FLORES MICHAEL DUNDAS MATTHEW SCHERB 200 N. Main Street, CHE 8th Floor Los Angeles, CA 90012
Attorneys for Amicus Curiae, City of Los Angeles

ADDITIONAL COUNSEL FOR AMICI CURIAE

DONNA R. ZIEGLER County Counsel 1221 Oak Street, Suite 450 Oakland, California 94612 Attorney for the
County of Alameda

JEREMY BERRY City Attorney for the
City of Atlanta 55 Trinity Avenue, Suite 5000 Atlanta, Georgia 30303 Attorney for the City of Atlanta

ANNE L. MORGAN City Attorney, City of Austin PO Box 1546 Austin, TX 78767 Attorney for the City of Austin

FARIMAH F. BROWN City Attorney for the
City of Berkeley 2180 Milvia Street 4th Floor, Berkeley, CA 94704 Attorney for the City of Berkeley

EUGENE O’FLAHERTY Corporation Counsel for the
City of Boston One City Hall Square, Room 615 Boston, MA 02201 Attorney for the City of Boston

NANCY E. GLOWA City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Attorney for the City of Cambridge

CHERYL WATSON FISHER City Solicitor of the
City of Chelsea 500 Broadway, Room 307 Chelsea, MA 02150 Attorney for the City of Chelsea

EDWARD N. SISKEL Corporation Counsel of the
City of Chicago 30 N. LaSalle Street, Suite 800 Chicago, IL 60602 Attorney for the City of Chicago

KIMBERLY M. FOXX States Attorney for Cook County 69 W. Washington, 32nd Floor Chicago, IL 60602 Attorney for Cook County

LARRY E. CASTO City Attorney for the
City of Dallas 7BN Dallas City Hall 1500 Marilla Street Dallas, Texas 75201 Attorney for the City of Dallas

2

KRISTIN M. BRONSON City Attorney of the
City and County of Denver 1437 Bannock St., Room 353 Denver, CO 80202 Attorney for the
City and County of Denver
GREGORY L. THOMAS City Attorney, City of Gary 401 Broadway, Suite 101A Gary, Indiana, 46402 Attorney for Karen Freeman-
Wilson, Mayor of Gary, IN
RONALD C. LEWIS City Attorney of the
City of Houston 900 Bagby, 4th Floor Houston, Texas 77002 Attorney for the City of Houston
ELEANOR M. DILKES City Attorney 410 East Washington Street Iowa City, IA 52240 Attorney for the City of Iowa City
JENNIFER VEGA-BROWN City Attorney of the
City of Las Cruces 700 North Main Las Cruces, NM 88001 Attorney for the City of Las Cruces

KARL A. RACINE Attorney General, District of Columbia One Judiciary Square 441 4th Street NW, Suite 1100 South Washington, DC 20001 Attorney for the
District of Columbia
DONNA Y. L. LEONG Corporation Counsel 530 S. King St., Room 110 Honolulu, HI 96813 Attorney for the
City and County of Honolulu
AARON O. LAVINE City Attorney 108 E. Green St. Ithaca, NY 14850 Attorney for Svante L. Myrick,
Mayor of Ithaca, NY
DANIEL T. SATTERBERG King County Prosecuting Attorney 516 Fourth Avenue, W400 Seattle, WA 98104 Attorney for King County
CHARLES PARKIN City Attorney of the
City of Long Beach 333 W. Ocean Blvd., 11th FL Long Beach, CA 90802 Attorney for the
City of Long Beach

3

MARGARET L. CARTER O’Melveny & Myers LLP 400 S. Hope Street Los Angeles, CA 90071 Attorney for the
County of Los Angeles
SUSAN SEGAL Minneapolis City Attorney 350 S. Fifth St. - Room #210 Minneapolis, MN 55415 Attorney for the
City of Minneapolis
JOHN ROSE, JR. Corporation Counsel 165 Church St # 441, New Haven, CT 06510 Attorney for the City of New Haven and Toni. N Harp, Mayor
BARBARA J. PARKER City Attorney, City of Oakland One Frank H. Ogawa Plaza, 6th Floor Oakland, CA 94612 Attorney for the City of Oakland
TRACY P. REEVE City Attorney of the
City of Portland 1221 SW Fourth Avenue, Suite 430 Portland, OR 97240 Attorney for the City of Portland

MICHAEL P. MAY City Attorney, City of Madison 210 Martin Luther King Jr. Blvd, Room 401 Madison, WI 53703 Attorney for the City of Madison
CHARLES J. McKEE, County Counsel, County of Monterey 168 W. Alisal Street, 3rd Floor Salinas, CA 93901 Attorney for County of Monterey
ZACHARY W. CARTER Corporation Counsel of the
City of New York 100 Church Street New York, NY 10007 Attorney for the City of New York
MARCEL S. PRATT Acting City Solicitor of the
City of Philadelphia 1515 Arch Street, 17th Floor Philadelphia, PA 19102 Attorney for the
City of Philadelphia
JEFFREY DANA City Solicitor of the
City of Providence 444 Westminster Street, Suite 220 Providence, RI 02903 Attorney for City of Providence

4

TIMOTHY R. CURTIN Corporation Counsel of the City of
Rochester 30 Church Street, Room 400A Rochester, NY 14614 Attorney for the City of Rochester
DENNIS J. HERRERA City Attorney for the City and
County of San Francisco City Hall Room 234 One Dr. Carlton B. Goodlett Pl. San Francisco, CA 94102 Attorney for the City and County
of San Francisco
LANE DILG City Attorney of the
City of Santa Monica 1685 Main Street Santa Monica, CA 90401 Attorney for the
City of Santa Monica
FRANCIS X. WRIGHT, JR. City Solicitor of the
City of Somerville 93 Highland Avenue Somerville, MA 02143 Attorney for the
City of Somerville

MATTHEW D. RUYAK Interim City Attorney of the
City of Sacramento 915 I Street, Fourth Floor Sacramento, CA 95814 Attorney for the
City of Sacramento
KELLEY A. BRENNAN City Attorney of the
City of Santa Fe 200 Lincoln Avenue Santa Fe, NM 98501 Attorney for the City of Santa Fe
PETER S. HOLMES Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 Attorney for the City of Seattle
MIKE RANKIN City Attorney of the
City of Tucson P.O. Box 27210 Tucson, AZ 85726 Attorney for the City of Tucson

5

MICHAEL JENKINS City Attorney of the
City of West Hollywood Jenkins & Hogin LLP 1230 Rosecrans Avenue, Ste 110 Manhattan Beach, CA 90266 Attorney for the
City of West Hollywood

JOHN DANIEL REAVES General Counsel The U.S. Conference of Mayors 1200 New Hampshire Avenue NW, Suite 800 Washington, DC 20036 Attorney for the
U.S. Conference of Mayors

6

TABLE OF CONTENTS
TABLE OF AUTHORITIES...................................................................................... ii STATEMENT OF INTEREST AND CONSENT TO FILE ........................................1 TERMINATING DACA WILL HARM AMICI CURIAE ...........................................4 ARGUMENT ...........................................................................................................10
I. The DHS action to terminate DACA implicate “broad” changes to agency policy that are disconnected from any individual enforcement action and are, therefore, subject to judicial review. ..................................10 A. Appellants’ actions in this matter are judicially reviewable under Section 701(a)(2) of the APA..............................................................10 B. Section 1252(g) of the INA does not preclude judicial review. .........12
II. The district court correctly ruled that DHS acted arbitrarily and capriciously in violation of the APA. .........................................................14 A. DHS’s sole stated reason for ending the DACA program was conclusory and relies upon flawed legal analysis. ..............................14 B. The district court correctly rejected Appellants’ post hoc rationalization for the termination – that it was necessary to ensure an orderly wind down given litigation risks – as arbitrary and capricious and an abuse of discretion..................................................19
III. The district court’s issuance of a nationwide injunction was appropriate, as the negative consequences that would flow from a piecemeal application of our nation’s immigration law would irreparably harm Amici................................................................................23
CONCLUSION ........................................................................................................29 CERTIFICATE OF COMPLIANCE.......................................................................30 EXHIBIT A...............................................................................................................31
i

TABLE OF AUTHORITIES CASES

Page(s)

Alcaraz v. Immigration & Naturalization Serv., 384 F.3d 1150 (9th Cir. 2004) ............................................................................12

Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000)..........................................................................21

Bd. of Regents v. Roth, 408 U.S. 564 (1972)............................................................................................20

Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970) ................................................................................21

Califano v. Sanders, 430 U.S. 99 (1977)..............................................................................................10

Catholic Soc. Servs. v. Immigration & Naturalization Serv., 232 F.3d 1139 (9th Cir. 2000) ............................................................................12

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)............................................................................................10

Community for Creative Non-Violence v. Pierce, 786 F.2d 1199 (D.C. Cir. 1986)..........................................................................17

Connell v. Higginbotham, 403 U.S. 207 (1971)............................................................................................21

Encino Motorcars, LLC v. Navarro, — U.S. —, 136 S. Ct. 2117 (2016)...............................................................19, 22

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)............................................................................................19

Goldberg v. Kelly, 397 U.S. 254 (1970)............................................................................................21

Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017) ..............................................................................23

ii

Heckler v. Community Health Servs., 467 U.S. 51 (1984)..............................................................................................22
Inland Empire - Immigrant Youth Collective v. Kirstjen Nielsen, No. 17-cv-02048 (PSG) (SHK), 2018 U.S. Dist. LEXIS 34871 (C.D. Cal. Feb. 26, 2018)....................................................................................13
McNary v. Haitian Refugee Ctr., 498 U.S. 479 (1991)............................................................................................11
Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)........................................................................................14, 16
National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005)............................................................................................22
Natural Resources Defense Council, Inc. v. Rauch, 244 F. Supp. 3d 66, 96 (D.D.C. 2017)................................................................18
Port of Boston Marine Terminal Ass’n. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62 (1970)..............................................................................................14
Regents of the Univ. of Cal. v. Dep’t of Homeland Sec., No. 17-cv-05211 (WHA) (SK), 2018 U.S. Dist. LEXIS 4036 (N.D. Cal. Jan. 9, 2018) .........................................................................................passim
Regents of the Univ. of Cal. v. Dep’t of Homeland Sec., No. 18-15068 (Feb. 13, 2018) ............................................................................13
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)......................................................................................12, 17
Simons v. Bellinger, 643 F.2d 774 (1980)............................................................................................16
St. Regis Paper Co. v. United States, 368 U.S. 208 (1961)............................................................................................21
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ........................................................................16, 18
iii

Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015)..................................................................15
Vidal v. Duke, No. 16-cv-4756 (NGG) (JO), 2017 U.S. Dist. LEXIS 186349 (E.D.N.Y. Nov. 9, 2017).....................................................................................13
Vidal v. Nielsen, No. 16-cv-4756 (NGG) (JO), 2018 U.S. Dist. LEXIS 23547 (E.D.N.Y. Feb. 13, 2018)....................................................................................18
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ............................................................................23
STATUTES
5 U.S.C., Administrative Procedure Act, § 551(1) ..................................................14 5 U.S.C., Administrative Procedure Act, §§ 551(13), 704......................................14 5 U.S.C., Administrative Procedure Act, § 706(2)(A)-(D) .....................................14 8 U.S.C., Immigration and Nationality Act, § 1101 et seq......................................10 Fed. Rule of Appellate Procedure 29(a) ....................................................................1
OTHER AUTHORITIES
8 Code of Federal Regulations § 274a.12(a)(11).....................................................17 Baker, Scott R., Effects of Immigrant Legalization on Crime: The
1986 Immigration Reform and Control Act, Stanford Law and Econ. Olin Working Paper, at 25 (July 28, 2014) available at https://tinyurl.com/Stanfordcrimestudy ................................................................6
Burnett, John, New Immigration Crackdowns Creating ‘Chilling Effect’ on Crime Reporting, National Public Radio (May 25, 2017), available at https://tinyurl.com/NPRchillingeffect ...............................................6
Carroll, Susan and Kriel, Lomi Lost in Cypress Creek HOUSTON CHRONICLE (September 9, 2017), available at: http://tinyurl.com/lost-in-cypress-creek................................................................ 8
iv

CATO Institute, The Economic and Fiscal Impact of Repealing DACA (2017) Washington, D.C, available at: http://tinyurl.com/CATODACAstudy ................................................................26
Center for American Progress, A New Threat to DACA Could Cost States Billions of Dollars (2017) Washington, D.C., available at: http://tinyurl.com/CAPStatesGDP ......................................................................26
Center for American Progress, DACA Recipients’ Economic and Educational Gains Continue to Grow (2017) (CAP Study) Washington, D.C. The CAP Study is available at: http://tinyurl.com/CAPDACAstudy .......................................................................5
Defs.’ Mem. In Supp. of Mot. To Dismiss, No. 3:17-cv-05211-WHA (Document 114) Nov., 1, 2017) ..........................................................................15
Defs.-Appellants’ Opening Br., Regents of the Univ. of Cal. v. Dep’t of Homeland Sec., No. 18-15068 (Dkt. 31) (Feb. 13, 2018) ..............................13
DHS Memorandum titled Memorandum on Rescission of Deferred Action For Childhood Arrivals (Rescission Memo)(September 5, 2017), available at: http://tinyurl.com/2017Memo ..................................11, 14, 15
FEMA Declaration and Release form, available at: https://www.fema.gov/pdf/assistance/process/00903.pdf ..................................28
Flores, Adolfo, This Paramedic Who Rescued Harvey Victims May Be Deported If Trump Ends DACA, BUZZFEED (September 1, 2017) available at: http://tinyurl.com/paramedicstory.......................................................7
Institute on Taxation and Economic Policy, State & Local Tax Contributions of Young Undocumented Immigrants (2017) (Washington D.C.), available at: http://tinyurl.com/ITEPDACAstudy...................4
Letter by Secretary Jeh Johnson dated December 30, 2016, to U.S. Rep. Judy Chu (Johnson Letter), available at: http://tinyurl.com/JehJohnsonLetter ...................................................................20
Letter from Attorney General Sessions to DHS Acting Secretary Elaine Duke on the Rescission of DACA (September 4, 2017) (Sessions Letter), available at: http://tinyurl.com/AG-Duke-Letter...................15
v

Moreno, Barry, Children of Ellis Island, ARCADIA PUBLISHING (2005) ............................................................................................................................ 3
New American Economy, Immigrants and the economy in: California District 12 (2017) available at: http://www.newamericaneconomy.org/locations/california/californ ia-district-12/ ....................................................................................................... 24
New American Economy, Immigrants and the economy in: Philadelphia Metro Area (2017) available at: http://www.newamericaneconomy.org/city/philadelphia/ .................................25
New American Economy, New Americans in Dallas (2018) available at: http://research.newamericaneconomy.org/report/12252/ ..............................25
New American Economy, New Americans in Los Angeles (2017) available at: http://www.newamericaneconomy.org/wpcontent/uploads/2017/02/LA_Brief_V8.pdf .......................................................24
NYC Comptroller Report, Our Immigrant Population Helps Power NYC Economy (January 11, 2017), available at: http://tinyurl.com/NYC-Comptroller-Report .....................................................24
Pls.’ Mem. In Supp of Mot. for Provisional Relief, 3:17-cv-05211 (WHA) (Document 111) (Nov. 1, 2017).............................................................16
REAL ID Act of 2005, Pub. L. No. 109-13 .............................................................17
Remarks by President Obama. June 15, 2012. http://tinyurl.com/Obama-6-15-12........................................................................9
Shaban, Hamza, CEO Tim Cook says he stands by Apple’s 250 DACAstatus employees, THE WASHINGTON POST (September 3, 2017), available at: http://tinyurl.com/DACAFortune500................................................9
Special Correspondence, Tots at Ellis Island, THE WASHINGTON POST (June 5, 1904), available at: https://secure.pqarchiver.com/washingtonpost_historical/doc/1445 43811.html ............................................................................................................3
The DREAMer Incarceration Rate (2017), CATO Institute, Washington, D.C. available at: https://www.cato.org/publications/immigrationresearch-policy-brief/dreamer-incarceration-rate .................................................... 7
vi

The Sentencing Project, Immigration and Public Safety (2017), Washington, D.C., available at http://www.sentencingproject.org/wpcontent/uploads/2017/03/Immigration-and-Public-Safety.pdf ..............................26
Theodore, Nik, University of Chicago, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (May 2013), available at: http://tinyurl.com/ChicagoPoliceStudy.....................27
U.S. Citizenship and Immigration Services DACA Data dated “As of January 31, 2018” (USCIS Data). Available at: https://tinyurl.com/USCIS2018data ...................................................................1, 2
Ulloa, Jazmine, L.A. Police Chief Charlie Beck endorses ‘sanctuary state’ bill that Eric Holder hails as ‘constitutional’ LOS ANGELES TIMES (June 19, 2017), available at: http://tinyurl.com/Beckstory ...............................................................................27
United States v. Texas, 2015 U.S. Briefs 674 (Initial Brief of AppellantPetitioner at pg. 5) (Mar. 1, 2016) .........................................................................17
USCIS DACA Frequently Asked Questions (USCIS DACA FAQ), at Question 1, available at: https://www.uscis.gov/archive/frequentlyasked-questions ...................................................................................................... 4
USCIS Data, supra, note 3; CAP Study, supra, note 9; US Bureau of Labor Statistics 2016 foreign-born labor force statistics, available at: http://tinyurl.com/BLS-foreignborn...................................................................... 25
vii

STATEMENT OF INTEREST AND CONSENT TO FILE
Amici Curiae1 are located across the United States and include 40 cities and
counties, the National League of Cities and the United States Conference of
Mayors.2 The full list of Amici is attached as Exhibit A.
This litigation is of momentous interest to Amici, since 49.9% – nearly 1 in 2
– of all currently active recipients of the Deferred Action for Childhood Arrivals
(DACA) program – 340,540 individuals – live in the metropolitan areas of the Amici
cities and counties.3
The Los Angeles, New York, Dallas, Chicago, and Houston metro regions
have the five largest DACA populations in the United States. According to the
1 Pursuant to Federal Rule of Appellate Procedure 29(a), Amici obtained the consent of all parties before filing this brief. Counsel for Amici authored this brief in whole, and no party, no party’s counsel, nor any other person has contributed money intended to fund preparation of this brief. See Fed. R. App. P. 29(a)(4). 2 The National League of Cities (NLC) is dedicated to helping city leaders build better communities. NLC is a resource and advocate for 19,000 cities, towns and villages, representing more than 218 million Americans. The United States Conference of Mayors is the official non-partisan organization of cities with populations of 30,000 or more. There are 1,408 such cities in the country today. Cities are represented in the Conference by their chief elected official, the mayor. 3 United States Citizen and Immigration Service (USCIS) data show that approximately 807,000 applicants have qualified for DACA since the start of the program. Approximately 682,750 DACA recipients currently have active DACA status. For purposes of this brief, residency in a “metropolitan area” is defined as residency in a Core Based Statistical Area (CBSA) at the time of the DACA recipient’s most recent application. CBSAs are defined by the United States Office of Management and Budget. See U.S. Citizenship and Immigration Services DACA Data dated “As of January 31, 2018” (USCIS Data). Available at: https://tinyurl.com/USCIS2018data
1

USCIS, as of January 31, 2018, approximately 13% of all active DACA recipients reside in the Los Angeles metro area. Another 22% of active recipients reside in either the New York, Dallas, Chicago, or Houston metro regions, while Atlanta, the San Francisco Bay Area, Denver, Austin, Seattle and Washington D.C. together account for an additional 10% of the active DACA population. Collectively, more active DACA recipients reside in Amici’s metro areas than the combined active DACA populations of 46 states.4
Since obtaining deferred action, these DACA recipients – our employees and residents – have made substantial contributions to our communities as business owners, educators, researchers, artists, journalists, and civic leaders. Tens of thousands DACA enrollees are attending our local schools, studying to become our newest doctors and nurses, lawyers and entrepreneurs. Many DACA recipients work directly for Amici, and play critical roles in our daily government operations. No matter how DACA recipients choose to contribute, all of Amici are stronger and safer because of the DACA program. Therefore, Amici profoundly object to Appellants’ actions to eliminate DACA. These actions are harmful and unlawful.
Since its inception more than two centuries ago, our nation has served as an adopted home for generations of migrant children. Welcoming and protecting young immigrants is part and parcel of our DNA. More than a century ago, in 1904, the
4 Id. 2

Washington Post profiled eleven “matrons” whose job was to care for minor children arriving in the United States through New York Harbor and Ellis Island. The head matron, Regina Stucklen, noted that the children under her care were “the sweetest things that grow.”5
More than one million children passed through Ellis Island in its 62 years as an immigration station. Some of those “sweetest things” grew to become laborers in our factories, warehouses, and mills, driving our engines of economic growth. Others chose lives in public service, becoming members of our military, teachers, social workers, firefighters, and police officers. Some of those immigrant children who entered via Ellis Island grew up to become renowned artists, athletes, musicians, and authors, like Irving Berlin, Bob Hope, Claudette Colbert, Knute Rockne, and Frank Capra, and institutional leaders, like Los Angeles Archbishop Timothy Manning, San Francisco Mayor George Christopher, and Supreme Court Justice Felix Frankfurter.6
However immigrants came to our country, those who arrived here as children helped to build the foundation of Amici’s economic prosperity, military security, cultural artistry, and civic society. Amici now look to a new generation of child
5 Special Correspondence, Tots at Ellis Island, THE WASHINGTON POST (June 5, 1904), available at: https://secure.pqarchiver.com/washingtonpost_historical/doc/144543811.html. 6 Moreno, Barry, Children of Ellis Island, ARCADIA PUBLISHING (2005).
3

migrants, especially those eligible for the DACA program, to help guide our financial and cultural success into the future.
TERMINATING DACA WILL HARM AMICI CURIAE Stated in more detail, the DACA program is vitally important to Amici for several reasons. First, the DACA program promotes economic prosperity and benefits taxpayers, which means that Amici will suffer direct economic harm if DACA is rescinded. Amici rely heavily upon the economic contributions of foreignborn residents and DACA recipients make up a statistically significant portion of Amici’s foreign-born labor force. Collectively, the DACA recipients living in Amici cities and counties openly earn billions of dollars in taxable income because of the work authorization benefit provided by the DACA program.7 A 2017 study by the Institute on Taxation and Economic Policy found DACA recipients pay an estimated $1.6 billion in state and local taxes annually, giving them a higher effective tax rate than the average state and local tax rate paid by the top 1% of U.S. taxpayers.8 Because USCIS Data show that DACA recipients are
7 USCIS DACA Frequently Asked Questions (USCIS DACA FAQ), at Question 1, available at: https://www.uscis.gov/archive/frequently-asked-questions (stating that “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.’”) 8 Institute on Taxation and Economic Policy, State & Local Tax Contributions of Young Undocumented Immigrants (2017) (Washington D.C.), available at: http://tinyurl.com/ITEPDACAstudy
4

concentrated in Amici’s metro areas, those with deferred action are an important subset of the foreign-born populations critical to the economy of Amici cities. This arbitrary and capricious action by Appellants to eliminate DACA will negatively impact Amici by removing hundreds of thousands of workers, business owners, and taxpayers from our respective economies.
On a micro-economic level, the benefits gained through the DACA program have given recipients of deferred action the encouragement and comfort to openly enter the work force, take on student loans, sign mortgages, and start businesses. Studies show that DACA recipients have made profound economic gains because of receiving deferred action. In a representative survey, the Center for American Progress found that, after receiving deferred action, 69% of employed DACA recipients moved to a higher-paying job and 5% of recipients started a new business, which is a rate of business creation greater than among the general public.9
The Center’s study also found that the hourly wages of surveyed DACA recipients increased by an average of 42%; that 60% of those with increased earnings have become financially independent; and that 61% have started to contribute to their family’s finances. At least half of all DACA recipients surveyed by the Center reported that they have bought a car since receiving deferred action, 12% have
9 Center for American Progress, DACA Recipients’ Economic and Educational Gains Continue to Grow (2017) (CAP Study) Washington, D.C. The CAP Study is available at: http://tinyurl.com/CAPDACAstudy.
5

bought their first home, and 25% have a child who is an American citizen. Terminating this program will not only roll back these financial and familial
gains earned by DACA recipients, it will harm Amici, in that cities and counties operate – and our taxpayers fund – the social safety net that will be required to catch these families if the DACA recipients’ work authorization is taken away, families are forced apart by removals, and homes fall into foreclosure.
Second, DACA promotes public safety and public welfare by bringing hundreds of thousands of young immigrants out of the shadows. Amici’s law enforcement agencies know firsthand that, as immigration enforcement and the threat of deportation increase, undocumented immigrants are substantially less likely to report crimes by others, including violent crimes.10 And studies estimate that granting legal status – such as the deferred action conferred by DACA – to only 1% of undocumented immigrants in the United States can lower crime rates by 2 to 6%.11
Similarly, a study from the CATO Institute concluded that native-born Americans are 14% more likely than DACA-eligible immigrants with the same age
10 Burnett, John, New Immigration Crackdowns Creating ‘Chilling Effect’ on Crime Reporting, National Public Radio (May 25, 2017), available at https://tinyurl.com/NPRchillingeffect. 11 Baker, Scott R., Effects of Immigrant Legalization on Crime: The 1986 Immigration Reform and Control Act, Stanford Law and Econ. Olin Working Paper, at 25 (July 28, 2014) available at https://tinyurl.com/Stanfordcrimestudy.
6

and education to be incarcerated.12 To even qualify for deferred action, DACA applicants must submit detailed personal histories and pass a rigorous background check. And, if they are arrested after obtaining deferred action, they can lose their DACA status. Indeed, very few DACA recipients – only 0.25% – have been expelled from the program for criminal activity or other public safety concerns, which is a rate substantially lower than the general rate of criminality in American society.13
What’s more, DACA recipients – free to contribute openly to their communities – have been hailed as heroes. Houston-area paramedic Jesus Contreras is a DACA recipient. He worked six straight days after Hurricane Harvey hit southeast Texas, rescuing people from floodwaters and putting his own life in danger. News reports show that had Mr. Contreras’ DACA status been rescinded during those six days, he could have immediately been pulled from his ambulance for losing his work authorization, reducing the number of available first responders.14 Similarly, many have praised the efforts of the countless volunteers who used their own boats, at their own peril, to rescue their neighbors during
12 The DREAMer Incarceration Rate (2017), CATO Institute, Washington, D.C. available at: https://www.cato.org/publications/immigration-research-policybrief/dreamer-incarceration-rate 13 Id. 14 Flores, Adolfo, This Paramedic Who Rescued Harvey Victims May Be Deported If Trump Ends DACA, BUZZFEED (September 1, 2017) available at: http://tinyurl.com/paramedicstory
7

Hurricane Harvey. One such Good Samaritan, Alonso Guillen, was a 31-year-old DACA recipient who, according to reports, drowned while trying to save others from the deadly floodwaters that inundated the Houston area.15
In addition, applicants who pass DACA’s strict vetting process have been allowed to sign up for U.S. military service as part of a Pentagon program called Military Accessions Vital to the National Interest, or MAVNI. The day after Appellants moved to terminate DACA, the Pentagon announced that 900 DACA recipients are actively serving or have signed recruitment contracts to serve in the military. This service to our country and our communities, along with others whose service stories have yet to be told, makes Amici safer.
Thus, and thirdly, DACA recipients bring many tangible and intangible benefits to Amici cities and counties. Much like those children who passed through Ellis Island decades ago went on to become acclaimed actors, athletes, artists and leaders, today’s DACA recipients are helping to weave our modern-day social fabric. Active DACA recipients are employed by at least 72% of the top 25 “Fortune 500” companies, many of which are headquartered in Amici. There are 250 DACA
15 Carroll, Susan and Kriel, Lomi Lost in Cypress Creek HOUSTON CHRONICLE (September 9, 2017), available at: http://tinyurl.com/lost-in-cypresscreek
8

beneficiaries alone working at Apple Inc., the world’s most valuable company.16 Among the individual recipients of deferred action living in Amici cities and
counties are a public school teacher in Austin, Texas with a master’s degree in education focusing on hearing-impaired students; a Los Angeles-based graphic designer who has worked on marketing campaigns for Star Wars: Rogue One and Game of Thrones; a political organizer based in Washington D.C., who recently served as a press secretary for a 2016 presidential candidate; a producer for MSNBC’s Morning Joe who helps shape the network’s morning programming and, separately, a licensed attorney and the first member of the New York State Bar with DACA status, both of whom live in New York City.
Ultimately, this litigation is about protecting these young people who were brought here by their parents, often as infants. These children typically know no country besides the United States and may speak no language besides English. They study in our schools, work in our economy, and pledge allegiance to our flag. As President Obama stated the day the program was created, they “are Americans in their hearts, in their minds, in every single way but one: on paper.”17 Turning our back on DACA recipients is turning our back on the future.
16 Shaban, Hamza, CEO Tim Cook says he stands by Apple’s 250 DACA-status employees, THE WASHINGTON POST (September 3, 2017), available at: http://tinyurl.com/DACAFortune500 17 Remarks by President Obama. June 15, 2012. http://tinyurl.com/Obama-6-15-12
9

ARGUMENT I. The DHS action to terminate DACA implicate “broad” changes to agency
policy that are disconnected from any individual enforcement action and are, therefore, subject to judicial review. Appellants contend that the DHS action to rescind DACA (Rescission Policy) is entirely beyond judicial review. It is not. As Appellees correctly assert and as the district court correctly ruled, neither the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., nor the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., prohibit judicial review of broad-based revisions of immigration policy, such as the Rescission Policy, as distinguished from decisions in individual immigration proceedings.18 A. Appellants’ actions in this matter are judicially reviewable under
Section 701(a)(2) of the APA. The district court correctly ruled that Section 701(a)(2) of the APA does not preclude judicial review of the Rescission Policy. Id. This exception to APA review for actions committed to an agency’s discretion by law is very narrow, is rarely applicable, and in particular does not apply to “broad” changes to agency policy that are disconnected from enforcement action against particular individuals (i.e. when there is no “law to apply”). Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (citations omitted), abrogated on other grounds by Califano v.
18 Regents of the Univ. of Cal. v. Dep’t of Homeland Sec., No. 17-cv-05211 (WHA) (SK), 2018 U.S. Dist. LEXIS 4036 at *48-49 (N.D. Cal. Jan. 9, 2018).
10

Sanders, 430 U.S. 99 (1977). This holds true even in the arena of federal immigration enforcement. See, e.g., McNary v. Haitian Refugee Ctr., 498 U.S. 479, 483-84 (1991).
Even assuming the ultimate decision to exercise prosecutorial discretion to defer action against any one individual were unreviewable by a court, the indiscriminate revocation of deferred action for all DACA recipients based upon a misguided legal determination that DACA was unlawful is, and ought to be, reviewable.19
For all intents and purposes, the Rescission Memo takes deferred action off the table for an entire class of persons, and impacts an entire class of persons, demonstrating that the Rescission Policy is the poster child for a justiciable agency action.
As noted in Amici’s statement of interest, DACA recipients have made profound gains because of receiving deferred action. The hundreds of thousands of DACA enrollees who received deferred action will see these gains uniformly wiped out, not because of any individualized discretionary action, but because Appellants
19 See DHS Memorandum titled Memorandum on Rescission of Deferred Action For Childhood Arrivals (Rescission Memo) (September 5, 2017), http://tinyurl.com/2017Memo (stating that because a Texas district court preliminarily enjoined a DHS program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), DACA must suffer from “the same legal and constitutional defects.”).
11

formed a legal conclusion that DACA was unlawful, and, with the stroke of a pen, terminated the program. This “application of law” plainly provides justiciability for the lower court to review Appellees’ APA claims.
B. Section 1252(g) of the INA does not preclude judicial review. Section 1252(g) states, in part, that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.” Both this Court and the United States Supreme Court have consistently interpreted this provision to apply only to the three narrow categories of decisions or actions Congress specifically identified in the statute. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (AADC); Alcaraz v. Immigration & Naturalization Serv., 384 F.3d 1150, 1161 (9th Cir. 2004); Catholic Soc. Servs. v. Immigration & Naturalization Serv., 232 F.3d 1139, 1150 (9th Cir. 2000) (“[Section 1252(g)] applies only to the three specific discretionary actions mentioned in its text, not to all claims relating in any way to deportation proceedings.”). In an attempt to squeeze within the narrowly defined scope of the statute, Appellants contend that the Rescission Policy is but “an initial ‘action’ in the agency’s ‘commence[ment] [of] proceedings’ against aliens who are unlawfully in
12

the country.”20 Already, however, three district courts, including Judge William Alsup’s order in the instant matter, have rejected this self-serving characterization of DACA termination in the past few months. Regents of the Univ. of Cal., 2018 U.S. Dist. LEXIS 4036, at *49; see also Inland Empire - Immigrant Youth Collective v. Kirstjen Nielsen, No. 17-cv-02048 (PSG) (SHK), 2018 U.S. Dist. LEXIS 34871, at *46 (C.D. Cal. Feb. 26, 2018) (ruling that that Appellants “interpret § 1252(g) too broadly” and that, because the plaintiffs were challenging not the decision to commence removal proceedings but the “separate and independent decision to revoke DACA,” Section 1252(g) did not deprive the court of jurisdiction over plaintiff’s claims); Vidal v. Duke, No. 16-cv-4756 (NGG) (JO), 2017 U.S. Dist. LEXIS 186349, at *47 (E.D.N.Y. Nov. 9, 2017).
This Court should similarly reject Appellants argument because it would, in effect, remove all such policy changes from judicial review. Indeed, any time the federal government implements a new policy that renders certain individuals removable, that new policy would, by nature, be a necessary step in commencing future enforcement proceedings under the policy. Congress clearly did not intend for Section 1252(g) to serve as the type of general preclusion statute into which Appellants’ interpretation would transform it.
20 Defs.-Appellants’ Opening Br., Regents of the Univ. of Cal. v. Dep’t of Homeland Sec., No. 18-15068 (Dkt. 31) (Feb. 13, 2018) at pg. 26.
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II. The district court correctly ruled that DHS acted arbitrarily and capriciously in violation of the APA. A. DHS’s sole stated reason for ending the DACA program was conclusory and relies upon flawed legal analysis. DHS is an “agency” under the APA, 5 U.S.C. § 551(1), and the September 5,
2017 memorandum from Acting DHS Secretary Elaine Duke rescinding DACA is a “final agency action” subject to judicial review. 5 U.S.C. §§ 551(13), 704. An agency action is final when “rights or obligations have been determined or legal consequences will flow from the agency action.” Port of Boston Marine Terminal Ass’n. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970). Any action taken “without observance of procedure required by law” or that is “arbitrary” or “capricious” is “unlawful” and must be “set aside” by the court. 5 U.S.C. § 706(2)(A)-(D). Accordingly, DHS was required to have employed “reasoned decisionmaking” when it moved to rescind DACA. Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983).
In the DHS memo rescinding DACA, Appellants state in a conclusory manner it was “clear” that DACA “should be terminated.”21 The memo presumes that because a Texas district court preliminarily enjoined a separate DHS program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)
21 DHS Memorandum titled Memorandum on Rescission of Deferred Action For Childhood Arrivals (Rescission Memo)(September 5, 2017), available at: http://tinyurl.com/2017Memo.
14

in 2015, DACA must suffer from “the same legal and constitutional defects.”22 In justifying this legal conclusion, the Rescission Memo leans entirely on a 362-word letter from Attorney General Sessions.
In this short letter, the Attorney General asserts – by fiat – that: (1) DACA is just like DAPA; (2) DAPA was preliminarily enjoined on “multiple legal grounds,” and that injunction was affirmed by the Fifth Circuit; therefore, (3) DACA is “likely” to be similarly enjoined, so DHS should rescind the program immediately.23
The Attorney General’s analysis is wrong and DHS’s sudden retreat from DACA was arbitrary and capricious and violates the APA.
As a threshold issue, Appellants’ embrace of the Fifth Circuit’s opinion declaring DAPA subject to judicial review is wholly inconsistent with the position they presented to the district court in their Motion to Dismiss and to this Court in their opening brief – i.e. a court may, under no circumstances, review the agency’s exercise of prosecutorial discretion.24 If Appellants believe that no court may review DHS’s purported exercise of prosecutorial discretion, or that no one has standing to
22 Id., quoting Letter from Attorney General Sessions to DHS Acting Secretary Elaine Duke on the Rescission of DACA (September 4, 2017) (Sessions Letter), available at: http://tinyurl.com/AG-Duke-Letter; see also Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015). 23 Sessions Letter, supra, note 23. 24 Defs.’ Mem. In Supp. of Mot. To Dismiss, No. 3:17-cv-05211-WHA (Document 114) (Nov., 1, 2017) at pg. 14; Defs.-Appellants’ Opening Br., at pg. 15, supra, note 20.
15

challenge such a decision, they should not have advanced the Fifth Circuit’s opinion as the basis for terminating DACA.
An agency rule is arbitrary and capricious “if the agency … offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43. The inherent contradiction between Appellants’ justiciability and APA reviewability arguments in seeking to end DACA is just “so implausible.”
Next, the Fifth Circuit was mistaken when it suggested, in dictum, that DAPA is contrary to the INA. Texas v. United States, 809 F.3d 134, 186, 214-215 (5th Cir. 2015).25 The dissent’s reasoning should instead guide this Court’s analysis. Id. at 214-218 (King, J., dissenting).
All three branches of the Federal government have long embraced deferred action as a part of the immigration landscape. In fact, “deferred action” is one of the well-established ways in which DHS has historically prioritized enforcement.26 The Supreme Court has recognized that deferred action is “a regular practice” in which
25 See also Simons v. Bellinger, 643 F.2d 774, 809, n.48 (1980) (Wilkey, J., dissenting) (a “determination was an alternative basis for dismissal, and to that extent the language may be regarded as dictum”). 26 Regents of the Univ. of Cal., 2018 U.S. Dist. LEXIS 4036, at *15-16; see also Pls.’ Mem. In Supp of Mot. for Provisional Relief, 3:17-cv-05211 (WHA) (Document 111) (Nov. 1, 2017) at pg. 4.
16

DHS exercises “discretion for humanitarian reasons or simply for its own convenience.” AADC, 525 U.S. at 483-84.
Congress, meanwhile, has enacted legislation explicitly recognizing the DHS practice of granting deferred action. For example, the REAL ID Act of 2005, Pub. L. No. 109-13, allows states to issue driver’s licenses to those undocumented immigrants with “approved deferred action status.” Similarly, since 1981, federal regulations allow those “granted deferred action” to “apply for employment authorization.” 8 C.F.R. § 274a.12(a)(11). And Congress has yet to disturb this regulation in three-plus decades.
More practically, Congress has never appropriated funding sufficient to remove all undocumented immigrants. This is why DHS, and its predecessors, have implemented more than 20 deferred action policies over the last 50 years.27 Programs like DAPA and DACA enable DHS to focus limited resources on removing serious criminals by deferring action on low priority immigrants. As the D.C. Circuit Court wrote in Community for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986), “[t]he power to decide when to investigate, and when to prosecute, lies at the core of the Executive’s duty to see to the faithful execution of the laws.” Moreover, “Congress has never prohibited or limited ad hoc deferred action, which
27 United States v. Texas, 2015 U.S. Briefs 674 (Initial Brief of Appellant-Petitioner at pg. 5) (Mar. 1, 2016).
17

is no different than DAPA other than scale.” Texas, 809 F.3d at 216 (King, J., dissenting).
Finally, even if DAPA were, as the Fifth Circuit concluded, “contrary” to the INA, Texas, 809 F.3d at 179, that rationale is inapplicable to DACA. Despite the Attorney General’s assertion, DACA is not just like DAPA. The Fifth Circuit’s opinion itself specifically notes “DACA and DAPA are not identical.” Id. at 174 (finding “eligibility for DACA was restricted to a younger and less numerous population,” and DAPA had different “discretionary criteria”).
In sum, the only reason DHS gave for rescinding DACA was that the program was “likely” to be unlawful. But DACA is not unlawful,28 which means that Appellants’ actions are in violation of the APA given there is no other proffered agency justification for the rescission by DHS. See Natural Resources Defense Council, Inc. v. Rauch, 244 F. Supp. 3d 66, 96 (D.D.C. 2017) (stating “suffice it to say, it is arbitrary and capricious for an agency to base its decision on a factual premise that the record plainly showed to be wrong.”).
28 Regents of the Univ. of Cal., 2018 U.S. Dist. LEXIS 4036, at *65; Vidal v. Nielsen, No. 16-cv-4756 (NGG) (JO), 2018 U.S. Dist. LEXIS 23547, at *51 (E.D.N.Y. Feb. 13, 2018).
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B. The district court correctly rejected Appellants’ post hoc rationalization for the termination – that it was necessary to ensure an orderly wind down given litigation risks – as arbitrary and capricious and an abuse of discretion.
After the Rescission Policy was challenged, Appellants began to rationalize the DACA termination by arguing that, based on the Acting Secretary’s “reasonable evaluation of the litigation risk posed by the imminent lawsuit against the DACA policy, the choice she faced was between a gradual, orderly, administrative winddown of the policy, and the risk of an immediate, disruptive, court-imposed one.”29
But, if the Acting Secretary was going to rely upon a public policy rationale for her decision, she should have — but did not — weigh DACA’s programmatic objectives as well as the reliance interests of DACA recipients.30
As Justice Anthony Kennedy wrote in Encino Motorcars, LLC v. Navarro, — U.S. —, 136 S. Ct. 2117, 2126–27 (2016), one of the principal requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions. Appellants were, therefore, required to show, not just “that there are good reasons for the new policy,” id. quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), but that they also considered the fact that longstanding policies may have “engendered serious reliance interests that must be taken into account.” Id. (emphasis added).
29 Defs.-Appellants’ Opening Br., at pg. 35-36, supra, note 20. 30 Regents of the Univ. of Cal., 2018 U.S. Dist. LEXIS 4036, at *40.
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Put plainly, DACA recipients have a strong reliance interest in the program, which was created for the purpose of “lifting the shadow of deportation” and bringing recipients “out of the shadows” so that recipients could live economically stronger and personally safer lives. Former Secretary of Homeland Security Jeh Johnson confirmed as much in his letter to Congresswoman Judy Chu when he wrote, “DACA applicants most assuredly relied” upon the “representations made by the U.S. government.”31
DACA recipients’ self-identification to DHS was likely an irreversible action taken at the encouragement of the federal government. DACA applicants would not have taken the risk of sharing intimate details and biometric data about themselves and their families – serving up removal of themselves and their families on a platter – without being able to rely upon the benefits provided by the program created by Appellants.
This is analogous to Supreme Court cases that found reliance interests in the continued receipt of welfare payments or of a public school teaching position despite lack of tenure protections or employment contract because of an “implied promise of continued employment.” See Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)
31 Letter by Secretary Jeh Johnson dated December 30, 2016, to U.S. Rep. Judy Chu (Johnson Letter), available at: http://tinyurl.com/JehJohnsonLetter
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(citing Goldberg v. Kelly, 397 U.S. 254, 262 (1970) and Connell v. Higginbotham, 403 U.S. 207, 208 (1971)).
Appellants focus on the fact that USCIS retained “discretion” in acting on the DACA program.32 But the fact that DHS retained “discretion” in a broad sense as it reviewed applications and granted DACA status cannot cure Appellants’ post hoc rationalizations.
The federal government has highlighted and Amici do not dispute that the original DACA memorandum included a statement that applicants had no right to rely on statements made therein, but such disclaimers do not carry the day when they clash with guidance’s broader substance and purpose. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022-23 (D.C. Cir. 2000). Here, the recipients were highly vulnerable parties whose substantial reliance on the memorandum’s assurances was all but certain – and indeed intended – as a practical matter. The federal government persuaded them to “come out of the shadows” and hand over sensitive information to ICE in exchange for DACA status and lawful work authorization.
As this Court reasoned in Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir. 1970), good faith actors should not be told “[t]he joke is on you,” for trusting the pronouncements of the government. See also St. Regis Paper Co. v. United States,
32 USCIS DACA FAQ, at Question 51, supra, note 7. 21

368 U.S. 208, 229 (1961) (Black, J., dissenting) (“Our Government should not, by picayunish haggling over the scope of its promise, permit one of its arms to do that which, by any fair construction, the Government has given its word that no arm will do. It is no less good morals and good law that the Government should turn square corners in dealing with the people than that the people should turn square corners in dealing with their government.”).
DACA applicants responded by irrevocably rearranging their lives, funding college educations, signing mortgages, enrolling in the military, and starting families. These acts were not the just the foreseeable effects of the federal government program inducement but rather what the program was at its core designed to induce.
Under these exceptional circumstances, Appellants must have some reasonable purpose for changing a policy to ensure “some minimum standard of decency, honor and reliability in … dealing with the Government.” Heckler v. Community Health Servs., 467 U.S. 51, 59-61 (1984). And since they do not, Appellants’ “[u]nexplained inconsistency” in agency policy is enough to find the DACA termination “to be an arbitrary and capricious change from agency practice.” Encino Motorcars, LLC, 136 S. Ct. at 2126, quoting National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 981-982 (2005).
22

III. The district court’s issuance of a nationwide injunction was appropriate, as the negative consequences that would flow from a piecemeal application of our nation’s immigration law would irreparably harm Amici. Appellants assert that the district court’s injunction grants “relief to thousands
of DACA recipients who are not parties before the court and who do not need to be covered” in order to provide relief in the instant case.33
But that argument ignores this Court’s recent holdings in Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017), that the immigration laws of the United States must be “uniformly” enforced, and in Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017) (per curiam), that a geographic restriction on the scope of an injunction of an immigration enforcement policy “would run afoul of the constitutional and statutory requirements for uniform immigration law and policy.”
Piecemeal injunctive relief for a small subset of DACA recipients would undoubtedly create social upheaval and encourage mass migration of potentially hundreds of thousands of recipients to those areas of the country protected by a narrower injunction, especially when one considers that the March 5, 2018, date set by President Trump and carried out by DHS for the complete termination of the DACA program has already passed. And limiting relief to a discrete set of persons or geographic boundaries would have a substantially negative impact on the
33 Defs.-Appellants’ Opening Br., at pg. 54, supra, note 20. 23

economic welfare and public safety of most, if not all, Amici cities and counties. Foreign-born residents make up almost half of Los Angeles’ workforce; they
contribute over $3 billion in state and local taxes yearly; they own businesses that generate $3.5 billion in annual income for city residents; and, they have local spending power of almost $30 billion a year.34 More than 51% of all of New York City’s business owners are foreign-born and foreign-born residents are responsible for 32% (i.e. $100 billion) of all income earned by New York City residents. New York City families that include immigrant members pay an estimated $8 billion in city and state personal income taxes and approximately $2 billion in city property taxes.35
Similarly, 35% of business owners in San Francisco are immigrants, including 12,756 foreign-born entrepreneurs.36 Entrepreneurs in the Philadelphia metro region, of which 40,171 are foreign-born, are 43.1% more likely to be immigrants
34 New American Economy, New Americans in Los Angeles (2017) available at: http://www.newamericaneconomy.org/wpcontent/uploads/2017/02/LA_Brief_V8.pdf 35 NYC Comptroller Report, Our Immigrant Population Helps Power NYC Economy (January 11, 2017), available at: http://tinyurl.com/NYC-ComptrollerReport 36 United States Census Bureau. Survey of Business Owners 2007-2012; New American Economy, Immigrants and the economy in: California District 12 (2017) available at: http://www.newamericaneconomy.org/locations/california/californiadistrict-12/
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than native-born.37 This entrepreneurship creates jobs and increases the tax base. Comparable statistics can be shown for other Amici and these data points
cannot be discounted as generalizations of all foreign-born residents. The DACA program has provided deferred action to some 807,000 applicants, 91% of whom are employed, which equates to 3% or 1 in 33 of all foreign-born persons in the United States labor force.38
Just to highlight one Amici city in greater detail, the DACA-eligible population in the City of Dallas – of whom 93.4% were employed – earned nearly $860 million in income in 2016.39 With this income, Dallas’s DACA-eligible residents paid a significant amount in taxes – to the tune of $161 million in 2016 alone – including state and local property, sales, and excise taxes. And that means these residents have some $700 million in annual spending power left after taxes, which further reverberates across the Dallas economy through spending and investments.
37 New American Economy, Immigrants and the economy in: Philadelphia Metro Area (2017) available at: http://www.newamericaneconomy.org/city/philadelphia/ 38 See USCIS Data, supra, note 3; CAP Study, supra, note 9; US Bureau of Labor Statistics 2016 foreign-born labor force statistics, available at: http://tinyurl.com/BLSforeignborn 39 New American Economy, New Americans in Dallas (2018) available at: http://research.newamericaneconomy.org/report/12252/
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This is why limiting the scope of the injunction will sow a national economic slowdown. Estimates show DACA recipients would otherwise contribute $46 billion to the United States gross domestic product over each of the next few years.40 DACA recipients across the board obtain higher earnings, have a higher employment rate, and a higher tax compliance rate than similarly-situated undocumented immigrants.41 In fiscal terms, narrowing the injunction could result $60 billion in lost federal, state and local tax revenues over the next decade.42
Narrowly limiting the injunction will also make communities less safe by pushing recipients underground during the pendency of the litigation. That will cause crimes to go unreported and limit the success of police investigations, thereby greatly undermining public safety for all of our residents in each our communities.
Numerous academic studies examining the impact of immigrants on their adopted communities reveal that communities with large immigrant populations, like Amici, have often outpaced the nationwide crime drop over the past 30 years.43
40 Center for American Progress, A New Threat to DACA Could Cost States Billions of Dollars (2017) Washington, D.C., available at: http://tinyurl.com/CAPStatesGDP. 41 CAP Study, supra, note 9. 42 CATO Institute, The Economic and Fiscal Impact of Repealing DACA (2017) Washington, D.C, available at: http://tinyurl.com/CATODACAstudy 43 The Sentencing Project, Immigration and Public Safety (2017), Washington, D.C., available at http://www.sentencingproject.org/wpcontent/uploads/2017/03/Immigration-and-Public-Safety.pdf
26

Also, because DACA applicants had to provide personal and biometric data to DHS to qualify for DACA, recipients will fear deportation at any moment, making them statistically less likely to identify themselves to law enforcement, including Amici’s sheriffs and police departments, to report crimes, or assist in criminal investigations.44 The same fear can result in unreported code enforcement and wage theft violations, crimes that are enforced by Amici. And slum landlords and sweatshop owners are likely to prey upon former DACA recipients if the program is terminated, resulting in unsafe and unhealthy conditions in the workplace and at home.
Amici’s law enforcement leadership consistently remind us that all communities are safer when victims and witnesses of crime, irrespective of immigration status, cooperate with law enforcement. For example, Los Angeles Police Department Chief Charlie Beck has routinely stated that his department depends on “immigrant communities, not only to keep them safe but to keep [the public] safe. Without that cooperation we all suffer.”45
44 See, e.g., Theodore, Nik, University of Chicago, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (May 2013), available at: http://tinyurl.com/ChicagoPoliceStudy 45 Ulloa, Jazmine, L.A. Police Chief Charlie Beck endorses ‘sanctuary state’ bill that Eric Holder hails as ‘constitutional’, THE LOS ANGELES TIMES (June 19, 2017), available at: http://tinyurl.com/Beckstory
27

Likewise, narrowing the scope of the injunction endangers already vulnerable immigrant communities in the wake of natural disasters. After this year’s devastating California wildfires, many immigrants avoided applying for aid to which they and their families were entitled because FEMA’s form states that application information “may be subject to sharing within the Department of Homeland Security, including but not limited to, the Bureau of Immigration and Customs Enforcement.”46 The federal government’s request to limit the scope of the injunction can only exacerbate the fears of those who may need to ask for help in a future disaster.
For these reasons, Amici respectfully request this Court to affirm the district court’s issuance of a nationwide injunction. . . . . . .
46 FEMA Declaration and Release form, available at: https://www.fema.gov/pdf/assistance/process/00903.pdf
28

CONCLUSION Amici respectfully urge this Court to uphold decision of the district court and the nationwide scope of the injunction requiring Appellants to maintain DACA. If the federal government is allowed to renege on a promise it made to all DACA recipients and their family members, a damaging message would be delivered that the United States government cannot be trusted to act in a decent, honorable or reliable manner, and it would impose significant adverse consequences on Amici.

Dated: March 20, 2018

MICHAEL N. FEUER, City Attorney JAMES P. CLARK LEELA A. KAPUR VALERIE L. FLORES MICHAEL DUNDAS MATTHEW SCHERB
By: s/ Michael Dundas MICHAEL DUNDAS
Attorneys for Amicus Curiae City of Los Angeles

29

EXHIBIT A
31

Exhibit A: Complete List of Amici Curiae
 The City of Los Angeles, California;  The County of Alameda, California;  The City of Atlanta, Georgia;  The City of Austin, Texas;  The City of Berkeley, California;  The City of Boston, Massachusetts;  The City of Cambridge, Massachusetts;  The City of Chelsea, Massachusetts;  The City of Chicago, Illinois;  Cook County, Illinois;  The City of Dallas, Texas;  The City and County of Denver, Colorado;  The District of Columbia;  The City and County of Honolulu, Hawaii;  The City of Houston, Texas;  The City of Gary, Indiana (joined by its Mayor, Karen Freeman-Wilson);  The City of Ithaca, New York (joined by its Mayor, Svante L. Myrick);  The City of Iowa City, Iowa;  King County, Washington;  The City of Long Beach, California;  Los Angeles County, California;  The City of Madison, Wisconsin;  The City of Minneapolis, Minnesota;  The County of Monterey, California;  The City of New Haven, Connecticut  The City of New York, New York;  The City of Oakland, California;  The City of Philadelphia, Pennsylvania;  The City of Phoenix, Arizona (as joined by its Mayor, Greg Stanton);  The City of Portland, Oregon;  The City of Providence, Rhode Island;  The City of Rochester, New York;  The City of Sacramento, California;  The City and County of San Francisco, California;  The City of Santa Fe, New Mexico;  The City of Santa Monica, California;  The City of Seattle, Washington;  The City of Somerville, Massachusetts;  The City of Tucson, Arizona;  The City of West Hollywood, California;  The National League of Cities; and  The United States Conference of Mayors.
32

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134 ________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
________________________
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees, v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellants.
_________________________
On Appeal from the United States District Court for the Northern District of California

BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, ACLU FOUNDATION OF NORTHERN CALIFORNIA, ACLU FOUNDATION OF SOUTHERN CALIFORNIA, AND ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
IN SUPPORT OF PLAINTIFFS-APPELLEES

Lee Gelernt Michael K.T. Tan David Hausman ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 Telephone: (212) 549-2660 dhausman@aclu.org

Jennifer Chang Newell Katrina L. Eiland ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0774 jnewell@aclu.org

Counsel for Amici Curiae Additional Counsel on Next Page

Julia Harumi Mass ACLU FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493

Ahilan T. Arulanantham ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street Los Angeles, California 90017 Telephone: (213) 977-5211
David Loy ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138 Telephone: (619) 232-2121

CORPORATE DISCLOSURE STATEMENT Amici curiae American Civil Liberties Union Foundation, American Civil
Liberties Union Foundation of Northern California, American Civil Liberties
Union Foundation of Southern California, and American Civil Liberties Union
Foundation of San Diego are non-profit entities that do not have parent
corporations. No publicly held corporation owns 10 percent or more of any stake
or stock in amici curiae.
/s/ Jennifer Chang Newell Jennifer Chang Newell ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0774 jnewell@aclu.org

TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTEREST OF AMICI..............................................................................................1 RULE 29 STATEMENT ...........................................................................................2 INTRODUCTION .....................................................................................................2 BACKGROUND .......................................................................................................4
The DACA Program .............................................................................................4 Procedural History ................................................................................................6 ARGUMENT .............................................................................................................7 I. The District Court Correctly Held that the INA Does Not Preclude
Jurisdiction to Review a Challenge to the Rescission of DACA. ....................7 A. Section 1252(g) Does Not Bar Plaintiffs’ Claims....................................9 B. Sections 1252(b)(9) and 1252(a)(2)(B) Are Inapplicable......................13
II. The Court Should Reserve the Question Whether the District Courts Have Jurisdiction in Cases Raising Legal Challenges to Individual, Rather than Programmatic, Decisions to Revoke DACA. ................................................15
III. The Nationwide Scope of the Injunction is Necessary Because No Narrower Injunction Could Provide the Plaintiffs with Complete Relief. ...................19
CONCLUSION ........................................................................................................25 CERTIFICATE OF COMPLIANCE.......................................................................27
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TABLE OF AUTHORITIES
Cases ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059 (9th Cir. 2015) ........................................19 Alcaraz v. INS, 384 F.3d 1150 (9th Cir. 2004) ....................................................3, 11 Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014) .................1 Arizona Dream Act Coalition v. Brewer, 855 F.3d 957 (9th Cir. 2017) ...................1 Arizona v. U.S., 567 U.S. 387 (2012) ......................................................................20 Bowen v. Mich. Academy of Family Physicians, 476 U.S. 667 (1986) .....................8 Bresgal v. Brock, 843 F.2d 1163 (9th Cir.1987)......................................... 22, 23, 24 Catholic Soc. Servs., Inc. v. I.N.S., 232 F.3d 1139 (9th Cir. 2000)(en banc) ..........11 Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013).................................................18 Colotl v. Kelly, 261 F.Supp.3d 1328 (N.D. Ga. 2017)................................ 2, 3, 5, 16 Earth Island Inst. v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007)..............................20 Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir. 1996)..........20 Gonzalez Torres v. DHS,
No. 17-cv-1840, 2017 WL 4340385, (S.D. Cal. Sept. 29, 2017) ................ passim Hawai’i v. Trump, 878 F.3d 662 (9th Cir. 2017).....................................................24 Inland Empire-Immigrant Youth Collective et al. v. Duke, No. EDCV 17–2048,
2017 WL 5900061 (C.D. Cal Nov. 20, 2017) .......................................................2 Inland Empire-Immigrant Youth Collective et al. v. Nielsen, No. EDCV 17–2048,
2018 WL 1061408 (C.D. Cal Feb. 26, 2018) .............................................. passim INS v. St. Cyr, 533 U.S. 289 (2001) ................................................................. passim
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Intl. Molders’ and Allied Workers’ Local Union No. 164 v. Nelson, 799 F.2d 547 (9th Cir. 1986)......................................................................................................20
JEFM v. Lynch, 837 F.3d 1026 (9th Cir. 2016).......................................................14 Jennings v. Rodriguez, 138 S Ct. 830 (2018) ..........................................................13 Kucana v. Holder, 558 U.S. 233 (2010) ..................................................................15 Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011)... 21, 24 Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013)........................................20 Lujan v. Nat’l Wildlife Federation, 497 U.S. 871 (1990)........................................21 Matter of Quintero, 18 I. & N. Dec. 348 (BIA 1982)................................... 6, 12, 14 Madsen v. Women’s Health Ctr., 512 U.S. 753 (1994) ...........................................22 Madu v. Attorney General, 470 F.3d 1362 (11th Cir. 2006) ...................................10 Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir.)......................................................2 Mamigonian v. Biggs, 710 F.3d 936 (9th Cir. 2013) ........................................ 17, 18 Mejia Rodriguez v. DHS, 562 F.3d 1137 (11th Cir. 2009)......................................18 Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) ..........................................14 Nat’l Mining Ass’n v. U.S. Army Corps of Engineers, 145 F.3d 1399
(D.C. Cir. 1998) ...................................................................................................21 Perez v. USCIS, 774 F. 3d 960 (11th Cir. 2014)......................................................18 Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) ................................................2 Ramirez Medina v. DHS, No. 17-cv-0218, 2017 WL 5176720
(W.D. Wash. Nov. 8, 2017) ...................................................................... 3, 16, 19
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Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) .............................................................................. 4, 9, 10, 11
Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007).......................................................2 Spencer Enters., Inc. v. United States, 345 F.3d 683 (9th Cir. 2003) .....................19 Summers v. Earth Island Inst., 555 U.S. 488 (2009) ...............................................20 Texas v. United States, 787 F.3d 733 (5th Cir. 2015)..............................................10 Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017)........................21 United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004)(en banc)........ 3, 8, 9, 16 Util. Air Regulatory Group v. E.P.A., 134 S. Ct. 2427 (2014) ................................20 Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524
(5th Cir. 2013)......................................................................................................20 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017).............................................22 Zadvydas v. Davis, 533 U.S. 678 (2001) .......................................................... 14, 15 Zazueta–Carrillo v. Ashcroft, 322 F.3d 1166 (9th Cir. 2003) .................................15 Zepeda v. I.N.S., 753 F.2d 719 (9th Cir. 1983)........................................................22
Statutes 5 U.S.C. § 701(a)(2)...................................................................................... 4, 16, 18 8 U.S.C. § 1252(a)(2)(B) ................................................................................. passim 8 U.S.C. § 1252(b) ...................................................................................................14 8 U.S.C. § 1252(b)(9)................................................................................ 3, 8, 13, 14
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8 U.S.C. § 1252(g) ........................................................................................... passim Other Authorities Janet Napolitano, Memorandum on Exercising Prosecutorial Discretion with
Respect to Individuals Who Came to the United States as Children (June 15, 2012)...................................................................................... 5, 6, 17, 25
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INTEREST OF AMICI Amici curiae are civil rights organizations dedicated to defending the constitutional and legal rights of noncitizens. Amici respectfully submit this brief to address the government’s arguments concerning the district court’s jurisdiction under the Immigration and Nationality Act (“INA”) and the Administrative Procedure Act (“APA”), as well as its arguments concerning the appropriateness of the scope of the nationwide injunction. Amici write to provide further support for affirming the district court’s judgment. The American Civil Liberties Union (“ACLU”) Foundation is a nationwide, nonprofit, nonpartisan organization dedicated to the principles of liberty and equality embodied in the Constitution and this nation’s civil rights laws. The ACLU Foundation’s Immigrants’ Rights Project engages in a nationwide litigation and advocacy program to enforce and protect the constitutional and civil rights of immigrants. The ACLU Foundations of Northern California, Southern California, and San Diego and Imperial Counties are the ACLU’s California affiliates, and have also litigated numerous cases involving immigrants’ rights. In particular, the ACLU Foundation has served as counsel in several cases on behalf of recipients of the Deferred Action for Childhood Arrivals (“DACA”) program. See, e.g., Arizona Dream Act Coalition v. Brewer, 855 F.3d 957 (9th Cir. 2017); Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014); Inland Empire-
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Immigrant Youth Collective et al. v. Nielsen, No. EDCV 17–2048, 2018 WL 1061408 (C.D. Cal Feb. 26, 2018); Inland Empire-Immigrant Youth Collective et al. v. Duke, No. EDCV 17–2048, 2017 WL 5900061 (C.D. Cal Nov. 20, 2017); Colotl v. Kelly, 261 F. Supp. 3d 1328 (N.D. Ga. 2017). The ACLU Foundation has also litigated numerous cases involving immigration jurisdiction. See, e.g., INS v. St. Cyr, 533 U.S. 289 (2001); Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) (amicus); Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (per curiam) (amicus); Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998), as amended, 159 F.3d 1217 (9th Cir. 1998) (amicus), cert. granted, judgment vacated on other grounds, 526 U.S. 1001 (1999).
RULE 29 STATEMENT This brief is filed with the consent of the parties. Neither party authored this brief in whole or in part. Neither the parties nor any other individual (other than amici and their counsel) contributed money that was intended to fund the preparation or submission of this brief.
INTRODUCTION Amici agree with plaintiffs-appellees that the Court should affirm the district court’s decision in this case. Amici write to emphasize three specific points. First, the district court correctly held that the INA does not preclude jurisdiction of the plaintiffs’ legal challenges to the rescission of the DACA program. Specifically, 8
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U.S.C. § 1252(g) does not preclude jurisdiction here because the plaintiffs raise legal claims and do not challenge any of the three discrete discretionary actions specified in that provision. See United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc) (holding that § 1252(g) does not bar review of legal claims, even if related to a discretionary judgment); see also Alcaraz v. INS, 384 F.3d 1150, 1160-61 (9th Cir. 2004). Neither do § 1252(b)(9) or § 1252(a)(2)(B) apply. See infra at Argument, Part I.
Second, amici urge this Court to reserve the question whether the district courts have jurisdiction to review legal challenges to decisions to revoke DACA in individual cases, as opposed to challenges to program-level decisions. That issue has arisen recently in multiple district courts, including three in this Circuit. See Inland Empire-Immigrant Youth Collective et al. v. Nielsen (“Inland Empire”), No. EDCV 17–2048, 2018 WL 1061408 (C.D. Cal Feb. 26, 2018); Gonzalez Torres v. DHS, No. 17-cv-1840, 2017 WL 4340385 (S.D. Cal. Sept. 29, 2017); Ramirez Medina v. DHS, No. 17-cv-0218, 2017 WL 5176720 (W.D. Wash. Nov. 8, 2017); Colotl v. Kelly, 261 F. Supp. 3d 1328 (N.D. Ga. 2017). Every district court to address the question has held that the provisions of § 1252 do not bar jurisdiction in such legal challenges to individualized DACA decisions. Likewise, every district court to address the question has held that individual DACA termination decisions are not “committed to agency discretion by law” under 5
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U.S.C. § 701(a)(2) of the Administrative Procedure Act (“APA”), concluding that the detailed rules of the DACA program provide law to apply. As amici explain below, regardless of whether the legal challenge arises in the context of a programmatic decision or an individual one, the district courts maintain jurisdiction under the INA and APA. Because the jurisdictional question concerning individual challenges to DACA revocations is not presented in the instant case, the Court need not and should not reach it here. See infra at Argument, Part II.
Third, amici write to emphasize that the nationwide scope of the injunction in this case is appropriate and necessary because the decision to rescind the DACA program is invalid in all its applications, and a narrower injunction cannot provide complete relief to the plaintiffs. See infra at Argument, Part III.
BACKGROUND The DACA Program
As the appellees and the district court have explained in detail, deferred action is a longstanding form of administrative action by which the federal Executive Branch decides, for humanitarian or other reasons, to refrain from seeking a noncitizen’s removal and to authorize his continued presence in the United States. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999). DACA is a deferred action program specifically for young immigrants
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who came to the United States as children and are present in the country without formal immigration status. Under DACA, young immigrants who entered the United States as children who meet specified eligibility criteria (including educational and residency requirements), and who pass extensive criminal background checks, are eligible to receive deferred action. Janet Napolitano, Memorandum on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, (June 15, 2012) (“Napolitano Memo”) at 1-2.1
United States Citizenship and Immigration Services (“USCIS”) is the division of DHS responsible for evaluating requests for DACA. DHS’ DACA Standard Operating Procedures (“DACA SOPs”) set forth hundreds of pages of procedures that the agency must follow in adjudicating and granting DACA applications, as well as in terminating DACA grants. See, e.g., Inland Empire, 2018 WL 1061408, at *2; Colotl, 261 F. Supp. 3d at 1334; Gonzalez Torres, 2017 WL 4340385, at *3.
The rules for the DACA program make clear that it operates separately and independently from removal proceedings. The fact that a noncitizen is in or will be in removal proceedings, or has a final removal order, does not disqualify the individual from DACA. See Napolitano Memo at 2; see also Inland Empire, 2018
1 https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf.
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WL 1061408, at *2 (C.D. Cal. Feb. 26, 2018) (describing DACA Standard Operating Procedures). A noncitizen who is in removal proceedings can apply for DACA separately and simultaneously, and a noncitizen with a final removal order may apply for DACA without seeking to reopen his or her removal proceedings. Napolitano Memo at 2. Further, “neither the immigration judge nor the Board may grant [deferred action] status or review a decision of the [immigration authorities] to deny it.” Matter of Quintero, 18 I. & N. Dec. 348, 350 (BIA 1982). See also, e.g., Gonzalez Torres, 2017 WL 4340385, at *6 (noting that the government asserted in that case that “an immigration judge has no jurisdiction to reinstate DACA status, or to authorize an application for renewal of DACA status”); Inland Empire, 2018 WL 1061408, at *16 (C.D. Cal. Feb. 26, 2018) (similar).
On September 5, 2017, DHS announced that it was rescinding the DACA program and winding it down.2 Procedural History
The plaintiffs, who are individuals and entities harmed by the rescission of the DACA program, brought suit challenging the rescission in the district court for the Northern District of California, asserting claims under the APA and the Constitution. With respect to jurisdiction, the district court concluded that the INA does not bar review of the plaintiffs’ claims. The court held that those claims do
2 Although the program was ending, DHS officials confirmed that the same program rules would continue to apply until it ended. See, e.g., Inland Empire, 2018 WL 1061408, at *2.
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not challenge a decision to commence removal proceedings, adjudicate cases, or execute removal orders. ER 21-22; see 8 U.S.C. § 1252(g). The court noted that the plaintiffs do not challenge any removal order and or any decision to institute removal proceedings, and that challenges to actions prior to the commencement of removal proceedings are not barred by § 1252(g). ER 22.
The district court also concluded that the APA did not bar plaintiffs’ claims, and that the plaintiffs were likely to succeed on the merits. The court issued a nationwide injunction, finding that no narrower injunction could provide complete relief to the plaintiffs and maintain uniformity in national immigration policy. ER 47-48 & n. 21. Although the scope of the injunction is nationwide, the district court limited its effect to DACA renewals and also specifically noted that “[n]othing in [the] order prohibits the agency from proceeding to remove any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed.” ER 46.
ARGUMENT I. The District Court Correctly Held that the INA Does Not Preclude
Jurisdiction to Review a Challenge to the Rescission of DACA. In determining whether a suit can be brought under the APA, courts must “begin with the strong presumption that Congress intends judicial review of administrative action.” Bowen v. Mich. Academy of Family Physicians, 476 U.S.
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667, 670 (1986). See also, e.g., INS v. St. Cyr, 533 U.S. 289, 298 (2001) (applying “the strong presumption in favor of judicial review of administrative action”). This presumption requires that “only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review [of administrative action].” Bowen, 476 U.S. at 671 (citation and internal quotation marks omitted). Here, there is no clear showing of intent to preclude plaintiffs’ challenge to the rescission of the DACA program, a matter entirely independent of and collateral to any removal proceedings.
The government contends that 8 U.S.C. § 1252(g), which purports to limit jurisdiction over certain challenges relating to removal proceedings, bars the district court from exercising jurisdiction over a challenge to the rescission of the DACA program. Gov’t Br. at 25-28. Yet, as the district court correctly held, § 1252(g) does not bar review of claims that the government’s rescission of the program was unlawful. Critically, the plaintiffs raise legal claims, whereas § 1252(g) only precludes review of claims that challenge the exercise of discretion. See United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc). Moreover, none of the plaintiffs’ claims challenges the validity of any removal order, the adequacy of any removal proceedings, or the initiation of any such proceedings. Further, although the government in passing attempts to draw support from 8 U.S.C. §§ 1252(b)(9) and 1252(a)(2)(B), Gov’t Br. at 26-27,
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neither provision is even remotely implicated here. A. Section 1252(g) Does Not Bar Plaintiffs’ Claims. As the Supreme Court explained in Reno v. American-Arab Anti-
Discrimination Committee (“AADC”), 525 U.S. 471 (1999), “what § 1252(g) says is” quite “narrow[].” Id. at 482. “The provision 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.’” AADC, 525 U.S. at 482. Section 1252(g) does not preclude review in this case for at least two separate reasons.
First, plaintiffs’ claims are not barred by § 1252(g) because they do not challenge the agency’s ultimate exercise of discretion, but rather assert legal errors; they allege that the rescission of the DACA program was unlawful for multiple reasons, including that it violated the APA and the Fifth Amendment (due process and equal protection). This Court has held that while § 1252(g) precludes jurisdiction to review challenges to the three discretionary decisions the statute specifically enumerates, it does not bar review of legal questions, even if related to those discretionary decisions. In United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc), the Court explained that under 8 U.S.C. § 1252(g), “[t]he district court may consider a purely legal question that does not challenge the Attorney General’s discretionary authority, even if the answer to that legal
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question—a description of the relevant law—forms the backdrop against which the Attorney General later will exercise discretionary authority.” Id. at 1155. Accord, e.g., Madu v. Attorney General, 470 F.3d 1362, 1368 (11th Cir. 2006) (explaining that § 1252(g) “does not proscribe substantive review of the underlying legal bases for those discretionary decisions and actions”). Cf. St. Cyr, 533 U.S. at 307 (emphasizing that in the immigration context, courts “regularly” review “questions of law that arose in the context of discretionary relief”). Thus, although AADC indicated that § 1252(g) was “designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations,” 525 U.S. at 485 (emphasis added), plaintiffs’ case does not challenge any discretionary decision not to defer action. See also Texas v. United States, 787 F.3d 733, 755-56 (5th Cir. 2015) (holding that § 1252(g) was inapplicable to states’ APA challenge to 2014 deferred action program). Thus, even were it the case that the plaintiffs’ claims implicated the three specified actions in § 1252(g), the provision would still not bar jurisdiction because the nature of the plaintiffs’ claims is legal, and not discretionary.
Second, and in any event, § 1252(g) does not apply because the plaintiffs are not challenging any decision to “commence” or “adjudicate” removal proceedings, or to execute removal orders. This Court has instructed that § 1252(g) “applies only to the three specific discretionary actions mentioned in its text, not to all
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claims relating in any way to deportation proceedings.” Catholic Soc. Servs., Inc. v. I.N.S., 232 F.3d 1139, 1150 (9th Cir. 2000) (en banc). As AADC emphasized, § 1252(g) does not preclude review of “many other decisions or actions that may be part of the deportation process—such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order.” 525 U.S. at 482.
Consistent with the Supreme Court’s guidance in AADC, this Court has narrowly construed § 1252(g). For example, in Alcaraz v. INS, 384 F.3d 1150 (9th Cir. 2004), the Court made clear that even claims closely related to the initiation of removal proceedings are not precluded by § 1252(g), so long as the claim does not directly challenge the decision to commence proceedings itself. Id. at 1160-61. Alcaraz considered whether § 1252(g) precluded jurisdiction over the noncitizens’ claim that the BIA should have administratively closed their removal proceedings so they could avail themselves of a process known as “repapering.” Id. at 1154. Under the “repapering” process, the closure of the noncitizens’ cases would have allowed the immigration authorities to reinitiate removal proceedings in which they could apply for a form of relief that would have otherwise been unavailable to them. Id. at 1152-53. The Court held that “[w]hile the second step in the repapering process involves a decision to commence (or “reinitiate”) proceedings,
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. . . [t]he Alcarazes’ repapering claim only raises the issue of administrative closure. Therefore, we are not barred from hearing this claim by 8 U.S.C. § 1252(g).” Id. at 1161.
Plaintiffs’ challenge to the rescission of the DACA program is even further from any decision to initiate removal proceedings than the circumstance in Alcaraz. Rescission of the program does not in fact initiate removal proceedings against anyone; the immigration authorities would have to take separate steps to initiate a removal proceeding, adjudicate a case, or execute a removal order. Indeed, at a minimum, pursuant to the rescission, DACA recipients would retain their DACA grants until the original expiration date. Even for those DACA recipients who are or will be in removal proceedings, success on the claims in this case would not (and the injunction issued by the district court does not) affect the immigration court’s jurisdiction over such proceedings. Indeed, as Defendants have conceded elsewhere, “an immigration judge has no jurisdiction to reinstate DACA status, or to authorize an application for renewal of DACA status.” Gonzalez Torres, 2017 WL 4340385, at *6. See also Matter of Quintero, 18 I. & N. Dec. 348, 350 (BIA 1982) (explaining that “neither the immigration judge nor the Board may grant [deferred action] status or review a decision of the District
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Director to deny it”).3 B. Sections 1252(b)(9) and 1252(a)(2)(B) Are Inapplicable Although the government half-heartedly attempts to draw support from 8
U.S.C. §§ 1252(b)(9) and 1252(a)(2)(B), neither provision is relevant here. First, as the Supreme Court has explained, the purpose of § 1252(b)(9) is “to
consolidate ‘judicial review’ of immigration proceedings into one action in the court of appeals.’” St. Cyr, 533 U.S. at 313. Thus, § 1252(b)(9) works to ensure that issues that can be meaningfully reviewed on petitions for review of removal orders are resolved there, rather than in piecemeal, separate litigation. It does not, however, sweep in matters that simply cannot be reviewed in immigration proceedings. See, e.g., Jennings v. Rodriguez, 138 S Ct. 830, 840 (2018) (Alito, J.) (reasoning that “cramming judicial review of . . . questions” that could not be adjudicated by the immigration courts “into the review of final removal orders would be absurd”).
A challenge to the rescission of DACA is not barred by § 1252(b)(9) because the plaintiffs “are not asking for review of an order of removal; they are
3 The government has also repeatedly asserted in other federal court cases that “deferred action does not . . . provide any defense to removal” and “[a]n individual with deferred action remains removable at any time.” Opp. to Mot. for Class Certification, Inland Empire, No. 17-cv-2048 (C.D. Cal. Feb. 1, 2018), Dkt. 53 at 9; see also Opp. to Mot. for Temporary Restraining Order and/or Preliminary Injunction, Colotl v. Kelly, No. 17-01670 (N.D. Ga. May 31, 2017), Dkt. 18, at 2-3 (same); Opp. to Mot. for Class Preliminary Injunction, Inland Empire, No. 17-cv2048 (C.D. Cal. Feb. 1, 2018, Dkt. 54 at 15 (“A grant of DACA is not protection from removal.”).
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not challenging the decision . . . to seek removal; and they are not even challenging any part of the process by which their removability will be determined.” Id. at 841. Indeed, § 1252(b)(9) is not even remotely applicable because the immigration court has no jurisdiction to consider deferred action decisions. It is well established that “neither the immigration judge nor the Board [of Immigration Appeals] may grant [deferred action] status or review a decision of the District Director to deny it.” Matter of Quintero, 18 I. & N. Dec. at 350. And as noted, the government has conceded this point elsewhere. See, e.g., Gonzalez Torres, 2017 WL 4340385, at *6. Because the immigration court has no jurisdiction to consider a challenge to the rescission or termination of DACA, § 1252(b)(9) is wholly inapplicable.4
Second, § 1252(a)(2)(B) is similarly irrelevant here. The Supreme Court and this Court have held that § 1252(a)(2)(B) applies only to challenges to discretionary judgments, and does not bar review of legal claims even if related to discretionary relief. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding that § 1252(a)(2)(B)(ii) did not bar review of a legal claim challenging
4 Amici note that an additional reason § 1252(b)(9) is inapplicable is that “it applies only ‘with respect to review of an order of removal under subsection (a)(1).’” St. Cyr, 533 U.S. at 313 (quoting 8 U.S.C. § 1252(b)). See also Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006) (Section 1252(b)(9) did not apply because “there is no final order of removal.”). But see JEFM v. Lynch, 837 F.3d 1026, 1033 (9th Cir. 2016) (holding that § 1252(b)(9) barred claims by unrepresented children who were not challenging removal orders, where the Court concluded that a child could theoretically raise the claim in a petition for review).
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detention decision); Zazueta–Carrillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir. 2003) (decision that alien was statutorily barred from petitioning for adjustment of status was not discretionary and could be reviewed notwithstanding § 1252(a)(2)(B)). Zadvydas made clear that the proper focus under § 1252(a)(2)(B) is on the particular claim asserted by the petitioner, not whether the claim is related to a decision that is ultimately in the discretion of the Attorney General. 533 U.S. at 688. See also St. Cyr, 533 U.S. at 307-08. Here, plaintiffs are asserting legal errors, and do not challenge the actual exercise of discretion. Further, the jurisdictional bar in § 1252(a)(2)(B)(ii) applies only where discretion is conferred by statute. See Kucana v. Holder, 558 U.S. 233, 246-47 (2010) (holding that in § 1252(a)(2)(B)(ii), “Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute”). For these reasons, § 1252(a)(2)(B) does not preclude district court jurisdiction over plaintiffs’ legal claims here.
II. The Court Should Reserve the Question Whether the District Courts Have Jurisdiction in Cases Raising Legal Challenges to Individual, Rather than Programmatic, Decisions to Revoke DACA.
The district court suggested that the fact that plaintiffs are challenging a programmatic decision, and not an individualized decision concerning DACA, might be meaningful to the jurisdictional analysis. ER 21-22. However, the question whether the district courts have jurisdiction in cases challenging the legal
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validity of individualized decisions to revoke DACA is not before the Court, and the Court therefore should reserve the question for a case in which it is squarely presented. Indeed, that question has been litigated in multiple district courts, including in this Circuit. Every district court that has considered the government’s jurisdictional arguments in the context of cases challenging the unlawful revocation of individual DACA grants has rejected them, concluding that the district courts retain jurisdiction to review such legal claims in individual cases. See, e.g., Inland Empire, 2018 WL 1061408, at *15-17 (C.D. Cal Feb. 26, 2018); see also Gonzalez Torres, 2017 WL 4340385, at *4-5; Ramirez Medina, 2017 WL 5176720 at *6-8; Colotl v. Kelly, 261 F. Supp. 3d at 1338-40. Likewise, each of these courts has held that, based on the particular legal claims raised in these cases, there is law to apply under the APA, 5 U.S.C. § 701(a)(2). Inland Empire, 2018 WL 1061408, at *14; Gonzalez Torres, 2017 WL 4340385, at *5; Ramirez Medina, 2017 WL 5176720, at *8; Colotl v. Kelly, 261 F. Supp. 3d at 1340.
For the same reasons given above, when USCIS revokes DACA in an individual case and the individual challenges the lawfulness of that decision, the provisions of § 1252 relied upon by the government are not implicated because such claims are legal, not discretionary, see Hovsepian, 359 F.3d at 1155, and because decisions concerning DACA are separate and independent from removal proceedings. As noted, immigration courts have no jurisdiction to adjudicate
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individualized DACA challenges. See supra at Argument, Part I.A. And the rules of the DACA program make clear that many individuals with DACA may have already been placed in removal proceedings, or have prior removal orders. See, e.g., Napolitano Memo at 2-3. Further, the government takes the position that “deferred action does not . . . provide any defense to removal.” See, e.g., Opp. to Mot. for Class Certification, Inland Empire, No. 17-cv-2048 (C.D. Cal. Feb. 1, 2018), Dkt. 53 at 9; see also supra at n.3. Accordingly, § 1252 does not preclude district court jurisdiction in legal challenges to individual DACA revocation decisions, just as it does not bar review of the challenge to the decision to end the DACA program as a whole.
Notably, the Ninth Circuit has repeatedly held that individual APA challenges to USCIS denials of affirmative benefits that are collateral to a noncitizen’s removal proceedings may be brought in district court. For example, in Mamigonian v. Biggs, 710 F.3d 936, 945-46 (9th Cir. 2013), the Ninth Circuit considered whether a noncitizen could seek district court review of USCIS’ denial of an adjustment of status application, when the noncitizen had also been in removal proceedings. The Court held that “district courts maintain jurisdiction to review challenges to adjustment-of-status denials that were decided on nondiscretionary grounds despite the jurisdiction-stripping provisions of the REAL ID Act.” Id. at 942. Mamigonian reasoned that review was available in district
17

court where the immigration court lacked jurisdiction over the challenged decision. Because review in the context of removal proceedings “would be unavailable to Ms. Mamigonian,” she could bring an affirmative claim in district court notwithstanding the § 1252 jurisdictional bars. Id. at 945. See also, e.g., Ching v. Mayorkas, 725 F.3d 1149, 1154-59 (9th Cir. 2013) (finding district court jurisdiction over procedural due process challenge to denial of an I-130 petition adjudicated by USCIS, even though the wife’s “removal proceedings are currently pending”). Accord, e.g., Perez v. USCIS, 774 F.3d 960, 965-67 (11th Cir. 2014) (affirming district court’s jurisdiction over an APA challenge to denial of adjustment of status application even though the noncitizen had been placed in removal proceedings); Mejia Rodriguez v. DHS, 562 F.3d 1137, 1145 n.15 (11th Cir. 2009) (per curiam) (concluding district court had jurisdiction over noncitizen’s APA challenge to denial of Temporary Protected Status (“TPS”)). Similarly, the immigration court could not entertain a legal challenge to USCIS’s decision to terminate DACA in an individual case, and therefore the district courts retain jurisdiction.
The Court should also reserve the question of whether a challenge to DACA termination in an individual case is “committed to agency discretion by law” under the APA. 5 U.S.C. § 701(a)(2). Every district court to have considered the question has determined that individual DACA termination decisions are subject to
18

APA review. In each case, the district court concluded that the DACA memorandum and the detailed DACA Standard Operating Procedures provided law to apply in reviewing the affirmative decision to terminate an individual’s DACA. Inland Empire, 2018 WL 1061408, at *14; Gonzalez Torres, 2017 WL 4340385, at *5; Ramirez Medina, 2017 WL 5176720, at *8; Colotl v. Kelly, 261 F. Supp. 3d at 1341. Those decisions correctly relied on the fact that § 701(a)(2) does not bar review of decisions, whether programmatic or individual, that are subject to a meaningful standard of any kind: “Even where statutory language grants an agency ‘unfettered discretion,’ its decision may nonetheless be reviewed if regulations or agency practice provide a ‘meaningful standard by which this court may review its exercise of discretion.’” ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1069 (9th Cir. 2015) (quoting Spencer Enters., Inc. v. United States, 345 F.3d 683, 688 (9th Cir. 2003)).
In sum, the Court should reserve the question whether the district courts retain jurisdiction under the INA and the APA to review legal challenges to individual revocations of DACA. Further, the Court need not rely on the programwide nature of the instant plaintiffs’ challenge in its jurisdictional analysis.
III. The Nationwide Scope of the Injunction is Necessary Because No Narrower Injunction Could Provide the Plaintiffs with Complete Relief.
The nationwide injunction is appropriate because it sets aside an
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administrative action—the decision to rescind DACA based on a flawed legal premise—that is invalid in all its applications, and no narrower injunction could provide complete relief to the plaintiffs.
The government is simply wrong to suggest that Article III precludes injunctive relief that benefits nonparties. Gov’t Br. 49. In fact, such relief is routine. See, e.g., Util. Air Regulatory Group v. E.P.A., 134 S. Ct. 2427, 2449 (2014) (invalidating Environmental Protection Agency rule); Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir. 2007) (affirming nationwide injunction and holding that the APA “compel[s]” the entry of a nationwide injunction where a regulation is facially invalid);5 Int’l Molders’ and Allied Workers’ Local Union No. 164 v. Nelson, 799 F.2d 547, 550 (9th Cir. 1986) (affirming injunction in “nationwide enforcement action”); see also Arizona v. U.S., 567 U.S. 387, 416 (2012) (affirming injunction of state statute); Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996) (affirming injunction of state traffic stop policy); Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013) (en banc) (affirming injunction against several provisions of local immigration ordinance); Lozano v. City of Hazleton, 724 F.3d 297, 323 (3d Cir. 2013) (affirming injunction against several local ordinance provisions). The
5 This decision was reversed on standing grounds in Summers v. Earth Island Inst., 555 U.S. 488 (2009), but the Supreme Court did not reach the question of the proper scope of injunctive relief and never suggested that, had the plaintiffs had standing, the injunction would not have been appropriate.
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government does not explain why the injunction in the present case “contravenes bedrock principles of Article III and equitable discretion,” Gov’t Br. 48-49, but the injunctions in countless other non-class action cases did not.
Indeed, as Justice Blackmun explained, where “a rule of broad applicability . . . is invalidated . . . , a single plaintiff, so long as he is injured by the rule, may obtain ‘programmatic’ relief that affects the rights of parties not before the court.” Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 913 (1990) (Blackmun, J., dissenting); see also Nat’l Mining Ass’n v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (citation and quotation marks omitted) (noting that Justice Blackmun was “writing in dissent but apparently expressing the view of all nine Justices on this question”). And the Supreme Court reaffirmed the appropriateness of such relief just last year: in Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017), the Court partially left in place an injunction that protected not only the particular plaintiffs challenging the travel ban, but also individuals everywhere who were “similarly situated.”
This Court has also acknowledged that “there is no bar against nationwide relief in the district courts or courts of appeal, even if the case was not certified as a class action, if such broad relief is necessary to give prevailing parties the relief to which they are entitled.” Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (citing Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th
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Cir.1987)). See also Zepeda v. I.N.S., 753 F.2d 719, 728 n.1 (9th Cir. 1983) (narrowing injunction in as-applied constitutional challenge but noting that relief benefiting nonparties is appropriate where “identical relief [is] inevitable to remedy the individual plaintiffs’ rights”).
Here, a nationwide injunction is required because there is no other way to offer complete relief to the plaintiffs—states and universities who are harmed through the rescission’s injuries to DACA recipients as students, employees, and taxpayers. In Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (per curiam), this Court declined to stay temporary nationwide relief because “the Government ha[d] not proposed a workable alternative form of the TRO that . . . would protect the proprietary interests of the [plaintiff] States at issue here while nevertheless applying only within the States’ borders.” Id. at 166-67.
This case presents precisely such a situation. An injunction limited to the plaintiffs would fail to “provide [them] complete relief,” Madsen v. Women’s Health Ctr., 512 U.S. 753, 765 (1994) (citation and quotation marks omitted), because such an injunction is fundamentally unworkable. The government proposes an injunction “limited to DACA recipients who are named plaintiffs or validly represented by the union plaintiff, as well as any additional DACA recipients whose loss of DACA would impose cognizable injuries on the various entity plaintiffs.” Gov’t Br. 54.
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The inadequacy of the government’s proposed remedy is obvious. For example, as the district court correctly found, California, Maryland, the City of San Jose and the County of Santa Clara all employ individuals who have DACA. ER 23. Even if the court were to go beyond the relief proposed by the government and order it to extend the DACA program specifically for the entities’ employees, such an injunction would not fully redress their injuries. The states’ large workforces rely on hiring pools that stretch across state lines, and there is no conceivable way to determine which DACA recipients would be unable to apply as a result of the rescission. See ER 24 (noting that these plaintiffs have alleged that “they will also need to expend additional resources to hire and train replacements”). The government proposes no method of identifying the individuals whose loss of DACA would cause these injuries, particularly given that individuals can move freely between states.
Practical considerations like these were at the heart of the principal cases on which the government relies, and those cases support the granting of a nationwide injunction here. In Brock, 843 F.2d 1163, this Court affirmed a nationwide injunction requiring the Secretary of Labor to apply a registration statute to forestry workers. In reaching its conclusion, the Court relied on practical concerns strikingly similar to those at issue here. It noted that the “Secretary has not suggested how the injunction to enforce can be limited to any particular group of
23

forestry labor contractors,” and explained that a more limited injunction would be insufficient because the plaintiff laborers might travel to other parts of the country or, conversely, they might deal with contractors based elsewhere. Id. at 1171. The Court therefore concluded that the injunction was necessary.
This Court’s decision in Haven Hospice equally supports the grant of a nationwide injunction in this case, though the particular facts there did not support broad relief. 638 F.3d 644. There, the Court narrowed the injunction only after a careful examination of the likely practical implications. Critically, the Court relied on the fact that the plaintiff had conceded at oral argument that a narrower injunction would grant it complete relief, id. at 665—a point that the plaintiffs vigorously contest in this case. The Court also relied on the government’s claims that “great uncertainty and confusion . . . would likely flow from a nationwide injunction.” Id. The government has made no such claims here; indeed, it is the government’s proposal that would lead to uncertainty and confusion.
The appropriateness of nationwide relief is reinforced by the importance of uniformity in the enforcement of the immigration laws. Hawai’i v. Trump, 878 F.3d 662, 701 (9th Cir. 2017) (“[T]he immigration laws of the United States should be enforced vigorously and uniformly.”) (citation and quotation marks omitted). The government contends that DACA “is itself a departure from vigorous and uniform enforcement of the immigration laws,” and that allowing DACA to remain
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in place for some individuals who meet the criteria, but not for others, would somehow increase uniformity in immigration enforcement. Gov’t Br. 53. But that kind of a patchwork version of DACA would impose the exact opposite of uniformity. More fundamentally, it ignores the original purpose of DACA—“to ensure that our enforcement resources are not expended on these law priority cases but are instead appropriately focused on people who meet our enforcement priorities.” Napolitano Memo at 1.

CONCLUSION For the reasons above, the Court should affirm judgment below.

Dated: March 20, 2018

Respectfully submitted,
By: /s/ Jennifer Chang Newell Jennifer Chang Newell Katrina L. Eiland AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-0774 F: (415) 395-0950 jnewell@aclu.org
Lee Gelernt David Hausman Michael K.T. Tan AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2616 F: (212) 549-2654 dhausman@aclu.org
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Julia Harumi Mass ACLU FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 T: (415) 621-2493 F: (415) 255-8437 jmass@aclunc.org
Ahilan T. Arulanantham ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street Los Angeles, California 90017 T: (213) 977-5211 F: (213) 417-2211 aarulanantham@aclusocal.org David Loy ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138 T: (619) 232-2121 F: (619) 232-0036 davidloy@aclusandiego.org Counsel for Amici Curiae
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CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that: 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and 29(a)(5) because it contains 5,871 words, excluding parts of the brief exempted by Fed. R. App. P. 32(f) 2. 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 it has been prepared in a proportionally spaced typeface using Word 2010, 14-point Times New Roman font.

Dated: March 20, 2018

/s/ Jennifer Chang Newell Jennifer Chang Newell

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CERTIFICATE OF SERVICE I hereby certify that on March 20, 2018, I electronically filed the foregoing with the Clerk for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. All participants in this case are registered CM/ECF users and will be served by the appellate CM/ECF system.

Dated: March 20, 2018

/s/ Jennifer Chang Newell Jennifer Chang Newell

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 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
________________
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs/Appellants,
v.
DEPARTMENT OF HOMELAND SECURITY, et al., Defendants/Appellees.
________________
On Appeal from the United States District Court for the Northern District Of California, Honorable William H. Alsup, Presiding _________________
BRIEF OF IMMIGRATION LAW SCHOLARS AS AMICI CURIAE IN SUPPORT OF APPELLEES THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA, JANET NAPOLITANO, AND THE CITY OF SAN JOSE ________________

Harry Lee Johanna S. Dennehy Claire M. Blakey STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 429-3000

Christopher W. Smith Counsel of Record STEPTOE & JOHNSON LLP 633 West 5th Street Suite 700 Los Angeles, CA 90071 (213) 439-9400

Attorneys for the Immigration Law Scholars

March 20, 2018

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TABLE OF CONTENTS INTEREST OF AMICI CURIAE..............................................................................1 INTRODUCTION AND............................................................................................2 SUMMARY OF ARGUMENT .................................................................................2 ARGUMENT .............................................................................................................3 I. THE HISTORY OF DEFERRED-ACTION POLICIES BOLSTERS THE
INHERENT LEGALITY OF THE 2012 DACA POLICY ................................3 II. IMPLEMENTATION OF THE 2012 DACA POLICY IS WELL WITHIN
THE EXECUTIVE’S POWER ...........................................................................9 A. DACA Is Clearly Constitutional ...................................................................9 B. DACA’s Issuance Was Otherwise Lawful..................................................13
1. The Executive Branch Is Vested with the Legal Authority to Devise Prosecutorial Discretion Policies like DACA........................................13
2. The DACA Policy Does Not Run Afoul of Any Aspect of ImmigrationRelated Statutes, Regulations, Court Decisions, or Other Policies .......17 a. DHS May Continue to Effectively Exercise Its Discretion as to each DACA Applicant or Recipient .........................................................17 b. DACA Does Not Displace an Existing Immigration Pathway for any Eligible Applicant .............................................................................23 c. DACA Is Not So Broad as to Effectively Replace or Nullify the Statutory Scheme for Undocumented Persons .................................24
CONCLUSION ........................................................................................................26 CERTIFICATE OF COMPLIANCE.......................................................................28
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TABLE OF AUTHORITIES
Page(s)
Cases
Arizona v. United States, 567 U.S. 387 (2012)........................................................................................8, 10
Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014), aff’d on other grounds, 797 F.3d 11 (D.C. Cir. 2015)...............................................................................12, 20
Arpaio v. Obama, 797 F. 3d 11 (D.C. Cir. 2015)...................................................................8, 13, 26
Casa De Md. v. U.S. Dep’t of Homeland Sec., Civil No. RWT-17-2942, 2018 WL 1156769 (D. Md., Mar. 5, 2018) ...............................................................................................................3, 26
Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015) ......................................................12, 22, 23, 25, 26
Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331 (11th Cir. 2003) ..........................................................................19
Heckler v. Chaney, 470 U.S. 821 (1985)..............................................................................................8
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)..............................................................................................8
Mistretta v. United States, 488 U.S. 361 (1989)............................................................................................13
Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979) ..............................................................................16
Pasquini v. Morris, 700 F.2d 658 (11th Cir. 1983) ............................................................................16
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Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)............................................................................................16
Romero-Torrez v. Ashcroft, 327 F.3d 887 (9th Cir. 2003) ..............................................................................19
Safe Air for Everyone v. EPA, 488 F.3d 1088 (9th Cir. 2007) ..............................................................................9
Soon Bok Yoon v. INS, 538 F.2d 1211 (5th Cir. 1976) ............................................................................16
Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d per curiam by an equally divided panel, United States v. Texas, 136 S. Ct. 2271 (2016) ..............12, 23, 25
Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015)..................................................................13
Constitutions U.S. CONST. art. II, § 3 .............................................................................................10
Statutes 5 U.S.C. § 706(2)(A)..............................................................................................3, 9 6 U.S.C. § 202(5) .....................................................................................................14 8 U.S.C. § 154(a)(1)(D)(i)(II,IV).............................................................................15 8 U.S.C. § 1103(a) ..............................................................................................6, 15 8 U.S.C. § 1227(d)(2)...........................................................................................6, 15 Consolidated Appropriations Act 2017, Pub. L. 115-31, Div. F, title
II, 131 Stat. 135, 406 (2017)...............................................................................14 Victims of Trafficking and Violence Protection Act of 2000, Pub. L.
No. 106-386, 114 Section 1503(d)(3) Stat. 1464, 1522 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV))...................................................................6
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Rules and Regulations
Fed. R. App. P. 29(a)(2).............................................................................................1
Fed. R. App. P. 29(a)(4)(E)........................................................................................1
8 C.F.R. § 274a.12(c)(14) ..........................................................................................7
INS, Operations Instructions, O.I. § 103.1(a)(1)(ii) ..................................................4
Legislative Materials
Hearing Before H. Comm. on the Judiciary, 114th Cong. 69 (2015) (written testimony of Stephen H. Legomsky, The John S. Lehmann University Professor, WashingtonUniversity School of Law) .............................. 4, 5, 7, 13-17, 19, 21
Letter from Members of Congress to Janet Reno, Attorney General, Department of Justice, on Guidelines for Use of Prosecutorial Discretion in Removal Proceedings (Nov. 4, 1999), http://www.ice.gov/doclib/foia/prosecutorialdiscretion/991104congress-letter.pdf; ..................................................................6
Agency Publications and Guidance
Donald Neufeld, Acting Assoc. Dir. of USCIS, Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children (Sept. 4, 2009).......................................................................................................5
Doris Meissner, Comm’r of INS, Exercising Prosecutorial Discretion (Nov. 17, 2000) .....................................................................................................4
Gene McNary, Comm’r of INS, Family Fairness: Guidelines for Voluntary Departure Under 8 CFR 242.5 (Feb. 2, 1990) ....................................5
John Morton, Dir., U.S. Immigration & Customs Enforcement, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens at 1 (Mar. 2, 2011), http:// www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf .................14
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John Morton, Dir., U.S. Immigration & Customs Enforcement, Policy No. 10075.1, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011), https://www.ice.gov/doclib/secure-communities/pdf/prosecutorialdiscretion-memo.pdf .............................................................................................4
Kate Manuel & Tom Garvey, Cong. Research Serv., Prosecutorial Discretion in Immigration Enforcement (Dec. 27, 2013), https://fas.org/sgp/crs/misc/R42924.pdf .............................................................10
Office of Legal Counsel, U.S. Dept. of Justice, 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 (Nov. 19, 2014).............................................................7
Paul W. Virtue, Acting Exec. Assoc. Comm’r of INS, Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues (May 6, 1997).............................................................................................5
Press Release, U.S. Citizenship & Immigration Servs., USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina (Nov. 25, 2005), https://www.uscis.gov/sites/default/files/files/pressrelease/F1Stude nt_11_25_05_PR.pdf ............................................................................................5
Sam Bernsen, Gen. Counsel of INS, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion (July 15, 1976), https://www.ice.gov/doclib/foia/prosecutorial-discretion/serviceexercise-pd.pdf ...................................................................................................... 4
USCIS, Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012-2014, http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports %20and%20Studies/Immigration%20Forms%20Data/All%20Form %20Types/DACA/DACA_fy2014_qtr4.pdf ......................................................20
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USCIS, Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012-2016, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports %20and%20Studies/Immigration%20Forms%20Data/All%20Form %20Types/DACA/daca_performancedata_fy2016_qtr3.pdf .............................21
Scholarly Works
Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 547 (2000) ..................................................10
Hiroshi Motomura, The President’s Dilemma: Executive Authority, Enforcement, and the Rule of Law in Immigration Law, 55 WASHBURN L.J. 1, 28 (2015) ........................................................................11, 17
Jennifer M. Chacón, Producing Liminal Legality, 92 DENVER L. R. 709, 727 (2015)...................................................................................................18
Leon Wildes, The Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of the Freedom of Information Act, 14 SAN DIEGO L. REV. 42 (1976)...........................4
Shoba Sivaprasad Wadhia, BEYOND DEPORTATION: THE ROLE OF PROSECUTORIAL DISCRETION ch. 4 (2015)............................................................4
Shoba Sivaprasad Wadhia, BEYOND DEPORTATION: THE ROLE OF PROSECUTORIAL DISCRETION IN IMMIGRATION CASES 107 (NYU Press 2015)..........................................................................................................11
Shoba Sivaprasad Wadhia, Demystifying Employment Authorization and Prosecutorial Discretion in Immigration Cases, 6 COLUM. J. RACE & LAW 1 (2016) ..........................................................................................7
Shoba Sivaprasad Wadhia, In Defense of Deferred Action and the DREAM Act, 91 TEXAS L. REV. 59 (2013) .................................................... 4, 11
Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 CONN. PUB. INT. L.J. 243, 268 (2010)........................... 4, 14
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Statements by Congressman Barney Frank, Symposium, Transcript of Panel Presentation on Immigration & Criminal Law Hosted by the Association of the Bar of the City of New York, 4 N.Y. CITY L. REV. 9 (2001) ........................................................................................................................7 Stephen Legomsky, Immigration Law and the Principle of Plenary
Congressional Power, 1984 SUPREME COURT REV. 255....................................10 Other Sources Brief for the United States, United States v. Texas, 136 S. Ct. 2271
(2016) (No. 15-674) (Mar. 1, 2016) .................................................................4, 8 Decl. of Donald W. Neufeld, Texas v. United States, 86 F. Supp. 3d
591 (S.D. Tex. 2015) (No. B-14-254), ECF No. 130 .........................................19 Elise Foley, Officials Refuse to Budge on Deportation of Students,
Families, The Huffington Post (June 1, 2011), http://www.huffingtonpost.com\2011\04\01\obama– administration–refu_1_in_843729.html .............................................................18
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INTEREST OF AMICI CURIAE1
Amici curiae are immigration law professors with deep knowledge regarding
the executive branch’s authority to issue policies such as Deferred Action for
Childhood Arrivals (“DACA”), the 2012 policy at issue in this appeal. Amici have
testified, lectured, researched, written, and advocated at length on immigration
issues, including the principal subject of this appeal: the President’s legal power to
craft immigration-related deferred-action policies. Amici do not seek to substitute
their views for those of this Court, but they do have unique insight into why
DACA is legal and hope their views will assist the Court in its consideration of this
important issue.
Amici are the following scholars, in alphabetical order:2
Jennifer M. Chacón, Chancellor’s Professor of Law, the University of California, Irvine, School of Law;
Kevin R. Johnson, Dean, the University of California, Davis, School of Law;
Dr. Stephen H. Legomsky, John S. Lehmann University Professor Emeritus at the Washington University School of Law in St. Louis;
1 Pursuant to Fed. R. App. P. 29(a)(4)(E), no parties’ counsel authored any part of this brief; no party or its counsel contributed money intended to fund its preparation or submission; and no other person contributed such money. Pursuant to Fed. R. App. P. 29(a)(2), all parties of record in Cases No. 18-15068 and 1815070—the U.S. Department of Homeland Security, the Regents of the University of California, Janet Napolitano, and the City of San Jose—have consented to the filing of this brief. 2 Amici join this brief as individuals. Their institutional affiliations are listed for informational purposes and do not signify any institutional endorsement.

Hiroshi Motomura, Susan Westerberg Prager Professor of Law at the UCLA School of Law; Michael A. Olivas, William B. Bates Distinguished Chair in Law, the University of Houston Law Center; Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar, Clinical Professor of Law, the Pennsylvania State Law School.
INTRODUCTION AND SUMMARY OF ARGUMENT The main rationale for the district court’s decision below is that DACA’s rescission by the U.S. Department of Homeland Security (“DHS”) was based on the false premise that the policy was illegal. DACA’s legality is therefore a central issue here. Amici offer a detailed analysis of why they believe the DACA policy was well within the executive’s lawful prosecutorial discretion. Because DHS’s stated premise for revoking DACA—illegality—is erroneous, appellees are highly likely to prevail on the merits of their claims. Accordingly, this Court should affirm the district court’s preliminary injunction and its partial denial of the government’s motion to dismiss. Amici’s brief outlines the history of immigration-related prosecutorial discretion, and deferred action in particular, and analyzes why DACA is both constitutional and otherwise consistent with the statutory and regulatory framework. In particular, this brief demonstrates that any constitutional attack on
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DACA, including arguments based on the Constitution’s “take Care” clause, would
certainly fail. It explains that the relevant immigration statutes and regulations
were written broadly so as to vest the executive with the legal authority to devise
prosecutorial discretion policies like DACA, and responds briefly to arguments
raised by critics regarding the legality of large-scale deferred action.
While these issues are partially addressed in the main briefs, the additional
appellate issues spawned by the government’s post hoc explanations for revoking
DACA have precluded appellees from offering a comprehensive analysis of
DACA’s historical and legal underpinnings. Amici respectfully seek to ensure that
the Court receives a full explanation of why DACA constitutes a legal exercise of the executive’s discretion.3
ARGUMENT
I. THE HISTORY OF DEFERRED-ACTION POLICIES BOLSTERS THE INHERENT LEGALITY OF THE 2012 DACA POLICY Deferred action (previously known as “non-priority status”) and similar
policies have been integral parts of immigration enforcement for more than fifty
3 DACA’s legality can all too easily be lost in the litigation haze. In Casa De Maryland v. U.S. Department of Homeland Security, Civil No. RWT-17-2942, 2018 WL 1156769 (D. Md., Mar. 5, 2018), the only district court that has refused to enjoin DACA’s revocation did so “regardless of the lawfulness of DACA,” reasoning that the government’s conclusion that DACA is unlawful was “reasonable,” even if it was “wrong.” Id. at *5. By ignoring Congress’ mandate that the judiciary review and correct administrative decisions premised on clear mistakes of law, 5 U.S.C. § 706(2)(A), the district court mooted the central issue— DACA’s legality.
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years.4 Since 1960, the Immigration and Naturalization Service (“INS”) and its
successor, DHS, have adopted at least twenty policies reflecting the use of
prosecutorial discretion with respect to large, defined categories of undocumented
immigrants.5 INS published its first deferred-action guidance in an “Operations
Instruction” more than 40 years ago, and such policies have thereafter been
memorialized in numerous agency guidance documents.6
4 Amici have tracked and catalogued these historical policies. See, e.g., Hearing Before H. Comm. on the Judiciary, 114th Cong. 69 (2015) (written testimony of Stephen H. Legomsky, The John S. Lehmann University Professor, Washington University School of Law) (hereinafter “Legomsky Written Testimony”); Shoba Sivaprasad Wadhia, BEYOND DEPORTATION: THE ROLE OF PROSECUTORIAL DISCRETION ch. 4 (2015); Wadhia, In Defense of Deferred Action and the DREAM Act, 91 TEXAS L. REV. 59 (2013); Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 CONN. PUB. INTEREST L.J. 243 (2010); see also Leon Wildes, The Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of the Freedom of Information Act, 14 SAN DIEGO L. REV. 42 (1976). 5 See Brief for the United States at 48, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674) (Mar. 1, 2016). 6 See Immigration and Naturalization Service, Operations Instructions, O.I. § 103.1(a)(1)(ii); Sam Bernsen, Gen. Counsel of INS, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion (July 15, 1976), https://www.ice.gov/doclib/foia/prosecutorial-discretion/service-exercise-pd.pdf; Doris Meissner, Comm’r of INS, Exercising Prosecutorial Discretion (Nov. 17, 2000); John Morton, Dir., U.S. Immigration & Customs Enforcement, Policy No. 10075.1, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011), https://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretionmemo.pdf.
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Deferred-action policies have been issued by administrations led by both
major parties. Ronald Reagan and George H.W. Bush, for instance, sought to
defer deportations of approximately 1.5 million non-citizen spouses and children of
immigrants (expected at the time to affect 40% of the undocumented immigrant
population) under the Immigration Reform and Control Act (IRCA) of 1986.7
Under Bill Clinton, the INS established a deferred-action program for survivors of
abuse by U.S.-citizen spouses.8 George W. Bush’s administration instituted a
deferred-action policy for foreign students affected by Hurricane Katrina.9 In
2009, the Obama administration implemented deferred action for widows and
widowers whose visa applications had not been adjudicated when their U.S.-citizen
spouses died.10
The use of deferred action as an enforcement tool is not only long-standing;
it is now firmly entrenched in the constitutional, statutory, and regulatory
7 See Gene McNary, Comm’r of INS, Family Fairness: Guidelines for Voluntary Departure Under 8 CFR 242.5 at 1–2 (Feb. 2, 1990); see also Legomsky Written Testimony at 83–85. 8 See Paul W. Virtue, Acting Exec. Assoc. Comm’r of INS, Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues (May 6, 1997). 9 See Press Release, USCIS, USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina (Nov. 25, 2005), https://www.uscis.gov/sites/default/files/files/pressrelease/F1Student_11_25_05_P R.pdf. 10 See Donald Neufeld, Acting Assoc. Dir. of USCIS, Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children (Sept. 4, 2009).
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framework governing immigration. Congress has effectively delegated to DHS
(and INS before that) the power and authority to make prosecutorial discretion
decisions.11 Notably, Congress has used the term “deferred action” in immigration
legislation for the past several decades, including in Section 237(d)(2) of the
Immigration and Nationality Act (INA) (codified at 8 U.S.C. § 1227(d)(2)), which
provides that the denial of a request for an administrative stay of an order of
removal “shall not preclude the alien from applying for . . . deferred action,” and in
Section 1503(d)(3) of the Victims of Trafficking and Violence Protection Act of
2000, Pub. L. No. 106-386, 114 Stat. 1464, 1522 (codified at 8 U.S.C. §
1154(a)(1)(D)(i)(II), (IV)), which makes certain covered immigrants “eligible for
deferred action and work authorization.” Reflecting the degree to which Congress
acknowledges the executive’s long-standing power to employ deferred-action
policies, Congress has on several occasions openly faulted the executive for not
using the discretion Congress gave it under the immigration laws.12
11 See 8 U.S.C. § 1103(a)(1) (charging the Secretary “with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens”). 12 See, e.g., Letter from Members of Congress to Janet Reno, Attorney General, Department of Justice, on Guidelines for Use of Prosecutorial Discretion in Removal Proceedings (Nov. 4, 1999), http://www.ice.gov/doclib/foia/prosecutorial-discretion/991104congress-letter.pdf; Statements by Congressman Barney Frank, Symposium, Transcript of Panel Presentation on Immigration & Criminal Law Hosted by the Association of the Bar of the City of New York, 4 N.Y. CITY L. REV. 9, 29–36 (2001) (criticizing the INS for not exercising prosecutorial discretion in its removal decisions in the wake of
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The long-accepted use of deferred action as an enforcement tool is also
embedded in INA’s implementing regulations. For example, regulations in place
since 1981 have recognized deferred action as “an act of administrative
convenience to the government which gives some cases lower priority” and direct
undocumented immigrants “who ha[ve] been granted deferred action” to apply for
employment authorization upon a showing of “economic necessity.” 8 C.F.R.
§ 274a.12(c)(14). Thousands of deferred-action recipients have applied for and received employment authorization pursuant to this regulation.13 Thus, as the
Office of Legal Counsel recognized in 2014, “Congress has long been aware of the
practice of granting deferred action, including in its categorical variety” and “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.”14 DACA, therefore, is not a
deviation, let alone a radical departure from immigration-related statutes,
regulations, or discretionary immigration practices of previous administrations.
Congress’ passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996). 13 See, e.g., Legomsky Written Testimony at 76–78; Shoba Sivaprasad Wadhia, Demystifying Employment Authorization and Prosecutorial Discretion in Immigration Cases, 6 COLUM. J. RACE & LAW 1 (2016). 14 Office of Legal Counsel, U.S. Dept. of Justice, 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 (Nov. 19, 2014).
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To the contrary, and as the government admits, DACA has “deep historical roots.”15
Prior to DACA’s issuance, no case had ever been brought challenging the executive’s consistent use of deferred action for many decades. Over this same lengthy period, the courts repeatedly confirmed the executive’s lawful right and need to employ prosecutorial discretion policies in various contexts, including immigration. See, e.g., Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“This 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”); cf. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (describing immigration as a “field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program”). The Supreme Court recently re-affirmed that “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona v. United States, 567 U.S. 387, 396 (2012). Moreover, at least one Circuit has recognized that DACA itself constitutes an authorized exercise of such discretion. See Arpaio v. Obama, 797 F. 3d 11, 16 (D.C. Cir. 2015) (“With enforcement responsibility comes the latitude that all executive branch agencies enjoy to exercise enforcement discretion . . . . 15 Brief for the United States at 16, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674) (Mar. 1, 2016).
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Whether to initiate removal proceedings and whether to grant relief from deportation are among the discretionary decisions the immigration laws assign to the executive.”). II. IMPLEMENTATION OF THE 2012 DACA POLICY IS WELL
WITHIN THE EXECUTIVE’S POWER Executive action is subject to review and reversal if it is “not in accordance with law.” 5 U.S.C. § 706(2)(A). Actions based on clearly incorrect views of the law are considered “arbitrary and capricious,” and thus an improper exercise of agency authority. See Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007). The district court’s preliminary injunction is based, in part, on its finding that DHS’s decision to revoke DACA was “not in accordance with law,” and therefore arbitrary and capricious when made, because it was premised on the Acting Secretary’s finding that DACA is both unconstitutional and otherwise unlawful. This conclusion is inconsistent not only with the historical acceptance of the executive’s power to use deferred-action policies on a categorical basis, but also with the statutory framework and legal precedent approving the executive’s right to issue such policies. A. DACA Is Clearly Constitutional DHS made a clear mistake of law when it premised its revocation decision on the view that DACA is unconstitutional. The main constitutional challenge to date is that because the President must “take Care that the Laws be faithfully
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executed,” U.S. CONST. art. II, § 3, his willingness to temporarily defer pursuit and
deportation of successful DACA applicants constitutes a failure to “execute” the
immigration laws. The Supreme Court has never struck down a deferred-action policy based on the “take Care” clause.16 It would be irrational to do so given the
wide historical and current latitude afforded the exercise of discretion in
immigration enforcement, see Arizona, 567 U.S. at 396, especially since constitutional challenges are highly disfavored in the immigration arena.17
In addition, a constitutional challenge to a deferred-action policy such as
DACA cannot succeed given that the law requires the President, as “prosecutor-in-
chief” for the immigration enforcement system, to make the hard choices necessary
to properly “administer systematic enforcement in the huge gap between the
unauthorized population of over eleven million and the annual enforcement
16 See Kate Manuel & Tom Garvey, Cong. Research Serv., Prosecutorial Discretion in Immigration Enforcement at 17 (Dec. 27, 2013), https://fas.org/sgp/crs/misc/R42924.pdf. 17 See Stephen Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 SUPREME COURT REV. 255, 285 (“[T]he Court perceives the judicial role as especially narrow when, as the Court assumes to be the case with immigration, foreign affairs are affected.”); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 547 (2000) (“Courts should only rarely, if ever, and in limited fashion, entertain constitutional challenges to decisions about which aliens should be admitted or expelled.”).
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capacity of [a small percentage] of that figure.”18 The President’s “faithful
execution of the immigration laws” therefore “includes prioritizing the deportable
population in a cost-effective and conscientious manner and providing benefits to the deportable citizens when they qualify” under other laws.19 Critically, as “[p]art
of taking care faithfully to execute the immigration laws,” the executive is not only
obligated to adopt “an enforcement system that maximizes predictability and uniformity,” but also fashion one that “minimizes discrimination.”20
Maximizing predictability and uniformity and minimizing discrimination are
precisely what DACA accomplishes. It publicizes application criteria that reduce
the likelihood of discrimination or enforcement without accountability, including
by DHS personnel. The need to formalize and centrally supervise the process of
exercising prosecutorial discretion was especially pressing in light of significant
resistance within Immigration and Customs Enforcement (ICE) to the prosecutorial
discretion guidelines issued by then-Director John Morton in June 2011. DACA
makes only those persons whose applications are actually granted eligible for
18 Hiroshi Motomura, The President’s Dilemma: Executive Authority, Enforcement, and the Rule of Law in Immigration Law, 55 WASHBURN L.J. 1, 28 (2015) (hereinafter “President’s Dilemma”). 19 Shoba Sivaprasad Wadhia, BEYOND DEPORTATION: THE ROLE OF PROSECUTORIAL DISCRETION IN IMMIGRATION CASES 107 (NYU Press 2015); see also Wadhia, In Defense of DACA, Deferred Action, and the DREAM Act, 91 TEX. L.R. 59, 62–63 (2013). 20 Motomura, President’s Dilemma, at 28.
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benefits allowed by other statutes; and it maintains individualized discretion in all cases so that no particular deferral jeopardizes any legitimate removal priorities, thereby efficiently satisfying the executive’s obligation to enforce all laws. This is exactly what the Constitution requires.
In light of the Acting Secretary’s official legal reasons for revoking DACA, it is surprising that the government’s brief makes absolutely no effort to demonstrate that DACA is unconstitutional. The government’s abandoned argument is consistent with the administrative record, which lacks any legal support for DHS’s determination. This is not surprising. Like the district court here, no court has approved a constitutional challenge to DACA or suggested that such a challenge would succeed. See Arpaio v. Obama, 27 F. Supp. 3d 185, 209– 10 (D.D.C. 2014), aff’d on other grounds, 797 F.3d 11 (D.C. Cir. 2015) (rejecting constitutional attack on DACA); Crane v. Johnson, 783 F.3d 244, 251–55 (5th Cir. 2015) (dismissing on standing grounds plaintiff’s claim that DACA is unconstitutional). In fact, the lone case on which the Acting Secretary relied to find DACA unconstitutional never reached the issue. Texas v. United States, 809 F.3d 134, 178–86 (5th Cir. 2015), aff’d per curiam by an equally divided panel, United States v. Texas, 136 S. Ct. 2271 (2016) (hereinafter “Texas II”).21
21 The Arpaio and Texas II plaintiffs also asserted challenges based on versions of the “non-delegation” doctrine. The Arpaio district court rejected this argument. See 27 F. Supp. 3d at 209–10 (explaining that DACA’s “meaningful case-by-case
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B. DACA’s Issuance Was Otherwise Lawful
1. The Executive Branch Is Vested with the Legal Authority to Devise Prosecutorial Discretion Policies like DACA
As discussed above, “[p]rosecutorial discretion is a long-established, and
unavoidable, practice in every area of law enforcement today, both civil and
criminal.”22 When an enforcement agency has the resources to pursue only a small
fraction of those who may be violating the law, it must make choices. In the
immigration context, Congress gives the executive only enough funding to pursue
a tiny portion of the undocumented population.23 There are approximately 11
million undocumented immigrants living in the United States, yet Congress
appropriates funds that allow executive agencies to remove only 400,000 per
review” prevented the “large class-based program” from being “push[ed] . . . over the line from the faithful execution of the law to the unconstitutional rewriting of the law). And the Texas II district court did not reach the issue. See Texas v. United States, 86 F. Supp. 3d 591, 645–46, 677 (S.D. Tex. 2015). It would be entirely unreasonable for anyone reviewing DACA to believe that the nondelegation doctrine could apply here, given the Supreme Court’s most recent pronouncement on the doctrine in modern society: “Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” Mistretta v. United States, 488 U.S. 361, 372–73 (1989) (internal citations and quotation marks omitted). DACA easily meets this test. 22 Legomsky Written Testimony at 63. 23 See, e.g., Consolidated Appropriations Act 2017, Pub. L. 115-31, Div. F, title II, 131 Stat. 135, 406 (2017); Consolidated Appropriations Act 2016, Pub. L. 114113, Div. F, title II, 129 Stat. 2242, 2495 (2015).
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year—less than 4% of that population.24 DHS spends all of the money
appropriated to it every year in order to remove this small percentage, and thus it
must decide within its broad discretion which people are the highest removal
priorities—and which people are not.25
Given that this underfunding situation is one of Congress’ own making, it
cannot possibly be argued that the executive is invading Congress’ province when
it exercises the prosecutorial discretion embodied by DACA. Because 6 U.S.C. §
202(5) expressly makes DHS “responsible” for “establishing national immigration
enforcement policies and priorities,” Congress has for all intents and purposes
decided that the executive must decide who to defer removing and how to
accomplish that deferral. See also 8 U.S.C. § 1103(a)(1) (charging the Secretary
“with the administration and enforcement of this chapter and all other laws relating
to the immigration and naturalization of aliens”). Congress’ intent is further
24 See John Morton, Dir., U.S. Immigration & Customs Enforcement, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens at 1 (Mar. 2, 2011), http:// www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf, superseded by Jeh Charles Johnson, Sec’y of Homeland Security, Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial _discretion.pdf. 25 See Legomsky Written Testimony at 63; Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 CONN. PUB. INT. L.J. 243, 268 (2010) (explaining that a just response to limited federal resources for immigration enforcement is to prioritize the removal of bad actors and, conversely, make the removal of noncitizens with desirable qualities a lower priority).
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confirmed by 8 U.S.C. § 1103(a)(3), which requires the Secretary to, among other
things, “issue such instructions; and perform such other acts as he deems necessary
for carrying out his authority under the provisions of this Act.”26 Indeed, despite
numerous amendments to the INA and annual appropriations acts for the agencies
responsible for administering and enforcing federal immigration laws, Congress
has never curtailed the executive’s use of deferred action over the almost 50 years
it has been employed.
There is no legal authority that suggests it is unlawful for an agency to
provide general criteria to guide the evaluation of individual immigration cases. In
fact, the courts have consistently recognized the executive’s broad discretion to
implement deferred action by announcing general categorical criteria.27 A series of
decisions, including at least one Supreme Court opinion, explicitly recognize
deferred action and note Congress’ endorsement of its use and administration by
26 See also 8 U.S.C. § 1227(d)(2) and 8 U.S.C. § 154(a)(1)(D)(i)(II,IV)). Some have argued that Congress’ explicit recognition of deferred action in these provisions indicates that it meant to prohibit deferred action in all other circumstances. It is inconceivable that Congress would abolish virtually an entire administrative practice by vague inference, particularly given that deferred action has been so explicitly and frequently recognized in statutes, regulations, and court decisions. Had Congress intended to take such a radical action, there would surely have been some mention of the issue in the legislative history, if not a record of the ensuing heated debate. This is not the case. See Legomsky Written Testimony at 69. 27 See, e.g., Pasquini v. Morris, 700 F.2d 658, 661 (11th Cir. 1983); Nicholas v. INS, 590 F.2d 802, 806–807 (9th Cir. 1979); Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 483–84 (1999).
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the executive.28 Justice Scalia, writing on behalf of eight Supreme Court Justices,
described with approval the broad scope of the President’s discretion to grant
deferred action: “at the time IIRIRA was enacted 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.” Reno
v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84 (1999).29
In short, “[t]he legal authority to exercise prosecutorial discretion comes
with the authority—indeed, the obligation—to adopt a system that justifies
confidence that decisions will be consistent, predictable, and nondiscriminatory.
Designing and implementing such a system may need to rely heavily on categories,
even if no applicant who fits into them will receive a DACA approval
28 See Legomsky Written Testimony at 68 (citing, as further examples, Reno, 525 U.S. at 483–84; Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987); Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985); Pasquini, 700 F.2d at 661; Nicholas, 590 F.2d at 802; David v. INS, 548 F.2d 219, 223 (8th Cir. 1977); Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976); Vergel v. INS, 536 F.2d 755 (8th Cir. 1976)). 29 See Legomsky Written Testimony at 68. Professor Legomsky describes at length the decisions of other courts expressing this same view of broad executive branch discretion to grant deferred action, including: Pasquini, 700 F.2d at 662 (granting or withholding deferred action “is firmly within the discretion of the INS” and therefore can be granted or withheld “as [the relevant official] sees fit, in accord with the abuse of discretion rule when any of the [then] five determining conditions is present”), and Soon Bok Yoon, 538 F.2d at 1213 (“The decision to grant or withhold nonpriority status [the former name for deferred action] therefore lies within the particular discretion of the INS”).
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automatically. Without such categories, high-level federal officials cannot exercise meaningful supervision.”30
2. The DACA Policy Does Not Run Afoul of Any Aspect of Immigration-Related Statutes, Regulations, Court Decisions, or Other Policies
a. DHS May Continue to Effectively Exercise Its Discretion as to each DACA Applicant or Recipient
As Professor Stephen Legomsky has observed, “[p]erhaps the critics’ most frequent [anti-DACA] argument . . . is that deferred action is legal when granted on an individual, case-by-case basis but illegal when granted to an entire class.”31 This theory appears to arise from the notion that large-scale deferred-action policies involve an “abdication” of the executive’s responsibility to enforce the law as written. Even if these critics could point to a statute or regulation that prohibited a group-based discretion policy—and they cannot—the simple fact is that the 2012 DACA Memorandum expressly calls for the individualized, case-bycase, discretionary evaluations on which these critics insist.32
DACA’s inclusion of case-by-case discretion is not an accident. ThenSecretary Napolitano drafted the DACA policy to explicitly require DHS adjudicators to exercise individualized discretion consistent with the
30 Motomura, President’s Dilemma, at 26. 31 Legomsky Written Testimony at 69. 32 See id.
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administration’s stated view that there were not “whole categories that we will, by
Executive Fiat, exempt from the current immigration system, as sympathetic as we feel towards them.”33 Under DACA, if young people meet certain criteria relating
to their residence in the United States, age at arrival, education, and good behavior,
they are eligible for an individualized assessment, but the discretionary grant of temporary relief is only a possible outcome—it is not guaranteed.34
DACA’s initial eligibility criteria also explicitly preclude approval of
applicants who pose a threat to national security or public safety, which itself
requires an exercise of individualized discretion. Whether an applicant endangers
the public safety is not simply a matter of looking to see if a box is “checked.”
Assessing the likelihood that an individual may cause harm, and the severity of
that harm, necessitates the use of subjective judgment. The same is true when deciding whether an applicant is a threat to national security.35 Courts have found
that similar determinations of “exceptional and extremely unusual hardship,” a
statutory prerequisite for cancellation of removal, are discretionary and therefore
33 Elise Foley, Officials Refuse to Budge on Deportation of Students, Families, The Huffington Post (June 1, 2011), http://www.huffingtonpost.com\2011\04\01\obama–administration– refu_1_in_843729.html. 34 Indeed, Professor Chacón has documented thoroughly the extensive social and legal costs to DACA recipients from living in a state of “liminal legality.” See Jennifer M. Chacón, Producing Liminal Legality, 92 DENVER L. R. 709, 727 (2015). 35 See Legomsky Written Testimony at 73.
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lawful. See, e.g., Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332–33 (11th Cir. 2003); Romero-Torrez v. Ashcroft, 327 F.3d 887, 889–92 (9th Cir. 2003).36
The record developed in Texas II—the case DHS emphasized in its revocation decision—reflects that the agency in fact exercises its discretion when reviewing DACA applications. As of December 5, 2014, 36,860 requests for deferred action under the DACA Policy had been denied on the merits (in addition to those that were rejected for such reasons as failure to enclose the required fee, sign the application, etc).37 The government also provided a number of examples of applications denied on discretionary grounds, even though the applicants met all of the threshold criteria—not even counting those denials that were based on the discretion inherent in some of the threshold criteria themselves, such as not posing a threat to public safety.38
The federal district court for the District of Columbia has specifically rejected the claim that DHS personnel are not evaluating the facts of each individual case when applying DACA. See Arpaio, 27 F. Supp. 3d 185. The court found not only that the DACA policy “retain[s] provisions for meaningful case-by-
36 See Legomsky Written Testimony at 73. 37 See Decl. of Donald W. Neufeld ¶ 23, Texas, 86 F. Supp. 3d at 591 (No. B-14254), ECF No. 130 att. 11. 38 See id. ¶ 18.
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case review,” but also that “[s]tatistics provided by the defendants reflect that such case-by-case review is in operation.” Id. at 209. The court specifically noted the unrebutted statistics referenced above—that through 2014, more than 38,000 DACA applications were denied on the merits. See id. at 209 n.13.
The suggestion that no discretion is being exercised because DACA applicants are accepted at a relatively high rate (95%)39 is unfounded. A high acceptance rate is the natural result of self-selected candidates—young people who were willing to spend the time to complete the detailed application, gather the necessary documentation, and pay the relatively high application fee because, based on the published eligibility criteria and discretionary factors, they could judge beforehand whether they were likely to be approved. The other side of the coin is that there were good reasons for undocumented persons with less-thanperfect backgrounds, including those who might be perceived, fairly or unfairly, as posing a risk to society, to avoid undertaking the application process at all. Primary among those reasons was at least the risk—despite contrary representations by DHS—that if their applications were rejected, they would be immediately detained and removed because they had disclosed all of their personal
39 See USCIS, Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012-2014, http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Stu dies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/DACA_fy20 14_qtr4.pdf.
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information during the application process. By absenting themselves from the
application process altogether (even though they might have been successful), they increased the acceptance rate.40 As Professor Legomsky succinctly concludes: “A
denial rate of 5%, therefore, provides no legitimate basis for the belief that DACA
requests are being rubber-stamped; to the contrary, it shows that thousands of denials occur even among this highly self-selected group.”41
In any event, the initially high approval rates cited and relied on by the Fifth Circuit in Texas II no longer exist. Approval rates have dropped markedly.42 This
trend demonstrates that discretion is being applied to a pool of applicants with
somewhat less-than-perfect attributes, and there may now be more legitimate
reasons to exercise negative discretion. In other words, DACA’s deferred-action
plan is working. Without running afoul of statutory requirements, DHS is using
limited resources to prioritize undocumented persons who should be detained and
removed now with the funds available, while deferring the removal of those for
which such action is not a high priority.
40 See Legomsky Written Testimony at 72 n.10. 41 Id. 42 See USCIS, Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012-2016 (June 30), https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Stu dies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_perfor mancedata_fy2016_qtr3.pdf.
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The Fifth Circuit’s decision in Crane v. Johnson confirms that DACA’s individualized discretion fully comports with the existing procedural and substantive statutory framework. In Crane, the district court considered ICE agents’ claims that applying the DACA policy put their jobs at risk because, in part, they would be prevented from “detaining eligible aliens for the purpose of commencing removal proceedings” and thereby be subjected to adverse employment actions. 783 F.3d at 249. After conducting an evidentiary hearing, the district court dismissed their claims for lack of subject matter jurisdiction because the agents had not demonstrated concrete, particularized, and actual or imminent injury. See id. at 251 (citing Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)). The Fifth Circuit affirmed the district court’s decision, explaining that the individualized discretion embedded in DACA exposes the “fundamental flaw” in the argument that DACA is an illegal, top-down directive that forced the agents to “rubber stamp” applications:
The Agents’ reading of the [DACA] Directive—that they are always required to grant deferred action and cannot detain an alien who may meet the Directive’s criteria—is erroneous. The [DACA] Directive makes clear that the Agents shall exercise discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis . . . . Id. at 254–55 (emphasis added). Given DACA’s plain and unequivocal direction that agency personnel must exercise individualized discretion, coupled with the lack of any employment sanctions (real or threatened), the Fifth Circuit held that
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the agents had failed to establish any injury as a matter of law. See id. at 255. Crane, in other words, confirms that individualized discretion is an unmistakable part of the DACA policy.
b. DACA Does Not Displace an Existing Immigration Pathway for any Eligible Applicant
The Attorney General and the Acting Secretary both suggested that the Fifth Circuit’s decision in Texas II establishes DACA’s illegality. But DACA lacks the key feature that motivated the Fifth Circuit to find that Congress did not give DHS the authority to enact DAPA—the fact that the INA had already addressed the same, specific class of immigrants that DAPA sought to benefit. The Fifth Circuit viewed DAPA as treading on an existing, congressionally-mandated pathway for undocumented parents of citizens to achieve a status that would allow them to live in the United States without fear of imminent deportation. The court explained this “intricate process” for obtaining “lawful immigration classification” from a child’s immigration status:
In general, an applicant must (i) have a U.S. citizen child who is at least twenty-one years old, (ii) leave the United States, (iii) wait ten years, and then (iv) obtain one of the limited number of familypreference visas from a United States consulate. 809 F.3d at 179–80. Although the Fifth Circuit recognized that “DAPA does not confer the full panoply of benefits that a visa gives,” it would allow undocumented immigrants to “receive the benefits of lawful presence solely on account of their
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children’s immigration status without complying with any of the requirements . . .
that Congress has deliberately imposed.” Id.
By contrast, no law presently creates a specific process for the class of
persons eligible to apply for DACA to derive a lawful immigration classification. Thus, even accepting the Fifth Circuit’s erroneous43 premise that Congress had
already spoken to the issue of how to handle immigration issues relating to the
class of DAPA applicants, the same cannot be said for DACA. For this reason, Texas II cannot be seen as controlling the legality of DACA.44
c. DACA Is Not So Broad as to Effectively Replace or Nullify the Statutory Scheme for Undocumented Persons
Finally, to the extent the Texas II court was unwilling to infer that Congress
had delegated to DHS the power to adopt DAPA—“a policy decision of such
economic and political magnitude,” 809 F.3d at 181—the same concern is not
present here. Unlike the unchallenged deferred-action policies of Ronald Reagan
and George H.W. Bush, which were intended to affect 1.5 million non-citizen
spouses and children of immigrants—approximately 40% of the estimated
43 That Congress had already specified the criteria for lawful permanent resident status does not mean Congress had prescribed equally stringent criteria for the farmore-minimal protection of deferred action. 44 In addition, Texas II was not decided on the merits and is not binding on this court due to the decision’s per curiam affirmance by an equally divided Supreme Court.
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undocumented population at that time—the number of applicants approved under the DACA policy is less than 10% percent of the current undocumented population.45 Moreover, as the record in this case reflects, the impact of DACA on the immigration system as a whole has not been significant (and certainly not negative), and is unlikely to be significant in the future.
The Fifth Circuit’s own Crane decision reveals the illogic of any argument that DACA has had or will have a broad, negative economic or political impact. In Crane, the district court considered the State of Mississippi’s claim that it was injured, and thus had standing to sue, because DACA was “costing the state money.” 783 F.3d at 252. The district court rejected this argument based on the evidence submitted, because it failed to prove that DACA, as distinct from illegal immigration generally, cost the state anything. The Fifth Circuit affirmed, observing that DACA likely lessens any financial impact on a state:
It could be that the reallocation of DHS’s assets [due to DACA] is resulting in the removal of immigrants that impose a greater financial burden on the state. If this is true, the net effect would be a reduction in the fiscal burden on the state. Id. (emphasis added). The D.C. Circuit went further in Arpaio, finding that the likelihood DACA would reduce crime and lower costs was “so convincing” that the contrary assertions made by the plaintiff, an Arizona sheriff, were literally “im plausible.” 797 F.3d at 25 (internal quotation marks omitted). Consistent with 45 See, e.g., Legomsky Written Testimony at 84–85.
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Crane and Arpaio, the district court here found that there is no evidence to support a finding that DACA will have a pervasive, negative impact. Absent contrary evidence in the administrative record, these findings preclude any ability to use DACA’s effects—which appear to be quite positive—as a basis to declare it “unlawful.”
CONCLUSION Would the world’s beacon of freedom—a nation founded by immigrants—cast out an immigrant population that was likely brought here without choice and who likely knows no other home? While ‘no’ would seem to be the obvious answer, ordinary logic has eluded our Congress.46 Congress’ inability to legislate a comprehensive answer to this question for more than a decade does not mean that in 2012, the President was precluded from implementing a large-scale deferred-action policy, particularly where that policy is subject to express, individualized discretion to detain and remove any undocumented persons immigration agents so choose. Issuance of the DACA policy was not only authorized; it made good sense given limited resources, the consequent need to prioritize removals, and the benefits of temporary work authorization for those who are highly unlikely to be removed in the near future. Any decision to revoke DACA now because it is unconstitutional or otherwise
46 Casa de Md., 2018 WL 1156769, at *2. -26-

“unlawful” is erroneous as a matter of law. This Court should therefore affirm the

district court’s preliminary injunction, as well as the district court’s denial of the

government’s motion to dismiss.

Harry Lee Johanna S. Dennehy Claire M. Blakey STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 429-3000

Respectfully submitted,
/s/ Christopher W. Smith
Christopher W. Smith Counsel of Record STEPTOE & JOHNSON LLP 633 West 5th Street Suite 700 Los Angeles, CA 90071 (213) 439-9400

Attorneys for the Immigration Law Scholars

March 20, 2018

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CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 29(a)(3)(G), the undersigned hereby certifies that this brief complies with the required type-volume limitations, in that it has been filed by separately represented parties, is prepared with proportionately spaced serif type (Times New Roman), has type face of 14 points, and, according to the word-processing system used to prepare the brief, contains 6,440 words, exclusive of the items set forth in Fed. R. App. P. 32(f). Dated: March 20, 2018
/s/ Christopher W. Smith
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CERTIFICATE OF SERVICE I certify that on March 20, 2018, I electronically filed of the foregoing document with the clerk of the court of the United States Court of Appeals for the ninth circuit by using the appellate CM/ECF system. I certify that all participants in this case or registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Dated: March 20, 2018
/s/ Christopher W. Smith
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 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellants. __________________________
On Appeal from the United States District Court for the Northern District of California __________________________
BRIEF OF THE INSTITUTE FOR POLICY INTEGRITY AT NEW YORK UNIVERSITY SCHOOL OF LAW AS AMICUS
CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES’ PRINCIPAL AND RESPONSE BRIEFS __________________________
Richard L. Revesz Jack Lienke Avi Zevin (admitted in California) INSTITUTE FOR POLICY INTEGRITY 139 MacDougal Street, Third Floor New York, NY 10012 (212) 992-8932 Counsel for Amicus Curiae Institute for Policy Integrity

RULE 26.1 DISCLOSURE STATEMENT The Institute for Policy Integrity (Policy Integrity)1 is a nonpartisan, not-forprofit think tank at New York University School of Law.2 No publicly-held entity owns an interest of more than ten percent in Policy Integrity. Policy Integrity does not have any members who have issued shares or debt securities to the public.
1 Under Federal Rule of Appellate Procedure 29(a)(4)(E), the Institute for Policy Integrity states that no party’s counsel authored this brief in whole or in part, and no party or party’s counsel contributed money intended to fund the preparation or submission of this brief. No person—other than the amicus curiae, its members, or its counsel—contributed money intended to fund the preparation or submission of this brief. 2 This brief does not purport to represent the views of New York University School of Law, if any.
i

TABLE OF CONTENTS
RULE 26.1 DISCLOSURE STATEMENT............................................................... i TABLE OF AUTHORITIES ................................................................................... iii INTEREST OF AMICUS CURIAE ..........................................................................1 SUMMARY OF ARGUMENT .................................................................................3 ARGUMENT .............................................................................................................6
I. DHS Failed to Properly Assess the Risk of an Injunction................................8 A. DHS Could Not Reasonably Conclude That an Injunction Would Be “Very Likely” .............................................................................................9 B. DHS Could Not Reasonably Conclude That an Injunction Would Require an Immediate Halt to DACA....................................................................13
II. DHS Failed to Weigh the Benefits of Avoiding an Injunction Against the Costs of Voluntary Rescission ........................................................................16 A. DHS Failed to Consider the Benefits of DACA That Would Be Forgone by Rescission ............................................................................................17 B. DHS Failed to Consider the Reliance Interests Engendered by DACA ..20
CONCLUSION ........................................................................................................24
ii

TABLE OF AUTHORITIES

Cases

Page(s)

Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987)............................................................................................10

Bhd. of Locomotive Eng’rs v. Missouri-Kansas-Texas R. Co., 363 U.S. 528 (1960)..............................................................................................14

California v. U.S. Bureau of Land Mgmt., 277 F. Supp. 3d 1106 (N.D. Cal. 2017)..................................................................2

California v. U.S. Bureau of Land Mgmt., No.17-cv-7186, 2018 WL 1014644 (N.D. Cal. Feb. 22, 2018)..............................3

Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008)........................................................................ 17, 21

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).................................................................................... 20-22

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)........................................................................ 6, 15, 17, 20-22

Hecht Co. v. Bowles, 321 U.S. 321 (1944)..............................................................................................13

Int’l Bhd. of Teamsters Airline Div. v. Frontier Airlines, Inc., 628 F.3d 402 (7th Cir. 2010) ................................................................................14

League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755 (9th Cir. 2014) ................................................................................11

Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544 (D.C. Cir. 2015)..............................................................................15

iii

TABLE OF AUTHORITIES (cont.)

Cases (cont.)

Page(s)

Michigan v. EPA, 135 S. Ct. 2699 (2015).................................................................................... 8, 16

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)....................................................................................... 6, 9, 13

N. Cheyenne Tribe v. Norton, 503 F.3d 836 (9th Cir. 2007)................................................................................14

Open Cmtys. Alliance v. Carson, No. 17-cv-2192, 2017 WL 6558502 (D.D.C. Dec. 23, 2017) ................................3

Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) ..................................................................................9

McKinney ex rel. NLRB v. Creative Vision Res., L.L.C., 783 F.3d 293 (5th Cir. 2015) ...............................................................................14
Sierra Club v. Sigler, 695 F.2d 957 (5th Cir. 1983) ................................................................................17
Texas v. United States, 809 F.3d 134 (5th Cir. 2016) ................................................................................10
Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) ............................................................. 10, 12
United States v. Texas, 136 S. Ct. 2271 (2016)..........................................................................................10
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)..............................................................................................15

iv

TABLE OF AUTHORITIES (cont.)

Other Authorities

Page(s)

Br. for Inst. for Policy Integrity as Amicus Curiae, Air Alliance Houston v. EPA, No. 17-1155 (D.C. Cir. Nov. 1, 2017)....................2

Br. for Inst. for Policy Integrity as Amicus Curiae, California v. U.S. Bureau of Land Mgmt., 277 F. Supp. 3d 1106 (N.D. Cal. 2017) (No. 17-cv-3804).....................................2

Br. for Inst. for Policy Integrity as Amicus Curiae, Clean Water Action v. Pruitt, No. 17-cv-817-DLF (D.D.C. June 27, 2017) .........2

Br. for Inst. for Policy Integrity as Amicus Curiae, Open Cmtys. Alliance v. Carson, No. 17-2192 (D.D.C. Dec. 23, 2017)................2

John C. Harsanyi, Can the Maximin Principle Serve as a Basis for Morality? A Critique of John Rawls's Theory, 69 Am. Pol. Sci. Rev. 594 (1975)...................13

Lisa Heinzerling, The Legal Problems (So Far) of Trump’s Deregulatory Binge, Harv. L. & Policy Rev. (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3049004. ............................2

Remarks by the President on Immigration, June 15, 2012, https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarkspresident-immigration.................................................................................... 18, 20

DHS, Risk Steering Committee, DHS Risk Lexicon (2010), https://www.dhs.gov/xlibrary/assets/dhs-risk-lexicon-2010.pdf................. 7, 8, 13

U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Tech., Guide for Conducting Risk Assessments (2012), https://nvlpubs.nist.gov/nistpubs/Legacy/SP/ nistspecialpublication800-30r1.pdf ........................................................................7

v

TABLE OF AUTHORITIES (cont.)

Other Authorities (cont.)

Page(s)

U.S. Dep’t of Health & Human Servs., Ctrs. for Medicaid & Medicare Services, Basics of Risk Analysis and Risk Management (2007), https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/administrative/securityr ule/riskassessment.pdf ............................................................................................7

U.S. Dep’t of Justice, Office of Legal Counsel, The Department of Homeland
Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present, 38 Op. O.L.C. 1 (Nov. 19, 2014) ..........................................................................19

U.S. Nuclear Regulatory Comm’n, Backgrounder on Probabilistic Risk Assessment (2016), https://www.nrc.gov/reading-rm/doc-collections/factsheets/probabilistic-risk-asses.html ........................................................................7

vi

INTEREST OF AMICUS CURIAE The Institute for Policy Integrity at New York University School of Law (Policy Integrity) submits this brief as amicus curiae in support of PlaintiffsAppellees (Appellees).3 Policy Integrity is dedicated to improving the quality of government decisionmaking through advocacy and scholarship in the fields of administrative law, economics, and public policy, with a particular focus on economic issues. Policy Integrity consists of a team of legal and economic experts, trained in the proper application of economic principles, including the assessment of costs and benefits, to rational agency decisionmaking. Our director, Richard L. Revesz, has published more than eighty articles and books on environmental and administrative law, including several works that address the legal and economic principles that inform rational agency decisions.
This case concerns the Department of Homeland Security’s (DHS) decision to terminate its prior Deferred Action for Childhood Arrivals program (DACA), which had granted deferred action to young immigrants who meet strict requirements. This rescission is part of a broad pattern of illegal attempts by agencies across the Trump Administration to suspend or reverse duly promulgated
3 Policy Integrity thanks Megan Wilkie and Cameron Williamson, students in New York University School of Law’s Regulatory Policy Clinic, for assistance in preparing this brief.
1

regulations and other policies.4 In furtherance of its mission to promote rational decisionmaking, Policy Integrity has filed several amicus briefs and comment letters regarding these suspensions and reversals, focusing on agencies’ failure to consider the harms, in the form of forgone benefits, of their actions. See, e.g., Br. for Inst. for Policy Integrity as Amicus Curiae, Air Alliance Houston v. EPA, No. 17-1155 (D.C. Cir. Nov. 1, 2017) (delay of the Chemical Disaster Rule); Br. for Inst. for Policy Integrity as Amicus Curiae, Open Cmtys. Alliance v. Carson, No. 17-2192, 2017 WL 6558502 (D.D.C. Dec. 23, 2017) (delay of implementation of a rule aimed at aiding low-income families); Br. for Inst. for Policy Integrity as Amicus Curiae, California v. U.S. Bureau of Land Mgmt., 277 F. Supp. 3d 1106 (N.D. Cal. 2017) (No. 17-cv-3804) (delay of a rule preventing natural gas leaks on public lands); Br. for Inst. for Policy Integrity as Amicus Curiae, Clean Water Action v. Pruitt, No. 17-cv-817-DLF (D.D.C. June 27, 2017) (delay of a rule limiting wastewater discharge of toxic metals). Thus far in such cases, courts have agreed that mischaracterizing or ignoring the costs and benefits of a policy change is arbitrary and capricious. See California, 277 F. Supp. 3d at 1123 (“Defendants’ failure to consider the benefits of compliance with the provisions that were
4 For a review of regulatory delays and reversals undertaken by the Trump Administration using a variety of methods, and the legal problems with these approaches, see Lisa Heinzerling, The Legal Problems (So Far) of Trump’s Deregulatory Binge, Harv. L. & Policy Rev. (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3049004.
2

postponed, as evidenced by the face of the Postponement Notice, rendered their action arbitrary and capricious and in violation of the APA.”); California v. U.S. Bureau of Land Mgmt., No.17-cv-7186, 2018 WL 1014644, at *10 (N.D. Cal. Feb. 22, 2018) (finding rule delay arbitrary and capricious where agency “either deeply underestimate[d] the lost air quality and climate benefits, or overestimate[d] the reduction in compliance costs” caused by its action); see also Open Cmtys. Alliance, 2017 WL 6558502, at *18 (finding risk of irreparable harm from rule delay, because delay would deprive plaintiffs of original rule’s benefits).
Like the agencies in those cases, DHS rescinded DACA without considering the substantial harms caused by its action. Policy Integrity’s expertise in economic principles underlying risk assessment and cost-benefit analysis, and its experience with suspension and rescission cases, give it a unique perspective from which to evaluate Appellees’ claims that the rescission of DACA was arbitrary and capricious.5
SUMMARY OF ARGUMENT Our brief addresses only one issue in this case: DHS’s contention that, separate from its claim that DACA was illegal, it had a reasonable, independent basis for rescinding DACA “based on the evident risk that the existing DACA
5 All parties have consented to the filing of this brief.
3

policy would at a minimum be the subject of protracted litigation, and very likely be enjoined nationwide.” Appellants’ Br. 29, ECF No. 31.
As Appellees explain, DHS’s September 5, 2017 memorandum rescinding DACA, Excerpts of Record (ER) 125-32 (Rescission Memorandum), does not actually cite such “litigation risk” as an independent justification for the agency’s action, and DHS is thus precluded by the Chenery doctrine from raising this rationale as a defense to its action in court. Principal and Resp. Br. of Appellees the Regents of the University of California, Janet Napolitano, and City of San Jose (Regents Br.) 52, ECF No. 44; Principal and Resp. Br. for the Garcia and County of Santa Clara Plaintiffs (Garcia Br.) 38-39, ECF No. 46; Principal and Resp. Br. of the States of California, Maine, Maryland, and Minnesota (States Br.) 48, ECF No. 43. But even if DHS had expressly cited its desire to avoid a nationwide inunction of DACA as a justification for voluntarily rescinding the program, the agency’s action would still be arbitrary and capricious.
Rational risk management requires an agency to do more than simply identify the possibility that an undesirable event will occur and then take any step, however costly, to prevent it. A homeowner might reasonably believe that his house has some chance of falling victim to arson. He could not, however, reasonably address that risk by burning down the house himself. The action would indeed eliminate the risk; it is, after all, impossible for an arsonist to set fire to a
4

building that no longer exists. But the homeowner’s decision would still be irrational, because the harm he avoided (potential destruction of his house) would be greatly outweighed by the harm he caused (certain destruction of the house).
Accordingly, before taking an action to prevent a feared event, an agency must assess the expected cost of that event—taking into account both the probability that it will occur and the magnitude of harm it would cause—and then weigh that expected cost against the expected cost of the agency’s prevention plan. More plainly, the agency must show that the cure is preferable to the disease.
In this case, before concluding that rescinding DACA was a reasonable strategy for managing the risk of an injunction against the program, DHS would have first needed to develop at least a rough, qualitative estimate of the expected cost of that injunction, taking into account both the likelihood of its issuance and the amount of damage it would cause. Next, DHS would have needed to weigh the expected cost of an injunction against the harm that was certain to result from voluntary rescission—namely, the loss of DACA’s enormous economic and humanitarian benefits and the severe disruption of the lives of hundreds of thousands of participants, as well as the lives of their families, friends, employers, and educators. Because the agency took neither of these fundamental analytical steps, its rescission of DACA is arbitrary and capricious.
5

ARGUMENT Under the arbitrary and capricious standard, an agency must “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted). When the relevant action involves a change of policy, the agency must provide “a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009).
DHS claims that Acting Secretary Elaine Duke’s concern that DACA “would be enmeshed in litigation and subject to a likely injunction” provided an “independent basis for winding down DACA . . . even if courts ultimately rejected the Attorney General’s view” that the policy was unlawful. Appellants’ Br. 37. Appellees correctly criticize this as a post hoc rationalization that was not properly raised in DHS’s Rescission Memorandum. Regents Br. 52; Garcia Br. 38-39; States Br. 48. But even if the Rescission Memorandum could be read to invoke litigation risk as an independent basis for DHS’s decision, the Acting Secretary’s termination of DACA would still be arbitrary and capricious, for at least two reasons.
6

First, DHS failed to properly assess the risk of an injunction. Agencies
across the federal government recognize that risk encompasses both the amount of
harm that an undesirable event might cause and the probability of that event’s
occurrence.6 Indeed, DHS’s own Risk Lexicon defines risk as the “potential for an
unwanted outcome resulting from an incident, event, or occurrence, as determined
by its likelihood and the associated consequences.” DHS, Risk Steering
Committee, DHS Risk Lexicon 27 (2010) (emphasis added) (DHS Risk Lexicon).7
But the Rescission Memorandum did not credibly assess either the probability that
an injunction would be issued or the magnitude of harm such an injunction would
cause.
6 See, e.g., U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Tech., Guide for Conducting Risk Assessments 35 (2012), https://nvlpubs.nist.gov/nistpubs/Legacy/SP/nistspecialpublication800-30r1.pdf (“Organizations assess the risks from threat events as a combination of likelihood and impact.”); U.S. Nuclear Regulatory Comm’n, Backgrounder on Probabilistic Risk Assessment (2016), https://www.nrc.gov/reading-rm/doc-collections/factsheets/probabilistic-risk-asses.html (“Risk is determined by two factors: How often might a particular hazard arise? How much harm is likely to result?”); U.S. Dep’t of Health & Human Servs., Ctrs. for Medicaid & Medicare Services, Basics of Risk Analysis and Risk Management 12 (2007), https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/administrative/securityrul e/riskassessment.pdf (“The level of risk is determined by analyzing the values assigned to the likelihood of threat occurrence and resulting impact of threat occurrence.”). 7 Available at https://www.dhs.gov/xlibrary/assets/dhs-risk-lexicon-2010.pdf.
7

Second, DHS failed to weigh the expected benefit of avoiding an injunction against the costs that voluntarily rescinding the DACA program would impose on DHS, program participants, their communities, and the broader economy. An action taken to manage risk is justified only if it does more good than harm. See DHS Risk Lexicon 30 (defining “risk management” as a “process of . . . controlling [risk] to an acceptable level considering associated costs and benefits”). More generally, an agency cannot reasonably tout the advantages of an action without also acknowledging its disadvantages. Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) (“[R]easonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions.”).
Because DHS neither properly assessed the risk of an injunction nor made any effort to determine whether the benefits of avoiding that risk justified the costs of voluntarily rescinding DACA, the agency’s “litigation risk” rationale for rescinding DACA is unreasonable. I. DHS Failed to Properly Assess the Risk of an Injunction
In its brief, DHS claims that the Acting Secretary’s decision was motivated by a determination that DACA was “very likely to be enjoined nationwide” and that she thus faced a choice “between a gradual, orderly, administrative wind-down of the policy, and the risk of an immediate disruptive, court-imposed one.”
8

Appellants’ Br. 29, 36.8 But even if such reasoning could fairly be gleaned from
the text of the Rescission Memorandum, it would not be reasonable given the
information available to DHS. State Farm, 463 U.S. at 43 (action is arbitrary and
capricious if agency offers an “explanation for its decision that runs counter to the
evidence before the agency”).
A. DHS Could Not Reasonably Conclude That an Injunction Would Be “Very Likely”
With respect to the likelihood of an injunction, the Rescission Memorandum
itself made no predictions. It did, however, cite a letter to DHS from the Attorney
General in which he opined that DACA “has the same legal and constitutional
defects that courts recognized as to [the Deferred Action for Parents of Americans
and Lawful Permanent Residents program (DAPA)]” and deemed it “likely that
potentially imminent litigation would yield similar results with respect to DACA.”
ER 129.
8 DHS also claims that the Acting Secretary was motivated by a conviction that DACA “would at a minimum be the subject of protracted litigation.” Appellants’ Br. 29. But as Appellees explain, a bare desire to avoid lawsuits could not possibly serve as a plausible justification for rescinding DACA, because DHS knew—or should have known—that a voluntary rescission of the program would itself be subject to protracted litigation. See Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 970 (9th Cir. 2015) (en banc) (rejecting agency’s attempt to cite litigation against a rule as an independent justification for modifying it where the modification “predictably led to [another] lawsuit”).
9

As Appellees point out, the Attorney General’s claim that courts had identified constitutional defects in DAPA was—and still is—flatly untrue. Regents Br. 46; Garcia Br. 41; States Br. 42-43. Instead, a judge in the Southern District of Texas had preliminarily enjoined implementation of DAPA after finding a likelihood of success on the merits of a statutory claim against the program. Texas v. United States, 86 F. Supp. 3d 591, 671-72 (S.D. Tex. 2015). That injunction was affirmed by the Fifth Circuit, Texas v. United States, 809 F.3d 134, 146 (5th Cir. 2016), and, in an equally divided vote with no precedential effect,9 by the Supreme Court, United States v. Texas, 136 S. Ct. 2271 (2016). And even those decisions could not reasonably support a determination that an injunction of DACA was likely, as the Attorney General suggested—much less that it was very likely, as DHS now contends in its briefing. Appellants’ Br. 29.
First, any inferences the Attorney General or Acting Secretary attempted to draw from the Supreme Court’s affirmation of the DAPA injunction were necessarily unreasonable. As the judgment of an equally divided court, that decision was not accompanied by any opinions. See Texas, 136 S. Ct. at 2271. In other words, it provided the government with absolutely no insight into why the
9 Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 234 n.7 (1987) (“[A]n affirmance by an equally divided Court is not entitled to precedential weight.”).
10

Justices voted as they did and whether their views might lead them to support an injunction of DACA as well.
Nor was it appropriate to assume that judges of the Southern District of Texas and the Fifth Circuit would make the same determinations about the likely legality of DACA as they had about DAPA. As Appellees explain, the two programs differ substantially. Regents Br. 48-51; Garcia Br. 35-37; States Br. 45-46. For example, unlike DACA, DAPA offered deferred action to people who had alternative means of pursuing legal status through the Immigration and Nationality Act. Garcia Br. 35. But the Rescission Memorandum did not mention their differences, much less analyze whether the Southern District of Texas, Fifth Circuit, or Supreme Court would deem those differences legally significant.
More importantly, even if Texas and other challengers persuaded a Southern District of Texas judge that they were likely to succeed on the merits of their claims against DACA, the court could not issue a preliminary injunction (and the Fifth Circuit and Supreme Court could not affirm one) without also considering the balance of equities and the public interests at stake. See e.g., League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 759 (9th Cir. 2014) (noting the four-prong test for a preliminary injunction). Those factors would look very different in a 2017 challenge to DACA than they did in the 2015 challenge to DAPA. When DAPA was enjoined, it had not yet taken effect, and the
11

district court found that an injunction was necessary to “preserve the status quo.” Texas, 86 F. Supp. 3d at 674-76. By contrast, enjoining DACA, after it had already been in effect for more than five years, would be a seismic disruption of the status quo.
Perhaps recognizing that the Rescission Memorandum cannot support the agency’s contention that a disruptive injunction was “very likely,” DHS also argues that the Acting Secretary was simply not required to assess the probability of an injunction before invoking it as a reason for rescission. Appellants’ Br. 31 (rejecting the idea that rescission on the basis of litigation risk required an “evaluation of the likelihood of success in various district courts, the courts of appeal, and the Supreme Court”). In the agency’s view, “[s]o long as the ultimate litigation judgment was reasonable, the Acting Secretary’s decision was not arbitrary and capricious.” Id.
But it is impossible to evaluate the reasonableness of the action that DHS purportedly took to avoid an injunction without considering the probability that such an injunction would be issued. If an agency knew for certain that it would soon incur a harm worth $100, it could reasonably spend $99.99 to prevent it. But if the agency estimated that the probability of the $100 harm was only 1 percent, investing even $10 in prevention would be irrational. This is just as true when the agency sacrifices regulatory benefits to avoid a harm as it is when the agency
12

spends tax dollars to avoid it. See John C. Harsanyi, Can the Maximin Principle Serve as a Basis for Morality? A Critique of John Rawls's Theory, 69 Am. Pol. Sci. Rev. 594, 595 (1975) (book review) (“It is extremely irrational to make your behavior wholly dependent on some highly unlikely unfavorable contingencies regardless of how little probability you are willing to assign to them.”).
The point is not that DHS had an obligation to assign a precise numerical value to the probability of an injunction. But in order to justify rescission based on litigation risk, DHS was required, at minimum, to prepare a qualitative assessment of an injunction’s likelihood, and to ground that assessment in the available evidence. DHS Risk Lexicon at 27 (defining risk as a function of probability and magnitude); State Farm, 463 U.S. at 43 (agency must examine “relevant data” and articulate explanation that includes “rational connection between the facts found and the choice made” (internal quotation marks omitted)). The Rescission Memorandum does not meet this standard.
B. DHS Could Not Reasonably Conclude That an Injunction Would Require an Immediate Halt to DACA
In addition to exaggerating the probability of an injunction, DHS’s brief exaggerates the magnitude of damage that an injunction would cause. Specifically, DHS claims that the injunction would have required an “immediate, disruptive” unwinding of DACA. Appellants’ Br. 36. But courts have broad discretion when fashioning equitable relief. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944) (“The
13

essence of equity jurisdiction has been the power of the Chancellor to do equity
and to mould each decree to the necessities of the particular case.”). Given that
flexibility, it beggars belief for DHS to suggest that a district court would, over the
agency’s objection, require it to dismantle overnight a program of such vital
importance to hundreds of thousands of participants.10 Int’l Bhd. of Teamsters
Airline Div. v. Frontier Airlines, Inc., 628 F.3d 402, 407 (7th Cir. 2010) (“[I]t is
the duty of a court of equity granting injunctive relief to do so upon conditions that
will protect all . . . whose interests the injunction may affect.” (quoting Bhd. of
Locomotive Eng’rs v. Missouri-Kansas-Texas R. Co., 363 U.S. 528, 532 (1960))).
Even if a court did find that an injunction was warranted, it would have many
options short of a complete and immediate halt to DACA. For example, a court
might order the agency only to stop accepting new applications to the program. N.
Cheyenne Tribe v. Norton, 503 F.3d 836, 843 (9th Cir. 2007) (declining to “fault
the district court's exercise of its discretion to issue a partial injunction balancing
the equities rather than an automatic full injunction”). Or the court might require a
full halt to the program but give the agency ample time to come into compliance
10 It is similarly implausible that the Fifth Circuit and Supreme Court would decline to reverse such an unnecessarily disruptive order as an abuse of discretion. See, e.g., McKinney ex rel. NLRB v. Creative Vision Res., L.L.C., 783 F.3d 293, 298 (5th Cir. 2015) (overturning preliminary injunction “issued several years after [defendant] commenced the allegedly wrongful conduct” as abuse of discretion where district court failed to show “that injunctive relief was just and proper based on the balance of the equities”).
14

with the order. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982) (finding that district court’s equitable discretion was not limited to “order of immediate cessation”). In other words, a court might have ordered a remedy that was no more disruptive than the rescission plan that DHS adopted voluntarily. In the absence of a credible showing that an injunction would be more disruptive than a voluntary rescission, even a finding that an injunction was almost certain to be issued could not justify voluntary rescission.11
Ultimately, litigation risk, like any other form of risk, cannot reasonably be managed if it is not first properly assessed. The alternative—allowing agencies to scrap policies whenever they identify a possibility, however remote, of judicial injunction—would make a mockery of the Administrative Procedure Act’s requirement that agencies provide “good reasons” for policy reversals. Fox, 556 U.S. at 515; Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 557 (D.C. Cir. 2015) (“If an agency could engage in rescission by concession, the doctrine requiring agencies to give reasons before they rescind rules would be a dead letter.”). Here, the Rescission Memorandum failed to include any express
11 To understand why, imagine a policy that is expected to generate $100 in net benefits to society. Now assume that the policy has a 99 percent chance of being enjoined but that the injunction will impose no costs beyond the loss of the policy’s benefits. The policy still has an expected value of $1 (its $100 in net benefits multiplied by its 1 percent chance of being upheld) and rescinding it would be net costly for society.
15

assessment of the likelihood that an injunction would be issued or of the harm that
such an injunction was likely to cause. Furthermore, the post hoc conclusions
offered in DHS’s brief—that an injunction was “very likely” and that it would
require an “immediate, disruptive” dismantling of DACA—could not reasonably
be drawn from the evidence before the agency at the time of rescission.
Accordingly, DHS’s decision to rescind DACA was arbitrary and capricious.
II. DHS Failed to Weigh the Benefits of Avoiding an Injunction Against the Costs of Voluntary Rescission
Even if DHS had properly assessed the expected harm of retaining DACA in
the face of litigation, rescinding the program to avoid that harm would be rational
only if the agency found the benefits of doing so outweighed the costs of
voluntarily sacrificing DACA’s enormous benefits and disrupting the lives of the
hundreds of thousands of people who had come to rely on the program.12 As the
Supreme Court has made clear, “reasonable regulation ordinarily requires paying
attention to the advantages and the disadvantages of agency decisions.” Michigan,
135 S. Ct. at 2707. In weighing a possible action, an agency “cannot tip the scales .
12 Imagine again a policy with $100 in expected net benefits. This time, assume the agency has concluded that the policy has a 50 percent chance of being enjoined and that this injunction will impose $20 in costs above and beyond the policy’s lost benefits. If the agency voluntarily rescinds the policy, it has paid $50 in forgone expected net benefits (because the policy had a 50 percent chance of being upheld) to avoid $10 in injunction costs (the $20 resulting from the injunction multiplied by the 50 percent probability that the injunction would be entered). As a result, voluntary rescission imposes a net cost on society of $40 and is irrational.
16

. . by promoting [the action’s] possible benefits while ignoring [its] costs.” Sierra Club v. Sigler, 695 F.2d 957, 979 (5th Cir. 1983). Nor may it “put a thumb on the scale by undervaluing [one] and overvaluing the [other].” Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1198 (9th Cir. 2008). Furthermore, when an agency is changing policy, it must provide a reasoned explanation for disregarding any facts and circumstances that underlay that policy or the reliance interests the policy has engendered. Fox, 556 U.S. at 515.
Here, DHS not only overvalued the expected benefits of rescission (to the extent it explicitly considered them at all) but also completely ignored the costs that rescission would impose in the form of DACA’s forgone benefits. Furthermore, DHS failed to consider the deep and widespread reliance interests that DACA had engendered since its creation. The agency’s failure to take these “facts and circumstances” into account when rescinding DACA was arbitrary and capricious. Fox, 556 U.S. at 516.
A. DHS Failed to Consider the Benefits of DACA That Would Be Forgone by Rescission
In the memorandum that created DACA, then-Secretary of Homeland Security Janet Napolitano explained that deferred action was important because the “productive young people” who would participate in DACA “have already contributed to our country in significant ways.” ER 142. In a speech announcing
17

and justifying the adoption of DACA, President Obama expanded on DHS’s reasoning: “[I]t makes no sense to expel talented young people . . . who want to staff our labs, or start new businesses or defend our country . . . because these young people are going to make extraordinary contributions.” Remarks by the President on Immigration, June 15, 2012.13
DACA participants have, if anything, exceeded these lofty expectations, and rescission threatens their substantial contributions. As Congressman John Lewis warned the Acting Secretary, “[e]mployers would face huge costs, businesses owned by DREAMers would close, and the Social Security trust funds would lose millions of tax dollars” if DACA were rescinded. Administrative Record 241, Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Security, No. 17-cv-05211WHA (N.D. Cal. Oct. 6, 2017), ECF No. 64-1. Several more members of Congress provided the Acting Secretary with data to illustrate the scope of the damage should DACA be rescinded. Id. at 242 (“Ending DACA would increase the nation’s undocumented population, profoundly and negatively impact our nation’s economy, contracting the nation’s GDP by $460.3 billion. Additionally, this reduces federal tax contributions to Social Security and Medicare by $24.6 billion over a decade, and costs businesses $3.4 billion in unnecessary turnover costs.”);
13 Available at https://obamawhitehouse.archives.gov/the-pressoffice/2012/06/15/remarks-president-immigration.
18

see also Regents Br. 8-9, 17. But the Rescission Memorandum does not mention these economic benefits.
DHS also ignored its prior finding that DACA will “ensure that our enforcement resources are not expended on these low priority cases.” ER 141. DHS lacks the resources to remove the vast majority of undocumented aliens. U.S. Dep’t of Justice, Office of Legal Counsel, The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present, 38 Op. O.L.C. 1, 9 (Nov. 19, 2014), Supplemental Excerpts of Record (SER) 234. DACA allows DHS to focus on high-priority cases. Such prioritization increases DHS’s efficiency by “enabl[ing] [its] enforcement divisions to more easily identify nonpriority aliens and focus their resources on pursuing aliens who are strong candidates for removal.” Id. at SER 251. Again, DHS completely failed to consider the efficiency benefits that motivated DHS to adopt DACA and that will be forgone by rescission.
Finally, DHS adopted DACA in order to provide significant humanitarian benefits directly to DACA recipients. Secretary Napolitano explained that “our Nation’s immigration laws . . . are [not] designed to remove . . . young people to countries where they may not have lived or even speak the language.” ER 142. President Obama echoed this justification when announcing the program, stating that giving “innocent young kids” “a better path and freedom from fear” instead of
19

“liv[ing] under the fear of deportation” is “the right thing to do.” Remarks by the President on Immigration, supra at 18. Yet again, the Rescission Memorandum does not analyze, consider, or even mention these humanitarian benefits.
The Rescission Memorandum is silent as to the forgone economic, enforcement efficiency, and humanitarian benefits of DACA, the very “facts and circumstances that underlay. . . the prior policy.” Fox, 556 U.S. at 516. Because DHS has failed to even acknowledge the negative consequences of its change in policy, much less attempt to weigh those costs against any purported benefit of rescission, its rescission of DACA is arbitrary and capricious. Id. at 537 (Kennedy, J., concurring) (“An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.”).
B. DHS Failed to Consider the Reliance Interests Engendered by DACA In addition to failing to consider the forgone benefits of the DACA program,
DHS also failed to consider the additional costs that rescission would impose by severely disrupting the reliance interests of participants and their communities. Appellees have extensively catalogued how rescission of DACA would “necessitate systemic, significant changes to the . . . arrangements” of DACA recipients, as well as their families, schools, employers, and communities. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016). Participants’ personal,
20

familial, and professional lives will be upended, and they may face greater exposure to deportation than they would have if the program had never existed. Regents Br. 14-16, 58; Garcia Br. 8, 41; States Br. 51. Universities and businesses may lose the significant financial and training investments made and the limited employment, enrollment, and housing slots allocated based on the program. Regents Br. 16, 58-59; Garcia Br. 41-42; States Br. 51.
“It [is] arbitrary and capricious to ignore” these “serious reliance interests.” Fox, 556 U.S. at 515; see also Encino Motorcars, 136 S. Ct. at 2126-27 (holding that an agency’s “conclusory statements” for reversing a long-standing policy that engendered reliance did not constitute a “reasoned explication”). DHS was not permitted to “put a thumb on the scale” of its purported risk management decision by ignoring the lives and investments that would be upended by terminating DACA. Ctr. for Biological Diversity, 538 F.3d at 1198.
Appellants claim that DACA could not create legally cognizable reliance interests because it confers relief in two-year periods and is subject to termination. Appellants’ Br. 34. They further claim that the Supreme Court’s affirmation of the Fifth Circuit’s decision to preliminarily enjoin DAPA somehow created a “change in circumstances” that rendered any reliance so “insubstantial” that the Department did not even need to address it when reversing its long-standing prior policy. Appellants’ Br. 35. But the relevant question is not whether those affected by a
21

policy could reasonably assume that the policy would continue to benefit them in perpetuity; if that were the case, no policy could ever engender reliance interests, as the turnover of political appointees with new priorities, the initiation of litigation, and the process of agency decisionmaking under the Administrative Procedure Act means that there is some reasonable likelihood that every agency policy will change in the future. Nor is the question whether an affected group should have made decisions in reliance on a given policy. Instead, the proper inquiry is whether a prior policy actually did give rise to substantial reliance interests, as these interests constitute “facts and circumstances . . . engendered” by that prior policy and which must be considered when changing the policy. Fox, 556 U.S. at 516. DHS’s contention that participants’ reliance was not well-founded might permissibly have affected the weight it assigned to reliance in its analysis— subject, of course, to judicial review under the arbitrary and capricious standard. The fact that a policy has engendered reliance interests does not preclude an agency from changing that policy. Encino Motorcars, 136 S. Ct. at 2128 (Ginsburg, J., concurring). But it does compel the agency to expressly acknowledge the disruption that change will create for those who relied on the policy and explain why the agency’s action is justified in spite of that disruption. Id. DHS’s opinion as to the reasonableness of participants’ reliance on DACA cannot excuse the agency’s complete failure to identify and discuss the issue.
22

Moreover, participants’ reliance on the DACA program could not fairly be deemed unreasonable. It would be absurd to expect program participants to have predicted a discretionary rescission of DACA simply because four Supreme Court justices voted to affirm a single circuit court’s preliminary determination about the likely legality of a different program. Indeed, after the Supreme Court’s decision, high-level government officials in both the Obama and Trump Administrations— including those at the top ranks of DHS—repeatedly urged participants not to draw such a conclusion. See SER 1330 (then-DHS Secretary Jeh Johnson: “We believe these representations made by the U.S. government upon which DACA applicants most assuredly relied must continue to be honored.”), SER 1334-35 (then-DHS Secretary John Kelly: “The DACA status is a commitment . . . by the government towards the DACA person.”); SER 1347 (President Trump: “The dreamers should rest easy. Ok? I’ll give you that. The dreamers should rest easy.”).
Thus, DHS cannot dispute that DACA engendered reliance interests cognizable under the Administrative Procedure Act and cannot excuse its failure to weigh the costs of disrupting those interests against the purported benefits of avoided litigation risk. As a result, the agency’s decision to rescind DACA was arbitrary and capricious.
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CONCLUSION For the reasons discussed above, the district court’s grant of a preliminary

injunction should be affirmed.

Dated: March 20, 2018

Respectfully submitted,

/s/ Richard L. Revesz d

Richard L. Revesz Jack Lienke Avi Zevin (admitted in California) INSTITUTE FOR POLICY INTEGRITY 139 MacDougal Street, Third Floor New York, NY 10012 (212) 992-8932
Counsel for Amicus Curiae
Institute for Policy Integrity

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 5,550 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 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 in a proportionally spaced typeface using Microsoft Word and Times New Roman font size 14.
/s/ Richard L. Revesz d Richard L. Revesz
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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on March 20, 2018. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Richard L. Revesz d Richard L. Revesz
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 Appeal Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Regents of the University of California, et al., Plaintiffs, Appellees, and Cross-Appellants,
v.
United States Department of Homeland Security, et al., Defendants, Appellants, and Cross-Appellees.

On Appeal from the United States District Court for the Northern District of California

BRIEF OF TWENTY-FOUR LAW PROFESSORS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

Daniel Hemel 1111 E. 60th St., Room 610 Chicago, IL 60637
Seth Davis 401 E. Peltason Dr., Law 4800T Irvine, CA 92697

Anna-Rose Mathieson Ben Feuer California Appellate
Law Group LLP 96 Jessie Street San Francisco, CA 94105 (415) 649-6700

Attorneys for Amici Law Professors

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................................................ ii

INTEREST OF THE AMICI........................................................................ 1

SUMMARY OF THE ARGUMENT ............................................................ 1

ARGUMENT................................................................................................. 5

I. Remand Is Appropriate When an Agency Acts Based on an Erroneous Legal Premise ................................................................. 5

II. Rescission of DACA Was Based on an Erroneous Legal Premise............................................................................................... 9

A. Rescission of DACA was based on the premise that the Executive Branch lacked legal authority to maintain the policy........................................................................................... 9

B. The premise that the Executive Branch lacks authority to maintain DACA is legally erroneous................................. 18

CONCLUSION ........................................................................................... 26

APPENDIX A.............................................................................................. 27

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

i

TABLE OF AUTHORITIES

Page

Cases Arizona Dream Act Coal. v. Brewer,
855 F.3d 957 (9th Cir. 2017) .................................................. 4, 16, 22
Arizona v. Thompson, 281 F.3d 248 (D.C. Cir. 2002) .......................................................... 15
Arizona v. United States, 567 U.S. 387 (2012) ........................................................................... 20
Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 2018) .............................................. 12
Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) ........................................................ 2, 25
Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153 (D.C. Cir. 1987) ........................................................ 18
Burlington Truck Lines v. United States, 371 U.S. 156 (1962) ........................................................................... 11
Casa de Maryland v. U.S. Dep’t of Homeland Sec., No. RWT-17-2942, 2018 U.S. Dist. LEXIS 35373 (D. Md. Mar. 5, 2018)........................................................................ 13
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ....................................................................... 5, 15
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ........................................................................... 24
Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199 (D.C. Cir. 1986) ........................................................ 16
FCC v. RCA Comm’cns, Inc., 346 U.S. 86 (1953) ........................................................................... 3, 5

ii

Fedorenko v. United States, 449 U.S. 490 (1981) ............................................................................. 6
Gila River Indian Cmty. v. United States, 729 F.3d 1139 (9th Cir. 2013) ...................................................... 2, 15
Gonzales v. Oregon, 546 U.S. 243 (2006) ........................................................................... 12
Gonzales v. Thomas, 547 U.S. 183 (2006) ............................................................................. 7
Heckler v. Chaney, 470 U.S. 821 (1985) ........................................................................... 25
In re United States, 138 S. Ct. 37 (2017)........................................................................... 22
In re United States, 138 S. Ct. 443 (2017)......................................................................... 22
Jacoby v. NLRB, 233 F.3d 611 (D.C. Cir. 2000) ............................................................ 5
Judulang v. Holder, 565 U.S. 42 (2011) ............................................................................. 12
Lozano-Arredondo v. Sessions, 866 F.3d 1082 (9th Cir. 2017) ............................................................ 2
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) .......................................................... 17
McQuiddy v. Ware, 87 U.S. (20 Wall.) 14 (1874) ............................................................. 14
Montana Air Chapter No. 29, Ass’n of Civilian Technicians, Inc. v. Fed. Labor Relations Auth., 898 F.2d 753 (9th Cir. 1990) ........................................................ 2, 25
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ............................................................................. 14
iii

Nat’l Shooting Sports Found., Inc. v. Jones, 716 F.3d 200 (D.C. Cir. 2013) .......................................................... 18
Negusie v. Holder, 555 U.S. 511 (2009) ..................................................................... 2, 7, 8
Organized Vill. of Kake v. U.S. Dep't of Agriculture, 795 F.3d 956 (9th Cir. 2015) ............................................................ 14
Pace v. DiGuglielmo, 544 U.S. 408 (2005) ........................................................................... 14
PDK Labs. Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786 (D.C. Cir. 2004) .......................................................... 16
Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) ............................................................................. 3
Phillips Petroleum Co. v. FERC, 792 F.2d 1165 (D.C. Cir. 1986) ........................................................ 15
Regents of the Univ. of California v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018)............................................ 16
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ....................................................................... 3, 21
Safe Air for Everyone v. U.S. EPA, 488 F.3d 1088 (9th Cir. 2007) .......................................................... 15
SEC v. Chenery Corp., 318 U.S. 80 (1943) ..................................................................... 2, 5, 15
SEC v. Chenery Corp., 332 U.S. 194 (1947) ..................................................................... 10, 11
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ............................................... 17, 23, 24
United States v. Mead Corp., 533 U.S. 218 (2001) ........................................................................... 15
iv

United States v. Ross, 848 F.3d 1129 (D.C. Cir. 2017) ........................................................ 16
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ................................................................................. 4
Constitution U.S. Const. art. II, § 3, cl. 5 ....................................................................... 16
Statutes 5 U.S.C. § 553 ............................................................................................. 17 5 U.S.C. § 701 ............................................................................................. 24 5 U.S.C. § 706 ............................................................................................... 4 6 U.S.C. § 202 ......................................................................................... 3, 18 8 U.S.C. § 1151 ........................................................................................... 24 8 U.S.C. § 1182 ........................................................................................... 24 8 U.S.C. § 1201 ........................................................................................... 24 8 U.S.C. § 1324a ......................................................................................... 21 8 U.S.C. § 1611 ........................................................................................... 21 49 U.S.C. § 30301 ....................................................................................... 20 Consolidated Appropriations Act 2016,
Pub. L. No. 114-113, Div. F, Tit. II, 129 Stat. 2497 (2016) ........... 20 Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act, 2009, Pub. L. No. 110-329, Div. D, Tit. II, 122 Stat. 3659 (2008). 20 Homeland Security Act of 2002, Pub. L. No. 107-296, § 402, 116 Stat. 2135..................................... 12
v

Articles and Other Sources
Allison De Jong, Americans Back DACA by a Huge Margin, ABC News (Sept. 25, 2017), https://perma.cc/BS9J-HBNR................................ 9
6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 72.03[2][h] (1998) ......................................................... 21
Daniel J. Hemel & Aaron L. Nielson, Chevron Step One-and-a-Half, 84 U. Chi. L. Rev. 757 (2017) ............................................................. 2
Letter from Attorney Gen. Jefferson B. Sessions III to Acting Sec’y of Homeland Sec. Elaine C. Duke (Sept. 4, 2017), https://perma.cc/6HT7-VSGA..................................................... 11, 23
Letter from Xavier Becerra, California Attorney General, et al., to Donald J. Trump (July 21, 2017), https://perma.cc/3DL2-3CGH . 13
Memorandum from Janet Napolitano, Sec’y of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot., et al. (June 15, 2012), https://perma.cc/N4AA-GTA9 ........................ 19, 20
Memorandum from Jeh Charles Johnson, Sec’y of Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S. Immigration & Customs Enforcement, et al. (Nov. 20, 2014), https://perma.cc/FFA9-TT8919
Memorandum from John Morton, Dir., U.S. Immigration & Customs Enforcement, to All ICE Employees (Mar. 2, 2011), https://perma.cc/778D-JLDB............................................................ 19
Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017), https://perma.cc/5D2G-KUN8 ............. 9, 10
Press Release, New York State, Governor Cuomo and Attorney General Schneiderman Announce That New York Will Sue If President Trump Ends Deferred Action for Childhood Arrivals Policy (Sept. 4, 2017), https://perma.cc/5AUR-44NA ........................................... 13
vi

Press Release, Washington State Office of the Attorney General, AG Ferguson Vows To Take Legal Action If Trump Cancels DACA (Sept. 4, 2017), https://perma.cc/Z4SF-YSML ................................ 13
Remarks by President Trump in Meeting with Bipartisan Members of Congress on Immigration, The White House (Jan. 9, 2018), https://perma.cc/5QHA-97S6.............................................................. 8
S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945) .................................... 24 Statement from President Donald J. Trump, The White House
(Sept. 5, 2017), https://perma.cc/GB7Y-EWY5 ................................. 8
vii

INTEREST OF THE AMICI Amici are professors of administrative law and related public law subjects at institutions across the United States. In their scholarship and their teaching, they have carefully considered legal doctrines implicated by this case. They submit this brief to bring to the Court’s attention arguments and precedents that are relevant to the central question presented by this appeal: whether an agency action can be sustained when the action is based on an erroneous legal premise regarding the scope of the agency’s discretionary authority. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in Appendix A.1
SUMMARY OF THE ARGUMENT This case presents a fact pattern familiar to scholars and practitioners of administrative law. An agency—here, the Department of Homeland Security—has reached a decision based on the erroneous belief that it lacks statutory authority to act otherwise. The ultimate decision
1 Amici certify that no party’s counsel authored the brief in whole or in part; that no party or party’s counsel contributed money that was intended to fund preparing or submitting the brief; and that no person— other than the amici and their counsel—contributed money that was intended to fund preparing or submitting the brief. All parties have consented to the filing of this amici brief.
1

might be one that the agency could have arrived at if it had exercised its discretion. Yet the agency incorrectly concluded that only one course was available under the relevant statutes and precedents, and it therefore failed to consider any alternative regulatory actions. Under these circumstances, this Court has regularly and rightly set aside the agency action and remanded the matter so that the agency could exercise its discretion free from any misapprehension as to its own powers. See, e.g., Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1089, 1093 (9th Cir. 2017); Bonilla v. Lynch, 840 F.3d 575, 588-92 (9th Cir. 2016); Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1149 & n.11 (9th Cir. 2013); Montana Air Chapter No. 29, Ass’n of Civilian Technicians, Inc. v. Fed. Labor Relations Auth., 898 F.2d 753, 756 (9th Cir. 1990).
This principle—that agency action based on the agency’s misapprehension of its own authority should result in a remand—is sometimes called the “Negusie doctrine,” after the Supreme Court case, Negusie v. Holder, 555 U.S. 511 (2009), that articulates it most clearly and most recently.2 But its roots run deep. See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (“Chenery I”) (“[I]f the action is based upon a determination of law . . . , an order may not stand if the agency has misconceived the law.”); FCC v. RCA Comm’cns, Inc., 346 U.S. 86, 96
2 See, e.g., Daniel J. Hemel & Aaron L. Nielson, Chevron Step Oneand-a-Half, 84 U. Chi. L. Rev. 757, 760-61 (2017).
2

(1953) (remanding where Commission’s “conclusion was not based on the Commission’s own judgment but rather on the unjustified assumption that it was Congress’ judgment”). And the approach adopted by courts in these and countless other cases—remanding to the agency so that it can arrive at a policy judgment of its own—vindicates fundamental administrative-law values. In particular, it ensures that the Executive Branch exercises the policy discretion vested in it by the Legislature and accepts accountability for the decisions that it has reached on its own accord. Cf. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197 (1941) (“All we ask of the Board is to give clear indication that it has exercised the discretion with which Congress has empowered it. This is to affirm most emphatically the authority of the Board.”).
The principle applies four-square here. The Acting Secretary of Homeland Security rescinded the Deferred Action for Childhood Arrivals (DACA) policy based on an erroneous belief that federal law required her to do so. But nothing in statutory law or judicial precedent required rescission of DACA. To the contrary, the immigration statutes vest the Secretary with broad discretion to defer action against immigrants whose removal ranks low in the order of enforcement priorities. See 6 U.S.C. § 202(3), (5); see also Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84 (1999) (noting with approval the Immigration and
3

Naturalization Service’s “regular practice” of “‘deferred action’”); Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 967 (9th Cir. 2017) (“[I]t is well settled that the Secretary can exercise deferred action . . . .”). Because the Acting Secretary erroneously concluded that the law required her to rescind DACA, the matter should be remanded so the Secretary can make an informed policy judgment as to whether childhood arrivals should remain eligible for deferred action. The plaintiffs are therefore likely to succeed on the merits of their Administrative Procedure Act claim under 5 U.S.C. § 706(2)(A), and the district court’s preliminary injunction should be affirmed on that basis. Cf. 5 U.S.C. § 706(2)(A) (reviewing court shall hold unlawful and set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).3
3 The government does not dispute that plaintiffs have met the other criteria for injunctive relief: that the plaintiffs are “likely to suffer irreparable harm in the absence of preliminary relief”; that “the balance of equities tips in [their] favor”; and that “an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Amici express no position with respect to the notice-and-comment, equalprotection, and due-process claims in this case.
4

ARGUMENT I. Remand Is Appropriate When an Agency Acts Based on an
Erroneous Legal Premise It is blackletter law that agency action based on an erroneous legal
premise cannot be sustained. See, e.g., Chenery I, 318 U.S. at 94; RCA Comm’cns, 346 U.S. at 96; Jacoby v. NLRB, 233 F.3d 611, 617 (D.C. Cir. 2000) (“An agency action, however permissible as an exercise of discretion, cannot be sustained where it is based not on the agency’s own judgment but on an erroneous view of the law.” (internal quotation marks omitted)). This rule follows straightforwardly from two foundational tenets of administrative law. First, federal courts must yield to the Executive Branch when it lawfully exercises the discretion that Congress has afforded it. “Judges are not experts in the field, and are not part of either political branch of the Government.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984). Courts therefore defer when Executive Branch officials, who enjoy advantages of subjectmatter knowledge and electoral accountability, act appropriately within their bailiwick to reach informed policy judgments.
Second, and as a corollary to the first tenet, federal courts must ensure that the Executive Branch acts consistently with the law. Judges, after all, are experts on the law—on what the Constitution, the acts of Congress, and the past decisions of the courts require. When an agency
5

bases its decision not on a policy determination but instead upon a mistaken view as to what a statute mandates or what a precedent means, it has not exercised the discretion Congress has delegated to it. In that case, courts must correct the legal error so that the agency can appropriately form and carry out a considered policy judgment.
The Supreme Court applied this decades-old doctrine of administrative law in Negusie, a case whose facts resemble those here in several significant respects. That case, like this one, involved an immigration agency’s misunderstanding as to the scope of its own deferral authority. There, an asylum-seeker applied for temporary deferral of removal under the Convention Against Torture, but the Board of Immigration Appeals denied the application because it erroneously believed that a Supreme Court case called Fedorenko v. United States, 449 U.S. 490 (1981), required it to do so. The Negusie Court found Fedorenko distinguishable because that case addressed a statutory framework that differed in important ways from the framework governing Negusie’s application. Since the Board of Immigration Appeals had not yet exercised its discretion to determine Negusie’s eligibility for deferral, the Court ordered that the matter be remanded so that the Board could “bring its expertise to bear upon the matter,” “evaluate the evidence,” and arrive at its own “initial determination” unclouded by any
6

misunderstanding of the law. Negusie, 555 U.S. at 522-24 (internal quotation marks omitted).
As the Court in Negusie recognized, the requirement that the Executive Branch exercise its own judgment on questions of policy applies with particular force in the immigration area. “Judicial deference in the immigration context is of special importance,” the Court said, “for executive officials exercise especially sensitive political functions that implicate questions of foreign relations.” 555 U.S. at 517 (internal quotation marks omitted). The Court acknowledged that the Judiciary “is not well positioned to shoulder primary responsibility” for making the policy determinations that the immigration statutes elicit. Id. When immigration authorities incorrectly conclude that the courts have cabined their discretion, “‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.’” Id. at 523 (quoting Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per curiam)).
Remanding when an agency erroneously concludes its hands are tied ensures that courts do not encroach upon the Executive Branch’s policy domain. See Negusie, 555 U.S. at 523 (noting that the “remand rule exists, in part, because . . . ‘agencies are better equipped . . . than courts’” to make “‘difficult policy choices’”). Under such circumstances, a remand
7

guarantees that an agency is not blocked from pursuing its preferred course of action based on a mistaken view as to what the law requires. This concern is especially salient here. The President has said that he “do[es] not favor punishing children . . . for the actions of their parents” but that he decided to discontinue DACA because he was advised by his Attorney General and “other top legal experts” that “the program is unlawful and unconstitutional and cannot be successfully defended in court.”4 It is incumbent upon the courts to correct that legal error so that the Executive Branch can exercise the policy discretion vested in it by the Legislature and the electorate.
The Negusie doctrine, moreover, serves an important function even if the agency on remand hews to its prior position based upon its own policy judgment rather than its earlier erroneous legal conclusion. Under those circumstances, remand forces the agency to clarify for the public just exactly where the buck stops. Otherwise, the Executive Branch could disclaim responsibility for unpopular policy decisions by attributing the
4 Statement from President Donald J. Trump, The White House (Sept. 5, 2017), https://perma.cc/GB7Y-EWY5; see also Remarks by President Trump in Meeting with Bipartisan Members of Congress on Immigration, The White House (Jan. 9, 2018), https://perma.cc/5QHA97S6 (agreeing with members of Congress that DACA should be extended but adding that the President “doesn’t have the right to do this” without additional legislation).
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outcome to Congress or the courts.5 The Negusie doctrine compels the Executive Branch to take ownership over its policy judgments and to face whatever electoral consequences might follow.
II. Rescission of DACA Was Based on an Erroneous Legal Premise. A. Rescission of DACA was based on the premise that the Executive Branch lacked legal authority to maintain the policy In September 2017, the Acting Secretary of Homeland Security
announced her decision to end DACA in a cursory memorandum with scant legal analysis and no evaluation of immigration enforcement priorities. See Elaine C. Duke, Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017), https://perma.cc/5D2G-KUN8 (“Duke Memo”). After a brief background section that recounted the evolution of DACA and that of a different deferred action policy, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the Acting Secretary offered a single sentence of justification for her decision: “Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the
5 Cf. Allison De Jong, Americans Back DACA by a Huge Margin, ABC News (Sept. 25, 2017), https://perma.cc/BS9J-HBNR (reporting that “86 percent of Americans support a right to residency for undocumented immigrants who arrived in the United States as children”).
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ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated.” Id. That sentence is at best enigmatic, as neither the Supreme Court nor the Fifth Circuit has ruled on DACA’s validity. Yet this Court’s review of the Acting Secretary’s action is necessarily limited to the thin reed that the agency itself has supplied. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“Chenery II”) (“[A] simple but fundamental rule of administrative law . . . is . . . that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.”).
The government now pursues two lines of argument in an attempt to bolster the meager basis for DACA’s rescission. First, the government submits that the Acting Secretary’s rescission of DACA followed from a “discretionary” judgment that her agency “would be enmeshed in litigation” if it left the program in place. Gov’t Br. 13-14; see also id. at 29 (Acting Secretary acted “based on the evident risk that the existing DACA policy would at a minimum be the subject of protracted litigation”). Second, and sometimes in the same breath, the government suggests that rescission was based on a “reasonable legal conclusion” as to the DACA
10

program’s validity. Id. at 14. Neither argument can carry the weight that the government wants it to bear.
Start with the litigation-risk rationale. As an initial matter, the Acting Secretary never stated that her own assessment of litigation risk led her to rescind the DACA policy, and so this rationale—whatever its merits—cannot be a basis for upholding her decision. See Burlington Truck Lines v. United States, 371 U.S. 156, 168-69 (1962) (“The courts may not accept appellate counsel’s post hoc rationalizations for agency action; Chenery requires that an agency’s discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself . . . .”); Chenery II, 332 U.S. at 196-97 (“[T]he basis upon which [agency action] purports to rest . . . must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency’s action . . . .”). To be sure, the rescission memorandum does cite and quote the Attorney General’s statement that “because DACA ‘has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.’” Duke Memo (quoting Letter from Attorney Gen. Jefferson B. Sessions III to Acting Sec’y of Homeland Sec. Elaine C. Duke (Sept. 4, 2017), https://perma.cc/6HT7-VSGA (“Sessions Letter”)). But it is the Secretary
11

of Homeland Security, not the Attorney General, who is responsible for “[e]stablishing national immigration enforcement policies and priorities”—and thus, the Secretary who must weigh the policy arguments in favor of DACA against any “litigation risk” that maintaining the policy might entail. See Homeland Security Act of 2002, Pub. L. No. 107-296, § 402, 116 Stat. 2135, 2178 (transferring responsibility for “[e]stablishing national immigration enforcement policies and priorities” from Attorney General to Secretary of Homeland Security); cf. Gonzales v. Oregon, 546 U.S. 243, 259 (2006) (no deference to Attorney General where “Congress did not delegate to the Attorney General authority to carry out or effect” relevant statutory provisions). The administrative record discloses no evidence that the Acting Secretary—as opposed to the Attorney General—engaged in the evaluative exercise that Congress has required her and her agency to undertake. See Judulang v. Holder, 565 U.S. 42, 45 (2011) (“When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one.”).
More fundamentally, the litigation-risk rationale makes no sense on its own terms. As this very case illustrates, rescission of DACA did not spare the Administration from litigation. See also Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 2018) (granting preliminary
12

injunction to stop rescission of DACA); Casa de Maryland v. U.S. Dep’t of
Homeland Sec., No. RWT-17-2942, 2018 U.S. Dist. LEXIS 35373 (D. Md.
Mar. 5, 2018) (declining to block rescission of DACA but enjoining
government from using information gathered through DACA for
enforcement purposes). And prior to the Acting Secretary’s
announcement, officials in multiple states vowed publicly and
emphatically that they would sue the Administration if it rescinded the
DACA policy.6 The Acting Secretary no doubt knew before she announced
her decision in September 2017 that her agency “would be enmeshed in
litigation” regardless of whether she rescinded DACA or left the program
in place.
In any case, this Court has directly addressed the question of
whether an agency can rely on litigation avoidance as a reason for
changing a regulatory policy when the change will lead to lawsuits just
as surely as if the policy is maintained. See Organized Vill. of Kake v.
6 See Press Release, New York State, Governor Cuomo and Attorney General Schneiderman Announce that New York Will Sue if President Trump Ends Deferred Action for Childhood Arrivals Policy (Sept. 4, 2017), https://perma.cc/5AUR-44NA; Press Release, Washington State Office of the Attorney General, AG Ferguson Vows To Take Legal Action If Trump Cancels DACA (Sept. 4, 2017), https://perma.cc/Z4SF-YSML; see also Letter from Xavier Becerra, California Attorney General, et al., to Donald J. Trump (July 21, 2017), https://perma.cc/3DL2-3CGH (letter from Attorneys General of 19 states and the District of Columbia pledging “to defend DACA by all appropriate means”).
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U.S. Dep’t of Agriculture, 795 F.3d 956, 970 (9th Cir. 2015). This Court’s answer to that question is clear: the litigation-risk rationale cannot “withstand[] even the forgiving general requirement that the proffered reason for agency action not be ‘implausible’” where “[a]t most, the Department deliberately traded one lawsuit for another.” Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).7 Because either course of action would have resulted in vigorous litigation, it would have been entirely arbitrary—and thus unlawful—for the agency to rescind DACA based on a rationale that could just as easily support the opposite outcome.
With the litigation-risk rationale a nonstarter, the government falls back on the argument that the Acting Secretary’s rescission rested on a “reasonable legal conclusion.” Gov’t Br. 14, 38. But that, too, is not enough to sustain the decision to discontinue DACA, for what matters at this stage in this case is not whether the Acting Secretary’s legal
7 And insofar as the Department traded one lawsuit for another, it made a bad trade. Any potential challengers to DACA would have to explain why they waited five years to assert their claim for injunctive relief. See Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005) (“Under longestablished principles, [a plaintiff]’s lack of diligence precludes equity’s operation.”); McQuiddy v. Ware, 87 U.S. (20 Wall.) 14, 19 (1874) (“Equity always refuses to interfere where there has been gross laches in the prosecution of rights.”); Garcia Br. 36; Regents of the Univ. of California Br. 53-54.
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conclusion was “reasonable”; what matters is whether it was correct. The
rule that “an order may not stand if the agency has misconceived the law”
brooks no exception for “reasonable” misconceptions of the law. See
Chenery I, 318 U.S. at 94. Courts will defer to an agency’s “reasonable
policy choice,” but such deference “‘is only appropriate when the agency
has exercised its own judgment,’ not when it believes that its
interpretation is compelled by Congress.” Arizona v. Thompson, 281 F.3d
248, 254 (D.C. Cir. 2002) (quoting Phillips Petroleum Co. v. FERC, 792
F.2d 1165, 1169 (D.C. Cir. 1986)); see also Safe Air for Everyone v. U.S.
EPA, 488 F.3d 1088, 1101 (9th Cir. 2007) (holding that remand is
required where a “legally erroneous . . . premise is fundamental to [the
agency]’s determination”).8
8 Courts will—when applying the Chevron framework—defer to an agency’s reasonable interpretation of an ambiguous statutory provision when the agency’s “choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care” by the relevant statute. See Chevron, 467 U.S. at 844-45 (internal quotation marks omitted); see also United States v. Mead Corp., 533 U.S. 218, 22627 (2001) (Chevron deference is applicable “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority”). But such deference “‘is not appropriate when the agency wrongly ‘believes that interpretation is compelled by Congress.’’” Gila River Indian Cmty., 729 F.3d at 1149 (quoting PDK Labs. Inc. v. U.S. Drug Enforcement Admin.,
15

Thus, the Acting Secretary’s decision must rise or fall based on
whether the underlying legal premise—that “the DACA policy has the
same legal and constitutional defects that the courts recognized as to
DAPA”—proves to be right. And the claim of “constitutional defects that
the courts recognized as to DAPA” clearly holds no water, as no court has
ever held DAPA to be unconstitutional.9 As a result, the Acting
Secretary’s decision can stand if—and only if—the statutory arguments
against DACA are sound.
362 F.3d 786, 798 (D.C. Cir. 2004)). Thus, even where the Chevron framework otherwise would apply, an agency’s erroneous legal conclusion regarding the scope of its own authority requires remand. See United States v. Ross, 848 F.3d 1129, 1134 (D.C. Cir. 2017) (“Where a statute grants an agency discretion but the agency erroneously believes it is bound to a specific decision, we can’t uphold the result as an exercise of the discretion that the agency disavows.”); see also Regents of the Univ. of California v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1045 n.17 (N.D. Cal. 2018) (decision below) (noting that government has not argued for Chevron deference in this case).
9 More fundamentally, neither DACA nor DAPA was or is constitutionally defective. The Administration’s exercise of enforcement discretion is entirely consistent with its constitutional obligation to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3, cl. 5; see Arizona Dream Act Coal., 855 F.3d at 976 (“‘The power to decide when to investigate, and when to prosecute, lies at the core of the Executive's duty to see to the faithful execution of the laws.’” (quoting Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986))).
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In its 2015 decision affirming a preliminary injunction against DAPA, the Fifth Circuit identified two arguments upon which DAPA’s challengers showed a “substantial likelihood of success”: (1) that DAPA is a “substantive rule” that must be promulgated through notice and comment under 5 U.S.C. § 553; and (2) that DAPA is “manifestly contrary” to the Immigration and Nationality Act (INA). See Texas v. United States, 809 F.3d 134, 170-86 (5th Cir. 2015). The Attorney General was apparently alluding to those arguments when he referenced DAPA’s “legal . . . defects,” and the Acting Secretary specifically cites the Fifth Circuit’s decision in her memorandum announcing DACA’s end. Duke Memo at nn.3-4. If neither of these arguments necessitates the rescission of DACA, then the Acting Secretary’s decision must fall.
The government does not defend the proposition that DACA is a substantive rule that must go through notice and comment. Indeed, it eschewed that proposition in proceedings below. See Dkt. 204 at 31 (stating that “binding Ninth Circuit precedent” has “squarely rejected” the contention that a deferred action directive must “abide by notice-andcomment requirements” (citing Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1009 (9th Cir. 1987))). And even if the government had argued that DACA were procedurally invalid, that conclusion would not explain the decision to rescind DACA rather than to re-promulgate it through the
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notice-and-comment process. See Nat’l Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 215 (D.C. Cir. 2013) (agency must consider “‘significant and viable’ and ‘obvious’ alternatives” (quoting Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153, 1169 (D.C. Cir. 1987))).
So the sole remaining justification for the rescission of DACA is the premise that the Executive Branch lacked statutory authority under the INA to maintain the policy. Only if that premise passes muster can the rescission be sustained. Yet as explained below, DACA lies comfortably within the Department of Homeland Security’s legal authority. While the agency might choose to rescind DACA based on policy considerations, it cannot base its rescission on an erroneous legal conclusion.
B. The premise that the Executive Branch lacks authority to maintain DACA is legally erroneous
The Secretary of Homeland Security is, as noted above, responsible for “[c]arrying out . . . immigration enforcement functions” and for “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(3), (5). Consistent with these responsibilities, the Department of Homeland Security under the last Administration decided to prioritize removal of criminals, terrorists, and undocumented
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immigrants apprehended at the border.10 Meanwhile, the then-Secretary
instructed officials within her Department to identify “certain young
people who were brought to this country as children and know only this
country as home” as “low priority cases,” to defer action with respect to
those low-priority individuals for two years “on a case by case basis,” and
to determine whether those individuals qualify for work authorization
during the period of deferred action. See Memorandum from Janet
Napolitano, Sec’y of Homeland Sec., to David V. Aguilar, Acting Comm’r,
U.S. Customs & Border Prot., et al. (June 15, 2012),
https://perma.cc/N4AA-GTA9.11 These decisions lie within the “broad
10 See Memorandum from John Morton, Dir., U.S. Immigration & Customs Enforcement, to All ICE Employees (Mar. 2, 2011), https://perma.cc/778D-JLDB; Memorandum from Jeh Charles Johnson, Sec’y of Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S. Immigration & Customs Enforcement, et al. (Nov. 20, 2014), https://perma.cc/FFA9-TT89.
11 Specifically, to be eligible for DACA, an immigrant must (1) have come to the United States before age sixteen, (2) have continuously resided in the United States for the past five years, (3) be enrolled in high school, have completed high school, or have been honorably discharged from the Armed Forces or Coast Guard, (4) not have been convicted of a felony, significant misdemeanor, or series of misdemeanors, and (5) not be above age thirty. See Napolitano Memo at 1. Applicants who meet these criteria then must pass a background check, and the final decision regarding deferral is made “on an individual basis” by the Citizenship
19

discretion exercised by immigration officials” that is—and must remain—a “principal feature of the removal system.” Arizona v. United States, 567 U.S. 387, 396 (2012); see also id. at 396-97 (noting that “[d]iscretion in the enforcement of immigration law embraces immediate human concerns” and allows “the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy”).
Congress has ratified this exercise of discretion over and over again. It has instructed the Secretary of Homeland Security to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”12 This legislative command to prioritize the removal of criminals logically entails a de-prioritization of the removal of immigrants such as DACA recipients who have abided by our laws. Congress also has authorized states participating in the Real ID Act of 2005 to issue driver’s licenses to immigrants with “approved deferred action status”—an indication that Congress recognizes and endorses the deferral practice. Pub. L. No. 109-13, Div. B, 119 Stat. 313, 49 U.S.C. § 30301 note. It has authorized the Secretary to grant work
and Immigration Services component of the Department of Homeland Security. Id. at 2.
12 Consolidated Appropriations Act 2016, Pub. L. No. 114-113, Div. F, Tit. II, 129 Stat. 2497 (2016); Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110329, Div. D, Tit. II, 122 Stat. 3659 (2008).
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authorizations to immigrants such as deferred action beneficiaries who are not lawfully admitted for permanent residence. 8 U.S.C. § 1324a(h)(3). And it has authorized the Secretary to allow deferred action beneficiaries to participate in the Old-Age, Survivors, and Disability Insurance program (Social Security), Medicare, and the federal railroad worker retirement and unemployment insurance programs. See 8 U.S.C. § 1611(b)(2)-(4).13
Not only has Congress ratified the practice of deferred action, but the Supreme Court has condoned it as well. In Reno v. American-Arab Anti-Discrimination Committee, the Court described “deferred action” as “a regular practice” pursued for “humanitarian reasons” as well as administrative “convenience.” 525 U.S. at 483-84. The Court approvingly quoted a treatise that characterizes deferred action as a “‘commendable exercise in administrative discretion’” that “‘ameliorate[s] . . . harsh and unjust outcome[s].’” Id. at 484 (quoting 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 72.03[2][h] (1998)). Although the Acting Secretary averred in her rescission memorandum that she took account of Supreme Court case law, she apparently ignored
13 These functions, initially vested in the Attorney General, were transferred to the Secretary of Homeland Security by the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.
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the only Supreme Court decision up to that point that addressed deferred action directly.14
This Court too has recognized the regular practice of deferred action. It has explained that “[t]he INA expressly provides for deferred action as a form of relief that can be granted at the Executive’s discretion.” Arizona Dream Act Coal., 855 F.3d at 967. And it has noted that the Justice Department and the Department of Homeland Security have granted deferrals of various forms to hundreds of thousands of immigrants over several decades. See id. at 967 n.2 (recounting that the Attorney General deferred removal of 250,000 nationals of certain countries in 1977, that the Immigration and Naturalization Service within the Justice Department granted wide-scale deferrals to family members of newly legalized immigrants in 1990, and that President Bush ordered deferral for 190,000 Salvadorans in 1992). Although the Attorney General’s letter described DACA as “an open-ended circumvention of
14 The only Supreme Court opinions that have addressed the immigration authorities’ practice of deferred action even obliquely since the Acting Secretary’s decision are those in this case. See In re United States, 138 S. Ct. 443, 445 (2017) (per curiam) (addressing discoveryrelated issues in this case but emphasizing that “[t]his order does not suggest any view on the merits of [plaintiffs]’ claims or the Government’s defenses”); In re United States, 138 S. Ct. 371, 371 (2017) (Breyer, J., dissenting) (also addressing discovery-related issues and adding that the “merits” of the DACA challenge “are not before us”).
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immigration laws,” see Sessions Letter at 1, it is in fact part and parcel of a discretionary approach to immigration enforcement that has been pursued by multiple Administrations and sanctioned by Congress and the courts.
The Fifth Circuit’s 2015 decision in Texas v. United States, though cited by the Attorney General and Acting Secretary in support of their conclusion regarding DACA’s illegality, did not address DACA in particular or the validity of the regular practice of deferred action more broadly. The Texas decision, which is not binding on this Court, specifically addressed the validity of only a single exercise of deferred action (DAPA) and relied on a rationale that does not apply to DACA or to other instances of deferral. The Fifth Circuit found that “Congress has enacted an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status,” and that DAPA—which applied to the parents of citizens and lawful permanent residents—circumvented that process. See Texas, 809 F.3d at 179-180; see also id. at 186 (stating that “the INA’s specific and intricate provisions . . . prescribe[] how parents may derive an immigration classification on the basis of their child’s status” and thus that “DAPA is
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foreclosed by Congress’s careful plan”).15 Because Congress has enacted no such “intricate process” for childhood arrivals, the Fifth Circuit’s reasoning cannot be extended to DACA. Indeed, the Fifth Circuit itself has recognized as much. See id. at 173-74 (noting that “DACA and DAPA are not identical,” and emphasizing that “any extrapolation from DACA must be done carefully”). The Administration ignored that cautionary note when it blithely concluded that DAPA and DACA must share the same fate.
The fact that the Acting Secretary’s decision was based on a misunderstanding of her own statutory authority also disposes of the government’s claim that the rescission of DACA is unreviewable under 5 U.S.C. § 701(a)(2) of the Administrative Procedure Act. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (noting that § 701(a)(2) carves out a “very narrow” exception to the presumption in favor of judicial review “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply’” (quoting S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945))). To be sure, “an agency’s
15 Specifically, parents seeking visas based on their children’s lawful immigration status must have a child over 21 years old who is a U.S. citizen, must leave the United States for 10 years before seeking readmission, and then must apply for a family preference visa at a U.S. consulate. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a); Texas, 809 F.3d at 179-180 & n.167.
24

decision not to take enforcement action”—or here, not to defer enforcement action—generally is “presumed immune from judicial review under § 701(a)(2).” See Heckler v. Chaney, 470 U.S. 821, 832 (1985). But that presumption does not apply when the agency has declined to exercise its discretionary authority based on an “incorrect legal premise.” Bonilla, 840 F.3d at 588; see also Montana Air Chapter No. 29, 898 F.2d at 756 (agency’s nonenforcement decision is reviewable when agency’s statements “strongly indicate” that its decision “was based solely on the belief” that it lacked discretion to act otherwise). Here, where the Acting Secretary’s statements reveal that the rescission of DACA was based on a mistaken belief that the Department lacked authority to continue the program, the Administrative Procedure Act presents no bar to review.
In sum, the Acting Secretary of Homeland Security discontinued the DACA program based on her apparent belief that the immigration laws—as interpreted by the Supreme Court and the Fifth Circuit— required that result. That error requires remand. Congress has repeatedly ratified the practice of deferred action in federal immigrationrelated statutes; the only Supreme Court decision to address the issue up to that date had endorsed the practice; and the Fifth Circuit decision cited by the Acting Secretary explicitly distinguished DACA from the
25

DAPA program that it held to be invalid. The Acting Secretary made a mistake of law in concluding that the immigration statutes and the judicial precedents construing them required DACA’s rescission. The proper course is thus to send the matter back to the agency so that the Secretary—in consultation with other Executive Branch officials—can consider the administrative, humanitarian, economic, and other factors that appropriately bear on whether the DACA policy should be maintained.

CONCLUSION The district court’s order granting a preliminary injunction should be affirmed.

Date: March 20, 2018

Respectfully Submitted,
By: s/ Anna-Rose Mathieson Anna-Rose Mathieson Ben Feuer California Appellate Law Group LLP
Attorneys for Amici Law Professors

26

APPENDIX A
Amici are professors of administrative law and related public law subjects. Their titles and institutional affiliations are provided for identification purposes only.
Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University
Michael Asimow, Visiting Professor of Law, Stanford Law School, and Professor of Law Emeritus, University of California, Los Angeles, School of Law
Ashutosh Bhagwat, Martin Luther King, Jr. Professor of Law, University of California, Davis, School of Law
Lisa Bressman, David Daniels Allen Distinguished Chair in Law, Vanderbilt University Law School
William W. Buzbee, Professor of Law, Georgetown University Law Center
Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science, University of Pennsylvania Law School
Seth Davis, Assistant Professor of Law, University of California, Irvine School of Law
Daniel Farber, Sho Sato Professor of Law, University of California, Berkeley, School of Law
Cynthia R. Farina, McRoberts Professor of Research in Administration of the Law, Cornell Law School
A. Michael Froomkin, Laurie Silvers and Mitchell Rubenstein Distinguished Professor of Law, University of Miami School of Law
27

Daniel Hemel, Assistant Professor of Law, University of Chicago Law School
Aziz Huq, Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School
Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington University School of Law
Jerry L. Mashaw, Sterling Professor of Law Emeritus and Professorial Lecturer, Yale Law School
Jon D. Michaels, Professor of Law, University of California, Los Angeles, School of Law
Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law and Professorial Lecturer in Law, The George Washington University Law School
Joshua D. Sarnoff, Professor of Law, DePaul University College of Law
Joshua I. Schwartz, E.K. Gubin Professor of Law, The George Washington University Law School
Mark Seidenfeld, Patricia A. Dore Professor of Administrative Law, Florida State University College of Law
Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law
Sidney Shapiro, Frank U. Fletcher Chair of Administrative Law, Wake Forest University School of Law
Peter L. Strauss, Betts Professor of Law Emeritus, Columbia Law School
28

Arthur Wolf, Professor of Law, Western New England University School of Law
Brian Wolfman, Associate Professor of Law and Director, Appellate Courts Immersion Clinic, Georgetown University Law Center
29

CERTIFICATE OF COMPLIANCE Counsel for Amici Law Professors certifies: 1. This brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 29(a)(5) and 32(a)(7)(B). This brief contains 5,877 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the typestyle requirements of Federal Rule of Appellate Procedure 32(a)(6). This brief has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Century Schoolbook font.

Date: March 20, 2018

Respectfully Submitted,
By: s/ Anna-Rose Mathieson Anna-Rose Mathieson Ben Feuer California Appellate Law Group LLP
Attorneys for Amici Law Professors

CERTIFICATE OF FILING AND SERVICE
I hereby certify I electronically filed the foregoing with the Clerk for the United States Court of Appeals for the Ninth Circuit by using the CM/ECF system on March 20, 2018. All participants in the case are registered CM/ECF users and so will be served by the CM/ECF system, which constitutes service pursuance to Federal Rule of Appellate Procedure 25(c)(2) and Ninth Circuit Rule 25-5.

Date: March 20, 2018

Respectfully Submitted,
By: s/ Anna-Rose Mathieson Anna-Rose Mathieson Ben Feuer California Appellate Law Group LLP
Attorneys for Amici Law Professors

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees, V.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellants,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF OF AMICI CURIAE THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, ANTI-DEFAMATION LEAGUE, AND SOCIAL JUSTICE ORGANIZATIONS IN SUPPORT OF PLAINTIFFS-APPELLEES

Jon Greenbaum Dariely Rodriguez Dorian Spence Phylicia Hill THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue NW Washington, DC 20008 (202) 662-8600

William D. Coston Counsel of Record
John F. Cooney Martin L. Saad Sameer P. Sheikh VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 (202) 344-4183
Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1 and 29(a)(4)(A), amici curiae the Lawyers’ Committee for Civil Rights Under Law, the Anti-Defamation League, the Lawyers’ Committee for Civil Rights and Economic Justice, the Mississippi Center for Justice, the Southern Poverty Law Center, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and the Leadership Conference on Civil and Human Rights certify that amici are not publicly held corporations, that amici do not have parent corporations, and that no publicly held corporation owns 10 percent or more of any amicus’ respective stock. Dated: March 20, 2018
William D. Coston VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 (202) 344-4183 wdcoston@Venable.com Counsel for Amici Curiae
i

TABLE OF CONTENTS STATEMENT OF INTEREST OF AMICI CURIAE ................................................1 INTRODUCTION .....................................................................................................2 I. THE GOVERNMENT WAS REQUIRED TO CONSIDER RELIANCE
INTERESTS PRIOR TO TERMINATING DACA.............................................3 II. DACA ENGENDERED SUBSTANTIAL ECONOMIC RELIANCE
INTERESTS THAT THE GOVERNMENT FAILED TO CONSIDER .............7 A. Reliance Interests of DACA Students, Educators and
Educational Institutions ...................................................................................9 B. DACA Enrollees Purchased Homes and Lending Institutions
Extended Loans in Reliance on DACA.........................................................15 C. Promises of “Expedited Citizenship” for DACA Enrollees
Serving Vital Military Interests .....................................................................17 CONCLUSION ........................................................................................................19
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TABLE OF AUTHORITIES
Page(s)
Cases
Encino Motor Cars, LLC v. Navarro, 136 S. Ct. 2117 (2016)..........................................................................................5
Heckler v. Chaney, 470 U.S. 821 (1985)..............................................................................................5
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ....................................................................................4, 5
Plyler v. Doe, 457 U.S. 202 (1982)........................................................................................9, 13
Smiley v. Citibank (South Dakota), NA, 517 U.S. 735 (1996)..............................................................................................7
U.S. v. Penn. Indus. Chem. Corp., 411 U.S. 655 (1973)..............................................................................................8
Statutes
8 U.S.C. § 1252..........................................................................................................5
5 U.S.C. § 706(2)(A)..........................................................................................3, 6, 8
Other Authorities
Alexander Casey, An Estimated 123,000 ‘Dreamers’ Own Homes and Pay $380M in Property Taxes, Zillow (Sept. 20, 2017), https://www.zillow.com/research/daca-homeowners-380m-taxes16629/ ...........................................................................................................15, 16
Alice Yin, Education by the Numbers, N.Y. Times (Sept. 8, 2017), https://www.nytimes.com/2017/09/08/magazine/education-by-thenumbers.html ......................................................................................................11
C. Emily Feistritzer, Profile of Teachers in the U.S. 2011 Profile of Teachers in the U.S. 2011, Nat. Ctr. for Educ. Info. (July 2011), https://www.edweek.org/media/pot2011final-blog.pdf......................................10 iii

Anti-Defamation League, Creating an Anti-Bias Learning Environment, https://www.adl.org/education/resources/tools-andstrategies/creating-an-anti-bias-learning-environment .......................................13
Elise Gould, Local public education employment may have weathered recent storms, but schools are still short 327,000 public educators Econ. Pol’y. Inst. (Oct. 6, 2017), http://www.epi.org/publication/teacher-employment-may-haveweathered-storms-but-schools-are-still-short-327000-publiceducators/. ...........................................................................................................10
Greg Toppo, 20,000 DACA teachers at risk — and your kids could feel the fallout, too (Oct. 11, 2017, 7:00 AM), https://www.usatoday.com/story/news/2017/10/11/thousands-dacateachers-risk/752082001/..............................................................................10, 12
Housing and Urb. Dev., The National Homeownership Strategy: Partners in the American Dream (1995) ............................................................14
Lisette Partelow, America Needs More Teachers of Color, (September 14, 2017, 9:00 am), https://www.americanprogress.org/issues/education-k12/reports/2017/09/14/437667/america-needs-teachers-colorselective-teaching-profession/ ............................................................................11
Liz Robbins, For Teachers Working Through DACA, (Sept. 7, 2017) https://www.nytimes.com/2017/09/07/nyregion/daca-teachers.html................ 13
Memorandum from Janet Napolitano, Sec’y of Homeland Sec., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) ..............................8
Moriah Balingit, As DACA winds down, 20,000 educators are in limbo, Wash. Post (Oct. 25, 2017), https://www.washingtonpost.com/local/education/as-daca-windsdown-20000-educators-are-in-limbo/2017/10/25/4cd36de4-b9b311e7-a908-a3470754bbb9_story.html ...............................................................10
Nat. Ctr. for Educ. Info. (July 2011), https://www.edweek.org/media/pot2011final-blog.pdf......................................10
iv

National DACA Study, Ctr. for Am. Progress (Oct. 7, 2017), https://cdn.americanprogress.org/content/uploads/2017/11/021252 51/2017_DACA_study_economic_report_updated.pdf .....................................15
Now the U.S. might deport them (Sept. 7, 2017), https://www.washingtonpost.com/news/checkpoint/wp/2017/09/07 /the-military-looked-to-dreamers-to-use-their-vital-skills-now-theu-s-might-deport-them/ .......................................................................................18
Recruitment Pilot Program, https://www.defense.gov/news/MAVNIFact-Sheet.pdf .....................................................................................................17
Seth Gershenson et al., The Long-Run Impacts of Same-Race Teachers, IZA Inst. of Lab. Econ., Mar. 2017, http://ftp.iza.org/dp10630.pdf .............................................................................12
Statement of Nancy E. Weaver, Department of Defense Senior Language Authority, Before the House Armed Services Committee Subcommittee on Oversight and Investigations, June 29, 2010, http://prhome.defense.gov/Portals/52/Documents/RFM/Readiness/ DLNSEO/docs/Weaver%20Testimony%20062910.pdf ....................................17
Tom K. Wong, Results from Tom K. Wong et al., 2017 National DACA Study, Ctr. for Am. Progress (Oct. 7, 2017), https://cdn.americanprogress.org/content/uploads/2017/11/021252 51/2017_DACA_study_economic_report_updated.pdf .....................................15
U.S. Census Bureau, Quarterly Residential Vacancies And Homeownership, Fourth Quarter 2017 (Jan. 30, 2018 10:00 AM),
https://www.census.gov/housing/hvs/files/currenthvspress.pdf.........................16
v

STATEMENT OF INTEREST OF AMICI CURIAE1 Amici, the Lawyers’ Committee for Civil Rights Under Law, the AntiDefamation League, the Lawyers’ Committee for Civil Rights and Economic Justice, the Mississippi Center for Justice, the Southern Poverty Law Center, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and the Leadership Conference on Civil and Human Rights are national and regional civil rights groups and social justice organizations, each committed to the promotion of civil liberties throughout the country and the elimination of discrimination in any form.2 Amici are particularly well suited to offer amicus assistance to this Court based on their experience working on immigration issues. Amici have observed firsthand the ways in which DACA has improved the lives of undocumented young people and enabled them to make significant social and economic contributions that have made our country greater.
1 Amici submit this brief without an accompanying motion for leave to file because all parties have consented to its filing. Fed. R. App. P. 29(a)(2). No counsel for a party has authored this brief in whole or in part, and no party or counsel for a party has made a monetary contribution intended to fund the preparation or submission of the brief. No person other than amici or their counsel has made a monetary contribution to the preparation or submission of this brief. Fed. R. App. P. 29(a)(4)(E). 2 List of Individual Amici Curiae with Statements of Interest is set forth in Appendix at A-1.
1

INTRODUCTION Amici submit this brief in support of Plaintiffs-Appellees to focus the Court’s attention on an issue of overarching significance – the Department of Homeland Security’s failure to consider substantial reliance interests when it terminated the Deferred Action for Childhood Arrivals (DACA) program. The DACA program, announced on June 15, 2012, provided eligible undocumented immigrants protection from deportation and granted them work authorization subject to approval of an initial application and renewal every two years thereafter. Imbued with the spirit of the American Dream, DACA enrollees have made substantial investments in themselves, for their families, and in our communities in reliance on DACA’s promulgation. Without consideration for the reliance interests DACA engendered over the last five years, the government abruptly decided to pull the rug out from underneath hundreds of thousands of childhood arrivals who, in an effort to play by the rules, had come out of the shadows to enroll in the federal program. The Administrative Procedure Act (APA)’s procedural safeguards and requirements were designed to protect against capricious reversals or terminations of policies and programs that induce substantial reliance interests of the type found here. DACA enrollees have invested in job-specific training programs, enrolled in universities, obtained jobs as educators, purchased homes, and enlisted in the
2

military in service of our country. In turn, educational institutions, local communities, and employers have extended already limited opportunities and resources to DACA enrollees. These personal, social, and institutional investments were made in reliance on the government’s representations and the implied promise that the government would not, on the basis of some political whim, execute an about-face. Where, as here, the government has failed to take into account such significant reliance interests before abruptly axing a federal program, the decision to terminate should be viewed as nothing more than arbitrary and capricious.
ARGUMENT I. THE GOVERNMENT WAS REQUIRED TO CONSIDER RELIANCE
INTERESTS PRIOR TO TERMINATING DACA In his thorough and well-reasoned opinion, Judge Alsup concluded that the rescission of DACA constituted an “agency action” under the APA. Opinion Below (“Op.”) at 18. Under Section 706(2)(A) of the APA, federal courts may review and set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Distinguishing the DACA rescission as a policy decision rather than a mere non-enforcement decision, the lower court, quoting Robbins v. Reagan, 780 F.2d 37, 47 (D.C. Cir. 1985), noted:
3

In contrast to nonenforcement decisions, ‘rescissions of commitments, whether or not they technically implicate liberty and property interests as defined under the fifth and fourteenth amendments, exert much more direct influence on the individuals or entities to whom the repudiated commitments were made’.
Op. at 20. The lower court noted the undeniable reliance by DACA enrollees,
employers, educational institutions, and state governments on the DACA program:
Through DACA, the government has invited undocumented aliens who meet threshold criteria to step forward, disclose substantial personal information, pay a hefty fee, and comply with ongoing conditions, all in the expectation of (though not a right to) continued deferred action. DACA allows enrollees to better plan their careers and lives with a reduced fear of removal. DACA work authorizations, for example, allow recipients to join in the mainstream economy (and pay taxes). DACA covers a class of immigrants whose presence, seemingly all agree, pose the least, if any, threat and allows them to sign up for honest labor on the condition of continued good behavior. This has become an important program for DACA recipients and their families, for the employers who hire them, for our tax treasuries, and for our economy. An agency action to terminate it bears no resemblance to an agency decision not to regulate something never before regulated.
Op. at 20–21. The Secretary in Homeland Security, in rescinding DACA, simply
did not “weigh DACA’s programmatic objectives as well as the reliance interests
of DACA recipients.” Id. at 40 (citing Encino Motor Cars, LLC v. Navarro,
136 S. Ct. 2117, 2126–27 (2016)). As the trial court noted, the administrative
4

record on the benefits of the program “is utterly silent in this regard.” In short, the agency failed to analyze whether the program was “worth fighting for.” Op. at 40.
The Department of Homeland Security (DHS) thereby violated two core principles governing its actions. First, it abused its discretion because it “entirely failed to consider an important aspect of the problem,” namely the impact of its policy change on the persons who would be directly affected by the decision. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). DHS seeks to justify its deliberate decision to ignore those effects by claiming that its abuse of discretion is exempt from judicial review under Heckler v. Chaney, 470 U.S. 821 (1985), because there is no meaningful standard against which to judge the agency’s exercise of discretion. But that case is facially distinguishable because it dealt with an agency’s refusal to take an enforcement action requested by the plaintiffs, as opposed to the agency taking coercive enforcement action against DACA participants. Failure to consider the effects of its action on the targeted population violates a core principle of State Farm, and occurs in a statutory context in which Congress enacted express provisions when it wished to prohibit judicial review of specific agency decisions or agency exercise of discretion. See 8 U.S.C. § 1252.
The lower court’s reliance on Encino Motor Cars highlights the second core principle DHS violated. See Op. at 41. The Supreme Court noted in that case that
5

although agencies are free to change their existing policies, they are nonetheless
required to state a reasoned explanation for a policy reversal:
In explaining its changed position, an agency must also be cognizant that longstanding policies may have engendered serious reliance interests that must be taken in account. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy. It follows that an unexplained inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.
Encino, 136 S. Ct. at 2125-2126. As the lower court noted, Encino stands
for the proposition that where an agency gives “almost no reason at all” for
its change in position, the agency fails to provide the sort of reasoned
explanation required in light of the “significant reliance issues involved.”
Op. at 41 (citing Encino, 136 S. Ct. at 2126–2127).
The Supreme Court’s opinion in Perez v. Mortgage Bankers Association is
also instructive on the importance of reliance in APA cases. There the Court
noted:
The APA contains a variety of constraints on agency decisionmaking—the arbitrary and capricious standard being among the most notable. . . . [T]he APA requires an agency to provide more substantial justification when ‘its new policy rests upon factual findings that contradict those which underlay its prior policy; or when prior policy has engendered serious reliance interests that must be taken
6

into account. It would be arbitrary and capricious to ignore such matters’ (citations omitted).
135 S. Ct. 1199, 1209 (2015). The lower court decision here is crystal clear in
concluding that there was a complete failure to consider interests compelling
maintenance of the DACA program:
In terminating DACA, the administrative record failed to address the 689,800 young people who had come to rely on DACA to live and work in this country. These individuals had submitted substantial personal identifying information to the government, paid hefty fees, and planned their lives according to the dictates of DACA. The administrative record indicates no consideration to the disruption a rescission would have on the lives of DACA recipients, let alone their families, employers and employees, schools and communities.
Op. at 41–42. There are a variety of reliance interests that should have been, but
were not, considered: the interests of educational institutions; the interests of
employers; the interests of the military; the interests of state governments; and, of
course, the reliance interests of the DACA enrollees themselves. We proceed to
address a few of these significant interests that the government should have
considered but instead ignored.
II. DACA ENGENDERED SUBSTANTIAL ECONOMIC RELIANCE INTERESTS THAT THE GOVERNMENT FAILED TO CONSIDER
Courts have long recognized that “[s]udden and unexplained change or
change that does not take account of legitimate reliance on prior interpretation may
7

be arbitrary, capricious or an abuse of discretion.” Smiley v. Citibank (South Dakota), NA, 517 U.S. 735, 742 (U.S. 1996) (citations and quotations omitted). Reliance interests such as these may never find a clearer expression than in the economic activities of over 800,000 Americans who invested in their education and job training, purchased homes, and enlisted in the military in reliance on the understanding that their right to remain in the United States would not be rescinded on the basis of executive caprice.
The Department of Homeland Security is the responsible agency for adjudicating the right of human persons to remain on American soil, and “the rulings, interpretations and opinions of the responsible agency, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which litigants may properly resort for guidance.” U.S. v. Penn. Indus. Chem. Corp., 411 U.S. 655 (1973) (quotations omitted). It was around this guidance that the DACA recipients planned their lives moving forward in the United States.
Indeed, by explicitly targeting “productive young people,”3 the federal government implicitly contemplated that the DACA enrollees would be
3 See Memorandum from Janet Napolitano, Sec’y of Homeland Sec., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
8

contributive members of our society and that the nation would benefit from their social and economic contributions. With the opportunity to invest in themselves and in the favorable business climate of the United States, DACA enrollees would be induced by the promise of being able to achieve financial security for themselves and their families. The States and the federal government, in turn, would benefit from an increased population of legally employable workers, who pay taxes and make significant contributions to the economy. While DACA has meant more than money to all its enrollees, it is the spontaneous reneging of the mutual economic commitments without regard for the substantial reliance interests that belies the safeguarding principles of the APA.
A. Reliance Interests of DACA Students, Educators and Educational Institutions
There is no question that access to education is vitally important to all persons in the United States—whether citizens, lawful resident aliens, or undocumented persons. See Plyler v. Doe, 457 U.S. 202, 226 (1982). In Plyler, the Supreme Court ruled that undocumented school age children had a constitutional right to a free public education. Id. Because of Plyler, generations of undocumented persons have learned English, succeeded in school, and integrated into the American culture. The DACA program has had the practical effect of extending the rationale of Plyler to post-secondary education. By asserting rights granted by DACA, tens of thousands of undocumented persons
9

have gained access to college education. And many of those persons, once educated, have entered the education profession as teachers.
DACA enrollees have substantially relied on the government’s representations in investing in their education, seeking job-specific training and enrolling as students in institutions of higher learning. Public schools and
institutions of higher learning have extended opportunities and resources to individuals as students and educators on the basis of and in reliance on the applicants’ DACA protected status. The devastating effect of the federal government’s unreasoned departure and betrayal of these educational reliance
interests is manifest. DACA teachers are a significant asset to our nation’s public schools,
especially in cities with large, immigrant student populations. An estimated
20,000 DACA recipients are employed as educators throughout the U.S., and many of them possess in-demand bilingual language skills.4 There is currently a severe shortage nationally of teachers in the public education sector, estimated to be as
4 Moriah Balingit, As DACA winds down, 20,000 educators are in limbo, Wash. Post (Oct. 25, 2017), https://www.washingtonpost.com/local/education/as-dacawinds-down-20000-educators-are-in-limbo/2017/10/25/4cd36de4-b9b3-11e7a908-a3470754bbb9_story.html (citing data provided by the Migration Policy Institute); see also Greg Toppo, 20,000 DACA teachers at risk — and your kids could feel the fallout, too (Oct. 11, 2017, 7:00 AM), https://www.usatoday.com/story/news/2017/10/11/thousands-daca-teachersrisk/752082001/.
10

high as 327,000 public educators.5 The consequences of a shortage in public
education employment are well known: larger class sizes, fewer teacher aides,
fewer guidance counselors, and fewer extra-curricular activities.
Furthermore, in the past few decades, the racial makeup of the country’s
student population has drastically shifted, but the overwhelming majority of public
school teachers continue to be white.6 Public schools have seen increased
enrollment by students of color, especially by Latinos.7 By 2025, it is expected
that a majority of high school graduates will be students of color.8 DACA has
allowed schools to recruit qualified teachers with whom their students can identify.
In already resource-strapped school districts, DACA teachers do much more
than just fill available positions, they also serve as mentors and role models to
minority students. For many communities, DACA teachers mirror the experiences
of their immigrant students, which informs their teaching with cultural
competence, helps develop positive relationships with students and creates more
5 Elise Gould, Local public education employment may have weathered recent storms, but schools are still short 327,000 public educators, Econ. Pol’y. Inst. (Oct. 6, 2017), http://www.epi.org/publication/teacher-employment-may-haveweathered-storms-but-schools-are-still-short-327000-public-educators/. 6 The latest data shows that about 84 percent of public school teachers are white. C. Emily Feistritzer, Profile of Teachers in the U.S. 2011, Nat. Ctr. for Educ. Info. (July 2011), https://www.edweek.org/media/pot2011final-blog.pdf. 7 Alice Yin, Education by the Numbers, N.Y. Times (Sept. 8, 2017), https://www.nytimes.com/2017/09/08/magazine/education-by-the-numbers.html. 8 Id.
11

welcoming school environments.9 Recent research has demonstrated that when
students of color have teachers from similar backgrounds, they are more likely to
succeed. A recent study published by the Institute of Labor Economics found that
“low-income black male students in North Carolina who have just one black
teacher in third, fourth, or fifth grade are less likely to drop out of high school and more likely to consider attending college.”10 Viridiana Carrizales of Teach For
America aptly noted that “[w]e cannot afford to lose so many teachers and impact
so many students… [e]very time a student loses a teacher, that is a disruption in the student’s learning.” 11
As Vanessa Lina, a DACA recipient who taught as a Teach for America
teacher and now serves as a recruiter, told The New York Times: “We’re going to
lose leaders and lose teachers – it’s not only their presence, but having a teacher
that can share the same experiences that you possibly had growing up. . . . Their
9 Lisette Partelow, America Needs More Teachers of Color, (September 14, 2017, 9:00 AM), https://www.americanprogress.org/issues/education-k12/reports/2017/09/14/437667/america-needs-teachers-color-selective-teachingprofession/. 10 Seth Gershenson et al., The Long-Run Impacts of Same-Race Teachers, IZA Inst. of Lab. Econ., Mar. 2017, http://ftp.iza.org/dp10630.pdf 11 Greg Toppo, 20,000 DACA teachers at risk — and your kids could feel the fallout, too (Oct. 11, 2017, 7:00 AM), https://www.usatoday.com/story/news/2017/10/11/thousands-daca-teachersrisk/752082001/.
12

advocacy, their leadership, their resilience is extraordinary because of their own
personal journey.”12
Diversity in teaching is critical to educational equity, and students of all
racial and ethnic backgrounds, especially immigrant students benefit from having
DACA educators. School environments that reflect the diversity of communities,
the country, and the world help open students’ minds to new perspectives and
actively engage them in learning. Prejudice and bias is countered in schools and
communities when respect for diversity is taught, modeled, and experienced
firsthand by children.13 The loss of 20,000 DACA teachers will cause severe and
lasting harm to students and their educational trajectories, and more broadly our
country which depends on the great talent of future generations.
In Plyler, the Supreme Court made an observation that is apt for the present
DACA revocation:
In determining the rationality of § 21.031 [denying access to school to undocumented persons], we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in §21.031 can hardly be considered rational unless it furthers some substantive goal of the State.
12 Liz Robbins, For Teachers Working Through DACA, a Bittersweet Start to the School Year, N.Y. Times (Sept. 7, 2017), https://www.nytimes.com/2017/09/07/nyregion/daca-teachers.html. 13 Anti-Defamation League (ADL), Creating an Anti-Bias Learning Environment, https://www.adl.org/education/resources/tools-and-strategies/creating-an-anti-biaslearning-environment
13

Here, as in Plyer, the federal government has not taken into account the costs to the nation or to DACA recipients and has offered no countervailing rationale. And the record from the trial court below is replete with evidence of the harm that would result from a DACA repeal.
The district court judge concluded that the University of California had established that it will suffer injury to its proprietary interests in a number of ways:
1. Because DACA recipients can no longer apply for and obtain “advance parole,” or permission to travel overseas with right of reentry, these students are unable to travel outside the United States for research and educational conferences.
2. DACA recipients have also decided to cancel their enrollment in the University and additional recipients may be forced to drop out.
3. Significant investments made by the University in recruiting and retaining DACA recipients as employees would be lost once these recipients lose their ability to work.
4. The loss of DACA recipients as employees in the educational institution “will adversely impact the diversity of the talent pool of potential students.”
14

Op. at 24. On this record, then, the reliance interests of DACA recipients and educational institutions are profound. They should have been, but were not, considered by the federal government prior to rescission.
B. DACA Enrollees Purchased Homes and Lending Institutions Extended Loans in Reliance on DACA
Homeownership has long been recognized as an integral part of the American Dream. Indeed, the federal government and its agencies have developed programs and marketing around that well-accepted precept.14 DACA put that dream within reach for enrollees and provided them an opportunity to achieve financial security for themselves and their families and contribute to the economic stability of their communities through homeownership. They made these significant and life changing investments in reliance on DACA.
The online real estate database company Zillow estimates that 123,000 DACA enrollees are homeowners and, indeed, purchased their homes after their DACA applications had been approved.15 DACA made it possible for these individuals to establish roots and purchase homes thanks to access to credit, which was previously unavailable to them. Lending institutions extended this credit and
14 See e.g., U.S. Dep’t of Housing and Urb. Dev., The National Homeownership Strategy: Partners in the American Dream (1995). 15 Alexander Casey, An Estimated 123,000 ‘Dreamers’ Own Homes and Pay $380M in Property Taxes, Zillow (Sept. 20, 2017), https://www.zillow.com/research/daca-homeowners-380m-taxes-16629/.
15

offered mortgages to enrollees in complete reliance on DACA. These transactions and their underlying commitments were based on the fundamental understanding that the government would not, without due consideration, terminate the program and upend the lives of tens of thousands of individuals.
According to a survey of DACA recipients conducted by the Center for American Progress, nearly 24 percent of respondents over the age of 25 purchased a home after their DACA application was approved.16 Through homeownership, DACA recipients “pay an estimated $380 million a year in property taxes to their communities.”17 Communities that benefit, even depend, on the property tax revenues from these DACA recipient homeowners will, in turn, be financially upended.
Creating a pathway to homeownership is particularly important for communities of color who continue to suffer as a result of the widening racial and ethnic wealth gap in this country. Owning a home is often the largest investment families make. Yet, only 47 percent of Hispanics and 42 percent of African
16 Tom K. Wong, Results from Tom K. Wong et al., 2017 National DACA Study, Ctr. for Am. Progress (Oct. 7, 2017), https://cdn.americanprogress.org/content/uploads/2017/11/02125251/2017_DACA _study_economic_report_updated.pdf. 17 Alexander Casey, An Estimated 123,000 ‘Dreamers’ Own Homes and Pay $380M in Property Taxes, Zillow (Sept. 20, 2017), https://www.zillow.com/research/daca-homeowners-380m-taxes-16629/.
16

Americans own a home compared to 73 percent of whites.18 DACA allowed
undocumented immigrants who had previously faced barriers to homeownership
because of their status to accumulate long-term wealth and security in reliance on
the government’s representations and DACA’s promulgation. The government has
abruptly stripped these individuals of their most invaluable investments without
having considered their reliance interests.
C. Promises of “Expedited Citizenship” for DACA Enrollees Serving Vital Military Interests
DACA enrollees have also relied on a military program established in 2008
that provides the promise of “expedited citizenship” opportunities in exchange for
service vital to the national interest. The Military Accessions Vital to the National
Interest (MAVNI) program offers fast-tracked citizenship review for enrollees,
“whose skills are considered to be vital to the national interest,” such as
“physicians, nurses, and certain experts in language with associated cultural backgrounds.”19
The Defense Department’s MAVNI materials entice recruits with the
“opportunity of early citizenship” to “recognize their contribution and sacrifice.”
18 U.S. Census Bureau, Quarterly Residential Vacancies And Homeownership, Fourth Quarter 2017 (Jan. 30, 2018 10:00 AM), https://www.census.gov/housing/hvs/files/currenthvspress.pdf. 19 See Dep’t of Def., Military Accessions Vital to National Interest (MAVNI) Recruitment Pilot Program, https://www.defense.gov/news/MAVNI-FactSheet.pdf.
17

Id. at 2. According to a Defense Department MAVNI fact sheet, “[t]the Law
ensures” that such contribution and sacrifice be recognized. Id. In testimony to
Congress, the Defense Department made clear the benefit from service in the
MAVNI program: “This program recruits legal non-citizens with critical foreign
language and cultural skills, as well as licensed healthcare professionals, and as an
additional incentive, they receive expedited U.S. citizenship processing in return
for their service.”20
Beginning in 2014, the Defense Department granted DACA enrollees
eligibility to apply for the MAVNI program.21 The Defense Department estimates
that up to 900 DACA recipients are either serving or have signed contracts to serve
through MAVNI.22
DACA enlistees in the MAVNI program have been left in limbo by the
government’s decision to rescind DACA, not knowing whether they will be
permitted to carry out their service or be deported, let alone receive early
20 Statement of Nancy E. Weaver, Department of Defense Senior Language Authority, Before the House Armed Services Committee Subcommittee on Oversight and Investigations, June 29, 2010, http://prhome.defense.gov/Portals/52/Documents/RFM/Readiness/DLNSEO/docs/ Weaver%20Testimony%20062910.pdf (emphasis added). 21 See MAVNI Fact Sheet, supra n. 18. 22 Alex Horton, The military looked to ‘dreamers’ to use their vital skills. Now the U.S. might deport them. (Sept. 7, 2017), https://www.washingtonpost.com/news/checkpoint/wp/2017/09/07/the-militarylooked-to-dreamers-to-use-their-vital-skills-now-the-u-s-might-deport-them/.
18

citizenship review as promised. Moreover, DACA enlistees in MAVNI have provided extensive information to the federal government through the enrollment process and are in constant contact with the military (or are already in service), making them particularly vulnerable to deportation proceedings. Worse still, deportation could result in enrollees facing the most serious of consequences, including “harsh treatment or interrogation” by foreign adversaries.23
The administrative record in this case is totally devoid of any consideration whatsoever of the military’s promises and the reliance thereon by DACA enrollees in the MAVNI program. Termination of the DACA program without consideration of these interests was arbitrary and capricious under the law recited above.
CONCLUSION For the foregoing reasons, amici urge this Court to affirm the district court’s preliminary injunction order.
23 See id. 19

March 20, 2018
Jon Greenbaum Dariely Rodriguez Dorian Spence Phylicia Hill THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue NW Washington, DC 20008 (202) 662-8600
Attorneys for Amicus Curiae The Lawyers’ Committee for Civil Rights Under Law

Respectfully Submitted,
_____________________ William D. Coston John F. Cooney Martin L. Saad Sameer P. Sheikh VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 (202) 344-4183 wdcoston@venable.com
Counsel for Amici Curiae

20

APPENDIX List of Amici Curiae with Individual Statements of Interest

The Lawyers’ Committee for Civil Rights Under Law

The Lawyers’ Committee for Civil Rights Under Law (the “Lawyers’ Committee”) is a nonpartisan, nonprofit civil rights organization formed in 1963, at the request of President John F. Kennedy, to enlist the American bar’s leadership and resources in defending the civil rights of racial and ethnic minorities. Through the Lawyers’ Committee, attorneys have represented thousands of clients in civil rights cases across the country challenging discrimination in virtually all aspects of American life. In furtherance of its commitment to challenge policies that discriminate against immigrants and refugees, the Lawyers’ Committee has filed numerous lawsuits and submitted amicus briefs in cases involving issues similar to this one.

AntiDefamation League

The Anti-Defamation League (“ADL”) was founded in 1913 “to stop the defamation of the Jewish people, and to secure justice and fair treatment to all.” Today, ADL is one of the world’s leading civil rights organizations. As an organization founded by immigrants and sworn to protect the interests of religious and ethnic minorities, ADL believes that when our nation’s values are threatened, we are duty-bound to return to the founding principles that propelled this nation of immigrants. As such, ADL has advocated for fair and just immigration policies for more than a century, including a pathway to citizenship for young undocumented immigrants brought to this country as children. As part of its commitment to create an ever-more just and inclusive society, ADL has filed amicus briefs in numerous cases challenging policies that undermine the ideal of America as a nation of immigrants. At stake in this case are the lives of 800,000 undocumented immigrants who were brought to the United States as children, their families, communities, and all of us who depend on a future that embraces diversity as a strength.

A-1

The Lawyers' Committee for Civil Rights and Economic Justice

The Lawyers' Committee for Civil Rights and Economic Justice (“LCCR”) fosters equal opportunity and fights discrimination on behalf of people of color and immigrants. LCCR engages in creative and courageous legal action, education, and advocacy, in collaboration with law firms and community partners. As part of this work, LCCR has long sought to further immigrant justice through impact litigation. Immigrant entrepreneurs also are assisted through LCCR’s Economic Justice Project. LCCR thus has a strong interest in ensuring that DACA recipients and DACAeligible immigrants are not unlawfully deprived of economic, educational, and other opportunities through rescission of the DACA program.

The Leadership Conference on Civil and Human Rights

The Leadership Conference on Civil and Human Rights (“The Leadership Conference”) is the nation’s oldest, largest, and most diverse coalition of more than 200 national organizations committed to the protection of civil and human rights in the United States. The Leadership Conference was founded in 1950 by leaders of the civil rights and labor rights movements, grounded in the belief that civil rights would be won not by one group alone but through coalition. The Leadership Conference works to build an America that is inclusive and as good as its ideals by promoting laws and policies that promote the civil and human rights for all individuals in the United States.

Mississippi Center for Justice

The Mississippi Center for Justice, the Deep South Affiliate of the Lawyers Committee for Civil Rights Under Law, is a 501(c)(3) nonprofit public interest law organization founded in 2003 in Jackson, Mississippi and committed to advancing racial and economic justice. Supported and staffed by attorneys and other professionals, the Center develops and pursues strategies to combat discrimination and poverty statewide. One of amicus’ original areas of interest involved predatory loan practices directed at migrant poultry workers, and MCJ has remained concerned about the plight of Mississippi’s growing immigrant population for the last decade, particularly in the areas of access to healthcare, education, housing and fair lending. MCJ has signed on as Amicus for several cases challenging President Trump’s travel ban, and it has the same concerns regarding the termination of DACA.

A-2

Southern Poverty Law Center

Southern Poverty Law Center (“SPLC”) has provided pro bono civil-rights representation to low-income persons in the Southeast since 1971. SPLC has litigated numerous cases to enforce the civil rights of immigrants and refugees to ensure that they are treated with dignity and fairness. SPLC also monitors and exposes extremists who attack or malign groups of people based on their immutable characteristics. SPLC is dedicated to reducing prejudice and improving intergroup relations. SPLC has a strong interest in opposing discriminatory governmental action that undermines the promise of civil rights for all.

The

The Washington Lawyers’ Committee for Civil Rights and Urban

Washington Affairs is a non-profit civil rights organization established to

Lawyers’ eradicate discrimination and poverty by enforcing civil rights laws

Committee through litigation and public policy advocacy. In furtherance of

for Civil this mission, the Washington Lawyers’ Committee represents some

Rights and of the most vulnerable populations in Washington, D.C., Maryland

Urban

and Virginia, including immigrants and non-English speakers, who

Affairs

are often discriminated against on the basis of their national origin,

and who are often unaware of their legal rights and protections.

A-3

CERTIFICATE OF COMPLIANCE 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 it uses a proportionally spaced typeface (Times New Roman) in 14-point. It was prepared using Microsoft Word. It complies with the type-volume limits of Fed. R. App. P. 29(a)(5) because it contains 5040 words, which is less than half of the 13,000 words allowed for principal briefs under Fed. R. App. P. 32(a)(7)(B)(i).

Dated: March 20, 2018

/s William D. Coston William D. Coston VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 (202) 344-4183 wdcoston@Venable.com
Counsel for Amici Curiae

STATEMENT OF RELATED CASES This proceeding is a consolidated case arising out of (a) the government’s appeal of the district court’s preliminary injunction, Regents of the University of California v. United States of America, et al., Case Nos. 18-15068, 18-15069, 1815070, 18- 15071, 18-15072; (b) plaintiffs’ petitions for interlocutory review of elements of the district court’s ruling on the government’s motion to dismiss, Case Nos. 18-15128, 18-15133, 18-15134; and (c) the government’s petition for interlocutory review of different elements of that order, Case No. 18-80004. This Court also previously heard a petition for writ of mandamus against the district court order regarding the administrative record in this case. In re United States of America, et al., Case No. 17-72917.

CERTIFICATE OF SERVICE
U.S. Court of Appeals Docket Numbers: 18-15068, 18-15069, 18-15070, 18-
15071, 18-15072, 18-15128, 18-15133, 18-15134
I hereby certify that on March 20, 2018, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system. I certify that all participants in this
case are registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.
/s William D. Coston William D. Coston VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 (202) 344-4183 wdcoston@Venable.com Counsel for Amici Curiae

 
 Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellants.
On Appeal from the United States District Court for the Northern District of California
BRIEF OF LEGAL SERVICES ORGANIZATIONS AS AMICI CURIAE IN SUPPORT OF APPELLEES
COOLEY LLP MAUREEN P. ALGER (malger@cooley.com) MONIQUE R. SHERMAN (msherman@cooley.com)
KARA C. WILSON (kwilson@cooley.com) JOAN R. LI (jli@cooley.com) 3175 Hanover Street Palo Alto, CA 94304-1130 (650) 843-5000

Table of Contents

Page

STATEMENT OF CORPORATE DISCLOSURE ..................................................1
INTEREST OF AMICI CURIAE ..............................................................................2
SUMMARY OF ARGUMENT ................................................................................3
ARGUMENT ............................................................................................................5
I. THE RESCISSION OF DACA CAUSES SIGNIFICANT HARM TO AMICI’S DACA CLIENTS, MOST OF WHOM HAVE NO VIABLE OPTION TO OBTAIN LEGAL IMMIGRATION STATUS AND AVOID DEPORTATION. .............................................................................5
A. Most DACA Recipients Are Not Eligible for Humanitarian or Family-Based Forms of Immigration Relief. .......................................7
B. DACA Recipients Are Not Eligible for Relief Based on Their Length of Time in the United States, No Matter How WellSpent. ..................................................................................................12
C. Without DACA, Most DACA Recipients Will Become Undocumented and Suffer Significant Related Harms. .....................14
II. THE RESCISSION OF DACA CAUSES FEAR IN THE COMMUNITY ABOUT ACCESSING PUBLIC SERVICES, WHICH HARMS THE PUBLIC INTEREST. ............................................18
A. DACA Recipients and Other Immigrants Are Afraid to Access Health and Other Social Services, and to Attend School, Out of Fear of Deportation. ...........................................................................19
B. When Immigrants Are Afraid to Access Services, Public Health, Safety, and Community Economic Interests Are Negatively Impacted...........................................................................25
CONCLUSION .......................................................................................................28
APPENDIX .......................................................................................................... A-1

-i-

Table of Authorities
Page(s) Cases Ayeni v. Holder,
617 F.3d 67 (1st Cir. 2010).................................................................................13 Gomez-Perez v. Holder,
569 F.3d 370 (8th Cir. 2009) ..............................................................................13 Hernandez v. Gonzalez,
437 F.3d 341 (3d Cir. 2006) ...............................................................................13 Tejado v. Holder,
776 F.3d 965 (8th Cir. 2015) .............................................................................. 13 Statutes and Regulations 8 U.S.C. § 1101(a)(42)...............................................................................................8 8 U.S.C. § 1151(b)(2)(A)(i) .......................................................................................8 8 C.F.R. § 204.11 .......................................................................................................9 Fed. R. App. P. 29(a)(2).............................................................................................2 Fed. R. App. P. 29(a)(4)(E)........................................................................................2 INA § 101...............................................................................................................8, 9 INA § 201...................................................................................................................8 INA § 203...................................................................................................................8 INA § 212...........................................................................................................10, 11 INA § 240A..............................................................................................................13 INA § 244(a) (1994) (repealed 1996) ......................................................................12 INA § 245...................................................................................................................9
-ii-

Table of Authorities (continued)

Page(s)

Legislative Materials H.R. 1918, 107th Cong. (2001)..................................................................................6 H.R. 5131, 109th Cong. (2006)..................................................................................6 H.R. 1275, 110th Cong.(2007)...................................................................................6 H.R. 1842, 112th Cong. (2011)..............................................................................5, 6 H.R. 1468, 115th Cong. (2017)..................................................................................6 H.R. 3591, 115th Cong. (2017)..................................................................................6 S. 1291, 107th Cong. (2001)......................................................................................6 S. 1545, 108th Cong. (2003)......................................................................................6 S. 2075, 109th Cong. (2005)......................................................................................6 S. 2205, 110th Cong. (2007)......................................................................................6 S. 729, 111th Cong. (2010)........................................................................................6 S. 3992, 111th Cong. (2010)......................................................................................6 S. 952, 112th Cong. (2011)....................................................................................5, 6 S. 1615, 115th Cong. (2017)......................................................................................6 Report and analysis of immigration and nationality law, 2. Senate
Judiciary Subcommittee Holds Hearing on the DREAM Act, 88 No. 25 Interpreter Releases 1594 (July 4, 2011) ..................................................5 Administrative & Executive Materials Letter from Secretary Jeh Johnson, U.S. Dep’t of Homeland Sec., to Honorable Judy Chu, U.S. House of Rep. (Dec. 30, 2016)................................15

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Table of Authorities (continued)

Page(s)

Memorandum from Acting Secretary Elaine C. Duke, Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017)..............................................................................................passim
Memorandum from Secretary Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) .....................................................6
United States Citizenship and Immigration Services, DACA Frequently Asked Questions...................................................................10, 11, 18
Visa Bulletin for March 2018, U.S. Dep’t of State, Bureau of Consular Affairs (Mar. 12, 2018) .......................................................................10
Other Authorities
Annie Lowrey, Trump’s anti-immigrant policies are scaring families away from the safety net, The Atlantic (Mar. 24, 2017).........................23, 24, 25
Anna North, DACA helped some immigrants finally get health care. Now they could lose it, Vox (Sept. 28, 2017) ...............................................19, 26
Bill Ong Hing, Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy, 2 UC IRVINE L. REV. 247 (2012)..................................................................................27
Caitlin Dickerson, For DACA Recipients, Losing Protection and Work Permits Is Just the Start, The New York Times (Sept. 7, 2017)............14, 15, 16
Carolyn Jones, Immigration crackdown taking heavy toll on California students, San Jose Mercury News (Oct. 5, 2017) .......................22, 23
Dara Lind, What happens to a family when they have equal rights, and then lose them? Vox (Dec. 14, 2017) .................................................................23
David Becerra, et al., Fear vs. Facts: Examining the Economic Impact of Undocumented Immigrants in the U.S., 39 J. Soc. & Soc. Welfare 111 (2012) ............................................................................................26

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Table of Authorities (continued)

Page(s)

Debra J. Robbin, When Undocumented Immigrants Don’t Report Crime, We All Suffer, WBUR (Sept. 22, 2017) ..................................................27
Deferred Action for Childhood Arrivals (DACA): Funding Opportunities for Philanthropy, Grantmakers Concerned with Immigrants and Refugees (Oct. 29, 2017)............................................................6
Forum: Monday Political News Roundup, KQED (Feb. 26, 2018) ...........17, 19, 23
Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation, The New York Times (Apr. 30, 2017)..........................................21
Jessica Ferger, Rescinding DACA Could Spur a Public Health Crisis, from Lost Services to Higher Rates of Depression, Substance Abuse, Newsweek (Sept. 6, 2017) ................................................................15, 16
Jose Magaña-Salgado, et al., Draining the Trust Funds: Ending DACA and the Consequences to Social Security and Medicare, Immigrant Legal Resource Center (Oct. 2017) ............................................15, 16
Julia Carrie Wong, Fear and uncertainty for Dreamers as DACA ends: “Where am I going to go?, The Guardian (Sept. 5, 2017) .......................17
Julianne Zuber, Healthcare for the Undocumented: Solving a Public Health Crisis in the U.S., 28 J. Contemp. Health L. & Policy 350 (2012) ..................................................................................................................26
Leisy J. Abrego, Legal Consciousness of Undocumented Latinos: Fear and Stigma as Barriers to Claims-Making for First- and 1.5Generation Immigrants, 45 LAW & SOC’Y REV. 337 (2011)..............................26
Madeline Kenney, Berwyn grandmother of 10 facing deportation sues DHS over visa delay, Chicago Sun Times (Sept. 18, 2017).................................9
Mark Keierleber, Trump’s immigration crackdown is traumatizing a generation of children, The Guardian (Aug. 23, 2017)......................................22
Priscilla Alvarez, Will DACA Parents Be Forced to Leave Their U.S.Citizen Children Behind?, The Atlantic (Oct. 21, 2017)....................................16
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Table of Authorities (continued)

Page(s)

Richard Gonzales, DACA Recipients Worry What The Government Will Do With Their Private Information, NPR (Sept. 9, 2017)..........................18
Stephanie Kuo, Undocumented Immigrants Putting ‘Health On Hold’ Out Of Fear, Anxiety In Uncertain Times, Houston Public Media (Sept. 15, 2017)...................................................................................................20
Susana Martinez and Sheila Neville, Help for Undocumented Victims of Crime, 44 CLEARINGHOUSE REV. 129 (2010) .................................................27
Tom K. Wong, et al., 2017 National DACA Study, CENTER FOR AMERICAN PROGRESS (Aug. 28, 2017) .........................................................11, 15
Tom K. Wong, et al., Paths to Lawful Immigration Status: Results and Implications from the PERSON Survey, 2 J. OF MIGRATION AND HUMAN SECURITY 4 (2014) .....................................................................8, 14
Virginia Fay, Back Into the Shadows: Immigrants Retreat From Needed Services as Deportation Fears Loom, KQED News (June 15, 2017) ...........................................................................................20, 21, 22, 23

-vi-

STATEMENT OF CORPORATE DISCLOSURE Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae Asian Law Alliance, Brooklyn Defender Services, Canal Alliance, Centro Legal de la Raza, Children’s Law Center of Massachusetts, Community Legal Services in East Palo Alto (CLSEPA), Dolores Street Community Services, East Bay Sanctuary Covenant, Heartland Alliance’s National Immigrant Justice Center (NIJC), Hebrew Immigrant Aid Society (HIAS) Pennsylvania, Immigrant Legal Resource Center (ILRC), Just Neighbors, Legal Aid Justice Center, Legal Aid Society of San Mateo County, Legal Services for Children (LSC), Justice Center of Southeast Massachusetts, Massachusetts Law Reform Institute (MLRI), National Justice for Our Neighbors, New York Legal Assistance Group, Northwest Immigrant Rights Project, OneJustice, Rocky Mountain Immigrant Advocacy Network, and Services, Immigrant Rights, and Education Network (SIREN), by and through undersigned counsel, state that they are nonprofit organizations and associations of nonprofit organizations and therefore are not publicly held corporations that issue stock, nor do they have parent corporations.
1

INTEREST OF AMICI CURIAE1 Amici are legal services organizations that provide immigration legal services.2 Amici include the following twenty-three organizations: Asian Law Alliance, Brooklyn Defender Services, Canal Alliance, Centro Legal de la Raza, Children’s Law Center of Massachusetts, Community Legal Services in East Palo Alto (CLSEPA), Dolores Street Community Services, East Bay Sanctuary Covenant, Heartland Alliance’s National Immigrant Justice Center (NIJC), Hebrew Immigrant Aid Society (HIAS) Pennsylvania, Immigrant Legal Resource Center (ILRC), Just Neighbors, Legal Aid Justice Center, Legal Aid Society of San Mateo County, Legal Services for Children (LSC), Justice Center of Southeast Massachusetts, Massachusetts Law Reform Institute (MLRI), National Justice for Our Neighbors, New York Legal Assistance Group, Northwest Immigrant Rights Project, OneJustice, Rocky Mountain Immigrant Advocacy Network, and Services, Immigrant Rights, and Education Network (SIREN). Many of amici’s clients are youth who were eligible for the rescinded Deferred Action for Childhood Arrivals
1 The parties have consented to the filing of this amicus brief, and amici file this brief pursuant to that authority. See Fed. R. App. P. 29(a)(2). No party’s counsel authored this brief in whole or in part, no party or party’s counsel contributed money intended to fund preparation or submission of this brief, and no person other than amici and their counsel contributed money intended to fund preparation or submission of this brief. See Fed. R. App. P. 29(a)(4)(E). 2 Descriptions of each amicus organization are provided in Appendix A.
2

(“DACA”) program. Amici provide legal counseling to these youth to guide them through the intricacies of the immigration system. As a result of their interaction with undocumented immigrants generally and DACA-eligible individuals in particular, amici understand the complex legal challenges now facing DACA grantees in light of the rescission of DACA and have observed the negative effects on their clients. They are well-positioned to articulate the nature of the irreparable harm at issue and the reasons the injunction ordered by the district court serves the public interest.3
SUMMARY OF ARGUMENT The Department of Homeland Security’s (“DHS”) September 5, 20174 announcement rescinding the DACA program caused real and imminent harm to young people who were eligible for protection from deportation under DACA. The district court’s preliminary injunction relieved some of the harm by allowing existing DACA holders and those whose DACA had expired to renew, but uncertainty and fear persist. If the district court’s preliminary injunction is lifted,
3 Counsel for amici have interviewed and received information from the legal services organizations that are filing this brief. Information throughout the brief that relates to these organizations’ clients was obtained through these interviews and related requests for information. 4 Memorandum from Acting Secretary Elaine C. Duke, Memorandum on Rescission of Deferred Action For Childhood Arrivals (DACA) (Sept. 5, 2017) (“Rescission Memorandum”), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca.
3

any mitigating effect of the preliminary injunction will be lost. Thousands of these young people will face a frightening and uncertain future in the United States, despite prior assurances by the government that by coming forward and applying for DACA, they would be protected from negative immigration enforcement action.
The vast majority of DACA grantees will be left without any protection from deportation if the injunction is lifted and their current status expires. DACA grantees will also lose work authorization, leading them to lose their jobs, health insurance, and countless other benefits. Losing DACA will force many of them into a life of hiding and constant fear of removal from the only country they have ever known.
The decision to rescind DACA has also intensified fear of accessing vital services in the immigrant community. As their DACA status expires, DACA recipients will join the ranks of immigrants who have no protection against deportation and are afraid that if they go to school or work, access medical services, or report a crime, they will become targets for deportation. This fear is not only harmful to those directly affected but also dangerous for public health and safety. For all of these reasons, the injunction prohibiting the government from enforcing the Rescission Memorandum serves the public interest and should be affirmed.
4

ARGUMENT I. The Rescission of DACA Causes Significant Harm to Amici’s DACA
Clients, Most of Whom Have No Viable Option to Obtain Legal Immigration Status and Avoid Deportation. The rescission of DACA will put DACA recipients at risk for deportation and strip them of their eligibility for work permits. Without DACA, most DACA recipients are ineligible for any protection from deportation under current law. Indeed, DACA was only necessary because Congress failed to pass the Development, Relief, and Education for Alien Minors Act (“DREAM Act”),5 which would have created a path to citizenship for many DACA-eligible individuals. The DREAM Act’s proponents sought to provide a much-needed legal solution for undocumented young people who had been present in the United States from childhood, and, in some cases were not even aware until adulthood of their lack of status. Proponents recognized that Dreamers grew up in the United States but had no other option for staying legally in the United States. Report and analysis of immigration and nationality law, 2. Senate Judiciary Subcommittee Holds Hearing on the DREAM Act, 88 No. 25 Interpreter Releases 1594 (July 4, 2011). Congress attempted (but failed) to pass legislation protecting Dreamers
5 H.R. 1842, 112th Cong. (2011); S. 952, 112th Cong. (2011). 5

approximately fourteen times since 2001, both as stand-alone legislation and as part of comprehensive immigration reform.6
In response to Congress’ failed attempts to provide relief to these young
immigrants, President Obama issued an Executive Order in June 2012 enacting
DACA. See Memorandum from Secretary Janet Napolitano, Exercising
Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).7 DACA granted a renewable two-year period
of deferred action (protection from deportation) and work authorization. Id.
Although DACA does not offer a path to legal status or citizenship, “it provides
tangible opportunities for young immigrants to participate more fully in our society
and economy.” Deferred Action for Childhood Arrivals (DACA): Funding
Opportunities for Philanthropy, Grantmakers Concerned with Immigrants and Refugees (Oct. 29, 2017).8 The DACA program allowed recipients to live without
6 See, e.g., H.R. 1918, 107th Cong. (2001); S. 1291, 107th Cong. (2001); S. 1545, 108th Cong. (2003); S. 2075, 109th Cong. (2005); H.R. 5131, 109th Cong. (2006); S. 2205, 110th Cong. (2007); H.R. 1275, 110th Cong. (2007); S. 729, 111th Cong. (2010); S. 3992, 111th Cong. (2010); H.R. 1842, 112th Cong. (2011); S. 952, 112th Cong. (2011); H.R. 1468, 115th Cong. (2017); H.R. 3591, 115th Cong. (2017); S. 1615, 115th Cong. (2017). 7 Available at https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorialdiscretion-individuals-who-came-to-us-as-children.pdf. 8 Available at https://www.gcir.org/sites/default/files/resources/GCIR%20DACA%20Funding%2 0Opportunities_1.pdf.
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fear of deportation and to overcome many of the hardships associated with undocumented status.
If the injunction is lifted and their current period of deferred action expires, DACA recipients will be cast back into legal uncertainty, without any protection from deportation. Their loss is substantial and the consequences are dire: they will lose the ability to remain legally in the United States and will have no means of earning a living. Most DACA recipients do not qualify for any form of immigration relief, such as humanitarian-based forms of relief or family-based visas. And for the few who may qualify for other relief, successfully obtaining relief is nearly impossible under current immigration law. Thus, for the vast majority of DACA grantees, there is no other option and they will become undocumented when their deferred status expires.
A. Most DACA Recipients Are Not Eligible for Humanitarian or Family-Based Forms of Immigration Relief.
Very few DACA recipients are eligible for immigration relief under current law. Amici routinely screened DACA-eligible individuals for humanitarian and family-based forms of relief before providing assistance applying for DACA,9 but most DACA recipients had not suffered the requisite trauma to qualify for
9 Ruling out other forms of relief was a crucial part of the DACA application process, as many other forms of relief, unlike DACA, confer a path to legal permanent residence and citizenship.
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humanitarian forms of relief and did not qualify for family-based relief.10 The majority of DACA recipients do not qualify for other immigration options, such as student or work visas, either. Indeed, a 2014 study found that only 14.3% of DACA-eligible young people potentially qualified for any other form of relief. Tom K. Wong, et al., Paths to Lawful Immigration Status: Results and Implications from the PERSON Survey, 2 J. OF MIGRATION AND HUMAN SECURITY 4, 287-304 (2014). The rescission of DACA therefore leaves the vast majority of DACA recipients without any protection from deportation.
Humanitarian-based options are narrowly tailored forms of relief that typically require that applicants suffered significant trauma in their country of origin or in the United States. For example, asylum and withholding of removal require that applicants suffered or will suffer extreme harm in their countries of origin. 8 U.S.C. § 1101(a)(42); INA § 101(a)(42)(A).11 Similarly, Special Immigrant Juvenile Status (“SIJS”) confers status on young immigrants who have
10 To qualify for family-based relief, applicants must be an immediate relative, defined as a spouse, unmarried child under 21, or a parent (if the child is 21 years or older) of a U.S. citizen. 8 U.S.C. § 1151(b)(2)(A)(i); INA § 201(b)(2)(A)(i). Older and married children of U.S. citizens and spouses and unmarried children of lawful permanent residents are also eligible for visas, but are subject to numerical limitations each year. INA § 203. 11 The Immigration and Nationality Act (“INA”) is comprised of a series of sections of Title 8 of the United States Code. Hereinafter, federal immigration statutes are only referenced to their INA classification.
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been abused, abandoned or neglected. INA § 101(a)(27); 8 C.F.R. § 204.11. “U”
and “T” visas provide relief for victims of certain qualifying crimes and human
trafficking, respectively, while the Violence Against Women Act (“VAWA”)
allows certain battered spouses, children, and parents to petition for legal status
without the involvement of their abusive spouse, parent, or child. INA §
101(a)(15)(U) (U visas); INA § 101(a)(15)(T) (T visas); INA § 245(a) (VAWA).12
But individuals who spent most of their lives in the United States and have not
experienced significant harm or violence simply do not qualify for these forms of
relief.
Most DACA grantees are also not eligible for family-based immigration
relief because they do not have a qualifying relative. Among the few DACA
recipients who do have a qualifying relative, many are not eligible to apply to
12 Even in the rare situation that a DACA-eligible individual qualifies for an alternative form of relief, the waiting time for that relief can be many years. For example, the current waiting time for a U visa is approximately five to ten years. Even an interim work permit through a U visa application currently takes about three years to process, and individuals waiting for U visa approval have been subjected to enforcement by Immigration and Customs Enforcement (“ICE”) during this waiting period. Amici and others report that U visa applicants have been detained in recent months despite having pending U visa applications, and DHS is vigorously opposing continuances for those whose only avenue for relief is a U visa. See also Madeline Kenney, Berwyn grandmother of 10 facing deportation sues DHS over visa delay, Chicago Sun Times (Sept. 18, 2017), https://chicago.suntimes.com/chicago-politics/berwyn-grandmother-of-10-facingdeportation-sues-dhs-over-visa-delay/.
9

adjust status from within the country because they last entered the country without permission.13 As a result, these DACA recipients would have to leave the country
to apply for a family-based visa, and then would face strict bars to re-entry, due to their previous “unlawful presence” in the United States.14 INA § 212(a)(9)(B)-(C).
Undocumented immigrants who have accrued unlawful presence are barred from
re-entry for three years, ten years, or permanently, depending on their length of
unlawful presence and number of entries. INA §§ 212(a)(9)(B)(i)(I)-(II) and
212(a)(9)(C). Those who entered the country more than once without inspection
and have been unlawfully present for a total of more than one year are permanently
barred. INA § 212(a)(9)(C).
DACA recipients do not continue to accrue “unlawful presence” once their
DACA application is approved—but, once their DACA status expires, they will
again accrue unlawful presence. See United States Citizenship and Immigration
Services, DACA Frequently Asked Questions (“USCIS DACA FAQs”), Question
13 Family-based petitions also take years to process. Seventy-eight percent of DACA recipients are from Mexico. The government is currently processing visa petitions filed in October 1996 for unmarried Mexican sons and daughters of U.S. citizens. Visa Bulletin for March 2018, U.S. Dep’t of State, Bureau of Consular Affairs (Mar. 12, 2018), https://travel.state.gov/content/travel/en/legal/visalaw0/visa-bulletin/2018/visa-bulletin-for-march-2018.html. 14 “Unlawful presence” is when an undocumented immigrant “is present in the United States after the expiration of the period of stay authorized . . . or is present within the United States without being admitted or paroled.” INA § 212(a)(9)(B)(ii).
10

1.15 Most DACA recipients have already accrued some unlawful presence and are subject to time bars. Accrual of “unlawful presence” for the purpose of the three and ten-year bars begins once an undocumented immigrant turns 18. INA § 212(a)(9)(B)(iii)(I). Therefore, DACA recipients would have accrued “unlawful presence” between the time they turned 18 and the date their DACA application was approved. Because DACA was implemented in 2012 and the average age of a DACA grantee in 2017 was 25 years old, an average DACA grantee who applied for DACA as soon as it was available was 20 years old at the time of application and thus would have accrued two years of unlawful presence (from the time they were 18 in 2010 until they received the DACA grant in 2012). See Results from Tom K. Wong et al., 2017 National DACA Study, CENTER FOR AMERICAN PROGRESS at 12 (Aug. 28, 2017) (“2017 National DACA Study”).16 This would result in a ten-year bar to re-entering the United States. INA § 212(a)(9)(B)(iii)(II). In practice, the three and ten-year bars effectively act as complete barriers to relief, because applicants would need to leave their families, jobs, schools, and for most, the only country they have ever known, in order to wait out the time-bar. The standards for obtaining a waiver of unlawful presence
15 Available at https://www.uscis.gov/archive/frequently-asked-questions. 16 Available at https://cdn.americanprogress.org/content/uploads/2017/11/02125251/2017_DACA _study_economic_report_updated.pdf.
11

are so difficult to meet that even for the very few DACA recipients who might qualify for family-based adjustment of status, it is an illusory form of relief at best.
B. DACA Recipients Are Not Eligible for Relief Based on Their Length of Time in the United States, No Matter How Well-Spent.
Contrary to popular perception, there is no form of relief available to young immigrants on the basis that they have lived in the United States for most of their lives, even if they have been exemplary members of the community and excelled academically. DACA also did not create a “loophole” by which eligible young people could “cut in line” for relief for which they would have had to wait longer for if they had stayed in their home countries. Rather, DACA provided young people who were already here and had no viable recourse for immigration relief with temporary work permits and protection from deportation.
Prior to immigration reform in 1996, immigrants in deportation proceedings could ask an immigration judge to grant “suspension of deportation,” which took the “good moral character” of an immigrant into account.17 This form of relief was only available if an immigrant was in removal proceedings and would either endure extreme hardship if deported or had a U.S. citizen or a lawful permanent
17 “Suspension of deportation” required: (1) continuous physical presence in the United States for at least seven years; (2) good moral character during those seven years; and (3) that deportation would result in extreme hardship to the applicant or the applicant’s citizen or lawful permanent resident spouse, parent, or child. INA § 244(a) (1994) (repealed 1996).
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resident (“LPR”) family member who would endure extreme hardship if the
applicant were deported. In 1996, Congress eliminated “suspension of
deportation,” and replaced it with a form of cancellation of removal that eliminated
consideration of hardship to the applicant and imposed a higher burden on the
applicant to show hardship to a U.S. citizen or LPR family member.18 INA §
240A(b); see Hernandez v. Gonzalez, 437 F.3d 341, 346-47 (3d Cir. 2006) (noting
the “practical effect . . . [is] that a far larger number of immigrants are now
removable under the new law, while a much smaller number are eligible for any
form of relief from removal”). As with “suspension of deportation,” only
immigrants in removal proceedings and with a qualifying relative (hardship to the
applicant is no longer sufficient) are able to seek cancellation of removal. Given
that most DACA recipients do not have a qualifying relative at all (Wong, Paths to
18 Most applicants are unable to avoid deportation through cancellation of removal unless they can show that deportation would result in “exceptional and extremely unusual hardship” to a U.S. citizen or LPR spouse, parent or child. INA § 240A. This standard is very demanding and generally requires a showing that a U.S. citizen or LPR family member suffers from a severe chronic medical condition and requires special medical attention and financial support. See Ayeni v. Holder, 617 F.3d 67, 67, 73 (1st Cir. 2010) (upholding lower court decision that even evidence of petitioner’s inability to provide medical care for his children’s chronic and serious health issues, which included severe asthma, migraine headaches, and attention deficit hyperactivity disorder, did not meet hardship standard). Demonstrating that emotional harm will be caused by the separation of family members or financial hardship is insufficient. Tejado v. Holder, 776 F.3d 965, 969 (8th Cir. 2015) (emotional harm); Gomez-Perez v. Holder, 569 F.3d 370, 373 (8th Cir. 2009) (financial hardship).
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Lawful Immigration Status), no less a qualifying relative who would endure extreme hardship, this option is inapplicable to most DACA recipients.
As a result, for the vast majority of DACA recipients who do not qualify for humanitarian or family-based immigration relief, there is no procedure, other than DACA, to protect them from deportation.
C. Without DACA, Most DACA Recipients Will Become Undocumented and Suffer Significant Related Harms.
Given the small number of DACA recipients who actually qualify for immigration relief and the legal hurdles faced by the small minority of those that do qualify, the reality is that if the preliminary injunction is overturned, most DACA recipients will become undocumented. They will not be able to work legally and will not have any protection from deportation—and will suffer numerous harms as a result. The elimination of DACA “reverberate[s] far beyond th[e] privileges” of legally living and working in the United States. Caitlin Dickerson, For DACA Recipients, Losing Protection and Work Permits Is Just the Start, The New York Times (Sept. 7, 2017) (“Losing Protection”).19
The positive impact of the DACA program—both to its recipients and to American society more generally—should not be underestimated. “Since DACA
19 Available at https://www.nytimes.com/2017/09/07/us/daca-lossesimmigration.html.
14

began, thousands of Dreamers have been able to enroll in colleges and universities, complete their education, start businesses that help improve our economy, and give back to our communities as teachers, medical professionals, engineers, and entrepreneurs—all on the books.” Letter from Secretary Jeh Johnson, U.S. Dep’t of Homeland Sec., to Honorable Judy Chu, U.S. House of Rep. (Dec. 30, 2016).20 After the implementation of DACA, approximately 80% of DACA grantees obtained driver’s licenses for the first time. 2017 National DACA Study at 9. Many also obtained financial aid for higher education. See Dickerson, Losing Protection. Further, after receiving DACA, approximately 65% of DACA grantees age 25 and under and approximately 54% of DACA grantees over age 25 pursued educational opportunities they previously could not pursue. 2017 National DACA Study at 7. Approximately 70% of DACA recipients “earn[ed] more money, which . . . helped [them] become financially independent.” Id. at 3. As a result of their employment, many DACA recipients also obtained employer-based health insurance.21 See Jessica Ferger, Rescinding DACA Could Spur a Public Health
20 Available at https://chu.house.gov/sites/chu.house.gov/files/documents/DHS.Signed%20Respon se%20to%20Chu%2012.30.16.pdf. 21 Rescinding DACA will also have a significant economic effect, as employers will have to terminate the employment of DACA grantees once their deferred status expires. This will result in a reduction in contributions made to Social Security and Medicare, both by the employee and employer, of approximately $39.3 billion over 10 years. Jose Magaña-Salgado, et al., Draining the Trust Funds: Ending DACA
15

Crisis, from Lost Services to Higher Rates of Depression, Substance Abuse, Newsweek (Sept. 6, 2017).22 These benefits that DACA recipients have relied on, benefits that many U.S. citizens “take for granted and cannot even imagine living without,” will disappear with the rescission of DACA. Dickerson, Losing Protection. For DACA recipients, this will result in undeniable harm as it will mean an inability to continue their education, support themselves and their families financially, and “keep a roof over their heads.” Id.
Many DACA recipients will also be forced to make heart-breaking decisions about the future of their families, and in particular of their U.S. citizen children. DACA recipients who are parents must choose whether to take their U.S. citizen children with them if they are deported, or face long-term and possibly permanent separation. Priscilla Alvarez, Will DACA Parents Be Forced to Leave Their U.S.Citizen Children Behind?, The Atlantic (Oct. 21, 2017) 23 (because of the rescission of DACA, an estimated 200,000 children are now at risk of losing their DACA recipient parents). If they decide to leave their U.S. citizen children in the
and the Consequences to Social Security and Medicare, Immigrant Legal Resource Center at 2, 9 (Oct. 2017), https://www.ilrc.org/sites/default/files/resources/201709-29_draining_the_trust_funds_final.pdf. 22 Available at http://www.newsweek.com/daca-immigration-heath-care-accessmental-health-660539. 23 Available at https://www.theatlantic.com/politics/archive/2017/10/donald-trumpdaca/543519/.
16

United States, they need to make legal, practical, and financial arrangements for the care of their children. DACA recipients who may be subject to deportation must also spend time and resources to protect their property, assets, and finances in case they are deported. These harms are not speculative. A recent study profiled a DACA recipient who “was born in Mexico, but came to the United States at the age of nine. She received DACA when she was studying for a master’s degree at Stanford. She bought a house, married another DACA recipient, and has two children who are U.S. citizens.” Julia Carrie Wong, Fear and uncertainty for Dreamers as DACA ends: “Where am I going to go?,” The Guardian (Sept. 5, 2017).24 This DACA recipient is not eligible for immigration relief, so she and her partner must consider options “to protect [their] daughters in case [they] are deported.” Id. at 2. Amici are aware of countless similar situations among their clients, which cause a significant amount of stress and anxiety. See generally Forum: Monday Political News Roundup, KQED (Feb. 26, 2018) (“Forum: Monday Political News Roundup”) (discussing “state of limbo” faced by DACA recipients).25
24 Available at https://www.theguardian.com/us-news/2017/sep/05/dreamers-dacatrump-ends-program-fears-for-future. 25 Available at https://www.kqed.org/forum/2010101864021.
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The rescission of DACA would create significant turmoil for DACA
recipients and their families, who have planned their futures around the promises
of DACA. Without an injunction, most will once again become undocumented
immigrants, with all the uncertainty and anxiety that entails, and without the ability
to work legally, obtain health insurance, legally drive in many states, pay for college, purchase homes, and make plans for their lives.26
II. The Rescission of DACA Causes Fear in the Community About Accessing Public Services, Which Harms the Public Interest. In light of a political climate increasingly hostile to immigrants, intensified
by the rescission of DACA, many in the immigrant community are understandably
fearful of deportation and afraid to access services. When DACA protections
expire, amici’s DACA clients will no longer be protected from deportation and,
like other undocumented immigrants, may be afraid to access services. This
situation endangers public health and safety.
26 DACA recipients are at even more risk than other undocumented immigrants because they provided personal and sensitive information to the government as part of the DACA application process, including addresses, employers, photos, and fingerprints. The government has stated that although the personal information will not be “proactively provided” to other law enforcement entities and ICE, that may change and be “rescinded at any time without notice.” See USCIS DACA FAQs at Question 8; Richard Gonzales, DACA Recipients Worry What The Government Will Do With Their Private Information, NPR (Sept. 9, 2017), http://www.npr.org/2017/09/09/549678003/daca-recipients-worry-what-thegovernment-will-do-with-their-private-information.
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A. DACA Recipients and Other Immigrants Are Afraid to Access Health and Other Social Services, and to Attend School, Out of Fear of Deportation.
In the wake of recent increasing immigration enforcement activity and the Rescission Memorandum, there is evidence that anxiety is causing undocumented immigrants, including DACA recipients, to avoid utilizing health services and refrain from reporting crimes. Some members of the immigrant community are even avoiding school and work. E.g., Forum: Monday Political News Roundup (families in Oakland are afraid to go to work and send their children to school). For example, amicus organization Centro Legal de la Raza has a client whose family members stopped working because of fear of workplace raids. Several amici organizations have been providing “Know Your Rights” presentations in order to alleviate these concerns in the community.
Many undocumented immigrants avoid visiting hospitals or clinics for fear of deportation. See Anna North, DACA helped some immigrants finally get health care. Now they could lose it, Vox (Sept. 28, 2017) (“DACA helped get health care”).27 For example, undocumented immigrant women may not access necessary prenatal health care, which can lead to a wide range of detrimental health outcomes. North, DACA helped get health care. Anecdotal evidence demonstrates
27 Available at https://www.vox.com/identities/2017/9/28/16351866/daca-healthcare-reproductive-health-undocumented-immigrants.
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that avoidance behavior, motivated by fear, abounds. As one non-profit organization observed, “[w]hat we’re finding and hearing from all over the country is a huge concern about whether or not seeking routine care and preventative care as well as care for their children, who may be documented, is going to put those families in jeopardy of deportation . . . . What we heard was a real significant uptick in no-show rates.” Stephanie Kuo, Undocumented Immigrants Putting ‘Health On Hold’ Out Of Fear, Anxiety In Uncertain Times, Houston Public Media (Sept. 15, 2017).28 Indeed, fear of deportation is so strong that one undocumented immigrant woman stopped accessing and receiving cancer treatments because she was terrified of being identified and detained if she continued using health services given reports of increased immigration enforcement. Virginia Fay, Back Into the Shadows: Immigrants Retreat From Needed Services as Deportation Fears Loom, KQED News (June 15, 2017) (“Back Into the Shadows”).29 Amici have observed this phenomenon, as well. Medical professionals have informed amicus organization ILRC that undocumented immigrants treated in emergency rooms
28 Available at https://www.houstonpublicmedia.org/articles/news/2017/09/15/237573/undocume nted-immigrants-putting-health-on-hold-out-of-fear-anxiety-in-uncertain-times/. 29 Available at https://ww2.kqed.org/news/2017/06/15/back-into-the-shadowsimmigrants-retreat-from-needed-services-as-deportation-fears-loom/.
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have failed to return to the hospital for critical follow-up treatment out of fear of deportation.
Undocumented immigrants are also increasingly afraid to report crimes to law enforcement, fearing that any interaction with a governmental entity could lead to deportation. Police departments across the nation worry about how the increasingly fearful climate will affect their relationships with immigrant communities and their ability to solve crimes. As one police captain explained, undocumented immigrants “will see law enforcement and the justice system as something that is now less accessible . . . and potentially threatening . . . because they’re concerned that the federal government will somehow get that information and use it to deport them.” Id. Police in many major cities have observed significantly decreased reporting of sexual and domestic violence by Latina women during the first few months of 2017, compared to the same time period in 2016. Id. (sharp downturn in Houston, Los Angeles, and San Francisco); see also Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation, The New York Times (Apr. 30, 2017) (sharp downturn in cities in Colorado and Maryland).30 Advocates report that many domestic violence survivors who are undocumented are too afraid of contact with police to seek life-saving restraining
30 Available at https://www.nytimes.com/2017/04/30/us/immigrants-deportationsexual-abuse.html.
21

orders, report abuse, or seek U visas. Fay, Back Into the Shadows. They further note that undocumented survivors are even afraid to stay at shelters. Id. When “survivors do come in for help, they are often so scared that they won’t stay more than a few days or a week.” Id. Amicus organizations report experiences with multiple clients who have endured horrific domestic violence but are too afraid to report the abuse due to their immigration status. Some immigrants are even afraid to come to amici’s offices to be screened for immigration relief, for fear of encountering ICE.
Fear in the community has led to increased absenteeism among immigrant students in schools across the nation. See Carolyn Jones, Immigration crackdown taking heavy toll on California students, San Jose Mercury News (Oct. 5, 2017) (“Immigration crackdown taking heavy toll”);31 Mark Keierleber, Trump’s immigration crackdown is traumatizing a generation of children, The Guardian (Aug. 23, 2017)32 (noting that school officials from New York to New Mexico are preparing for “increased anxiety and absenteeism among students of immigrant families” and that more and more students are dropping out of school). Educators have also observed that some students are having increased difficulty concentrating
31 Available at http://www.mercurynews.com/2017/10/05/immigration-crackdowntaking-heavy-toll-on-california-students/?platform=hootsuite. 32 Available at https://www.theguardian.com/us-news/2017/aug/23/usimmigration-children-schools-trump.
22

in the classroom as a result of recent anti-immigration policies. Jones, Immigration crackdown taking heavy toll; see also Dara Lind, What happens to a family when they have equal rights, and then lose them? Vox (Dec. 14, 2017)33 (reporting elementary school students coming to the office administrator “wracked with sudden anxiety that their parents won’t be there when they come home”). Some immigrant parents have even expressed fear of sending their children to school, in case “they’re taken in an ICE raid during the day and their children have no one to return home to.” Fay, Back Into the Shadows; see also Forum: Monday Political News Roundup (families in Oakland afraid to send children to school).
Immigrant families are also reluctant to access social services due to fear of deportation. Social scientists have pointed out that “anti-immigrant sentiment and increased deportation activity has had a long history of causing eligible families to drop out and shy away” from safety net programs. Annie Lowrey, Trump’s antiimmigrant policies are scaring families away from the safety net, The Atlantic (Mar. 24, 2017) (“Trump’s anti-immigrant policies”).34 In many cases, families eligible for these vital programs have mixed immigration status—for example,
33 Available at https://www.vox.com/policy-andpolitics/2017/12/14/16752114/daca-children-us-citizens. 34 Available at https://www.theatlantic.com/business/archive/2017/03/trumpsafety-net-latino-families/520779/?utm_source=nl-atlantic-weekly-032417.
23

“undocumented parents with children with birthright citizenship.”35 Id. Eligible mixed-status families are declining to enroll in, or even un-enrolling from programs such as the Supplemental Nutrition Assistance Program (“SNAP”) and Women, Infants, and Children (“WIC”), out of fear that enrollment will put undocumented family members at risk of deportation. Lowrey, Trump’s antiimmigrant policies. Eligible families are withdrawing from other anti-poverty programs as well. Id. For instance, Eisner Health, a health care provider, compared monthly enrollment averages from December 2016 through February 2017 with data from 2016, and reported a 20% drop in food stamp enrollment, a 54% drop in Medicaid enrollment among children, and an 82% drop in enrollment in a local health program. Id. Re-enrollment in these programs has declined by 40%. Id. The community’s avoidance of these crucial services will likely result in “long-term consequences on the health, nutrition, and school performance of the youngest members of these families,” many of whom are U.S. citizens. Id.
Even immigrants who have already received a form of relief from deportation, such as asylum, are experiencing an uptick in anxiety. Several amici have received calls from asylees concerned that the DACA rescission might result in the revocation of their asylee status or mean that they should take further steps
35 Such mixed immigration family status families are increasingly common—nearly six million citizen children live in such households. Id.
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to protect themselves from deportation. Other clients are afraid to apply affirmatively for any form of relief because they worry about what will happen if relief is denied or later rescinded, like DACA.
Without the preliminary injunction, many young people will be thrust into the precarious position of considering whether accessing medical care, reporting crimes, going to school, or enrolling in social services could negatively affect their ability to remain in the United States. And for the immigrant community at large, the rescission of DACA has only worsened anxiety, in an era already fraught with uncertainty and fear.
B. When Immigrants Are Afraid to Access Services, Public Health, Safety, and Community Economic Interests Are Negatively Impacted.
When individuals are too scared to seek essential services for fear of deportation, the risks for individual and public health safety increase significantly. Indeed, the “administration’s actions and directives ostensibly target the 11 million unauthorized immigrants who live in the United States, but they will also harm millions of American citizens all across the country who live and work beside these immigrants every day.” Lowrey, Trump’s anti-immigrant policies (emphasis added).
Considerable risks to individual and public health are associated with the community’s anxiety about accessing healthcare. When individuals do not seek
25

preventive care (including vaccines), fill vital prescriptions, or care for acute conditions until they experience an emergency, both the risk of public health crises and the price of health care can rise. “Ultimately, keeping undocumented immigrants from getting necessary health care is bad for everyone. . . . Health care is more expensive when people can’t get it until they’re very sick. And lack of health care increases the risk of chronic illness, which can make people unable to work or be active in their communities.” North, DACA helped get health care; see also Julianne Zuber, Healthcare for the Undocumented: Solving a Public Health Crisis in the U.S., 28 J. CONTEMP. HEALTH L. & POLICY 350, 370 (2012) (“Placing barriers to accessing regular health care for undocumented immigrants threaten[s] community resilience because those with pre-existing health conditions are more vulnerable to . . . severe effects from a disease outbreak or public health emergency.”). Moreover, anxiety and fear of the consequences of being undocumented, including deportation and lack of future access to health care, could lead to acute mental health concerns. See David Becerra, et al., Fear vs. Facts: Examining the Economic Impact of Undocumented Immigrants in the U.S., 39 J. SOC. & SOC. WELFARE 111, 118 (2012); Leisy J. Abrego, Legal Consciousness of Undocumented Latinos: Fear and Stigma as Barriers to ClaimsMaking for First- and 1.5-Generation Immigrants, 45 LAW & SOC'Y REV. 337, 370 (2011) (risk of permanent anxiety for undocumented immigrants).
26

The public’s safety is also put at risk. When victims of and witnesses to crime are afraid to approach law enforcement, crime goes underreported. See Susana Martinez and Sheila Neville, Help for Undocumented Victims of Crime, 44 CLEARINGHOUSE REV. 129, 141 (2010). The reluctance to report crime is dangerous not only to undocumented immigrant victims, but to society as a whole. See Bill Ong Hing, Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy, 2 UC IRVINE L. REV. 247, 303 (2012) (noting that the entire community is safer when the immigrant community trusts law enforcement). “When the community and law enforcement are not engaged, we miss opportunities to interrupt current and future violence. As a result, everyone’s public safety is put at risk.” Debra J. Robbin, When Undocumented Immigrants Don’t Report Crime, We All Suffer, WBUR (Sept. 22, 2017).36
The decision to rescind DACA has increased fear in the immigrant community and added thousands of young people to the group of people afraid of deportation. The resulting reduction in use of public health, safety, educational, and social services is harmful to the public interest.
36 Available at http://www.wbur.org/cognoscenti/2017/09/22/undocumentedimmigrants-report-crimes-debra-j-robbin.
27

CONCLUSION The rescission of DACA would irreparably harm DACA recipients by depriving them of their only real opportunity to pursue the American Dream. The announcement of its rescission instilled a fear among DACA recipients and all immigrants alike that is harmful to American society as a whole. On behalf of their clients and the communities they serve, amici curiae urge this Court to affirm the district court’s order granting a preliminary injunction to prevent further harm and damage to the public interest.

Dated: March 20, 2018

By: /s/Maureen P. Alger Maureen P. Alger
Maureen P. Alger Monique R. Sherman Kara C. Wilson Joan R. Li COOLEY LLP 3175 Hanover Street Palo Alto, CA 94304-1130 Telephone: (650) 843-5000 Attorneys for Amici Curiae

28

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of NINTH CIRCUIT RULE 32-1 and FED. R. APP. P. 29(a)(5) because the brief contains 6,921 words, including Appendix A and excluding the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B). 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 in a proportionally spaced typeface using Times New Roman in Microsoft Word 2016 in Times New Roman, size 14.

Dated: March 20, 2018

COOLEY LLP
By: /s/ Maureen P. Alger Maureen P. Alger
Attorneys for Amici Curiae

29

CERTIFICATE OF SERVICE I, Debra Elliott, hereby certify pursuant to NIN1H CIRCUIT RULE 25-5(f) that I electronically filed the foregoing BRIEF OF AMICI CURIAE with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on March 20, 2018. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Date: March 20, 20 18

Debra Elliott 3175 Hanover Street Palo Alto, CA 94304-1130 Tel: (650) 843 -5000 Fax: (650) 849-7400

31

APPENDIX A The following is a list of the 23 amici: Asian Law Alliance is a community law office that provides legal assistance and community advocacy in the Asian Pacific Islander and immigrant community in Santa Clara County, California. Asian Law Alliance helps individuals, especially those with limited English proficiency, obtain justice in the immigration system.
Brooklyn Defender Services (BDS) provides multi-disciplinary and clientcentered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy. In 2016, BDS handled more than 1,500 immigration matters, including removal defense and DACA applications.
Canal Alliance provides immigration legal services in Marin County, California, and strives to eliminate barriers to legal integration for the low-income immigrant population. Canal Alliance provides legal consultations to ensure its clients receive the resources and support they need.
Centro Legal de la Raza is a legal services organization that protects and advances the rights of immigrant, low-income, and Latino communities in northern California. Its immigration practice focuses on serving the needs of the most vulnerable community members, including DACA recipients.
A-1

Children’s Law Center of Massachusetts (CLCM) provides legal representation to low-income children and youth throughout Massachusetts in matters including child welfare, education, and immigration. CLCM’s immigration practice focuses on serving the most vulnerable young immigrants, including DACA recipients.
Community Legal Services in East Palo Alto (CLSEPA) represents low-income individuals and families in East Palo Alto, California, and beyond. Its practice areas include immigration, housing, and workers' rights. CLSEPA has focused on navigating complex petitions for DACA.
Dolores Street Community Services strives to improve individuals’ lives and affect broader social change through advocacy and community organizing efforts. Its Deportation Defense & Legal Advocacy Program provides legal services to immigrant community members, including DACA recipients.
East Bay Sanctuary Covenant provides protection and advocacy to low-income and indigent refugees and immigrants. East Bay Sanctuary Covenant provides immigrants and refugees with a variety of legal services, including DACA applications.
Heartland Alliance’s National Immigrant Justice Center (NIJC) provides direct legal services to and advocates for immigrants, refugees, and asylum seekers.
A-2

NIJC attorneys provide consultation and legal representation in a variety of immigration matters, including DACA applications.
Hebrew Immigrant Aid Society (HIAS) Pennsylvania provides legal services to immigrant youth through its immigrant youth advocacy, immigrant victims of domestic violence, and Latino Outreach Immigration Services initiatives. Through these initiatives, HIAS has assisted DACA-eligible youth in applying for DACA.
Immigrant Legal Resource Center (ILRC) is a national nonprofit resource center that provides immigration legal trainings and educational materials. ILRC provides technical support to immigration practitioners assisting individuals in the DACA application process and advocates for an inclusive DACA program.
Justice Center of Southeast Massachusetts provides legal services to lowincome individuals throughout southeastern Massachusetts. The Justice Center provides a broad range of legal services including immigration. The immigration unit works with low-income immigrants on a variety of relief applications, including DACA.
Just Neighbors provides immigration legal services, including assistance with DACA applications, to low-income immigrants and refugees in northern Virginia. Just Neighbors partners with other nonprofit organizations and pro bono attorneys to educate the community about current immigration laws and policies.
A-3

Legal Aid Justice Center (LAJC) provides legal advice and representation to lowincome individuals in Virginia. LAJC has helped immigrant youth obtain or renew DACA. LAJC also brought a lawsuit that led to the Commonwealth of Virginia recognizing in-state tuition status for DACA beneficiaries and helped dozens of DACA students with related problems.
The Legal Aid Society of San Mateo County (LASSMC) provides legal services to San Mateo County, California residents in areas including immigration. LASSMC helps teen parent families, youth, and other low-income immigrants apply for DACA and other forms of immigration relief.
Legal Services for Children (LSC) provides free legal representation and assistance to children and youth in northern California, working to empower clients and actively involve them in critical decisions that impact their lives. LSC represents youth, including DACA recipients, in immigration cases.
Massachusetts Law Reform Institute (MLRI) advances social justice through legal action, policy advocacy, and community outreach. MLRI’s initiatives include litigation to ensure access to in-state tuition, merit scholarships, and financial aid for DACA recipients and training for lawyers representing DACA recipients.
A-4

National Justice for Our Neighbors provides free or low-cost immigration legal services for low-income immigrants. It supports 17 sites across the country and operates more than 40 clinics nationally. Attorneys assist clients with deportation defense and a broad range of immigration applications, including DACA.
New York Legal Assistance Group (NYLAG) provides legal assistance to New York City’s poor and near-poor in areas including family law and immigration. NYLAG’s Immigrant Protection Unit provides individuals in low-income immigrant communities, including DACA recipients, with assistance securing or continuing lawful status in the United States.
Northwest Immigrant Rights Project advocates for immigrants in Washington State through direct legal services, systemic advocacy, and community education. It provides legal representation in asylum, DACA, family-based petitions, U visas, naturalization, Special Immigrant Juvenile Status, and deportation defense.
OneJustice serves as an innovation lab on legal services and works with law schools, the private legal sector, and legal service nonprofits to provide legal assistance to those in need. OneJustice programs include pro bono projects to bring legal services to immigrants, including DACA-eligible youth, in rural communities.
A-5

Rocky Mountain Immigrant Advocacy Network (RMIAN) works to ensure equal access to justice for adults in immigration detention and for immigrant children in Colorado and the Mountain West region. Its DACA Project provides outreach about DACA and quality legal representation to DACA-eligible youth. Services, Immigrant Rights, and Education Network (SIREN) empowers lowincome immigrants and refugees in Silicon Valley through legal services, policy advocacy, and community organizing. SIREN provides consultations and assistance in a wide range of immigration areas, including DACA renewals.
A-6

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 1815072, 18-15128, 18-15133, 18-15134
__________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
_____________________________________________________________
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
Plaintiffs – Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants – Appellants.
____________________________
On Appeal from the United States District Court for the Northern District of California, Honorable William H. Alsup, Presiding
_____________________________________________________________
BRIEF FOR AMICI CURIAE AMERICAN PROFESSIONAL SOCIETY
ON THE ABUSE OF CHILDREN AND CALIFORNIA PROFESSIONAL SOCIETY
ON THE ABUSE OF CHILDREN IN SUPPORT OF PLAINTIFFS - APPELLEES
_____________________________________________________________
MARY KELLY PERSYN (SBN 264782) PERSYN LAW & POLICY 912 Cole Street PMB 124 San Francisco, CA 94117 (628) 400-1254
Attorney for Amici Curiae American Professional Society on the Abuse of Children and California Professional Society on the Abuse of Children

TABLE OF CONTENTS
TABLE OF AUTHORITIES.........................................................................iii
INTEREST OF AMICI CURIAE .................................................................... 1
FED. R. APP. P. 29(C)(5) STATEMENT...................................................... 2
SUMMARY OF ARGUMENT...................................................................... 3
ARGUMENT.................................................................................................. 4
I. Rescission of DACA Protection Affects Large Numbers of U.S. Citizen Children of DACA Recipients. ............................................................... 6
II. Rescission of DACA Protection Immediately Places DACA Recipients in Danger of Detention and Deportation................................................. 7
III. Rescission of DACA Protection Will Cause U.S. Citizen Children to Suffer Continuing Damage to their Mental and Physical Health. .......... 9 A. Even the threat of detention and deportation causes children to suffer symptoms of traumatic stress and post-traumatic stress disorder....................................................................................... 9 B. DACA rescission threatens to cut off access to reliable health care. .......................................................................................... 11 C. DACA rescission is likely to cause income and food insecurity and reduce access to educational opportunity.......................... 13 D. Deportation of a parent puts their children at a high risk of suffering trauma as a result of involvement with the child welfare system.......................................................................... 15 E. Taken together, the factors impacting DACA recipients’ children after rescission put them at a high risk of child traumatic stress, causing immediate and long-term damage.... 19 F. Evidence showing the health benefits of legal status weighs in favor of sustaining the District Court’s decision. .................... 21
i

IV. The United States Has A Responsibility To Protect Children From Harm. .................................................................................................... 24
CONCLUSION ............................................................................................ 26
ii

TABLE OF AUTHORITIES
Statutes and Treaties
Convention on the Rights of the Child ......................................................... 25
Rules
Memo. on Rescission of Deferred Action for Childhood Arrivals............. 4, 7
Other Authorities
Am. Academy of Pediatrics, AAP Statement on Protecting Immigrant Children (Jan. 25, 2017) ........................................................................... 20
Andrea Castillo, Immigrant arrested by ICE after dropping daughter off at school, sending shockwaves through neighborhood, Los Angeles Times (March 3, 2017) ........................................................................................ 14
Ctr. for Advanced Studies in Child Welfare, Foster Care and Deportation: Effects on Families (Nov. 27, 2012)......................................................... 15
Ctrs. for Disease Control and Prevention, Adverse Childhood Experiences (ACEs) ...................................................................................................... 19
Jens Hainmueller et al., Protecting unauthorized immigrant mothers improves their children’s mental health, 357 Science 1041 (2017) ... 23, 24
B. Hart, Arrests of Undocumented Immigrants Without Criminal Records Skyrocketed in 2017 (Feb. 12, 2018) ......................................................... 8
Immigrants, fearing Trump’s deportation policies, avoid doctor visits, PBS (Feb. 27, 2017).......................................................................................... 12
Gary Klein, Marin man arrested in ICE bust while dropping off child at school, Marin Independent Journal (March 15, 2018) ............................. 14
Migration Policy Inst., A Profile of U.S. Children with Unauthorized Immigrant Parents (2016) ....................................................................... 6, 7
Nat’l Child Traumatic Stress Network, Children with Traumatic Separation: Information for Professionals ................................................................... 17
Caitlin Patler, Ph.D., and Whitney Laster Pirtle, Ph.D., From undocumented to lawfully present: Do changes to legal status impact psychological
iii

wellbeing among latino immigrant young adults?, 199 Social Science & Medicine 39 (2018) .................................................................................. 21
Michelle Rodriguez, Trump Administration Has Illegally Attempted To Deport DACA Recipients, Advocates Say, Newsweek (Dec. 2, 2017) ..... 8
Sara Satinsky et al., Family Unity, Family Health: How Family-Focused Immigration Reform Will Mean Better Health for Children and Families (2013)................................................................................................. passim
Jeff Sconyers, JD, and Tyler Tate, MD, How Should Physicians Treat Patients Who Might Be Undocumented?, 18(3) AMA Journal of Ethics 229 (March 2016) ..................................................................................... 12
Alan Shapiro, M.D., Immigration: deporting parents negatively affects kids’ health, The Hill (May 13, 2016) ............................................................... 20
U.S. Customs and Immigration Serv., Active DACA Recipients: State of Residence as of Sept. 4, 2017 ..................................................................... 6
U.S. Dep’t of Health and Human Servs., Administration for Children and Families, Child Welfare Information Gateway. “Immigration and Child Welfare Issue Brief” (April 2015) ............................................................ 17
U.S. Dep’t of Health and Human Servs., Administration for Children and Families, Child Welfare Information Gateway. “Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children: Summary of State Laws” (2009) .............................................................. 25
U.S. Dep’t of Homeland Security, Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals (DACA) ............................. 7, 8
United Nations Frequently Asked Questions ............................................... 24
United We Dream, A Portrait of Deferred Action for Childhood Arrivals Recipients (2015).................................................................................. 6, 11
Atheendar S. Venkataramani et al., Health consequences of the U.S. Deferred Action for Childhood Arrivals (DACA) immigration programme: a quasi-experimental study, Lancet Public Health 2017 2:e175-181 ................................................................................................ 22
iv

Susan Vig et al., Young Children in Foster Care: Multiple Vulnerabilities and Complex Service Needs, 18(2) Infants & Young Children 147 (2005) .................................................................................................................. 18
Amy B. Wang, U.S. immigration authorities arrest chemistry professor after he finishes getting his children ready for school, Independent (Feb. 5, 2018) ......................................................................................................... 14
Seth F. Wessler, Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System, Applied Research Center (2011) ...................................................................... 17, 25
Tom Wong, 2017 National DACA Study (University of California, San Diego) (2017) ............................................................................................. 6
Lisa Zamosky, Health care options for undocumented immigrants, Los Angeles Times (Apr. 27, 2014) ................................................................ 12
Luis H. Zayas and Laurie Cook Heffron, Disrupting young lives: How detention and deportation affect U.S.-born children of immigrants, Amer. Psych. Ass’n (Nov. 2016).................................................................. passim
v

INTEREST OF AMICI CURIAE The American Professional Society on the Abuse of Children (“APSAC”) is the leading national organization for professionals serving children and families affected by child maltreatment, which includes both abuse and neglect. A multidisciplinary group, APSAC achieves its mission through expert training and educational activities, policy leadership and collaboration, and consultation emphasizing theoretically sound, evidencebased principles. For 30 years, APSAC has played a central role in developing guidelines that address child maltreatment. It is qualified to inform the Court about the damage maltreatment can inflict on children’s brain development and cognitive ability. APSAC submits this brief to assist the Court in understanding the impact of parental detention and deportation on children’s physical, emotional, and mental development.1 These facts provide important background information useful to a complete understanding of the Memorandum on Rescission of Deferred Action for Childhood Arrivals’ impact.
1 Amici acknowledge the research assistance of A.S. Lumsdaine, M.P.H.
1

APSAC members have a direct and substantial interest in these issues because of their historical and scientific experience with juvenile brain development, especially where child maltreatment is involved. APSAC is therefore qualified to advise the Court on the impact of child maltreatment on child and youth health, well-being, and ability to survive.
The California Professional Society on the Abuse of Children (“CAPSAC”) is a State Chapter of APSAC. CAPSAC plays a key role by providing a conduit between national leadership and California members of APSAC. CAPSAC shares APSAC’s direct and substantial interest in the issues addressed in this matter and is qualified to advise the Court on the impacts of child maltreatment.
This brief is filed with the consent of all parties, pursuant to Federal Rule of Appellate Procedure 29(a)(2).
FED. R. APP. P. 29(C)(5) STATEMENT Pursuant to Federal Rule of Appellate Procedure 29(c)(5), amici certify that no party or party’s counsel authored this brief in whole or in part, or contributed money that was intended to fund preparing or submitting this brief. No person contributed money intended to fund the preparation or submission of this brief.
2

SUMMARY OF ARGUMENT On September 4, 2017, Attorney General Jeff Sessions advised the Department of Homeland Security to end the DACA program, which it immediately did, indicating March 5, 2018 as the day on which DACA protection would cease. In taking this action, DHS endangered the mental and physical health of hundreds of thousands of children—mostly U.S. citizens—of DACA-protected parents. Amici American Professional Society on the Abuse of Children and California Professional Society on the Abuse of Children submit this brief to assist the Court in its review by providing key facts, some the product of very recent research, about the impact of DACA status and its rescission on the children of recipients. The rescission places DACA recipients at immediate risk of detention and deportation. Abundant evidence indicates that the fear that a parent will be deported, let alone the actual detention and deportation, can cause toxic stress that damages the mental and physical health and normal development of children. The DACA rescission at issue here thus strikes at the heart of the Government’s obligation to protect children from harm. Any review of the District Court’s order must weigh, in the balance of the public interest, the impact of the Order on the hundreds of thousands of
3

U.S. citizen children who are at risk of separation from their DACA recipient parents if the rescission is allowed to stand.
ARGUMENT The September 2017 Rescission Memo issued by DHS takes no notice of the human impact—on U.S. citizens and non-citizens alike—of ending Deferred Action for Childhood Arrivals (DACA) protections.2 District Judge William Alsup indicated in his opinion and order granting the preliminary injunction that this failure to consider the personal impact played a role in his determination that the rescission is arbitrary and capricious. Amici APSAC and CAPSAC focus here on the most vulnerable class of affected persons entirely ignored by the Rescission Memo: the hundreds of thousands of children of DACA recipients, most of whom are U.S. citizens. Because DACA recipients are at immediate risk of detention and deportation if DACA is rescinded, the danger to their children is immediate. These children are not at risk solely if their parent is actually detained and deported. Research shows that prior to detention and deportation, the
2 The brief Memorandum on Rescission of Deferred Action for Childhood Arrival (“Rescission Memo”) makes no mention of the impact this action would have on DACA recipients, much less their children. OB1314, citing ER130, 125. In listing the factors upon which the rescission is based, the Assistant Secretary included only a review of the relevant litigation, not the impact on affected individuals.
4

very fact of rescission immediately causes high levels of anxiety and PTSDlike symptoms. Children risk loss of parental nurturance, but also loss of income; food security; housing security; access to health care; access to educational opportunity; and the sense of safety and security that is the foundation of healthy child development.
Children of DACA recipients are not the only children who will suffer; children of documented parents also suffer increased stress, as do affected school communities. Living in families with an average of four members, often of different immigration statuses, and within larger communities, not one DACA recipient is an island. The visible effects of deportation touch neighbors, friends and family; children witness arrests; classmates tell stories of arrests within their families; “for every two adults deported, one citizen-child is directly affected.”3 What DACA recipients suffer post-rescission will be carried by all who surround them—especially children.
3 Luis H. Zayas and Laurie Cook Heffron, Disrupting young lives: How detention and deportation affect U.S.-born children of immigrants, Amer. Psych. Ass’n (Nov. 2016), http://www.apa.org/pi/families/ resources/newsletter/2016/11/detention-deportation.aspx.
5

I. RESCISSION OF DACA PROTECTION AFFECTS LARGE NUMBERS OF U.S. CITIZEN CHILDREN OF DACA RECIPIENTS. Nearly 700,000 people benefit from DACA protection; approximately
200,000 of them live in California.4 Reliable estimates find that over 25% of DACA recipients are parents of a U.S. citizen child.5 By this estimate, approximately 50,000 U.S. citizen children in California, and 200,000 nationwide, have a parent protected from removal by DACA.
To the extent that DACA rescission raises the risk profile for all unauthorized immigrants, a glance at this larger pool is instructive. From 2009-2013, 5.1 million U.S. children under 18 lived with at least one unauthorized immigrant parent (7% of the total U.S. child population). Most of these children were U.S. citizens (79%, or 4.1 million).6 In California, children living with at least one unauthorized immigrant parent totaled

4 U.S. Customs and Immigration Serv., Active DACA Recipients: State of Residence as of Sept. 4, 2017, daca_population_data USCIS.pdf.

5 United We Dream, A Portrait of Deferred Action for Childhood Arrivals Recipients 9 (2015), https://unitedwedream.org/ 2015/10/reportportrait-deferred-action-childhood-arrivals-daca-recipients/; Tom Wong, 2017 National DACA Study (University of California, San Diego) 9 (2017), https://cdn.americanprogress.org/content/uploads/ 2017/11/02125251/2017_DACA_study_economic_report_updated.pdf.

6 Migration Policy Institute, A Profile of U.S. Children with

Unauthorized

Immigrant

Parents

1,

3-4

(2016),

https://www.migrationpolicy.org/research/profile-us-children-unauthorized-

immigrant-parents.

6

1,481,000, making up 33% of the children of all immigrants and 17% of the state’s total child population.7
The Rescission Memo reaches far into the schools, churches, and communities of hundreds of thousands of children in America. The damage done thereby cannot and must not be underestimated. II. RESCISSION OF DACA PROTECTION IMMEDIATELY PLACES DACA
RECIPIENTS IN DANGER OF DETENTION AND DEPORTATION. Once DACA protections are rescinded, former DACA recipients will be immediately eligible for detention and deportation. The DHS position on this question is clear: Recipients of DACA are currently unlawfully present in the U.S. with their removal deferred. When their period of deferred action expires or is terminated, their removal will no longer be deferred and they will no longer be eligible for lawful employment.8 Nothing is known about how quickly persons formerly protected by DACA would be picked up. DHS does, after all, hold all the identifying information for these individuals. DHS states that it will not “proactively” share information on the identity of past DACA recipients unless certain
7 Id. at 9. 8 U.S. Dep’t of Homeland Security, Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals (DACA), https://www.dhs.gov/news/2017/09/05/frequently-asked-questionsrescission-deferred-action-childhood-arrivals-daca.
7

conditions are met.9 Nevertheless, DACA recipients have previously been detained and deported. According to Immigration and Customs Enforcement data recently acquired by the Washington Post, arrests of unauthorized immigrants with no criminal record doubled in fiscal year 2017, to 37,734.10 Some of these detentions have targeted DACA recipients. DHS does not keep robust data on DACA revocations and does not track DACA detentions, so advocates must rely on anecdotal accounts. They report that DACA recipients have been detained and issued Notices to Appear (“NTA”); DHS then argues that the NTA strips recipients of DACA status, though advocates argue this contradicts the government’s own rules. Rep. Marc Veasey (D-Texas), who has called for an investigation of President Trump’s enforcement actions against DACA recipients, stated that many of his DACA constituents are living in fear and many are being held at border checkpoints for prolonged periods of time.11
9 Id. 10 B. Hart, Arrests of Undocumented Immigrants Without Criminal Records Skyrocketed in 2017 (Feb. 12, 2018), http://nymag.com/ daily/intelligencer/2018/02/arrests-of-noncriminal-undocumentedimmigrants-skyrocket.html. 11 Michelle Rodriguez, Trump Administration Has Illegally Attempted To Deport DACA Recipients, Advocates Say, Newsweek (Dec. 2, 2017), http://www.newsweek.com/trump-administration-has-made-illegal-attemptsdeport-daca-recipients-724842.
8

Whether former DACA recipients are picked up right away or are never detained at all, the ever-present shadow of fear and anxiety that will loom over entire communities post-rescission has real costs to public health, and especially to the health and well-being of children. III. RESCISSION OF DACA PROTECTION WILL CAUSE U.S. CITIZEN
CHILDREN TO SUFFER CONTINUING DAMAGE TO THEIR MENTAL AND PHYSICAL HEALTH. DACA rescission would not result in immediate removal of all recipients. But it would immediately push DACA recipients, who have been able to live as authorized immigrants, back into unauthorized status. Research shows that unauthorized parental status is a risk factor for children’s health, whether or not it results in removal. A. Even the threat of detention and deportation causes
children to suffer symptoms of traumatic stress and posttraumatic stress disorder. Deportation of one or both parents is devastating for a child. And research shows that deportation trauma is not limited to those children whose parents are actually removed; children of DACA recipients and even children of documented immigrants also suffer great fear and anxiety. Trauma to children who experience detention and deportation of a parent can be severe. Children suffer symptoms like anxiety and insomnia and exhibit signs of fear. Impacts can include mental health symptoms and
9

disorders like depression, social isolation, self-stigma, aggression, withdrawal, negative academic consequences, separation anxiety, attachment disorder, and post-traumatic stress disorder.12 Among children whose relatives have been detained or deported, anxiety, withdrawal and anger are common; more than 66% of youth aged 12-17 in one study showed withdrawal or detachment from others six months after a parent’s immigration-related arrest.13 Experiencing a parent’s arrest, detention, and deportation accumulates on top of prior stress and can “detrimentally impact their mental health.”14 Moreover, children suffer symptoms such as depression, negative mood, physical symptoms, negative self-esteem, and anxiety disorders whether they accompany their deported parents or stay behind in the United States.15
Even the threat of deportation is highly traumatic for children. “As parents’ risk of deportation rises, so too does the stress of their children…The lingering possibility of deportation of parents leaves children
12 Zayas and Hefron, supra n. 3. 13 Sara Satinsky et al., Family Unity, Family Health: How FamilyFocused Immigration Reform Will Mean Better Health for Children and Families 12 (2013), https://humanimpact.org/wp-content/uploads/2017/ 09/Family-Unity-Family-Health-2013.pdf. 14 Zayas and Hefron, supra n. 3. 15 Id.
10

with constant anxiety and vigilance about the potential becoming real.”16 A 2013 study of family unity and health among mixed-status families found that almost 75% of undocumented parents reported signs of PTSD in their children, compared to 40% of documented parents.17 Among youth with undocumented parents, 85% reported PTSD symptoms related to their parent’s legal status and risk of deportation, compared to 57% of documented parents.18
B. DACA rescission threatens to cut off access to reliable health care.
Access to reliable health care is critical to child development and health. Unauthorized immigrants, including DACA recipients, are ineligible for Affordable Care Act coverage, but some DACA recipients have accessed health insurance via college or university health plans or have obtained employment-based insurance. In one survey, more than 25% reported that they got health insurance since DACA and 30% obtained health insurance through an employer.19 These are positive indicators for the health of DACA recipients’ children, even though many remain uncovered. However, DACA
16 Zayas and Hefron, supra n. 3. 17 Satinsky, supra n. 13. 18 Id. at 8. 19 Portrait of Deferred Action, supra n. 5, at 21.
11

rescission will cut off much of the access that exists; former recipients will
no longer be able to work and access to higher education will be
significantly reduced.
Further, parents no longer protected by DACA will be less likely to
seek medical care for their children. Parents “may avoid encounters with
providers for fear of discovery…undocumented immigrants make fewer
visits to health care providers than citizens with authorized immigrant
status.”20 Doctors and health care providers are bound by federal law to
protect patient information,21 but this fact, if widely known in the immigrant
community, does not garner trust.22
20 Zayas and Hefron, supra n. 3. 21 See, e.g., Jeff Sconyers, JD, and Tyler Tate, MD, How Should Physicians Treat Patients Who Might Be Undocumented?, AMA Journal of Ethics 18(3) (March 2016): 229-236, doi:10.1001/ journalofethics.2016.18.03.ecas4-1603. 22 See, e.g., Immigrants, fearing Trump’s deportation policies, avoid doctor visits, PBS (Feb. 27, 2017), https://www.pbs.org/ newshour/health/immigrants-trump-deportation-doctor (“Evidence that undocumented immigrants are avoiding clinics or hospitals because of the new guidelines is only anecdotal. But researchers have previously found that tightening of immigration policies have resulted in at least some increased fear in immigrant communities, with residents reluctant to leave their homes, go to the doctor, or take other actions they think might put themselves at risk.”); Lisa Zamosky, Health care options for undocumented immigrants, Los Angeles Times (Apr. 27, 2014), http://www.latimes.com/business/la-fihealthcare-watch-20140420-story.html (“Many undocumented immigrants ‘say fear of deportation for themselves or family members is a barrier in
12

C. DACA rescission is likely to cause income and food insecurity and reduce access to educational opportunity.
Loss of DACA protections means, among other things, loss of work authorization and income from employment. That loss of income can bring with it food insecurity for children of DACA recipients. Though U.S. citizen children can qualify for food stamps, immigrant families are less likely to apply for them, and children may live in food insecure households indefinitely. Detention of a family member can leave a household food insufficient, with 80% of respondents to one survey stating that they ran out of food six months after detention and lacked money to get more.23 “Regardless of legal status, children of undocumented immigrants more often suffer from food insecurity than children of U.S. citizens.”24 Unauthorized immigrant parents “also may not use social services and public programs such as food stamps and child care subsidies, for which their citizen-children are eligible.”25
terms of signing up for coverage and accessing healthcare services,’ says Laurel Lucia, policy analyst at the UC Berkeley Center for Labor Research and Education.”).
23 Satinsky, supra n. 13 at 32-33. 24 Zayas and Hefron, supra n. 20. 25 Id.
13

DACA rescission is likely to harm access to educational opportunity for several reasons. First, the anxiety, depression, and other symptoms that children will suffer interfere with cognitive ability and focus, and behavioral issues like aggression can interfere with focus and attendance. Second, fear of an unauthorized immigrant parent’s discovery and detention creates a climate of fear and avoidance.26 In one survey of immigration-related raids in six cities, about one in five children had difficulty keeping up in school after the raids.27

26 Such fear is warranted. Media have reported many instances of

parents arrested while taking their children to school. See, e.g., Gary Klein,

Marin man arrested in ICE bust while dropping off child at school, Marin

Independent

Journal

(March

15,

2018),

https://www.mercurynews.com/2018/03/15/marin-man-arrested-in-ice-bust-

while-dropping-off-child-at-school/; Amy B. Wang, U.S. immigration

authorities arrest chemistry professor after he finishes getting his children

ready for school, Independent (Feb. 5, 2018),

http://www.independent.co.uk/news/world/americas/syed-ahmed-jamal-us-

ice-arrest-immigrant-student-visa-donald-trump-daca-lawrence-kansas-

professor-a8194736.html (the detainee has three U.S. citizen children and no

criminal record); Andrea Castillo, Immigrant arrested by ICE after dropping

daughter off at school, sending shockwaves through neighborhood, Los

Angeles Times (March 3, 2017), http://www.latimes.com/local/lanow/la-me-

immigration-school-20170303-story.html (the detainee’s 13-year-old

daughter was present and filmed the arrest). There are a multitude of

additional examples.

27 Satinsky, supra n. 13 at 16.

14

D. Deportation of a parent puts their children at a high risk of suffering trauma as a result of involvement with the child welfare system.
When parents are detained, their children run a high risk of involvement with the child welfare and foster care system. The detention and deportation of DACA parents will therefore be the proximate cause of a substantial increase in the number of children in the United States—most of them U.S. citizens—suffering from neglect and dependency. Parental incarceration is already a major cause of child maltreatment, in the form of child neglect and dependency, in the United States. A government policy enforcing DACA rescission and enabling the detention and deportation of parents will increase the number of children suffering from this form of maltreatment as a direct result. With 5,100 children currently in foster care because of parental detainment or deportation, and about 15,000 likely remaining in care for the next five years because families cannot be reunited, the problem is significant.28
The child welfare system will have primary responsibility for meeting the needs of the children of many DACA recipients who are detained, incarcerated, or deported. However, child welfare system protocols were not
28 Center for Advanced Studies in Child Welfare, Foster Care and Deportation: Effects on Families (Nov. 27, 2012), https://cascw.umn.edu/policy/ foster_care_and_deportation_ef/.
15

developed to address either the realities of harm to children caused by the mass detention, incarceration, and deportation of their parents or the resulting catastrophic traumatic effects on children that would follow. The American public child welfare system was developed to address the trauma to children from child maltreatment, and subsequent separation and out-ofhome placement as a result of such maltreatment. The system has developed intervention protocols to identify child abuse and neglect, provide a safe environment for victims of child abuse, work with families to ameliorate the causes of child maltreatment, support and reunify families, and find alternative permanent placement for children when reunification is not possible.
But many of the child welfare system’s protocols for intervention do not apply to the children of DACA recipients who separated from their parents. Most of these children have not been maltreated. Rather, separation from DACA parents would be the result of the government’s discretionary immigration enforcement. While the child welfare system is proficient in working with the trauma of separation and placement of children maltreated by their parents, maltreatment as a result detention and deportation will require new protocols of intervention and new education and training of staff. These children will likely suffer an increase in psychological and
16

emotional morbidity. This will decrease the potential success of child
welfare interventions, increasing the threat of long-term psychological and
emotional harm for these children.29
Psychological and emotional harm resulting from parental separation
can cause significant health problems for children. Separations are especially
difficult when, as in parental deportation, the child does not know where her
parent is, whether she is safe, or when she will return.30 Further difficulties
for children placed in foster care can be common. Attachment is vital to a
29 The U.S. Department of Health and Human Services notes several difficulties that child welfare agencies face that make this outcome more likely. Workers and attorneys may be unfamiliar with immigration issues and, for example, may create case plans that unauthorized immigrant parents cannot complete (especially if they are in detention), or the child welfare professional may not understand the range of reasons why a parent could be detained or deported. Agencies may be reluctant to place a child in kinship care if the family members are also unauthorized immigrants. Perhaps most significantly, agencies may not have the capacity, policies, or procedures to reunify children with deported parents. Child Welfare Information Gateway, Immigration and Child Welfare Issue Brief 5-6 (April 2015), https://www.childwelfare.gov/pubPDFs/immigration.pdf. See also Seth F. Wessler, Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System, Applied Research Center (2011), https://www.raceforward.org/research/reports/shattered-families.
30 See National Child Traumatic Stress Network, Children with Traumatic Separation: Information for Professionals 1, http://www.nctsn.org/sites/default/files/assets/pdfs/children_with_traumatic_ separation_professionals.pdf (“Chronic separation from a caregiver [as in parental deportation] can be extremely overwhelming to a child…[separations] may be sudden, unexpected, or prolonged, and can be accompanied by additional cumulative stressful events.”).
17

child’s healthy development and ability to self-regulate, and therefore the relationship with a stable caregiver like a foster parent is crucial. But a foster child may experience split loyalty, feeling that attaching to—loving—the foster parent is a betrayal of the absent parent.31 The child placed into a foster or even a kinship home experiences ruptured relationships and separation from the familiar; new routines, rules, and people; having to obey strangers without their approval or choice; and labels and stigma that can come from being a “foster kid.”
The hardship of placement with a foster family is often multiplied by health issues. While not all foster children experience mental and physical health problems and developmental delays, the majority of foster children do.32 Often this is because of maltreatment that children experience before placement. However, foster children sometimes experience neglect in foster care as well. Medical needs can remain unmet; 12% of foster children receive no routine healthcare, 34% do not receive immunizations, and 32% have at least one continuing unmet health care need post-placement.33
31 Id. at 2. 32 Susan Vig et al., Young Children in Foster Care: Multiple Vulnerabilities and Complex Service Needs, Infants & Young Children 18(2): 147-160, 147 (2005). 33 Id. at 150.
18

E. Taken together, the factors impacting DACA recipients’ children after rescission put them at a high risk of child traumatic stress, causing immediate and long-term damage.
All of these impacts on children associated with detention and
deportation, from anxiety and anger to loss of income and food security and
possible involvement with the child welfare system, contribute to the
development of child traumatic stress. Since a landmark study published by
Kaiser Permanente and the Centers for Disease Control in 1998,34 awareness
of the significant physical and mental health impacts of traumatic stress on
children has grown and its deleterious effects confirmed in study after study.
More, the American Academy of Pediatrics—America’s premier
professional association of pediatricians—has issued a statement finding
that:
Far too many children in this country already live in constant fear that their parents will be taken into custody or deported, and the message these children received today from the highest levels of our federal government exacerbates that fear and anxiety. No child should ever live in fear. When children are scared, it can impact their health and development. Indeed, fear and stress, particularly prolonged exposure

34 See Centers for Disease Control and Prevention, Adverse Childhood

Experiences

(ACEs),

https://www.cdc.gov/violenceprevention/

acestudy/index.html.

19

to serious stress—known as toxic stress—can harm the developing brain and negatively impact short- and long-term health.35 Left unbuffered, toxic stress disrupts normal development and negatively affects the immune systems and other physiology of growing children— potentially for life. Pediatrician Alan Shapiro notes the amplified effect of toxic stress for children with unauthorized immigrant parents: “In this bioecological framework, parental deportation becomes a double whammy for children, compounding the negative effect on a child’s health and well-being by increasing their risk for exposure to stressors and removing a key buffer to that stress, their parents.”36 Children flooded with unrelenting toxic stress face negative consequences that potentially last a lifetime. The message sent to all of California’s immigrant children by rescinding DACA brings with it unrelenting fear of losing either country or parents. And that choice leads to worse health outcomes, lower productivity, and less quality of life for hundreds of thousands of American children.
35 Am. Academy of Pediatrics, AAP Statement on Protecting Immigrant Children (Jan. 25, 2017), https://www.aap.org/en-us/about-theaap/aap-press-room/pages/aapstatementonprotectingimmigrantchildren.aspx.
36 Alan Shapiro, M.D., Immigration: deporting parents negatively affects kids’ health, The Hill (May 13, 2016), http://thehill.com/blogs/congress-blog/healthcare/279544-immigrationdeporting-parents-negatively-affects-kids-health.
20

F. Evidence showing the health benefits of legal status weighs in favor of sustaining the District Court’s decision.
Abundant evidence demonstrates the negative health impacts on children of DACA rescission. Recent evidence also demonstrates the healthpromoting impact of DACA protections and other forms of legal status.
A 2016 analysis of survey results from Latino immigrant young adults demonstrated that while retrospective reports of past psychological wellness among undocumented individuals were predicted by socioeconomic status, DACA status predicts current psychological wellness.37 DACA essentially lowered the likelihood of psychological distress, such that “immigrants report better health after a transition to lawful presence.”38 Specifically, “[r]eceiving DACA reduced the odds of distress, negative emotions, and worry about self-deportation by 76%-87%, compared to respondents without DACA.”39
A 2017 quasi-experimental study based on national retrospective data examined the physical and mental health effects of DACA, finding
37 Caitlin Patler, Ph.D., and Whitney Laster Pirtle, Ph.D., From undocumented to lawfully present: Do changes to legal status impact psychological wellbeing among latino immigrant young adults?, Social Science & Medicine 199 (2018) 39-48.
38 Id. at 42, 44. 39 Id. at 44.
21

significant benefits to mental health but no significant impact on physical health.40 Researchers found that the “effects on mental health were large and clinically significant, with the DACA programme significantly reducing the odds of individuals reporting moderate or worse psychological distress.”41 The authors noted further that these results should be expected, given other studies that show increasing anxiety and depression symptoms when policies raise the risk of deportation.42
In addition to studies relying on the self-reported health effects of DACA, a very important quasi-experimental study recently showed the impact of a mother’s DACA protection on the physical and mental health of her children. Researchers collected health information for children of DACA recipients with birthdates before and after June 15, 2012, the date on which DACA applicants had to be less than 31 years old. Their analysis demonstrated that when DACA protections were established, children of
40 Atheendar S. Venkataramani et al., Health consequences of the U.S. Deferred Action for Childhood Arrivals (DACA) immigration programme: a quasi-experimental study e175, Lancet Public Health 2017 2:e175-181, http://dx.doi.org/10.1016/S2468-2667(17)30047-6.
41 Id. at e179. 42 Id.
22

mothers who qualified showed an immediate and statistically significant reduction in adjustment and anxiety disorder.43
Figure 1. The data illustrated by Figure 1 demonstrate the clear decline of adjustment and anxiety disorders in children of DACA recipients after the protections were established. Specifically, “mothers’ DACA eligibility reduced adjustment and anxiety disorder diagnoses in their children by 4.3 percentage points [] from a baseline rate of 7.9% among children of 43 Jens Hainmueller et al., Protecting unauthorized immigrant mothers improves their children’s mental health, Science 357 (2017): 1041-1044. The authors chose to study mental health disorders because the effects were immediately observable upon establishment of DACA. “Moreover, examining mental health disorders that originate in childhood is important because they are associated with long-term health issues, low education, and welfare dependence, which generate considerable private and social costs.” Id. at 1042.
23

ineligible mothers at the threshold.”44 As the authors note, the study’s results
encourage further research on the impacts of protective status on the children
of recipients—not only on the recipients themselves.
IV. THE UNITED STATES HAS A RESPONSIBILITY TO PROTECT CHILDREN FROM HARM. The United States is a signatory to the United Nations Convention on
the Rights of the Child.45 The Convention emphasizes the importance of
protecting child safety and family unity, specifying that the child “has the
right to know and be cared for by his or her parents…States Parties shall
ensure that a child shall not be separated from his or her parents against their
will…both parents have common responsibilities for the upbringing and development of the child.”46
The twin principles of family unity and child protection animate the
United States laws that require child welfare agencies to help families access
44 Id. at 1043. 45 The United States has not ratified the Convention and is not bound by its terms. “However, [signing] is a means of authentication and expresses the willingness of the signatory state to continue the treaty-making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty.” United Nations Frequently Asked Questions, citing Arts.10 and 18, Vienna Convention on the Law of Treaties 1969, http://ask.un.org/faq/14594. 46 Convention on the Rights of the Child, Arts. 7, 9, 18.
24

services necessary to reunification. The U.S. Department of Health and Human Services notes that laws in all states “require the provision of services that will help families remedy the conditions that brought the child and family into the child welfare system…[such as] accessible, available, and culturally appropriate services that are designed to improve the capacity of families to provide safe and stable homes for their children.”47
Child well-being and family reunification are basic values of the child welfare system. Parents protected by DACA were brought here as children and given no other choice of home. Rescission of these protections puts their children at immediate risk and threatens their families with forced separation, in direct contravention of our nation’s core commitment to the protection of children. At a minimum, equity requires that the government weigh these concerns carefully in the balance in considering whether to rescind DACA.
47 Wessler, supra n. 29 at 15, quoting U.S. Dep’t of Health and Human Svcs, Administration for Children and Families, Child Welfare Information Gateway. “Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children: Summary of State Laws” (2009), http://www.childwelfare.gov/systemwide/laws_policies/statutes/reunify.cfm.
25

CONCLUSION For the foregoing reasons, amici American Professional Society on the Abuse of Children and California Professional Society on the Abuse of Children respectfully request that this Court affirm the District Court’s decision to grant a preliminary injunction, affirm the District Court’s orders to the extent they deny the government’s motion to dismiss, and reverse the District Court’s dismissal of plaintiffs’ APA notice-and-comment claims.

Dated:

March 20, 2018 Respectfully submitted, Mary Kelly Persyn

s/ Mary Kelly Persyn
Mary Kelly Persyn Persyn Law & Policy 912 Cole Street PMB 124 San Francisco, CA 94117 (628) 400-1254
Attorney for Amici Curiae American Professional Society on the Abuse of Children and California Professional Society on the Abuse of Children

26

CERTIFICATE OF COMPLIANCE Fed. R. App. P. 32(g)
Pursuant to Fed. R. App. P. 32(g), I certify that the attached brief is proportionally spaced, has a typeface of 14 points or more, and contains 5,061 words as counted by the Microsoft Word word processing program used to generate the brief.
s/ Mary Kelly Persyn Mary Kelly Persyn Persyn Law & Policy 912 Cole Street PMB 124 San Francisco, CA 94117 (628) 400-1254 Attorney for Amici Curiae American Professional Society on the Abuse of Children and California Professional Society on the Abuse of Children

CERTIFICATE OF SERVICE
I hereby certify that on March 20, 2018, I electronically filed the foregoing amicus curiae brief by using the appellate CM/ECF system.
I certify that the participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Mary Kelly Persyn
Mary Kelly Persyn Persyn Law & Policy 912 Cole Street PMB 124 San Francisco, CA 94117 (628) 400-1254
Attorney for Amici Curiae American Professional Society on the Abuse of Children and California Professional Society on the Abuse of Children

 
 Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees-Cross-Appellants,

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellants-Cross-Appellees.
____________________

On Cross-Appeal from the United States District Court
for the Northern District of California
____________________

REPLY BRIEF OF THE STATES OF CALIFORNIA, MAINE, MARYLAND, AND MINNESOTA
____________________

JANET T. MILLS Attorney General of Maine Susan P. Herman Deputy Attorney General Attorneys for the State of Maine
BRIAN E. FROSH Attorney General of Maryland Steven M. Sullivan Solicitor General Attorneys for the State of Maryland
LORI SWANSON Attorney General of Minnesota Jacob Campion Assistant Attorney General Attorneys for the State of Minnesota
April 17, 2018

XAVIER BECERRA Attorney General of California Edward C. DuMont Solicitor General Michael J. Mongan Deputy Solicitor General Michael L. Newman Supervising Deputy Attorney General James F. Zahradka II Deputy Attorney General Samuel P. Siegel Associate Deputy Solicitor General CALIFORNIA DEPARTMENT OF JUSTICE 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102-3660 (415) 510-3920 michael.mongan@doj.ca.gov Attorneys for the State of California

TABLE OF CONTENTS Introduction ................................................................................................................1 Argument.................................................................................................................... 4 I. Plaintiffs stated a claim that defendants violated the APA’s notice-and-
comment requirement ......................................................................................4 Conclusion ...............................................................................................................10
i

TABLE OF AUTHORITIES CASES Consumer Energy Council of Am. v. FERC
673 F.2d 425 (D.C. Cir. 1982)..........................................................................8, 9 Mada-Luna v. Fitzpatrick
813 F.2d 1006 (9th Cir. 1987) .....................................................................passim Nat’l Treasury Emps. Union v. Cornelius
617 F. Supp. 365 (D.D.C. 1985)...........................................................................9 STATUTES 5 U.S.C.
§ 551(5).................................................................................................................8 § 553......................................................................................................................9 § 553(b).................................................................................................................8 OTHER AUTHORITIES Webster’s Third New International Dictionary (2002) .............................................5
ii

INTRODUCTION These consolidated appeals arise out of suits challenging defendants’ decision to terminate the Deferred Action for Childhood Arrivals (DACA) program. The States’ principal and response brief explained why those challenges are reviewable and why the district court properly entered a preliminary injunction, which partially preserves the status quo while this litigation is completed. The district court erred, however, in dismissing the claim that defendants violated the Administrative Procedure Act when they adopted a substantive rule terminating DACA without first following notice-and-comment procedures. This brief responds to defendants’ arguments about that claim. Like many of the issues in this case, the notice-and-comment issue turns on defendants’ stated basis for their decision to end DACA. Notice-and-comment procedures are not required for general statements of policy, which merely provide guidance to agency officials in exercising their discretionary powers. See, e.g., Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987). But a directive that “‘narrowly limits administrative discretion’ or establishes ‘a binding norm’” creates a new rule of substantive law, which must go through notice and comment. Id. at 1014 (emphasis omitted). Defendants have offered an array of different explanations for their decision to end DACA. At times, they argue that it was a “purely discretionary” decision
1

(ARRB 1; AOB 2; see id. at 13-14); that the Acting Secretary concluded “that she should exercise her discretion to” terminate DACA (ARRB 7); and that the decision was based on her “policy judgment” (D.Ct. Dkt. 114 at 26; see ARRB 9).1 That is essentially how they frame the decision in responding to the notice-andcomment claim. They argue that the memorandum rescinding DACA merely “explains how the agency intends to exercise its enforcement authority on a prospective basis,” but “places ‘no limitations’ on the agency’s exercise of . . . ‘otherwise lawful enforcement . . . prerogatives.’” ARRB 53, 54. As a result, they contend, the decision to terminate DACA fits within the “general statement of policy” exception to the notice-and-comment requirement. See id. at 53-55.
In the rescission memorandum itself, however, defendants described the decision in a way that establishes it is not a mere policy statement. The memorandum describes a “legal determination” by the Attorney General that DACA is an “unconstitutional” program, “effectuated . . . without proper statutory authority,” which “circumvent[s] . . . immigration laws” and contains “the same legal and constitutional defects that the courts recognized as to DAPA.” ER 129. It concludes that this legal determination made it “clear that the June 15, 2012 DACA program should be terminated.” ER 130. Defendants repeated that
1 “ARRB” refers to appellants’ response and reply brief (Dkt. 134); “AOB” refers to appellants’ opening brief (Dkt. 31); “D.Ct. Dkt.” refers to the district court’s docket in No. 17-cv-5211.
2

explanation when they publicly announced the decision through a press statement by the Attorney General. SER 1354 (“Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”). The President reiterated it on the same day: “‘the program is unlawful and unconstitutional and cannot be successfully defended in court.’” ARRB 35 (quoting Statement from President Trump (Sept. 5, 2017), https://www.whitehouse. gov/the-press-office/2017/09/05/statement-president-donald-j-trump). Even in this litigation, defendants acknowledge that the decision was based (in part, they say) on the Acting Secretary’s “conclusion, informed by the Attorney General’s advice, that indefinitely continuing the DACA policy would itself have been unlawful.” AOB 38; see ARRB 20.
Defendants’ adoption of a legal conclusion as the basis for terminating DACA establishes that they violated the procedural requirements of the APA. The rescission memorandum leaves no doubt that the Department of Homeland Security intends to be bound by the legal determination that it lacks the authority to operate a deferred-action program like DACA. Such a substantive rule may be adopted only through notice-and-comment procedures. Moreover, as the States previously explained, the fact that defendants based their decision to terminate DACA on a legal conclusion has other important consequences for this litigation. Defendants’ abrupt change of position, inadequate explanation, and flawed legal
3

premise render the decision arbitrary, capricious, and contrary to law; and the legal
basis of the decision underscores why plaintiffs’ APA claims are reviewable. See
State Br. 17-20, 36-53.
ARGUMENT I. PLAINTIFFS STATED A CLAIM THAT DEFENDANTS VIOLATED THE
APA’S NOTICE-AND-COMMENT REQUIREMENT Defendants acknowledge that the exception to the notice-and-comment
requirement for general statements of policy is reserved for documents that “‘are
binding on neither the public nor the agency.’” ARRB 52. Statements of policy
“merely provide[] guidance to agency officials in exercising their discretionary
powers.” Mada-Luna, 813 F.2d at 1013. Defendants assert that the rescission
memorandum fits this description because it “explains how the agency intends to
exercise its enforcement authority on a prospective basis.” ARRB 53 (citing ER
130-131). But the memorandum does more than that. It adopts a categorical
“legal determination” that DACA is unlawful (ER 129; see ER 130, 176)—
establishing a new rule of substantive law prohibiting DHS from creating or
continuing deferred action programs like DACA. See State Br. 67-69.2
2 Indeed, the memorandum does not even direct “that deferred action could be granted on an individual, case-by-case basis” going forward (ARRB 55 (citing ER 130)), as defendants say it does. The language cited by defendants states that DHS “[w]ill adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization
(continued…) 4

Defendants offer no direct response to this argument. See ARRB 51-56.
They do not dispute that the memorandum embodies a legal determination that
DACA is unlawful; indeed, they have conceded that it does. See AOB 38.3 And
although they assert without elaboration that “[n]othing in the Rescission Memo
evidences an ‘inten[t] to be bound’” (ARRB 54), they have clearly adopted the
view that DHS lacks authority to operate DACA and similar programs going
forward (see AOB 38; ARRB 27-30; ER 129-130, 176). The rescission
memorandum thus “replaces agency discretion” to operate deferred-action
(…continued) Documents that have been accepted by” September 5, 2017, and that it “[w]ill reject all DACA initial requests and associated applications for Employment Authorization Documents filed after” that date. ER 130. It says nothing else about whether (or how) DHS will respond to initial requests for deferred action submitted after September 5. 3 Throughout their response and reply brief, defendants insist that their decision to terminate DACA nonetheless rests on a discretionary determination. By their reading, the memorandum “did not rest on the judgment that DACA must be rescinded because it was in fact legally invalid, but rather explained [the Acting Secretary’s] conclusion that DACA ‘should’ be rescinded.” ARRB 2; see id. at 7, 20, 24, 27-28. But the memorandum clearly expresses the view that the Attorney General’s “legal determination”—based on the decisions in the Texas litigation— necessitates the termination of DACA. ER 129-130; see ER 39; Webster’s Third New International Dictionary 2104 (2002) (“should” is “used in auxiliary function to express duty, obligation, necessity, propriety, or expediency”). Indeed, as noted above, defendants do not dispute that the memorandum rests in part on a legal determination. They instead assert (incorrectly) that it also relies on a discretionary policy judgment. See ARRB 20 (“[T]he memorandum thus did not rely solely on illegality per se, but rather principally on litigation risk and legality concerns.”) (emphasis added).
5

programs like DACA—discretion that has been recognized and employed by administrations of both parties for decades—“with a new ‘binding rule of substantive law’” prohibiting it from doing so. Mada-Luna, 813 F.2d at 1014. That the rescission memorandum “does not categorically forbid DHS” from exercising deferred action in particular cases in the future (ARRB 54) does not change the fact that DHS limited its discretion by binding itself to a substantive position that bars deferred action programs such as DACA.
Defendants are not correct that if the rescission memorandum “is a substantive rule, then a fortiori the restriction on discretion imposed by DACA itself was a substantive rule.” ARRB 55. The 2012 memorandum establishing DACA qualified as a policy statement because it merely gave agency officials guidance about how to exercise discretion in making deferred action decisions, while expressly preserving their ability to deny requests for deferred action on a “case by case basis.” ER 142. As this Court has held, that type of guidance document is a quintessential statement of policy. See Mada-Luna, 813 F.2d at 1012-1013. Defendants were free to alter that statement in a manner that preserved existing agency discretion. They instead opted to terminate DACA in the 2017 rescission memorandum by adopting a position flatly prohibiting the agency from operating such a program. See ER 129-130; AOB 38. The “availability of [the ‘statement of policy’] exception from section 553’s requirements must be
6

determined on a rule-by-rule basis.” Mada-Luna, 813 F.3d at 1012 n.6. Given the material differences between the 2012 memorandum and the 2017 memorandum, there is no basis for concluding that the substantive nature of the later memorandum “necessarily implies” that the earlier one was substantive as well. ARRB 55. Nor is there any need to fear that treating the two memoranda differently “would offend both law and equity.” Id.
This Court’s decision in Mada-Luna does not support defendant’s position. See ARRB 53-54. That case dealt with two sequential INS operating instructions regarding the exercise of deferred action. The Court examined each of them individually, holding that both the 1978 instruction and the 1981 instruction qualified as general statements of policy because they offered guidance that preserved agency discretion and did not establish any “binding norm.” Mada-Luna, 813 F.2d at 1017. The Court did not hold that every agency statement regarding deferred action qualifies as a general statement of policy. To the contrary, it recognized that “not all INS operating instructions would qualify under [the] exception” for “‘general statements of policy,’” explaining that “[a]gencies cannot exempt their proposed new rules from the APA’s notice-and-comment or other requirements merely by classifying them as ‘operating instructions.’” Id. at 1012 n.6. Regardless of label, an agency directive that “‘narrowly limits
7

administrative discretion’” cannot qualify as a general statement of policy. Id. at 1014.
Finally, even if this Court were to disagree with our arguments and conclude that the 2012 memorandum establishing DACA was a substantive rule, that would only provide further reason why defendants had to follow notice-and-comment procedures before rescinding it. See State Br. 68-69. The APA expressly directs that an agency’s process for “repealing a rule” itself constitutes a “rule making,” 5 U.S.C. § 551(5), which is subject to the notice-and-comment requirement, see 5 U.S.C. § 553(b). That is true even if the putative reason for repealing the rule is that it was defectively promulgated. See Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 447 n.79 (D.C. Cir. 1982). So if the 2012 memorandum created a substantive rule that should have been (but was not) promulgated through a notice-and-comment process, it follows that the same process should have been employed to rescind it.
Defendants contend that the authority invoked by plaintiffs on this point is “inapposite” because it involved “substantive rules that were promulgated through notice-and-comment rulemaking and were . . . claimed to be defective for some other reason.” ARRB 56. But they offer no persuasive explanation why the reasoning of Consumer Energy should not apply to a case such as this one. Defendants have recently adopted the position that the memorandum creating
8

DACA established a substantive rule that has bound agency discretion since 2012. See ARRB 29 n.5. Under these circumstances, it is consistent with the APA to require the agency to notify the public of that conclusion and accept comment on whether DACA was defectively promulgated. Just as in Consumer Energy, the question whether the original policy was defectively promulgated is itself “one worthy of notice and an opportunity to comment,” 673 F.2d at 447 n.79— particularly from the standpoint of employers and hundreds of thousands of DACA recipients who have relied on it over the years. Cf. Nat’l Treasury Emps. Union v. Cornelius, 617 F. Supp. 365, 369, 371 (D.D.C. 1985) (applying Consumer Energy where agency “suddenly announced” that prior rule exceeded agency’s statutory authority, four years after the rule was adopted and after it had “been relied upon by federal employees and the Federal Circuit”).
No one disputes that elections have policy consequences. New administrations may change existing policies or rules; but they must do so within the constraints of federal law. In particular, when such a change involves final agency action, the Executive Branch must comply with the procedural (and substantive) requirements of the APA. By adopting a categorical legal determination that DHS lacks statutory authority to operate the DACA program, without following notice-and-comment procedures, defendants violated 5 U.S.C. § 553.
9

CONCLUSION For the foregoing reasons and those in the States’ prior brief, the order

regarding the motion to dismiss should be reversed with respect to the notice-and-

comment claim and affirmed with respect to the substantive APA and due process

claims. The order granting a preliminary injunction should be affirmed.

Dated: April 17, 2018

Respectfully submitted,

BRIAN E. FROSH Attorney General of Maryland Steven M. Sullivan Solicitor General Leah J. Tulin Assistant Attorney General 200 Saint Paul Place, 20th Floor Baltimore, MD 21202 (410) 576-6325 ssullivan@oag.state.md.us Attorneys for the State of Maryland
LORI SWANSON Attorney General of Minnesota Jacob Campion Assistant Attorney General 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 (651) 757-1136 jacob.campion@ag.state.mn.us Attorneys for the State of Minnesota

XAVIER BECERRA Attorney General of California Edward C. DuMont Solicitor General s/ Michael J. Mongan Michael J. Mongan Deputy Solicitor General Michael L. Newman Supervising Deputy Attorney General James F. Zahradka II Deputy Attorney General Samuel P. Siegel Associate Deputy Solicitor General 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102 (415) 510-3920 michael.mongan@doj.ca.gov Attorneys for the State of California
JANET T. MILLS Attorney General of Maine Susan P. Herman Deputy Attorney General 6 State House Station Augusta, ME 04333 (207) 626-8814 susan.herman@maine.gov Attorneys for the State of Maine

10

CERTIFICATE OF COMPLIANCE I certify that this brief complies with the requirements of Federal Rules of Appellate Procedure 32(a)(5)-(6) and Ninth Circuit Rule 28.1-1(d) because it uses a proportionately spaced Times New Roman font, has a typeface of 14 points, and contains 2,159 words.

Dated: April 17, 2018

s/ Michael J. Mongan

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CERTIFICATE OF SERVICE I certify that on April 17, 2018, I electronically filed the foregoing document with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all other participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: April 17, 2018

s/ Michael J. Mongan

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs/Appellees
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants/Appellants
_________________

On Appeal from the United States District Court for the Northern District of California, Honorable William H. Alsup, Presiding __________________

REPLY BRIEF OF APPELLEES THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
JANET NAPOLITANO, AND CITY OF SAN JOSÉ __________________

Jeffrey M. Davidson Mónica Ramírez Almadani Erika Douglas David S. Watnick Breanna K. Jones COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, CA 94111-5356 (415) 591-6000

Robert A. Long Mark H. Lynch Alexander A. Berengaut Megan A. Crowley Ivano M. Ventresca COVINGTON & BURLING LLP One CityCenter 850 Tenth Avenue, NW Washington, DC 20001

Attorneys for Plaintiffs The Regents of the University of California, et al.

Justin T. Berger Brian Danitz COTCHETT, PITRE & MCCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 (650) 697-6000
Attorneys for Plaintiff City of San José

(ADDITIONAL COUNSEL LISTED ON SIGNATURE PAGE)

TABLE OF CONTENTS INTRODUCTION ................................................................................ 1 ARGUMENT........................................................................................ 3 I. The Rescission Is A Substantive Rule Subject To Notice And
Comment. ................................................................................... 3 A. The Rescission Narrowly Limits DHS’s Discretion........ 4 B. The Rescission Effects A Change In Substantive Law. .. 7 C. The Rescission Is Not A Non-Binding “Statement of
Policy.”............................................................................. 9 II. Mada-Luna Confirms That The Rescission Is A Substantive
Rule........................................................................................... 12 III. The Rescission Of DACA Requires Notice-And-Comment
Rulemaking Regardless Of Whether The Promulgation Of DACA Did................................................................................ 16 CONCLUSION................................................................................... 19
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TABLE OF AUTHORITIES
Cases
Alaska v. DOT, 868 F.2d 441 (D.C. Cir. 1989) ...................................................................4
Alcaraz v. Block, 746 F.2d 593 (9th Cir. 1984)..................................................................3, 9
Am. Forest Res. Council v. Ashe, 946 F. Supp. 2d 1 (D.D.C. 2013) .............................................................17
Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987) .................................................................3
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ...................................................................................3
Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987) .................................................................10
Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112 (9th Cir. 2009)............................................................3, 4, 6
Consumer Energy Council of Am. v. FERC, 673 F.2d 425 (D.C. Cir. 1982) ...........................................................17, 18
Elec. Privacy Info. Ctr. v. U.S. DHS, 653 F.3d 1 (D.C. Cir. 2011)......................................................................19
Gen. Elec. Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002) ...................................................................8
Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995)....................................................................19
Int’l Union, UMWA v. Mine Safety & Health Admin., 407 F.3d 1250 (D.C. Cir. 2005) ...............................................................18
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Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) ...........................................................passim
Morales de Soto v. Lynch, 824 F.3d 822 (9th Cir. 2016)....................................................................12
Municipality of Anchorage v. United States, 980 F.2d 1320 (9th Cir. 1992)....................................................................4
Nat’l Treasury Emps. Union v. Cornelius, 617 F. Supp. 365 (D.D.C. 1985) ..............................................................17
NLRB v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, Local 433, 600 F.2d 770 (9th Cir. 1979)......................................................................9
NRDC v. EPA, 643 F.3d 311 (D.C. Cir. 2011) ...................................................................5
Pac. Gas & Elec. Co. v. FPC, 506 F.2d 33 (D.C. Cir. 1974) ...................................................1, 10, 11, 12
Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977).............................................................12
Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005)......................................................................7
Reno-Sparks Indian Colony v. EPA, 336 F.3d 899 (9th Cir. 2003)..................................................................7, 8
San Diego Air Sports Ctr., Inc. v. FAA, 887 F.2d 966 (9th Cir. 1989)................................................................9, 15
Syncor Int’l Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) ...................................................................11
Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442 (9th Cir. 1994) ........................................................................7
Statutes
5 U.S.C. § 551(5).................................................................................2, 17, 19
iii

5 U.S.C. § 553....................................................................................1, 3, 9, 18 8 U.S.C. § 1103(a)(1) ......................................................................................8
iv

INTRODUCTION In order to ensure transparency and rationality in administrative decision-making, government agencies enacting substantive rules must first provide public notice and receive and consider public comments. See 5 U.S.C. § 553. Here, defendants imposed a substantive rule by (1) rescinding DACA and instructing DHS officers to reject all applications for deferred action pursuant to the DACA eligibility criteria; and (2) making a legal determination that the type of deferred action authorized by DACA was no longer permissible. Accordingly, DHS was required to comply with the Administrative Procedure Act’s notice-and-comment requirements. The government asserts that the rescission is a non-binding “general statement of policy”—a type of administrative decision that simply announces “the agency’s tentative intentions for the future,” and is more akin to a “press release” than a binding rule. Pac. Gas & Elec. Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974). But the rescission of DACA is binding, not tentative. Before the rescission, DHS was exercising its discretion to grant deferred action to DACA applicants. After the rescission, DHS personnel were instructed to deny DACA applications without exception, which would in turn suspend the employment authorizations of hundreds of thousands of people, eliminate their access to advance parole, and expose

them to arrest and deportation. Before the rescission, DACA was regarded as a lawful exercise of the executive’s enforcement discretion. Yet in rescinding DACA, the government reversed that legal conclusion. An administrative action with binding effect based on a binding determination of law is plainly substantive.
The government also asserts that because DACA did not go through notice and comment when it was introduced, it could be repealed without notice and comment. But the two actions are not parallel: DACA permitted case-by-case discretion and therefore was not subject to notice and comment, whereas the rescission abolished agency discretion. Moreover, even if DACA required notice and comment when it was introduced, the APA forecloses the government’s “two wrongs make a right” logic. The plain text of the APA requires the government to undertake notice-andcomment procedures when “repealing” a substantive rule, 5 U.S.C. § 551(5), without regard to whether that rule was properly issued. Because the rescission failed to comply with the APA’s requirements, it must be set aside.
This Court should reverse the district court’s dismissal of plaintiffs’ notice-and-comment claim, and affirm the preliminary injunction on the additional ground that plaintiffs are likely to prevail on that claim.
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ARGUMENT I. The Rescission Is A Substantive Rule Subject To Notice And
Comment. The Administrative Procedure Act requires notice-and-comment rulemaking for all “substantive rules.” Chrysler Corp. v. Brown, 441 U.S. 281, 301, 315 (1979); see 5 U.S.C. § 553(b). These procedures ensure adherence to the democratic values of “public participation and fairness to affected parties after governmental authority has been delegated to unrepresentative agencies,” as well as the technocratic imperative that the decision-maker receive “the facts and information relevant to a particular administrative problem.” Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987) (citations and internal quotation marks omitted); see also Alcaraz v. Block, 746 F.2d 593, 610 (9th Cir. 1984) (“notice-and-comment rulemaking reflect[s] a judgment by Congress that the public interest is served by a careful and open review of proposed administrative rules and regulations”). Agency action is deemed to be a substantive rule when it “narrowly limits” agency discretion or “effect[s] a change in existing law.” Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th Cir. 2009). The rescission of DACA is substantive: it narrowly limits DHS’s discretion by terminating the DACA program, and it displaces fifty years of settled law by
3

adopting a construction of the INA that forecloses deferred action programs like DACA. The APA requires that the public be afforded notice of, and the opportunity to comment on, rules of such significance and binding effect.
A. The Rescission Narrowly Limits DHS’s Discretion. As explained in plaintiffs’ opening brief, agency directives that “narrowly limit[] administrative discretion,” Colwell, 558 F.3d at 1124, and contain “mandatory language cabining . . . enforcement discretion,” Alaska v. DOT, 868 F.2d 441, 447 (D.C. Cir. 1989), are substantive rules. Here, the rescission prohibits DHS agents from (1) accepting new DACA or advance parole applications as of September 5, 2017; and (2) accepting DACA renewal applications after October 5, 2017. It instructs that the agency “[w]ill” “immediately” reject all pending advance parole requests by DACA recipients; “[w]ill not approve” any such requests based on DACA going forward; “[w]ill reject all DACA initial requests”; and “[w]ill reject” all renewal requests after the applicable deadline. ER130-31. Nothing in the rescission suggests that DHS agents may continue to approve DACA applications. See Municipality of Anchorage v. United States, 980 F.2d 1320, 1324 (9th Cir. 1992) (the “critical factor” in determining whether agency action is a rule or policy is “the extent to which the challenged [action] leaves the agency, or its implementing official, free
4

to exercise discretion to follow, or not to follow, the [announced] policy in an individual case”); NRDC v. EPA, 643 F.3d 311, 321 (D.C. Cir. 2011) (“[B]ecause the Guidance binds EPA regional directors, it cannot, as EPA claims, be considered a mere statement of policy.”). Instead of allowing DHS officers to evaluate the merits of each individual DACA request, the rescission mandates an across-the-board rejection of all DACA applications.
The government’s contrary assertion that “[n]othing in the Rescission Memo evidences an ‘inten[t] to be bound,’” Response Br. 54, rests on a miscitation of the rescission memorandum. The government alleges that enforcement discretion remains intact because the rescission memorandum “describes how pending and future deferred action requests will be ‘adjudicate[d]—on an individual, case-by-case basis.’” Response Br. 53 (citing ER130). However, the portion of the memorandum cited by the government allows case-by-case adjudications only for “properly filed pending DACA initial requests . . . accepted by the Department as of the date of this memorandum [September 5, 2017].” ER130 (emphasis added). For future initial requests, the rescission memorandum states that DHS “[w]ill reject all DACA initial requests . . . filed after the date of this memorandum.” Id. (emphasis added). Similarly, the memorandum instructs that requests for renewal will be adjudicated on a case-by-case basis only if
5

they were accepted during a limited renewal window ending on October 5, 2017. Id. The memorandum orders that after October 5, 2017, DHS “[w]ill reject all DACA renewal requests.” Id.
Retreating from its position that the rescission affirmatively authorizes case-by-case discretion, the government argues that the rescission does not “categorically forbid” DHS from granting deferred action to “particular” DACA recipients in individual cases. Response Br. 54. But the relevant standard is not whether an agency is absolutely forbidden from exercising discretion, but whether the agency’s discretion has been “narrowly limit[ed].” See Colwell, 558 F.3d at 1124. Here, the rescission forbids DHS from granting deferred action based on a DACA application, regardless of what showing that application might include. And even if the government retains the theoretical power to defer action in an individual case, the rescission dismantles a set of programmatic elements—including the DACA eligibility criteria and process for reviewing applications—that assured that an exercise of enforcement discretion realistically would be available to the DACA population.1
1 The rescission limits DHS’s discretion in other ways too. For example, DACA contained a guarantee that applicants’ information would not be shared for the purposes of immigration enforcement, ER149, as well as a formal process for appealing a denial of deferred action, ER150-51. Even if
6

By narrowly restricting if not outright abolishing administrative discretion, DHS promulgated a substantive rule without following the proper procedures, and its action therefore should be set aside. See Paulsen v. Daniels, 413 F.3d 999, 1003-04 (9th Cir. 2005) (concluding that the Bureau of Prisons “plainly violated the APA” by promulgating a rule that barred a category of prisoners from relief without notice).
B. The Rescission Effects A Change In Substantive Law. The rescission is substantive for the independent reason that it “effect[ed] a change in existing law or policy.” See Reno-Sparks Indian Colony v. EPA, 336 F.3d 899, 909 (9th Cir. 2003); see also Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 449 (9th Cir. 1994) (holding that an agency promulgated substantive rule when it “eliminated [a statutory] right for a class of tenants”). Before the rescission, and consistent with fifty years of administrative precedent, DHS and DOJ took the view that DACA was a permissible form of enforcement discretion. See SER243 n.8 (OLC memorandum); Regents Br. 5-6 (history of deferred action). In rescinding DACA, DHS did not simply change its enforcement priorities, but declared DACA unlawful and
DHS retained some discretion to offer other forms of deferred action to DACA recipients, the rescission strips the DACA population of these protections going forward.
7

departed from a settled understanding of the INA. The Attorney General’s letter to the Acting Secretary of DHS, which formed the legal basis for the rescission, concluded that DACA was a “circumvention of immigration laws” and “an unconstitutional exercise of authority.” ER176. In rescinding the program, the Acting Secretary relied on the Attorney General’s “legal determination” that DACA “was effectuated . . . without proper statutory authority.” ER129; see 8 U.S.C. § 1103(a)(1) (“That determination and ruling by the Attorney General with respect to all questions of law [relating to the immigration and naturalization of aliens, subject to exceptions] shall be controlling.”).
Through these pronouncements, the Attorney General and the Acting Secretary established a new rule of substantive law: that DHS lacks the legal authority to maintain DACA and comparable deferred action programs. This change in law renders the rescission a substantive rule subject to notice-andcomment procedures. Reno-Sparks, 336 F.3d at 909; Gen. Elec. Co. v. EPA, 290 F.3d 377, 382-83 (D.C. Cir. 2002) (“If a document expresses a change in substantive law or policy (that is not an interpretation) which the agency intends to make binding . . . the agency . . . must observe the APA’s legislative rulemaking procedures.”).
8

The government does not respond to this argument in its brief and cites no authority to the contrary; it thereby concedes the point. See NLRB v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, Local 433, 600 F.2d 770, 775 (9th Cir. 1979). Accordingly, the Court should reverse the district court and set aside the rescission because it effected a change in existing law without the required notice-and-comment procedures.
C. The Rescission Is Not A Non-Binding “Statement of Policy.” The government maintains that the rescission is merely a “general statement of policy,” exempt from the APA’s notice-and-comment requirements under section 553(b)(3)(A). See Response Br. 51-56. But the exception for non-binding policy statements, like all exceptions to the APA’s procedural requirements, must be “narrowly construed and only reluctantly countenanced.” Alcaraz, 746 F.2d at 612 (citation omitted); see also San Diego Air Sports Ctr., Inc. v. FAA, 887 F.2d 966, 969 (9th Cir. 1989) (“Congress was concerned that the exceptions to section 553, though necessary, might be used too broadly.”). Here, because the rescission effected a change in governing law and committed DHS to rejecting all DACA applications, it is not a “general statement of policy.” As the cases cited in the government’s brief describe, a “general statement of policy” is akin to “a press release”—that is, a non-
9

binding “announcement to the public of the policy which the agency hopes to implement” that merely indicates “the agency’s tentative intentions for the future.” Pac. Gas, 506 F.2d at 38; see also Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1012-13 (9th Cir. 1987) (defining general statements of policy as “statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power” (citation and emphasis omitted)); Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 948 (D.C. Cir. 1987) (describing general statements of policy as “musings about . . . the future”). Because statements of mere intention do not definitively foretell agency action, it is logical that they be exempt from notice-and-comment procedures.
The creation of DACA is a straightforward example of a general policy statement. Although DACA sets out a series of eligibility requirements for the program, each DACA application was subject to discretionary case-by-case review. ER142; Regents Br. 50, 76. Although DACA invited applications and set threshold eligibility criteria, it did not dictate agency action in any particular case. Any application could be accepted or denied in the agency’s discretion. ER142.
The rescission, however, is quite different. It did not create guidance for case-by-case review, but rather tied the agency’s hands and inflicted
10

immediate consequences on 700,000 people by eliminating the programmatic use of enforcement discretion with respect to the DACA population. The memorandum affords the agency no discretion to continue granting DACA applications; it refers only to DHS’s discretion to terminate, not continue, grants of deferred action during the period before the rescission was fully implemented. See ER131 (“[DHS] [w]ill continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.”). Far from stating the government’s “tentative intentions for the future,” Pac. Gas, 506 F.2d at 38, the rescission ended a program in its entirety, leaving no room for the agency to “change its position . . . in any specific case,” Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997).
Moreover, unlike in the cases cited by the government, the rescission was not a policy decision based solely on the reordering of enforcement priorities. The memorandum is not framed as a discretionary policy judgment. Instead, the rescission abandons a longstanding construction of the underlying statute, incorporating the Attorney General’s conclusion that DACA “was effectuated . . . without proper statutory authority.” ER129. The rescission is therefore far different from the government’s cases that merely
11

reshuffled enforcement priorities rather than re-evaluating the agency’s legal power to act. See, e.g., Pac. Gas, 506 F.2d at 41 (order “merely announces the general policy which the Commission hopes to establish in subsequent proceedings”); Mada-Luna, 813 F.2d at 1017 (INS changed enforcement priorities but did not construe statute or declare previous policy unlawful); Morales de Soto v. Lynch, 824 F.3d 822, 826 (9th Cir. 2016) (similar). By contrast, in an analogous case where the executive branch terminated a deferred action program without providing an opportunity for notice and comment, a court found that the repeal was substantive and had to undergo notice-and-comment rulemaking. See Parco v. Morris, 426 F. Supp. 976, 979-81 (E.D. Pa. 1977) (notice and comment required where “[t]he effect of the [revocation] was to remove the discretion of” agency officials, and replace discretion with “a legal rule”). II. Mada-Luna Confirms That The Rescission Is A Substantive Rule.
The government relies heavily on this Court’s decision in Mada-Luna, but that decision actually underscores that the rescission required notice-andcomment rulemaking procedures.
Mada-Luna addressed the question of which of two versions of an INS Operating Instruction—one from 1978, the other from 1981—applied to an individual’s request for deferred action. The two versions of the
12

instructions identified factors to be considered in the discretionary evaluation of deferred action requests. The 1978 Instruction focused “upon the effect of deportation or exclusion upon the individual alien himself,” whereas the 1981 Instruction was concerned “first and foremost with the effect of deporting or excluding a particular alien upon the administration, management, and public image of the INS.” 813 F.2d at 1009 n.2. Because the 1981 Instruction superseded the 1978 Instruction, the INS applied the 1981 Instruction in evaluating, and then denying, the deferred action request of the petitioner in that case. The petitioner argued that the agency instead should have applied the 1978 Instruction, both because it had not been properly repealed and because the 1981 Instruction had not undergone notice and comment.
This Court acknowledged that “[w]hen a federal agency issues a directive concerning the future exercise of its discretionary power,” such a directive may, depending on the circumstances, constitute “a substantive rule, for which notice-and-comment procedure are required.” Id. at 1013; see also id. at 1012 n.6 (cautioning that “not all INS operating instructions would qualify under [the statement-of-policy] exception” and observing that the determination must be done on a case-by-case basis). The “critical factor” was “the extent to which the challenged [directive] leaves the
13

agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” Id. at 1013.
Mada-Luna thus applied this Court’s customary test, whereby an agency action is a rule if it “narrowly limits administrative discretion or establishes a ‘binding norm.’” Id. at 1014 (emphasis omitted). The analysis “focused upon the effect of the regulation or directive upon agency decisionmaking.” Id. at 1016 (emphasis in original). Under the particular circumstances of Mada-Luna, the Court concluded that notice-and-comment procedures were not required either to repeal the 1978 Instruction or to promulgate the 1981 Instruction because, under both sets of instructions, the INS was “free to consider the individual facts in the various cases that arise.” Id. at 1014.
Mada-Luna’s conclusion was “based exclusively upon the language and structure of the directive[s]” at issue, id. at 1015, rather than any general principle that enforcement policies are exempt from notice and comment. There, the specific “wording and structure” of the 1981 Instruction “emphasize[d] the broad and unfettered discretion of the district director in making deferred action determinations.” Id. at 1017. In short, Mada Luna involved a non-binding “press release” type of guidance document that did not dictate any particular outcome in any particular case.
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Mada-Luna was quick to note, however, that the result would be different for an agency action that “effectively replaces agency discretion with a new binding rule of substantive law.” Id. at 1014 (citations omitted). This Court reached a similar conclusion in San Diego Air Sports Center, 887 F.2d at 970. That case concluded that because a letter from the Federal Aviation Administration “create[d] an immediate, substantive rule, i.e., that no parachuting will be allowed in the San Diego [Traffic Control Area],” it was “not comparable to the directive held in Mada-Luna to be a general statement of policy.” Id. Unlike the Mada-Luna directive, which “merely provide[d] guidance to agency officials in exercising their discretionary powers while preserving their flexibility and their opportunity to make ‘individualized determination[s],’” id. (quoting 813 F.2d at 1013), the FAA letter under review was mandatory and substantive.
That is exactly the type of action at issue here. Whereas DACA itself permitted the exercise of case-by-case discretion, ER142, the rescission of DACA replaced that discretion with a binding legal determination that DACA “was effectuated . . . without proper statutory authority,” ER129. Moreover, unlike the “press release” style of guidance at issue in MadaLuna, the “wording and structure” of the rescission point to a binding rule. See 813 F.2d at 1017; see supra § I.A. In this case, the answer to the
15

“critical” question presented by Mada-Luna—whether DHS was “free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case,” 813 F.2d at 1013—is “no.” III. The Rescission Of DACA Requires Notice-And-Comment
Rulemaking Regardless Of Whether The Promulgation Of DACA Did. The government asserts that because DACA did not itself undergo notice and comment, it could be rescinded without notice and comment. Response Br. 56. Not so. As set forth above, DACA itself was not required to go through notice and comment because it was a non-binding policy statement that afforded DHS discretion in each individual case. Moreover, DACA and the rescission do not, as the government contends, rise and fall together. Sections 553(b) and (c) of the APA require notice and comment for “rule making,” defined as the “agency process for formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5) (emphasis added). Thus, the APA “expressly contemplates that notice and an opportunity to comment will be provided prior to agency decisions to repeal a rule.” Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 446 (D.C. Cir. 1982). These requirements apply on their face to all repeals of rules and do not contemplate an exception for rules that the government contends were procedurally defective. The government does not deny that there is an
16

unbroken line of cases holding that a procedural defect in promulgating a rule does not render it vulnerable to repeal without notice and comment. See, e.g., Am. Forest Res. Council v. Ashe, 946 F. Supp. 2d 1, 26 (D.D.C. 2013) (“ordinarily an agency rule may not be repealed unless certain procedures, including public notice and comment, are followed, and . . . this is true even where the rule at issue may be defective”), aff’d, 601 F. App’x 1 (D.C. Cir. 2015); Nat’l Treasury Emps. Union v. Cornelius, 617 F. Supp. 365, 371 (D.D.C. 1985).
The government notes that the procedural defects at issue in these cases were not notice-and-comment defects, Response Br. 56, but does not explain why this is a relevant distinction. Consumer Energy, for example, concerned an agency’s attempt to precipitously rescind a rule that had not been properly evaluated prior to promulgation. The D.C. Circuit rejected the agency’s argument that “notice and comment requirements do not apply to ‘defectively promulgated regulations,’” explaining that such an approach “is untenable because it would permit an agency to circumvent the requirements of section 553 merely by confessing that the regulations were defective in some respect and asserting that modification or repeal without notice and comment was necessary to correct the situation.” 673 F.2d at 447 n.79. This
17

logic applies equally where the alleged defect is the absence of notice-andcomment procedures.
The approach advocated by the government would permit an agency to evade the APA’s requirements and rescind important rules without process—undermining the core objectives of the APA. See Int’l Union, UMWA v. Mine Safety & Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005) (“Notice requirements are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.”). Under 5 U.S.C. § 551(5), these objectives apply to all substantive agency actions, including repeals of rules.
An approach permitting the sudden repeal of rules deemed to have been defectively promulgated would deny interested parties their statutory right to participate in agency decision-making. Here, DACA recipients, who benefited from the program, had no incentive or standing to seek review of the procedures followed when DACA was created. It is unreasonable that a rule so broadly supported that any procedural infirmities went unchallenged, and therefore uncorrected, would be more vulnerable to repeal than a rule
18

that was litigated at its inception.2 See Mada-Luna, 813 F.2d at 1017 n.12 (“[W]e would question whether private citizens . . . should be estopped from asserting that a regulation being replaced is substantive, simply because they and other parties did not assert such a position at the time the regulation was promulgated—particularly since asserting such a position would have been directly contrary to their interest.”).
CONCLUSION The Court should reverse the district court’s dismissal of plaintiffs’ APA notice-and-comment claim and affirm the district court’s injunction on the additional ground that plaintiffs are likely to succeed on that claim.
2 The government asserts that subjecting the rescission to notice and comment would result in a pyrrhic victory for the plaintiffs by creating binding precedent allowing “opponents of DACA [to] immediately obtain an injunction against it” for failure to go through notice-and-comment procedures. Response Br. 55-56. That is incorrect. The creation of DACA was a non-binding action that allowed for enforcement discretion in each case; unlike the rescission, it was not required to undergo notice and comment. Additionally, courts have the power to order remand without vacatur, allowing rules to remain in place while procedural defects are corrected. See, e.g., Elec. Privacy Info. Ctr. v. U.S. DHS, 653 F.3d 1, 8 (D.C. Cir. 2011); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995) (“when equity demands, the regulation can be left in place while the agency follows the necessary procedures”).
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Respectfully submitted,

Justin T. Berger Brian Danitz Tamarah Prevost COTCHETT, PITRE & MCCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 (650) 697-6000
Attorneys for Plaintiff City of San José

s/ Jeffrey M. Davidson Jeffrey M. Davidson Mónica Ramírez Almadani Erika Douglas David Watnick Breanna Jones COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, CA 94111 (415) 591-6000 jdavidson@cov.com

Robert A. Long Mark H. Lynch Alexander A. Berengaut Megan A. Crowley Ivano M. Ventresca COVINGTON & BURLING LLP One CityCenter 850 Tenth Avenue, NW Washington, DC 20001 (202) 662-6000

Attorneys for Plaintiffs The Regents of the University of California and Janet Napolitano, in her official capacity as President of the University of California

CERTIFICATE OF COMPLIANCE I certify that this brief complies with the requirements of Ninth Circuit

Rules 28.1-1(d) and 32-2(b), and the requirements of Federal Rules of

Appellate Procedure 32(a)(5) and 32(a)(6), because it is filed by separately

represented parties, is proportionately spaced serif font, has a typeface of 14

points, and contains 4,046 words.

Dated: April 17, 2018

s/ Jeffrey M. Davidson

CERTIFICATE OF SERVICE

I certify that on April 17, 2018, I electronically filed the foregoing

document with the Clerk of the Court of the United States Court of Appeals

for the Ninth Circuit by using the appellate CM/ECF system. I certify that all

participants in this case are registered CM/ECF users and that service will be

accomplished by the appellate CM/ECF system.

Dated: April 17, 2018

s/ Jeffrey M. Davidson

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL., Plaintiffs-Appellees-Cross-Appellants, v.
U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., Defendants-Appellants-Cross-Appellees.
On Appeal From The United States District Court For The Northern District Of California
REPLY BRIEF FOR THE GARCIA AND COUNTY OF SANTA CLARA PLAINTIFFS

NICOLE A. SAHARSKY MATTHEW S. ROZEN HALEY S. MORRISSON GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 (202) 955-8500
MARK D. ROSENBAUM JUDY LONDON MALHAR SHAH PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 (213) 385-2977

THEODORE J. BOUTROUS, JR. ETHAN D. DETTMER KIRSTEN GALLER JONATHAN N. SOLEIMANI KELSEY J. HELLAND GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7000

Counsel for Plaintiffs Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez,
and Jirayut Latthivongskorn

(Additional Parties and Counsel Listed on Next Page)

LUIS CORTES ROMERO BARRERA LEGAL GROUP, PLLC 19309 68th Avenue South, Suite R102 Kent, WA 98032 (253) 872-4730

LAURENCE H. TRIBE HARVARD LAW SCHOOL* 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767

ERWIN CHEMERINSKY UNIVERSITY OF CALIFORNIA, BERKELEY SCHOOL OF LAW* 215 Boalt Hall Berkeley, CA 94720 (510) 642-6483

LEAH M. LITMAN UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW* 401 East Peltason Drive Irvine, CA 92697 (949) 824-7722

Additional Counsel for Plaintiffs Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and Jirayut Latthivongskorn

*Affiliation for identification purposes only

STACEY M. LEYTON ERIC P. BROWN ANDREW KUSHNER ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151
Counsel for Plaintiffs County of Santa Clara and Service Employees International Union Local 521

JAMES R. WILLIAMS GRETA S. HANSEN LAURA S. TRICE MARCELO QUIÑONES OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110 (408) 299-5900
Counsel for Plaintiff County of Santa Clara

TABLE OF CONTENTS Page
INTRODUCTION .....................................................................................................1 ARGUMENT .............................................................................................................4
I. PLAINTIFFS HAVE STATED A PLAUSIBLE SUBSTANTIVE DUE PROCESS CLAIM ..........................................4
II. PLAINTIFFS HAVE STATED A PLAUSIBLE APA NOTICE-AND-COMMENT CLAIM ................................................21
CONCLUSION ........................................................................................................28
i

TABLE OF AUTHORITIES

Cases

Page(s)

Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993)..........................................................................27

Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000)..........................................................................16

Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003)...................................................................................10

Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001) ..............................................................................19

Bell v. Burson, 402 U.S. 535 (1971)............................................................................................14

Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987)............................................................................23

Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112 (9th Cir. 2009) ............................................................................22

Consumer Energy Council v. FERC, 673 F.2d 425 (D.C. Cir. 1982)............................................................................27

Cook v. Brewer, 637 F.3d 1002 (9th Cir. 2011) ............................................................................17

DeNieva v. Reyes, 966 F.2d 480 (9th Cir. 1992) ................................................................................6

Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009)................................................................................................7

Engquist v. Or. Dep’t of Agric., 478 F.3d 985 (9th Cir. 2007) ................................................................................6

Geneva Towers Tenants Org. v. Federated Mortg. Inv’rs, 504 F.2d 483 (9th Cir. 1974) ..............................................................................19

ii

TABLE OF AUTHORITIES (continued)

Page(s)

Gerhart v. Lake Cty., Mont., 637 F.3d 1013 (9th Cir. 2011) ......................................................................18, 19

Gunasekera v. Irwin, 551 F.3d 461 (6th Cir. 2009) ........................................................................14, 16

Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011) ........................................................................9, 10

Kelch v. Dir., Nev. Dep’t of Prisons, 10 F.3d 684 (9th Cir. 1993) ..................................................................................9

Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014) ................................................................................6

Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) ................................................................22, 24, 25

Morrissey v. Brewer, 408 U.S. 471 (1972)..............................................................................................7

Nat’l Treasury Emps. Union v. Cornelius, 617 F. Supp. 365 (D.D.C. 1985).........................................................................28

Nozzi v. Hous. Auth. of L.A., 806 F.3d 1178 (9th Cir. 2015) ............................................................................20

Obergefell v. Hodges, 135 S. Ct. 2584 (2015)..................................................................................6, 7, 8

United States ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977).......................................................................25

Raley v. Ohio, 360 U.S. 423 (1959)........................................................................................5, 21

Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985) ..............................................................................9

iii

TABLE OF AUTHORITIES (continued)

Page(s)

Sessions v. Dimaya, No. 15-1498, slip op. (U.S. Apr. 17, 2018) ..........................................................7

Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005)............................................................................................16

Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000) ..............................................................................6

Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56 (9th Cir. 1994) ......................................................................14, 15, 20

Whaley v. Cty. of Tuscola, 58 F.3d 1111 (6th Cir. 1995) ..............................................................................17

Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991) ..............................................................................27

Statutes

5 U.S.C. § 551(5) .....................................................................................................27

5 U.S.C. § 553..........................................................................................................27

28 U.S.C. § 2401(a) .................................................................................................27

iv

INTRODUCTION The government’s brief completely ignores the profound human and social consequences of its decision to rescind the Deferred Action for Childhood Arrivals (DACA) program. For most of the Dreamers, the United States is the only country they have ever known. Before DACA, these individuals lived their lives in the shadows—they could not pursue their careers, attend many educational institutions, or lawfully work in the United States. In short, they could not pursue normal, productive lives. And worse yet, they faced the constant threat of deportation. DACA changed all of that. In exchange for coming forward and identifying themselves to the government, undergoing a thorough background check, and paying a considerable fee, the government granted DACA recipients presumptively renewable two-year periods of deferred action and work authorization. So long as they continued to satisfy the program’s criteria, the Dreamers could live and work in this country without fear of deportation. And so, relying on DACA, the Dreamers were able to enroll in colleges, start businesses and families, and plan for the future—basic aspects of life that most of us take for granted. They identified themselves to the government because they were told that, once granted, DACA would be presumptively renewable—and so they would no longer live under the constant fear of deportation.
1

For years, the government repeatedly promised the Dreamers that they could rely on DACA. For example, former Secretary of Homeland Security Jeh Johnson said that the government “must continue to … honor[]” certain “representations” it made regarding the program. ER.208. In March 2017, then-Secretary of Homeland Security John Kelly said that “DACA status” is a “commitment ... by the government towards the DACA person, or the so-called Dreamer.” ER.209. And as recently as April 2017, President Trump said that his Administration is “not after the dreamers” and that “[t]he dreamers should rest easy.” ER.209. When asked if “the policy of [his] administration [is] to allow the dreamers to stay,” President Trump answered, “Yes.” ER.209.
But in September 2017, the federal government abruptly announced that it was ending the DACA program. Without warning, the Dreamers’ lives in the United States—their families, their jobs, their relationships, their property, and their futures—were once again in jeopardy. The effects have been acute for the individual plaintiffs in this case. They have spent years pursuing careers in medicine, education, and the law, and establishing deep roots while serving their patients, their students, their clients, and their communities. Now their plans and their dreams may all be destroyed, because they once again face the looming threat of deportation.
Plaintiffs brought these suits alleging that, as relevant here, the government’s decision to rescind DACA violated their rights under the Due Process Clause and
2

violated the procedural requirements of the Administrative Procedure Act (APA). The district court dismissed these claims. But the district court did not sufficiently grapple with DACA recipients’ protected liberty interests, or credit—as it must at the pleading stage—plaintiffs’ allegations that they and the government shared a mutual understanding about the ability to renew their DACA status that gave rise to a constitutionally protected property interest. And the district court’s analysis misunderstands the nature of the rescission decision for purposes of the notice-andcomment claim. This was a substantive decision—a decision to bind the Department of Homeland Security (DHS) and to restrict its officers’ discretion—and so the government was required to follow notice-and-comment procedures.
Although the district court thoroughly addressed and appropriately resolved the other issues in this case, it missed the mark on these two claims. And rather than review the plaintiffs’ allegations for whether they state a claim, the government diverts the Court with cases and theories that have no application to the actual claims presented. But the government cannot overcome the simple fact that the plaintiffs’ well-pleaded allegations, combined with this Court’s precedents, more than adequately support their due process and notice-and-comment claims.
The district court’s order dismissing these claims should be reversed.
3

ARGUMENT I. PLAINTIFFS HAVE STATED A PLAUSIBLE SUBSTANTIVE DUE
PROCESS CLAIM DACA was based on a promise—mutually understood by the government and by the hundreds of thousands of young people who relied on it—that individuals who came forward and complied with the program’s terms could presumptively renew their protection and benefits as long as they continued to meet the program’s criteria. Although the decision whether to initially grant DACA protection was at the government’s discretion, all understood that the government was implementing—and beneficiaries were relying on—a structured program with presumptive renewal, thereby implicating constitutionally protected interests. The government actively encouraged young people to identify themselves to the government in exchange for valuable benefits. ER.206-09, 243, 249-50. And it made DACA status presumptively renewable—through the text of the 2012 DACA memo, the nondiscretionary renewal criteria, and its practice of approving virtually all qualifying renewal applications—because it understood that no reasonable person would identify himself to the government and risk deportation if benefits expired after two years. ER.204, 243, 249-50. DACA fundamentally transformed recipients’ lives, while also providing many benefits to the government. ER.198, 203, 250-60. The program worked because everyone understood that DACA recipients would be able to make long-
4

term decisions based on the government’s promise that its protection and benefits (including work authorization) could be continually renewed so long as recipients met the program’s criteria. ER.198, 206-07, 243, 249-51. Because the government’s decision to rescind DACA broke this commitment to hundreds of thousands of Dreamers, without any legitimate basis for doing so, it violates the substantive protection of the Due Process Clause. ER.230 (citing, e.g., Raley v. Ohio, 360 U.S. 423, 438-39 (1959)).
The district court dismissed the plaintiffs’ substantive due process claims because it concluded that DACA recipients have no constitutionally protected interests in the benefits they receive under the program. In particular, the court failed to recognize that there was a mutual understanding that DACA status would presumptively be renewed if DACA recipients played by the rules. Plaintiffs have plausibly alleged that they and the government made this bargain, and that they and other Dreamers relied on it. The government’s arguments to the contrary are unpersuasive.
Liberty Interests. The government does not dispute that rescinding DACA implicates profound liberty interests protected under the Due Process Clause. As plaintiffs alleged (ER.229-30, 262-63) and have explained (Garcia Br. 59), rescinding DACA would drive hundreds of thousands of individuals back into the shadows, forcing them to live under the constant threat of government detention and
5

removal, taking away their ability to work and breaking apart countless families and communities. For this reason, the district court was wrong to limit its analysis of the liberty interest to DACA recipients’ interest in the confidentiality of their information. DACA’s presumptive right of renewal—on which the Dreamers relied—cannot be eliminated without violating protected liberty interests including the freedom from custody, the freedom to pursue a profession and travel, and the freedom to have and enjoy relationships with family members. See, e.g., LopezValenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc); Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 997-98 (9th Cir. 2007); Wallis v. Spencer, 202 F.3d 1126, 1136, 1141 (9th Cir. 2000); DeNieva v. Reyes, 966 F.2d 480, 485 (9th Cir. 1992).
Those well-established and constitutionally protected interests are core expressions of the liberty protected by the Due Process Clause. “The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights,” and also “extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Obergefell v. Hodges, 135 S. Ct. 2584, 2597 (2015). Plaintiffs here—like hundreds of thousands of other Dreamers—relied on their mutual understanding with the government in order to make “choices central to [their] individual dignity and autonomy” (id.) and thereby shape their lives in accordance with the liberty
6

protected by the Constitution. By reneging on that understanding, the government has violated those protected liberty interests.
“The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.… [I]t requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” Obergefell, 135 S. Ct. at 2598. DACA has allowed recipients, for the first time, to live their lives with the same dignity and liberty that others have: to “be gainfully employed and [] free to be with family and friends and to form the other enduring attachments of normal life.” Morrissey v. Brewer, 408 U.S. 471, 482 (1972); see also Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 68 (2009) (noting that a “state-created right, can, in some circumstances, beget yet other rights”); Sessions v. Dimaya, No. 15-1498, slip op. at 13 (U.S. Apr. 17, 2018) (Gorsuch, J., concurring in part and concurring in the judgment) (the government “is surely free to extend existing forms of liberty to new classes of persons—liberty that the government may then take only after affording due process”).1 The government’s rescission of DACA violates plaintiffs’
1 Plaintiffs’ liberty interests are even stronger than those of the parolees in Morrissey because the government has not just made an “implicit promise” to Dreamers, 408 U.S. at 482; it has explicitly and repeatedly affirmed that DACA is subject to renewal. In addition, the parolees in Morrissey had nothing to lose by accepting the offer of conditioned parole, whereas DACA recipients had much to lose by applying for DACA.
7

constitutionally protected liberty interest in continued renewal of their status, which permitted them to live without fear of deportation from the only country most of them have ever known.
In this context, it is significant that the district court upheld plaintiffs’ Equal Protection claims, based on the President’s many statements disparaging Latino people, as well as the “unusual history behind the rescission” that undercut its legitimacy. ER.59-61. As the Supreme Court recently held: “[t]he Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles.” Obergefell, 135 S. Ct. at 2602-03. “Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other.” Id. at 2603. Critically, the district court found that plaintiffs’ Equal Protection claim met the Arlington Heights factors by demonstrating that, among other things, President Trump has made statements expressing a pattern of cultural bias against Mexicans and Latinos including characterizing Mexican immigrants as “rapists,” “killers,” and criminals. ER.59-61.2 The liberty interest protected by the Bill of Rights protects DACA
2 Recent official statements confirm this prejudice. See, e.g., Donald J. Trump (@realDonaldTrump), TWITTER (Apr. 1, 2018, 6:56 AM), https://twitter.com/ realDonaldTrump/status/980443810529533952 (decrying “Caravans” of people
8

recipients from having the program terminated based on that plainly insufficient reason.
The government’s arguments regarding plaintiffs’ liberty interests are unavailing. The government cites Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985), in arguing there is “no protectable liberty interest in deferred action.” U.S. Response Br. 58. But that case is inapposite because, unlike current DACA recipients, the plaintiff in Romeiro de Silva had not been granted any kind of deferred action and thus could claim no entitlement arising from it. Garcia Br. 65 n.10; see also Kelch v. Dir., Nev. Dep’t of Prisons, 10 F.3d 684, 688 (9th Cir. 1993) (recognizing the liberty interest “created” by the grant of parole, and explaining that “[a]n individual’s liberty encompasses the ability to pursue interests of choice, to move from place to place unhindered by the government and to choose freely any lawful way of living”).
The rescission of DACA is far more analogous to the situation in Ixcot v. Holder, 646 F.3d 1202, 1213 (9th Cir. 2011), where this Court held that new restrictions on asylum applications were impermissible under the Due Process
fleeing violence in Central America); Christiano Lima, Trump Ditches ‘Boring’ Tax Script for Mexican Rapists, Illegal Voting Claims, Politico (Apr. 5, 2018), https://www.politico.com/story/2018/04/05/trump-west-virginia-tax-roundtableremarks-504565 (discussing President’s similar statements, including claim that “women” in such “Caravans” “are raped at levels that nobody has ever seen before”).
9

Clause as applied to individuals who had filed for asylum before the change. See also Arevalo v. Ashcroft, 344 F.3d 1, 14-15 (1st Cir. 2003) (explaining that “[t]he availability of relief (or, at least, the opportunity to seek it) is properly classified as a substantive right,” and that “an alien is not precluded from having a vested right in a form of relief merely because the relief itself is ultimately at the discretion of the Executive Branch”). In other words, due process may protect an individual’s interest in the government programs she relied on, even though the government can change its policies as to new applicants going forward. See Ixcot, 646 F.3d at 1208.
Here, the DACA bargain, and its presumptive renewal for those who followed the program’s rules, gave Dreamers like the plaintiffs the right to enjoy the liberty and dignity of being able to live their lives without the constant fear of deportation.
Property Interests. The government’s decision to rescind DACA also infringes on DACA recipients’ constitutionally protected property interests. As the government acknowledges, the key question is whether plaintiffs have plausibly alleged that they and the government “mutually” understood that DACA recipients would be able to renew their benefits and protection on an ongoing basis so long as they fulfilled the program’s criteria. See U.S. Response Br. 58; see also Garcia Br. 65-66. There is no doubt that the plaintiffs have done so, and so they were entitled to rely on presumptive renewal of DACA benefits.
10

The 2012 memorandum creating the DACA program provided that benefits would be “subject to renewal.” ER.204. The government used the presumptive right of renewal to “induce Dreamers to step forward” because “the government clearly understood from the very beginning that Dreamers would not apply for DACA, and the program would not be successful, unless they were promised the opportunity to renew their DACA status.” ER.204; see also ER.243, 249-50. Indeed, it could scarcely be otherwise, given the character of opportunities afforded through achieving DACA status. As the government recognized, individuals would not come out of the shadows, open up businesses, pursue higher education, serve in the military, form professional relationships as attorneys, doctors, therapists, social workers and teachers, take out heavy loans to finance such enterprises, and start families, if the government could deprive them of their benefits at will, leaving them and those dependent on them in the lurch. To pursue their dreams—as the government encouraged them to do—DACA recipients needed much longer than two or even four years.
Several features of the DACA program demonstrate the mutual understanding that DACA was presumptively renewable. First, although there were age restrictions for initial DACA applications, there were no such restrictions for renewals; rather, DACA recipients could apply to renew “as long as [they] were under the age of 31 as of June 15, 2012.” ER.160 (FAQs also cited at ER.203-06). Second, the
11

government used “nondiscretionary criteria for renewal” (ER.229-30; see also
ER.249-50), and approved more than 99% of adjudicated DACA renewal applications (Garcia Br. 63).3 Those allegations raise far more than just a plausible
inference that the government knew it was offering DACA recipients the ongoing
opportunity for renewal, so long as they abided by the rules of the program. And of
course, government officials made repeated statements demonstrating their intent to
hold up their side of the deal, for example characterizing DACA as a “commitment”
and reassuring Dreamers that they “should rest easy.” ER.208-09.
There can be no question that DACA recipients have reasonably relied on the
government’s representations. The government has never disputed that DACA
recipients—such as the individual plaintiffs—have built their lives around the
program. See ER.206, 210-19, 254. For example, DACA gave plaintiff Dulce
Garcia, who is a lawyer, “the confidence to hire several employees, build a thriving
law practice, and represent dozens of clients in immigration, civil litigation, and
3 See also ER.198 (“In creating DACA, the government offered Plaintiffs and other Dreamers a straightforward deal—if they stepped forward, shared sensitive personal information, and passed a background check, they would be granted renewable protection and would be allowed to live and work in the United States provided that they played by the rules.”); ER.230 (“The ability to renew DACA status at regular intervals has always been an essential element of the program and part of the deal offered by the government. The prospect of renewal was one of the primary benefits the government used to induce Plaintiffs and other Dreamers to step forward, disclose highly sensitive personal information, and subject themselves to a rigorous background investigation.”).
12

criminal defense cases.” ER.211. DACA allowed plaintiff New Latthivongskorn to “enrol[l] at UCSF, one of the most prestigious and selective medical schools in the country,” receive a “U.S. Public Health Service Excellence in Public Health Award,” and “pursu[e] a Master of Public Health at Harvard University ... so that he can help to end health disparities and increase access to affordable, quality health care, particularly for immigrants and other underserved communities.” ER.214-15. And plaintiff Saul Jimenez relied on DACA to pursue his interest in teaching and mentorship and become a special education teacher at a middle school, where he helps students with learning disabilities overcome their challenges. ER.218-19.
Just like DACA recipients more generally, the individual plaintiffs in this case relied on DACA to begin inspirational careers that have created promising foundations for their own lives, and also improved the lives of their students, patients, clients, and many others who rely on them. See, e.g., ER.197-98, 205-06, 229-30.4 And DACA recipients’ reasonable expectation of renewal, which is based
4 See ER.212 (DACA helped plaintiff Viridiana Chabolla to pursue a career in public service law, “secur[e] a special fellowship from the law firm of Munger, Tolles & Olson LLP, and enrol[l] ... as a Public Interest Scholar at the University of California, Irvine School of Law”); ER.216 (DACA enabled plaintiff Norma Ramirez to “ear[n] her Master’s degree in Clinical Psychology in 2017 and ... pursu[e] her Ph.D. in Clinical Psychology,” and “pursue her dream of establishing a free clinic that provides mental health services to immigrant youth, Latinos, and their families”); ER.217 (DACA allowed plaintiff Miriam Gonzalez to be “accepted into the selective Teach For America (‘TFA’) program,” where
13

on their shared understanding with the government, warrants constitutional protection. See Bell v. Burson, 402 U.S. 535, 539 (1971) (“Once [driver’s] licenses are issued, ... their continued possession may become essential in the pursuit of a livelihood.”).
In short, plaintiffs’ allegations establish a “legitimate,” mutually held expectation that DACA recipients could renew their benefits on an ongoing basis so long as they met the renewal criteria. See Gunasekera v. Irwin, 551 F.3d 461, 468 (6th Cir. 2009); Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 63-64 (9th Cir. 1994).
The government argues that, regardless of how readily DACA status was renewed when the program was in place, that practice has no bearing on the reasonableness of plaintiffs’ ongoing expectation of renewal because the program has now ended. See U.S. Response Br. 59. But the question in this case is whether the government’s decision to terminate DACA was lawful; using the fact of termination to justify the decision is circular. In any event, the fact that the government created a streamlined, nearly automatic renewal process for those who played by the rules (and thus fulfilled their end of the DACA bargain) does tend to show that DACA holders and the government believed that renewals would be
she “teaches Math and Reading Intervention to struggling middle school students at Crown Preparatory Academy in Los Angeles”).
14

readily available on an ongoing basis for Dreamers who adhered to the program’s terms.
This Court has recognized—in circumstances vastly less consequential than those presented here—that a detailed application and renewal process like the one at issue here may give rise to property interests protected by the Due Process Clause. In Wedges/Ledges, for example, the City of Phoenix “in effect launched a campaign to do away with crane [arcade] games,” by denying new game machine licenses and revoking previously issued ones. 24 F.3d at 60. Although the Phoenix City Code required the Treasurer to determine whether arcade games qualified as permissible “games of skill” or impermissible “games of chance,” the City decided to ignore the categories and do away with the games altogether. Id. at 63. This Court held that the crane machine operators nonetheless had a protected property interest in retaining their game licenses and obtaining new ones, because the City Code “create[d] an expectation in applicants that, as long as their machines qualify as games of skill, they have a right to obtain license tags.” Id. The same logic applies here, with greater force: DACA’s “nondiscretionary criteria for renewal” (ER.230) support DACA recipients’ legitimate claim to the opportunity to renew on an ongoing basis after their initial approval for the program.
The Sixth Circuit’s decision in Gunasekera makes the same point. There, a university professor alleged a protected property interest in his “Graduate Faculty
15

status so long as he met the stated conditions” when he explained that “[i]n actual practice ... professors retain their appointment so long as they satisfy those criteria.” 551 F.3d at 467-68 (internal quotation marks omitted). Although the district court dismissed the professor’s claims, the Sixth Circuit reversed, holding these allegations plausibly stated a “legitimate” property interest in retaining his status. Id. at 468. That is true, the court explained, even though the protected interest arose as a result of “custom” rather than through the text of the relevant regulations (and in fact that text did not limit officials’ discretion). Id. at 467.
Similarly here, the government’s practice of granting more than 99% of renewal applications for years supports DACA recipients’ legitimate claim to renew “so long as [they] met the stated conditions.” Id. at 468. And because this expectation arose from a concrete course of dealing, rather than merely regulatory words on paper, the government’s citation of Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) (cited in U.S. Response Br. 57-58), is inapposite—it is “actual practice” that matters. Gunasekera, 551 F.3d at 467. For the same reason, the government’s reliance on boilerplate statements that DACA status could be terminated at any time cannot overcome plaintiffs’ allegations that in practice there was a mutually held understanding that DACA recipients would retain their status so long as they continued to abide by the program’s terms. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000) (“boilerplate” disclaimer
16

stating agency action was “not … final” and “cannot be relied upon to create any rights enforceable by any party” did not control whether rule was final); Whaley v. Cty. of Tuscola, 58 F.3d 1111, 1116 (6th Cir. 1995) (finding a protected property interest despite the state’s “repeated[]” efforts to characterize the interest differently); Garcia Br. 64 (citing cases).
The government’s primary response (U.S. Response Br. 57-58) is that DACA did not create any protected property interests because there was no mutual understanding about renewal. But while a unilateral desire for a benefit does not confer a protected benefit, the government’s course of conduct can show a mutual understanding that does. Here, the plaintiffs’ complaints adequately allege precisely that mutual understanding, including the limited discretion to refuse a proper renewal application, the initial DACA memorandum’s promise that benefits would be “subject to renewal,” the fact that there was no age limit to applying for renewal, and the many statements of government officials that Dreamers could rely on the government’s promises. See Garcia Br. 60-63. These allegations must be taken as true at this stage of the litigation. See Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (claim may be dismissed only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief ”).
Contrary to the government’s claim (U.S. Response Br. 59), there is no “tension” between plaintiffs’ allegations about the approval rate of renewal
17

applications and the argument that DACA is a discretionary program that could be adopted without notice-and-comment rulemaking. The memorandum creating the DACA program is a discretionary policy statement exempt from notice-andcomment rulemaking because it expressly recognizes the agency’s discretion to decide individual initial DACA applications on a case-by-case basis. As the district court found, DHS officials actually exercised that discretion (ER.34-35), denying approximately 8% of initial applications, including on discretionary grounds, and granting the remainder. See also USCIS, Form I-821D Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012-2017 (Mar. 31, 2017) (cited at ER.219). In contrast, the renewal statistics show that these benefits, once granted, were presumptively renewable for those who met the program’s requirements. But these statistics do not negate the initial exercise of discretion that meant that the notice-and-comment process was not required for adopting DACA. See Garcia Br. 37, 64-65.
Because the plaintiffs plausibly alleged that their expectation of renewal was shared with the government, this Court’s decision in Gerhart v. Lake County, Montana, 637 F.3d 1013 (9th Cir. 2011) (cited at U.S. Response Br. 58), is inapposite. In that case, the Court held that an individual’s unilateral belief does not create an entitlement where it is not mutually held by the government. Id. at 1020. Although the actual evidence in Gerhart may have been insufficient at the summary
18

judgment stage, the Court reiterated the settled law that mutually shared understandings, based on policies or practices (or both), can establish protected interests. Id. That is what plaintiffs have alleged here. See also Geneva Towers Tenants Org. v. Federated Mortg. Inv’rs, 504 F.2d 483, 489 (9th Cir. 1974) (finding a protectable property interest where “those seeking the protection of the Fifth Amendment have a legitimate, objectively justifiable claim to the benefits of the government program”).
Nor do any of the government’s other arguments suggest that plaintiffs failed to state a claim. The government suggests that other statements outside of plaintiffs’ allegations show that the expectation of renewal was not mutual. U.S. Response Br. 58. But such extraneous evidence cannot be considered at the pleading stage, see Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001), and as plaintiffs have explained, the cited boilerplate statements do not defeat their well-pleaded allegations, Garcia Br. 64.
The government mischaracterizes plaintiffs’ claim as an attempt to have the DACA program continue indefinitely. See U.S. Response Br. 58-60. Not so. The government need not offer DACA to new applicants going forward. The point is that the government must as a constitutional matter be held to its promise that it would not withdraw DACA’s important protections for arbitrary and capricious or constitutionally suspect reasons. This argument should not be interpreted to mean
19

that DACA recipients claim an entitlement to DACA status in perpetuity—only that the government’s action in ending the entitlement it used to entice them into participating must be justified by a sufficiently compelling reason. But that is a far cry from saying that a merely pretextual reason, or a legally flawed reason, or one based on animus, will suffice.
Finally, the government contends (U.S Response Br. 59-60) that recognizing a protected interest in renewal will effectively freeze DACA in place and disincentivize the government from creating other beneficial programs. But this case is at the pleading stage. The narrow question before the Court is whether plaintiffs sufficiently alleged protected interests in the renewal of their DACA benefits. Whether the rescission’s intrusion on those interests was permissible as a matter of due process is a question for another day. The answer to that question will turn on the government’s motivation for and conduct in terminating DACA. Recognizing that plaintiffs have sufficiently alleged a protected interest says nothing (by itself ) about whether the government can stop providing the promised benefits; it simply allows the analysis to proceed to the next step. And the government’s argument proves too much, because courts routinely recognize that government benefits qualify for constitutional protection, see, e.g., Nozzi v. Hous. Auth. of L.A., 806 F.3d 1178, 1192 (9th Cir. 2015); Wedges/Ledges, 24 F.3d at 63-64, and those decisions
20

have not prevented the government from enacting and administering useful programs.
What is actually at stake in this case, and what follows from the government’s argument? Hundreds of thousands of young people have made life-altering, longterm decisions in reliance on DACA. They have pursued advanced degrees, started families, and opened businesses, and they are contributing to their communities in countless ways. ER.198, 206, 211, 254. The government now says it can take all of that away, for any reason whatsoever—even discriminatory reasons. The Constitution does not countenance that result. See Raley, 360 U.S. at 439. II. PLAINTIFFS HAVE STATED A PLAUSIBLE APA NOTICE-AND-
COMMENT CLAIM Plaintiffs have explained that the decision to rescind DACA is procedurally defective under the APA because it was not adopted through notice-and-comment rulemaking. See Garcia Br. 66-69.5 The government’s principal response is that the rescission is exempt from notice-and-comment procedures because it is a “general statement of policy.” U.S. Response Br. 51-56. But unlike the decision to adopt DACA, the rescission is not a general policy statement—it is a substantive rule that
5 Because the County of Santa Clara and union plaintiffs did not bring notice-andcomment claims, they do not join in this argument. 21

must be adopted using notice-and-comment procedures because it binds DHS and strips away its officials’ discretion to grant deferred action under DACA.
The government does not dispute that a rule is “substantive”—rather than a “general statement of policy”—if it “ ‘narrowly limits administrative discretion’ or establishes a ‘binding norm’ that ‘so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule’s criterion.’” Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th Cir. 2009). Indeed, the government acknowledges that under “controlling Ninth Circuit precedent”—Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1014 (9th Cir. 1987)—“a categorical deferred-action directive that deprives officials of individual discretion is a substantive rule.” U.S. Response Br. 29 n.5.
Plaintiffs need only show, therefore, that the rescission removes the discretion that DHS exercised under DACA. Plaintiffs have adequately alleged that it does, which is all that is necessary to defeat the government’s motion to dismiss. The Acting Secretary’s memorandum rescinding DACA clearly states that DHS “will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of th[e] memorandum” and “all DACA renewal requests and associated applications for Employment Authorization Documents” for individuals whose benefits will expire after March 5, 2018. ER.130 (emphases added). The memorandum further states that DHS “[w]ill not approve
22

any new Form I-131 applications for advance parole under standards associated with the DACA program.” ER.131 (emphases added).
In other words, the memorandum flatly prohibits new applications, renewals, and advanced parole under DACA, categorically eliminating access to deferred action, work authorization, lawful presence, and international travel for nearly 700,000 current DACA recipients and future applicants. The rescission memorandum leaves no exception for case-by-case determinations. The government’s assertion that DHS did not intend to be bound cannot be squared with this “mandatory, definitive language.” Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 947 (D.C. Cir. 1987).
The government’s response is that the rescission does not “categorically forbid DHS from continuing to defer enforcement action against particular DACA recipients.” U.S. Response Br. 54. The government claims that DHS officials “retai[n] discretion” under the rescission memorandum to grant deferred action “on an individual, case-by-case basis.” Id. at 54-55 (citing ER.130).
But the memorandum says the opposite: DHS will process initial DACA applications and renewals “on an individual, case-by-case basis” only before the dates specified in the memorandum. ER.130. After those dates, the memorandum states that DHS “will reject all” such requests. Id. Nothing in the rescission memorandum or elsewhere in the administrative record suggests that (absent an
23

injunction) the government will consider individual applications from DACA recipients for deferred action—let alone any other benefits of DACA—on a caseby-case basis. At the very least, the government has categorically eliminated the discretion to confer and maintain those specific benefits through the standardized channels made available by DACA. Even if the same benefits were available through other channels, notice-and-comment rulemaking would still be required to take away the DACA program.
And the government’s argument makes no sense. The DACA program, as originally adopted, gave government officials substantial discretion to grant or deny individual applications. If what the government wanted was to retain discretion to grant or deny deferred action to DACA recipients, it would not have ended the DACA program in such categorical and absolute terms. (And if the government really hoped to retain its existing discretion, then why did it object to the preliminary injunction in this case?)
The government principally relies on this Court’s decision in Mada-Luna, where the Court held that two deferred action directives were general policy statements exempt from notice-and-comment rulemaking. See U.S. Response Br. 52-55. But the reasoning in that decision defeats the government’s arguments: The Court deemed the directives general policy statements because they expressly left field agents “free to consider the individual facts in each case.” 813 F.2d at 1017
24

(internal quotation marks omitted). The first directive listed five factors for deciding a deferred action request but then “expressly authorize[d]” immigration agents “to consider [any other] individual facts that [they] may feel appropriate”; the second directive “emphasize[d] [agents’] broad and unfettered discretion … in making deferred action determinations.” Id. (internal quotation marks omitted). The rescission, by contrast, leaves no room for individualized determinations after the rescission dates specified in the Acting Secretary’s memorandum. It is therefore a binding, substantive rule that cannot be adopted without notice-and-comment rulemaking.
The decision in United States ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), makes precisely this point. In that case, the district court held that the government was required to use notice-and-comment procedures to rescind a deferred-action program because the rescission left no discretion for the agency to consider requests for deferred action. Id. at 984-86; see ER.52. The government attempts to distinguish Parco from this case by saying that, in Parco, the government’s rescission of the program left immigration agents no “independent discretion” but instead imposed “a legal rule” denying all requests for relief under the program. U.S. Response Br. 55 n.8. But that is exactly what happened here, and so the result must be the same.
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The government falls back on the argument that “if the Acting Secretary’s memorandum … is a substantive rule, then a fortiori the restriction on discretion imposed by DACA itself was a substantive rule.” U.S. Response Br. 55. The government is mistaken. As plaintiffs have explained, this argument conflates the decision to adopt DACA—under which DHS exercised discretion—with the decision to rescind DACA—under which DHS forbids its officials to exercise that discretion. The government’s assertion that establishing the DACA program actually restricted discretion cannot be squared with the record, which (as the district court noted) established that agency employees actually exercised discretion in adjudicating DACA applications. ER.34-35. There was thus no need to follow notice-and-comment procedures in adopting DACA; they were required only to take away discretion by rescinding the program.
The government asserts that “it would make no sense” to require notice-andcomment procedures to rescind a rule that was adopted without formal rulemaking. U.S. Response Br. 56. But there are good reasons for requiring that formal process when the government makes such a substantive policy decision—especially one that deprives hundreds of thousands of people of their constitutionally protected rights, breaks the deal they struck with their government, and fails to consider the significant changes they made to their lives in reliance on that deal.
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Indeed, if the adoption of DACA were a substantive rule requiring notice-andcomment procedures, that would be all the more reason to require notice-andcomment procedures to rescind the program. The “repea[l]” of a substantive rule is a substantive rule, 5 U.S.C. §§ 551(5), 553, so a rule that “repudiates or is irreconcilable with a prior legislative rule” must comply with the “APA notice-andcomment requirements.” Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1108-09 (D.C. Cir. 1993) (brackets omitted). Even a “defective” substantive rule cannot be repealed without notice-and-comment rulemaking. Consumer Energy Council v. FERC, 673 F.2d 425, 447 n.79 (D.C. Cir. 1982). The government says that a defective rule can be challenged (U.S. Response Br. 56), but a challenge here would have to overcome serious obstacles, including the significant reliance interests in DACA, Garcia Br. 36; the doctrine of laches, id.; and the APA’s six-year statute of limitations for challenges to DACA, Wind River Mining Corp. v. United States, 946 F.2d 710, 712-14 (9th Cir. 1991) (citing 28 U.S.C. § 2401(a)). In the absence of an order permanently enjoining the DACA program in full, the government cannot unilaterally rescind DACA without complying with the APA.
DACA has been in place for nearly six years, and during that time, nearly 700,000 DACA recipients have relied on it to shape the course of their lives, and so have their families, employers, employees, clients, patients, and educational institutions. Garcia Br. 41-42. The government should not be permitted to upset
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those profound reliance interests without providing (at least) an opportunity for public comment. See Nat’l Treasury Emps. Union v. Cornelius, 617 F. Supp. 365, 371 (D.D.C. 1985) (reliance interests by federal employees on longstanding rule warranted notice-and-comment procedures to repeal rule despite alleged procedural defects). And that would be true even if DACA should have been adopted using notice-and-comment procedures in the first place: The antidote for insufficient public involvement in the rulemaking process is more public engagement, not less.
CONCLUSION This is no ordinary immigration case. The interests at stake are undeniably fundamental to the hundreds of thousands of Dreamers who have relied on DACA’s protection. And those interests are a result of the government offering a deal to the Dreamers and actively encouraging them to build their lives around DACA. The Due Process Clause does not look the other way when such important promises are broken and such critical interests are arbitrarily taken away. Further, the APA requires that the government engage in the notice-and-comment process where, as here, the government has forbidden the exercise of its discretionary authority with respect to DACA renewals. The district court’s order dismissing plaintiffs’ substantive due process and notice-and-comment claims therefore should be reversed.
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Dated: April 17, 2018

Respectfully submitted,

NICOLE A. SAHARSKY MATTHEW S. ROZEN HALEY S. MORRISSON GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 (202) 955-8500
MARK D. ROSENBAUM JUDY LONDON MALHAR SHAH PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 (213) 385-2977

s/ Theodore J. Boutrous, Jr. THEODORE J. BOUTROUS, JR. ETHAN D. DETTMER KIRSTEN GALLER JONATHAN N. SOLEIMANI KELSEY J. HELLAND GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7000
LAURENCE H. TRIBE HARVARD LAW SCHOOL* 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767

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LEAH M. LITMAN UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW* 401 E. Peltason Drive Irvine, CA 92697 (949) 824-7722

Attorneys for Plaintiffs Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and
Jirayut Latthivongskorn
*Affiliation for identification purposes only

29

STACEY M. LEYTON ERIC P. BROWN ANDREW KUSHNER ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151
Counsel for Plaintiffs County of Santa Clara and Service Employees International Union Local 521

JAMES R. WILLIAMS GRETA S. HANSEN LAURA S. TRICE MARCELO QUIÑONES OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110 (408) 299-5900
Counsel for Plaintiff County of Santa Clara

30

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on April 17, 2018. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.
s/ Theodore J. Boutrous, Jr. Theodore J. Boutrous, Jr.
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Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 18-15068
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 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL., Plaintiffs-Appellees-Cross-Appellants, v.
U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., Defendants-Appellants-Cross-Appellees.
On Appeal From The United States District Court For The Northern District Of California
SUPPLEMENTAL BRIEF FOR THE GARCIA AND COUNTY OF SANTA CLARA PLAINTIFFS

NICOLE A. SAHARSKY MATTHEW S. ROZEN HALEY S. MORRISSON GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 (202) 955-8500
MARK D. ROSENBAUM JUDY LONDON MALHAR SHAH PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 (213) 385-2977

THEODORE J. BOUTROUS, JR. ETHAN D. DETTMER KIRSTEN GALLER JONATHAN N. SOLEIMANI KELSEY J. HELLAND GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7000

Counsel for Plaintiffs Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez,
and Jirayut Latthivongskorn
(Additional Parties and Counsel Listed on Next Page)

LUIS CORTES ROMERO IMMIGRANT ADVOCACY & LITIGATION CENTER, PLLC 19309 68th Avenue South, Suite R102 Kent, WA 98032 (253) 872-4730

LAURENCE H. TRIBE HARVARD LAW SCHOOL* 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767

ERWIN CHEMERINSKY UNIVERSITY OF CALIFORNIA, BERKELEY SCHOOL OF LAW* 215 Boalt Hall Berkeley, CA 94720 (510) 642-6483

LEAH M. LITMAN UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW* 401 East Peltason Drive Irvine, CA 92697 (949) 824-7722

Additional Counsel for Plaintiffs Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and Jirayut Latthivongskorn

*Affiliation for identification purposes only

STACEY M. LEYTON ERIC P. BROWN ANDREW KUSHNER ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151
Counsel for Plaintiffs County of Santa Clara and Service Employees International Union Local 521

JAMES R. WILLIAMS GRETA S. HANSEN LAURA S. TRICE MARCELO QUIÑONES OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110 (408) 299-5900
Counsel for Plaintiff County of Santa Clara

TABLE OF CONTENTS Page
INTRODUCTION .....................................................................................................1 ARGUMENT .............................................................................................................4
I. Courts May Review An Agency’s General Policy That Rests On A Legal Conclusion That The Agency Lacks Discretion ...............4
II. The Decision To End DACA Is Reviewable Because It Is A General Policy Based On A Legal Conclusion That The Government Is Bound .........................................................................11
III. The Decision To End DACA Is Also Reviewable Because It Goes Beyond Addressing Enforcement And Reverses A Longstanding Policy............................................................................13
CONCLUSION ........................................................................................................15
i

TABLE OF AUTHORITIES

Cases

Page(s)

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

Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017) ..............................................................................12

Arizona v. United States, 567 U.S. 387 (2012)............................................................................................11

Batalla Vidal v. Duke, 2017 WL 5201116 (E.D.N.Y. Nov. 9, 2017) .................................................4, 10

Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 2018) ..................................................................9

Califano v. Sanders, 430 U.S. 99 (1977)..........................................................................................2, 10

Casa de Md. v. DHS, 284 F. Supp. 3d 758 (D. Md. 2018)................................................................4, 14

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)....................................................................................1, 2, 10

Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) ............................................. 1, 3, 6, 7, 8, 10, 11, 12

Edison Elec. Inst. v. EPA, 996 F.2d 326 (D.C. Cir. 1993)..............................................................................6

Franklin v. Massachusetts, 505 U.S. 788 (1992)..............................................................................................8

Heckler v. Chaney, 470 U.S. 821 (1985)................................................... 1, 2, 4, 5, 6, 8, 9, 12, 13, 14

ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987)............................................................................9, 10, 14, 15

ii

TABLE OF AUTHORITIES (continued)

Page(s)

INS v. St. Cyr, 533 U.S. 289 (2001)..............................................................................................1

Int’l Union, United Auto., Aerospace & Agric. Implement Workers v. Brock, 783 F.2d 237 (D.C. Cir. 1986)..............................................................................7

Kenney v. Glickman, 96 F.3d 1118 (8th Cir. 1996) ............................................................................5, 7

Lincoln v. Vigil, 508 U.S. 182 (1993)..............................................................................................3

Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015)..........................................................................................1

Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) ............................................................................10

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ...............................................................................8

Mont. Air Chapter No. 29 v. FLRA, 898 F.2d 753 (9th Cir. 1990) ........................................................1, 3, 6, 7, 11, 12

NAACP v. Trump, 2018 WL 1920079 (D.D.C. Apr. 24, 2018)....................................1, 3, 4, 7, 9, 12

Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765 (D.C. Cir. 1992)..............................................................................6

OSG Bulk Ships, Inc. v. United States, 132 F.3d 808 (D.C. Cir. 1998)..........................................................................5, 7

Reno v. AADC, 525 U.S. 471 (1999)............................................................................................11

Robbins v. Reagan, 780 F.2d 37 (D.C. Cir. 1985)..............................................................................14

iii

TABLE OF AUTHORITIES (continued)

Page(s)

Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ..............................................................................14

Statutes

5 U.S.C. § 701(a)(2).....................................................................................1, 2, 4, 15

5 U.S.C. § 702............................................................................................................1

6 U.S.C. § 202(5) .....................................................................................................11

8 U.S.C. § 1227(d)(2)...............................................................................................11

iv

INTRODUCTION This Court’s May 1, 2018 order directs the parties to submit supplemental briefs about reviewability – specifically, the effect of Heckler v. Chaney, 470 U.S. 821 (1985), and Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753 (9th Cir. 1990), on the government’s argument that the APA, 5 U.S.C. § 701(a)(2), bars judicial review of its decision to rescind DACA. The order directs the parties to “consider whether the rescission is judicially reviewable as a general enforcement policy, rather than as a single-shot non-enforcement decision,” under Crowley Caribbean Transportation, Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994), and NAACP v. Trump, 2018 WL 1920079 (D.D.C. Apr. 24, 2018). Those opinions all support the conclusion that the decision to rescind the DACA program is subject to judicial review. The APA codifies the view that those who “suffe[r] legal wrong because of agency action” should be “entitled to judicial review thereof.” 5 U.S.C. § 702. There is a “ ‘strong presumption’ favoring judicial review of administrative action,” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015), especially in the immigration context, see INS v. St. Cyr, 533 U.S. 289, 298 (2001). The burden therefore is on the government to establish that some exception to that general rule applies. And there are only a few “very narrow” exceptions to that general rule. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), abrogated
1

on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Section 701(a)(2) is one of them. It bars judicial review of agency decisions that have been “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This standard is met only in the “rare instances” where “there is no law to apply,” Overton Park, 401 U.S. at 410 (quotation marks omitted), and so the court has “no meaningful standard against which to judge the agency’s exercise of discretion,” Chaney, 470 U.S. at 830.
This is not one of those cases. There is law to apply here. The government’s stated reasons for rescinding DACA are (1) DACA is unlawful (the reason given at the time of rescission) and (2) there is litigation risk in keeping DACA (the reason the government gives now, in litigation). Courts are competent to assess the legal question of whether DACA is lawful and the litigation risk of taking that legal position. That is what courts do. Indeed, likelihood of success on the merits is an element of a preliminary injunction, and that is essentially the question in assessing litigation risk.
The government relies on Chaney to argue that the decision to rescind DACA is a matter committed to agency discretion by law. In Chaney, the Supreme Court held that “a decision of an administrative agency to exercise its ‘discretion’ not to undertake certain enforcement actions” is “presumptively unreviewable.” 470 U.S. at 823, 832. But unlike Chaney, the decision to rescind DACA is not a classic
2

exercise of prosecutorial discretion. It is a programmatic decision that the agency and its enforcement officials have no discretion to exercise in this area.
That is precisely the point of the Montana Air and Crowley cases. They hold that the APA permits judicial review when the agency disclaims any discretion and makes a general policy decision based on a legal conclusion that its hands are tied. In those circumstances, the agency is not actually exercising its enforcement discretion. See Crowley, 37 F.3d at 676-77; Mont. Air, 898 F.2d at 756; see also NAACP, 2018 WL 1920079, at *15. Montana Air is binding Ninth Circuit precedent and it controls here. The rescission of DACA is a general policy decision based on the government’s legal conclusion that DACA exceeds its authority.
The government likely will respond that, even if the decision to rescind DACA does not involve the exercise of prosecutorial discretion, it is still unreviewable because it falls within the general category of “enforcement decisions” that are historically unreviewable. See Lincoln v. Vigil, 508 U.S. 182, 191 (1993). That is wrong, because the rescission is not a mere enforcement decision. It is a decision to stop a longstanding government program that provides vital benefits, such as work authorization. Put another way, DACA did not just remove the risk of removal, but it included affirmative benefits so that the Dreamers could build their lives in the United States. There is no tradition of withholding review in those circumstances and no persuasive reason to do so here.
3

Accordingly, as the district court here (ER.19) and every court to consider the issue have concluded, “[t]he decision to rescind DACA is unlike the nonenforcement decision at issue in Chaney” and is judicially reviewable. Batalla Vidal v. Duke, 2017 WL 5201116, at *11 (E.D.N.Y. Nov. 9, 2017) (Batalla Vidal I); see Casa de Md. v. DHS, 284 F. Supp. 3d 758, 770 n.23 (D. Md. 2018); NAACP, 2018 WL 1920079, at *15. This Court should reach the same conclusion.
ARGUMENT I. Courts May Review An Agency’s General Policy That Rests On A Legal
Conclusion That The Agency Lacks Discretion As explained above and in our opening brief (at 19-23), an agency’s decisions are presumptively reviewable under the APA, and the burden is on the government to prove otherwise, using one of the few recognized narrow categories where courts are precluded from reviewing the legality of an agency’s actions. The government invokes both 5 U.S.C. § 701(a)(2)’s narrow exception for matters “committed to agency discretion by law” and Heckler v. Chaney, 470 U.S. 821 (1985). But Chaney considered a completely different situation. In Chaney, inmates who had been sentenced to death filed a petition with the FDA, urging it to exercise its discretion to initiate enforcement proceedings against certain States’ use of particular drugs for lethal injections. In denying the petition, the FDA invoked its “inherent discretion to decline to pursue certain enforcement matters.” Chaney, 470 U.S. at 824. The Supreme Court held that the decision was
4

not reviewable in light of the “tradition” of affording “absolute” deference to “an agency’s decision not to prosecute or enforce.” Id. at 831. The Court emphasized that nonenforcement decisions involve “a complicated balancing of … factors,” including the allocation of agency resources and the agency’s likelihood of success. Id. The Court also reasoned that nonenforcement decisions generally lack any “focus for judicial review” because they do not involve the exercise of “coercive power over an individual’s liberty or property rights.” Id. at 832.
Chaney involved a “single-shot non-enforcement decision,” OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998) – a request to “undertake certain enforcement actions” against specific defendants (three States that used the lethal injection drugs). Chaney, 470 U.S. at 823. And the Court expressly reserved the question whether the APA permits judicial review of an agency’s legal determination, namely, its “refusal … to institute proceedings based solely on the belief that it lacks jurisdiction.” Id. at 833 n.4. The teaching of Chaney, therefore, is that an agency’s decision not to exercise its discretion to enforce a statute in a specific case is unreviewable. The key is that the agency has “exercise[d] its ‘discretion’ ” not to act. Id. at 823; see Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996) (“Chaney applies to individual, case-by-case determinations of when to enforce existing regulations rather than permanent policies or standards.”).
5

In contrast to the situation in Chaney, general enforcement policies are judicially reviewable when they rest on a legal conclusion that the agency is bound to act in a particular way and the agency cannot exercise its discretion. That is the point of the decisions in Montana Air and Crowley. These cases both hold that the APA authorizes judicial review of an agency’s enforcement policies that rest on a legal conclusion that the agency’s hands are tied. See Mont. Air Chapter No. 29 v. FLRA, 898 F.2d 753, 756 (9th Cir. 1990); Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676-77 (D.C. Cir. 1994).
In Montana Air, this Court held that “agency nonenforcement decisions are reviewable when they are based on a belief that the agency lacks jurisdiction.” 898 F.2d at 756-57. In that case, the Court reviewed an agency’s decision not to intervene in a labor dispute because the agency “believed [it] was prevented from issuing a complaint” – a legal determination that the agency was bound. Id.
In Crowley, the D.C. Circuit held that “single-shot non-enforcement decision[s]” are not reviewable, but “an agency’s statement of a general enforcement policy may be reviewable for legal sufficiency where the agency has … articulated it in some form of universal policy statement.” Crowley, 37 F.3d at 676; see also Edison Elec. Inst. v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993); Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765, 773 (D.C. Cir. 1992). The court then applied that rule, concluding that the maritime administrator’s decision to deny a waiver to a foreign-
6

flag vessel for cargo service was not reviewable because it was a typical single-shot enforcement decision, rather than a policy or legal determination that bound the agency to a particular rule. Crowley, 37 F.3d at 676.
Since that holding, the D.C. and Eighth Circuits have applied Crowley to permit judicial review of an agency’s policy to not enforce shipping restrictions against certain vessels based on its legal determination that the restrictions did not apply, OSG, 132 F.3d at 812, and another agency’s decision to reject a “zero tolerance” approach to enforcing poultry contamination restrictions because it interpreted the statute to permit some contamination, Kenney, 96 F.3d at 1123. See NAACP v. Trump, 2018 WL 1920079, at *15 (D.D.C. Apr. 24, 2018) (recognizing that Crowley permits review of “a legal interpretation phrased as a general enforcement policy, even if that interpretation concerns the scope of the agency’s lawful enforcement authority”). This Court and two other courts of appeals, therefore, agree that general enforcement policies are reviewable when they rest on legal conclusions about the scope of an agency’s authority.1
1 The government argues that Montana Air is no longer good law because it cited a prior D.C. Circuit decision, Int’l Union, United Auto., Aerospace & Agric. Implement Workers v. Brock, 783 F.2d 237 (D.C. Cir. 1986), that Crowley called into question. In International Union, the D.C. Circuit held that the APA allowed judicial review of a single-shot enforcement decision because it rested on a legal interpretation. 783 F.2d at 245-46. Crowley questioned International Union’s holding as to single-shot decisions, but held that general enforcement policies are reviewable when they rest on a legal interpretation. That is all we are saying
7

That approach makes sense. As the D.C. Circuit has explained, “broad enforcement policies are abstracted from the particular combinations of facts” that make “individual” enforcement decisions challenging to review. Crowley, 37 F.3d at 677. They are “more likely to be direct interpretations of … substantive statute[s] rather than the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision and that are, as Chaney recognizes, peculiarly within the agency’s expertise and discretion.” Id. They are also more likely to be accompanied by a “clearer (and more easily reviewable) statement of [the agency’s] reasons for acting.” Id. An agency’s legal conclusion about the scope of its authority provides a “meaningful standard against which to judge the agency’s exercise of discretion.” Chaney, 470 U.S. at 830. Assessing the agency’s legal premise falls squarely within the central competency of the judiciary: “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
Judicial review of an agency’s legal determination that it lacks authority to act is necessary to ensure that “federal agencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). This review ensures that agencies cannot frustrate the APA’s check on arbitrary action by “claim[ing] that the law ties [their] hands while at the same time
here. There is no disagreement between this Court and the D.C. Circuit as to general enforcement policies (and of course, the Ninth Circuit’s decision is binding in any event).
8

denying the courts’ power to unbind [them].” NAACP, 2018 WL 1920079, at *28. An agency “may escape political accountability or judicial review, but not both.” Id. “If an agency makes a decision on policy grounds, it must say so, not act as if courts have tied its hands.” Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 421 (E.D.N.Y. 2018) (Batalla Vidal II).
The government points to no tradition of withholding review from agency enforcement policies in which the agency disclaims discretion and claims instead that the law binds its hands. Indeed, it has yet to cite a single case in which any court has declined review in these circumstances. Instead, it cites a variety of cases that are inapposite. It notes, for example, that this Court extended Chaney to an agency’s general enforcement policy in Alaska Fish & Wildlife Federation & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir. 1987). But Dunkle involved a challenge to an agency’s “failure to enforce” a statute against conduct it acknowledged was unlawful – a classic exercise of “prosecutorial discretion.” Id. at 935, 938. Similarly, the government (at 21) cites dicta in ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987) (BLE), suggesting that courts may not review a prosecutor’s “failure to prosecute” in a specific case based on “the prosecutor’s belief … that the law will not sustain a conviction.” Id. at 283. But that statement says nothing about judicial review of broad enforcement policies,
9

which do not involve the same “mingled assessments of fact, policy, and law that drive an individual enforcement decision.” Crowley, 37 F.3d at 677.
The government also argues that an unreviewable agency action does not become reviewable because the government provides a “reviewable” reason. U.S. Br. 23. But “[t]hat argument simply begs the question … of whether the decision to rescind DACA” – or any other general enforcement policy – “is actually unreviewable.” Batalla Vidal v. Duke, 2017 WL 5201116, at *10 (E.D.N.Y. Nov. 9, 2017) (Batalla Vidal I). The government relies on BLE, but that decision merely holds that for certain categories of “presumptively unreviewable decision[s]” – such as the decision not to reconsider a prior agency decision – the APA bars review even when the agency gives a reviewable reason for its decision. Id. It does not answer the question whether this case falls into one of those categories.
Outside of traditionally unreviewable categories like the one at issue in BLE, “determination of whether agency actions … are reviewable … must be made on a case-by-case basis.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1015 (9th Cir. 1987). So long as “in a given case there is … law to apply,” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977), the agency’s action is judicially reviewable under the APA. That is plainly true here.
10

II. The Decision To End DACA Is Reviewable Because It Is A General Policy Based On A Legal Conclusion That The Government Is Bound The decision to rescind DACA falls squarely within the settled, binding
precedent holding that courts may review an agency’s general policy that rests on a legal determination that the agency is bound. Here, the Acting Secretary did not “decline enforcement in the context of an individual case.” Crowley, 37 F.3d at 676. Rather, she made an across-the-board determination applicable to all of the nearly 700,000 Dreamers, based either on the view that DACA was unlawful (the Acting Secretary’s stated rationale) or that courts would soon hold DACA to be unlawful (the government’s current rationale). Either way, the statement is a general policy determination that is based on the agency’s legal assessment. See SER.260-64. It is reviewable under Montana Air and Crowley.
The Acting Secretary said that she rescinded DACA because she believed that continuing the program would be unlawful. ER.129-30. The lawfulness of DACA is a purely legal question. There is ample authority to apply to the question, including provisions of the Immigration and Nationality Act (see, e.g., 6 U.S.C. § 202(5); 8 U.S.C. § 1227(d)(2)), the Executive’s long history of using deferred action (see SER.265-66); the Office of Legal Counsel’s 2014 opinion recognizing the lawfulness of deferred action programs (SER.226-58); and judicial precedent acknowledging that such programs are a regular feature of the immigration system (e.g., Arizona v. United States, 567 U.S. 387, 396 (2012); Reno v. AADC, 525 U.S.
11

471, 484 (1999); Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 968 (9th Cir. 2017)). Similarly, there is law to apply in reviewing the government’s post hoc “litigation risk” rationale, which rests on the same premise that DACA is unlawful and that a legal challenge to the program likely would succeed. Courts are regularly called upon to assess the likelihood that a lawsuit will succeed – indeed, that is the central question in this appeal of the district court’s preliminary injunction. Both purported rationales reflect legal conclusions that the government had no choice but to end DACA.
The government argues that Montana Air and Crowley apply only where the agency interprets a statute’s “substantive commands,” rather than “constraints on [the agency’s] enforcement discretion.” U.S. Br. 20 n.5. But, as the NAACP court recognized, this is “a distinction without a difference,” because “[t]o say that a particular agency action is ‘without statutory authority’ is simply to say that no statutory provision authorizes that action.” 2018 WL 1920079, at *14. It is, therefore, “a determination of the substantive content of each statutory provision that might plausibly apply.” Id. If anything, an agency’s belief that its “enforcement discretion” is “constrain[ed]” is more like the jurisdictional question reserved by Chaney and answered by Montana Air than the government’s “substantive commands” alternative. See Mont. Air, 898 F.2d at 757.
12

In any event, the agency has interpreted a statute’s substantive commands here. On September 4, 2017, the Attorney General determined that “DACA was effectuated by the previous administration through executive action, without proper statutory authority” and that DACA “has the same legal and constitutional defects that the courts recognized as to DAPA.” SER.259 (emphasis added). In rescinding DACA the next day, the Acting Secretary “[took] into consideration … the September 4, 2017 letter from the Attorney General.” SER.263. Thus, the government’s assertion (U.S. Br. 20 n.5) that “this case involves no interpretation of the INA’s substantive commands” is plainly untrue. The agency made a legal determination, and it cannot now evade judicial oversight. III. The Decision To End DACA Is Also Reviewable Because It Goes Beyond
Addressing Enforcement And Reverses A Longstanding Policy The decision to end DACA is also far afield from the non-enforcement decisions that Chaney found presumptively unreviewable for two additional, independent reasons. First, the government’s attempt to cast the rescission as a run-of-the-mill enforcement decision ignores the crucial legal benefits that DACA provides for its recipients. Although DACA is rooted in the government’s authority to defer action against persons not lawfully present in the United States, Congress (by statute) and DHS (by regulation) have added significant benefits on top of mere deferred action – including work authorization, non-accrual of unlawful presence, travel, and the
13

right to obtain a driver’s license. That makes DACA far more consequential than a decision not to initiate a single civil enforcement action.
Second, in ending DACA, DHS took affirmative action to reverse a five-yearold policy. Affirmative agency action “provides a focus for judicial review,” Chaney, 470 U.S. at 832; Robbins v. Reagan, 780 F.2d 37, 47 (D.C. Cir. 1985) (“[W]hen there is a specific affirmative action to be reviewed, the reviewing court can adequately focus on the limited issue at hand.”). Courts have recognized that a policy reversal is such an affirmative act. Robbins, 780 F.2d at 47-48. “Rescissions of prior obligations clearly fall into the ‘focused action’ category” that courts can and should review to “ensure that the agency’s change of course is not based on impermissible or irrelevant factors.” Id. Because Chaney’s presumption of unreviewability does not apply “where there is affirmative agency action,” courts “are fully capable of adjudicating” disputes over “the Secretary’s decision to change the immigration classification of [immigrants] on a class-wide basis.” Casa de Md. v. DHS, 284 F. Supp. 3d 758, 770 n.23 (D. Md. 2018) (quoting Texas v. United States, 809 F.3d 134, 165 (5th Cir. 2015)). This is all the more true when significant reliance interests hang in the balance. See Robbins, 780 F.2d at 48 (basing review, in part, on “the effect of the agency’s original commitment of funds”).
Here, courts need not abstain from reviewing DHS’s rationale because (unlike in BLE) the determination that DACA is unlawful is not wrapped in a “tradition of
14

nonreviewability.” 482 U.S. at 282. Rather, it is subject to review in light of the INA, the Executive’s history of deferred action, the 2014 OLC opinion, and considerable judicial precedent. In sum, courts have meaningful standards to apply in this case, and there is neither a tradition of withholding review for decisions like DACA nor any reason to do so. And the rescission’s vast consequences make judicial review and agency accountability particularly important here.
CONCLUSION The government’s decision to end DACA is subject to judicial review because it is not “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).
15

Dated: May 11, 2018

Respectfully submitted,

NICOLE A. SAHARSKY MATTHEW S. ROZEN HALEY S. MORRISSON GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 (202) 955-8500
MARK D. ROSENBAUM JUDY LONDON MALHAR SHAH PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 (213) 385-2977

s/ Theodore J. Boutrous, Jr. THEODORE J. BOUTROUS, JR. ETHAN D. DETTMER KIRSTEN GALLER JONATHAN N. SOLEIMANI KELSEY J. HELLAND GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7000
LAURENCE H. TRIBE HARVARD LAW SCHOOL* 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767

LUIS CORTES ROMERO IMMIGRANT ADVOCACY & LITIGATION CENTER, PLLC 19309 68th Avenue South, Suite R102 Kent, WA 98032 (253) 872-4730

LEAH M. LITMAN UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW* 401 E. Peltason Drive Irvine, CA 92697 (949) 824-7722

ERWIN CHEMERINSKY UNIVERSITY OF CALIFORNIA, BERKELEY SCHOOL OF LAW* 215 Boalt Hall Berkeley, CA 94720 (510) 642-6483

Attorneys for Plaintiffs Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and
Jirayut Latthivongskorn
*Affiliation for identification purposes only

STACEY M. LEYTON ERIC P. BROWN ANDREW KUSHNER ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151
Counsel for Plaintiffs County of Santa Clara and Service Employees International Union Local 521

JAMES R. WILLIAMS GRETA S. HANSEN LAURA S. TRICE MARCELO QUIÑONES OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110 (408) 299-5900
Counsel for Plaintiff County of Santa Clara

CERTIFICATE OF COMPLIANCE I hereby certify that: (1) this brief complies with the length limit authorized by this Court’s order dated May 1, 2018 because it is no more than 15 double-spaced pages, excluding the portions exempted by Federal Rule of Appellate Procedure 32(f); and (2) this brief’s type size and type face comply with Federal Rules of Appellate Procedure 32(a)(5) and (6).
s/ Theodore J. Boutrous, Jr. Theodore J. Boutrous, Jr.

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on May 11, 2018. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.
s/ Theodore J. Boutrous, Jr. Theodore J. Boutrous, Jr.

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the Northern District of California
APPELLANTS’ SUPPLEMENTAL BRIEF
CHAD A. READLER Acting Assistant Attorney General
ALEX G. TSE Acting United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

TABLE OF CONTENTS Page
INTRODUCTION AND SUMMARY OF ARGUMENT..............................................1 ARGUMENT ............................................................................................................................ 5 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases:

Page(s)

Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir. 1987)................................................................................................6

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

Chaney v. Heckler, 718 F.2d 1174 (D.C. Cir. 1983) ...................................................................................... 1, 6

Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) ......................................................................... 1, 3, 9, 10, 14

Heckler v. Chaney, 470 U.S. 821 (1985) ...................................................................................1, 2, 5, 6, 7, 8, 13

ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987) .................................................................................................... 2, 9, 14

Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753 (9th Cir. 1990).....................................................1, 2, 3, 7, 8, 11, 12, 13, 14

Morales de Soto v. Lynch, 824 F.3d 822 (9th Cir. 2016)................................................................................................5

NAACP v. Trump,
Nos. 17-1907 & 17-2325, 2018 WL 1920079 (D.D.C. Apr. 24, 2018) ............................................. 1, 2, 6, 7, 10, 11

Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ...............................................................................................................5

Texas v. United States, 809 F.3d 134 (5th Cir. 2015)................................................................................................7

UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986) ..................................................................... 2, 3, 11, 14, 15

ii

Statute: Administrative Procedure Act,
5 U.S.C. § 701(a)(2) .......................................................................................................... 1, 5
iii

INTRODUCTION AND SUMMARY OF ARGUMENT On May 1, 2018, this Court directed the parties to submit supplemental briefs “addressing the effect of Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985), and Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753, 756-57 (9th Cir. 1990), on the question whether 5 U.S.C. § 701(a)(2) bars judicial review of the Department of Homeland Security’s rescission of the Deferred Action for Childhood Arrivals program [(DACA)].” The court further directed that “[t]he parties should consider whether the rescission is judicially reviewable as a general enforcement policy, rather than as a single-shot non-enforcement decision. See Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994); NAACP v. Trump, Nos. 17-1907 & 17-2325, 2018 WL 1920079, at *11–17 (D.D.C. Apr. 24, 2018) (interpreting the standard in Crowley).” In answering this Court’s questions, it is critical to distinguish between whether an enforcement decision is reviewable, and whether the supporting rationale is reviewable on its own terms even if the underlying enforcement decision is not. Under Heckler v. Chaney, an agency enforcement decision is presumptively unreviewable. See 470 U.S. at 831-32. This principle clearly extends beyond “single-shot” non-enforcement decisions to general enforcement policies; in fact, the agency action at issue in Chaney was a general policy of non-enforcement with respect to lethal injection drugs. See Chaney v. Heckler, 718 F.2d 1174, 1191 n.45 (D.C. Cir. 1983); Chaney, 470 U.S. at 82425. And it is equally clear that the mere fact that the agency provides a general legal rationale does not provide a “hook” to review the otherwise unreviewable decision

itself. See ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (BLE). The district court in NAACP v. Trump correctly recognized these basic principles of law concerning the reviewability of enforcement decisions. See 2018 WL 1920079, at *11, *13-15.
Chaney’s presumption of unreviewability for enforcement decisions is overcome only if the agency exceeds constraints imposed on its enforcement discretion. See Chaney, 470 U.S. at 832-33, 833 n.4. And that may include a categorical refusal to exercise its jurisdiction to enforce the law. See Montana Air Chapter, 898 F.2d at 756-57. Yet in holding that the Acting Secretary’s decision was reviewable, the NAACP court did not and could not hold that the Acting Secretary exceeded her unfettered discretion to rescind DACA.
Instead, the court misconstrued the D.C. Circuit’s Crowley line of cases concerning the reviewability of substantive legal interpretations provided as the rationale for enforcement decisions. See NAACP, 2018 WL 1920079, at *12, *14-15. Cases like Crowley do not create an exception to Chaney’s principle that enforcement decisions themselves are unreviewable. Rather, these cases raise the converse of the Supreme Court’s decision in BLE: just as an unreviewable enforcement decision does not itself become reviewable simply because an agency gives a general legal reason for the enforcement decision, these cases concluded that a general legal interpretation that would be a reviewable interpretive rule, standing alone, does not itself become unreviewable simply because it is embedded in an unreviewable enforcement decision. UAW v.
2

Brock, 783 F.2d 237, 244-46 (D.C. Cir. 1986); see also Montana Air Chapter, 898 F.2d at 757-58. Crowley did not turn on any difference between general enforcement policies and single-shot non-enforcement decisions with respect to whether the enforcement decisions themselves are reviewable; instead, the holding of the case rested on the distinction that general enforcement policies may be “more likely” to contain embedded “direct interpretations of the commands of the substantive statute” that can be carved out and reviewed on their own terms as interpretive rules (separate from the underlying and unreviewable enforcement decision). 37 F.3d at 677.
Applying these principles of reviewability, the Acting Secretary’s decision to rescind DACA is not subject to judicial review. The rescission itself is a general enforcement policy decision that is presumptively unreviewable. The presumption is not overcome even assuming arguendo that the sole rationale for the decision was that DACA is unlawful (rather than that it presented significant legality and litigation-risk concerns even if it were ultimately lawful). Such a legal rationale could not be used as a hook to review the otherwise unreviewable enforcement decision to rescind DACA. And that legal rationale would not exceed any constraints on the Acting Secretary’s discretion to rescind DACA, because nothing in the Immigration and Naturalization Act (INA) required her to maintain DACA or to consider any particular factors before choosing to enforce the law without this extraordinary prosecutorial discretion policy. In enforcing the law, the Acting Secretary’s decision does not exceed her enforcement discretion, even if that decision were based on an erroneous belief that
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DACA runs afoul of the INA’s limits on prosecutorial discretion. This is fundamentally different from an agency refusing to enforce the law based on an erroneous belief as to the limits on its jurisdiction, which may amount to an abdication of responsibility that in some circumstances could perhaps exceed its enforcement discretion. In short, agencies may be required by statute to enforce the law, but the INA does not require DHS to exercise prosecutorial discretion not to enforce the law.
Even if a general legal rationale in the Acting Secretary’s memorandum could be carved out for review on its own terms as an interpretive rule, that would not justify setting aside the underlying enforcement policy decision to rescind DACA itself. And in any event, there is no such reviewable interpretive rule here. In rescinding DACA, the Acting Secretary was not interpreting any of the INA’s substantive commands governing the primary conduct of aliens or other parties (e.g., which crimes render an alien removable). Rather, her enforcement decision interpreted, at most, the scope of her own enforcement discretion. The rescission thus rests on enforcement discretion all the way down.
Finally, it warrants emphasis that the contrary position would lead to the untenable result that courts could review the decision of a prosecutor to rescind a general non-enforcement policy whenever the decision was based on the belief that the prior policy was arguably, or in fact, illegal. Neither plaintiffs nor the NAACP court have provided a plausible basis for distinguishing that scenario from this one, and none exists.
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ARGUMENT 1. The Administrative Procedure Act (APA) precludes review of agency actions that are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). In Heckler v. Chaney, 470 U.S. 821, 833 (1985), the Supreme Court instructed that agency decisions whether or not to take enforcement action “should be presumed immune from judicial review under § 701(a)(2).” This presumption of non-reviewability applies with particular force in the context of immigration enforcement, where the “broad discretion exercised by immigration officials” is a “principal feature of the removal system,” Arizona v. United States, 567 U.S. 387, 396 (2012), and litigation challenging the exercises of such discretion seeks the extraordinary relief of ordering the government to allow a “continuing violation of United States law.” Reno v. AmericanArab Anti-Discrimination Comm., 525 U.S. 471, 490 (1999) (AADC ).  Chaney’s presumption of non-reviewability applies equally when immigration enforcement discretion is exercised through the adoption of broad policies to enforce as through individual non-enforcement decisions. The government has previously explained why it is untenable in this context to distinguish between enforcement and non-enforcement, or between broad and individual exercises of enforcement discretion. See, e.g., Br. 18-21; Reply Br. 9-13. To recap briefly, the enforcement/nonenforcement distinction is foreclosed by this Court’s opinion in Morales de Soto v. Lynch, 824 F.3d 822, 827 n.4 (9th Cir. 2016), which expressly rejected the notion that Chaney’s presumption would apply only to a “decision not to enforce agency
5

regulations” and not to “the contrary decision to enforce.” The general/individual distinction, meanwhile, is foreclosed by Chaney itself, which involved a “refus[al] to take any action with regard to an entire category of allegedly prohibited activity.” Chaney v. Heckler, 718 F.2d 1174, 1190 n.45 (D.C. Cir. 1983); see Chaney, 470 U.S. at 824-25 (describing the general policy decision not “to interfere with [a] particular aspect of state criminal justice systems”). This Court has similarly recognized that a statutory grant of enforcement discretion “precludes . . . review of [an agency’s] failure to enforce” the law, even when the agency has done so through a broad “written policy stating that subsistence hunting in Alaska during the closed season would not be punished.” Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 935, 938 (9th Cir. 1987).
These points were recently underscored by the district court in NAACP v. Trump, which rejected both purported distinctions as “unpersuasive.” Nos. 17-1907, 17-2325, 2018 WL 1920079, at *13-14 (D.D.C. Apr. 24, 2018). That court had “little difficulty concluding that Chaney extends to the revocation of nonenforcement decisions” because Chaney’s “rationales apply here with equal force”: first, “[a]n agency’s decision to revoke a nonenforcement policy involves the same prioritization and resource-allocation considerations as its decision to implement such a policy”; second, “there are no agency proceedings here to provide a ‘focus for judicial review’ ” and “DACA’s rescission does not itself involve the exercise of coercive power over any person”; and third, “both types of decisions are substantially immunized from
6

judicial review in the criminal context.” Id. at *13-14. Further, the court recognized that the suggestion that “any general enforcement policy is exempt from Chaney’s presumption of unreviewability” is “in substantial tension with Chaney itself.” Id. The facts of that case establish that “discretionary enforcement policies . . . are presumptively unreviewable.” Id. at *14.
2. Although Chaney made plain that categorical enforcement discretion policies are presumptively unreviewable, the Court noted that the presumption could be overcome if the agency exceeded statutory constraints on its discretion. 470 U.S. at 832-33; see also Texas v. United States, 809 F.3d 134, 168 (5th Cir. 2015) (reviewing whether DAPA ran afoul of alleged INA constraints on enforcement discretion). Chaney left open whether discretion could be exceeded because an agency’s “general policy” of non-enforcement was “so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4. Likewise, the Court left open whether an agency might exceed its discretion if it “refus[ed] . . . to institute proceedings based solely on the belief that it lacks jurisdiction.” Id.
In Montana Air Chapter No. 29 v. Association of Civilian Technicians, 898 F.2d 753 (9th Cir. 1990), this Court recognized an exception for a non-enforcement decision based on perceived lack of jurisdiction. That case involved a challenge to the decision by an agency General Counsel to not issue a complaint based on his belief that “the type of claim raised by the union cannot be an unfair labor practice absent special circumstances” that were not present. Id. at 757. The General Counsel “believed he
7

was prevented from issuing a complaint,” which the Court explained “is the essence of a jurisdictional decision.” Id.
Montana Air Chapter does not stand for the proposition that judicial review is available whenever an enforcement decision is based on a perceived lack of statutory authority. That case dealt with a perceived lack of power to enforce the law, not a perceived lack of power to decline to enforce the law. The General Counsel based his decision “solely on his belief that he lack[ed] jurisdiction to issue [the requested] complaint, thereby refusing to exercise the functions assigned to him” by law. 898 F.2d at 756. That action thus at least potentially could be viewed as exceeding enforcement discretion in a manner similar to the other exception reserved by Chaney’s footnote 4: if an agency’s categorical and extreme refusal to exercise acknowledged jurisdiction in a particular area would amount to an “abdication of its statutory responsibilities,” 470 U.S. at 833 n.4, then so, too, might the refusal to take action based on the erroneous belief that jurisdiction does not exist. But an agency’s erroneous belief that it lacks the power to adopt a categorical policy of discretionary non-enforcement cannot be an abdication of its statutory responsibilities, because it is fulfilling those responsibilities by enforcing the law.
This understanding of Montana Air Chapter harmonizes the case with BLE, a Supreme Court precedent that Montana Air Chapter did not discuss. In that case, the Supreme Court expressly rejected the proposition that “if the agency gives a ‘reviewable reason for otherwise unreviewable action, the action becomes
8

reviewable.” ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 283 (1987). By way of example, the Court observed that “a common reason for failure to prosecute an alleged criminal violation is the prosecutor’s belief (sometimes publicly stated) that the law will not sustain a conviction,” yet “it is entirely clear that the refusal to prosecute cannot be the subject of judicial review” notwithstanding that the prosecutor’s belief “is surely an eminently ‘reviewable’ proposition.” Id. Thus, after BLE, a court cannot justify judicial review of an agency’s discretionary enforcement decision simply on the ground that the decision was based on a general interpretation of law. A mere legal rationale cannot provide a hook to support review of the underlying enforcement decision.
The D.C. Circuit recognized the effect of BLE in Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994). In that case, an agency had denied a third party’s request for a waiver of enforcement that would allow it to compete against the plaintiff, but the agency denied the request on the ground that no waiver was necessary because the plaintiff was not protected from competition under the statute. Id. at 672. Although the plaintiff of course did not challenge the underlying enforcement decision to deny the third party’s request for a waiver, it sued the agency to challenge the rationale supporting the enforcement decision, arguing that “Chaney’s presumption of non-reviewability is inapplicable when the agency bases its refusal to enforce in an individual case solely on a legal interpretation without explicitly relying on its enforcement discretion”—exactly the scenario left open by Chaney’s footnote 4.
9

Id. at 675; see NAACP, 2018 WL 1920079, at *11 (noting that Crowley addressed “the question reserved in Chaney ”). The D.C. Circuit correctly recognized that the answer to that question “is dictated by [the] intervening decision of the Supreme Court” in BLE. Crowley, 37 F.3d at 676. Thus, as the NAACP court explained, Crowley relied on BLE to hold that individual “nonenforcement decisions based solely on agency statutory interpretation” are not subject to judicial review. NAACP, 2018 WL 1920079, at *14.
Because the plaintiff in Crowley challenged only the rationale embedded in the enforcement decision, but not the enforcement decision itself, the Crowley decision focused on whether a court can carve out and review a legal rationale on the theory that an interpretive rule concerning the statute’s substantive commands remains reviewable, notwithstanding the fact that it is embedded in an unreviewable enforcement decision. The court explained that the answer was “no” for the singleshot non-enforcement decision at issue in that case because there was no clear and definitive substantive interpretation, but that such a reviewable embedded interpretation might be “more likely” to exist in a general enforcement policy. Crowley, 37 F.3d at 677. (The court further noted in dicta that a general non-enforcement policy may even be so extreme as to amount to “abdication” allowing review of the non-enforcement decision itself. Id.)
This distinction between the unreviewability of an enforcement decision and the possible reviewability of its legal rationale is well illustrated by the D.C. Circuit’s
10

decision in UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986). In Brock, the Department of Labor denied a union’s request to take enforcement action against a corporation for failing to report certain activities. Id. at 241-42. In so doing, the agency explained that it “was now interpreting the statute as no longer requiring reporting of two of the activities involved in the case.” Id. at 242-43. When the union challenged the Department’s action, the D.C. Circuit explained that “there is no review available from the agency’s specific nonenforcement decision . . . or its overall pattern of decisions not to pursue enforcement action in these areas.” Id. at 245; see also id. (“If the Union had challenged only the Department’s decision not to take enforcement action against [certain entities], or even against this entire genus of practices, our task would be completed.” (emphasis added)). The court went on to hold, however, that “when a legal challenge focuses on an announcement of a substantive statutory interpretation,” judicial review was available. Id. A contrary rule, the court reasoned, “would be handing agencies carte blanche to avoid review by announcing new interpretations of statutes only in the context of decisions not to take enforcement action.” Id. at 246; see also NAACP, 2018 WL 1920079, at *14.
In Montana Air Chapter, this Court relied on Brock to similarly hold that it could carve out for review the substantive legal rationale supporting a non-enforcement decision. See Montana Air Chapter, 898 F.2d at 757 (Brock “held that the Department of Labor’s ‘ultimate decision not to take enforcement action is nonreviewable,’ but the DOL’s ‘pronouncement of new statutory interpretations in an opinion explaining the
11

non-enforcement decision is reviewable.’”); see also id. at 758 (“When the FLRA implements a statutory interpretation in the course of a refusal to issue an unfair labor practice complaint, . . . [s]uch an interpretation is subject to judicial review.”). But the Court did not, and could not, rely on Brock in holding that the substantive statutory interpretation was a hook to review the underlying non-enforcement decision, because Brock held the exact opposite—as had BLE, which Crowley later recognized. Rather, as discussed above, the Court in Montana Air Chapter relied on the “lack of jurisdiction” exception left open by Chaney’s footnote 4, which, as discussed, is inapposite here. In any event, Montana Air Chapter is also distinguishable because the agency’s enforcement decision there was based on a substantive rationale, whereas here (as explained below) the enforcement decision was based on an enforcement rationale.
In sum, the foregoing discussion may be distilled down to three principles: (1) enforcement decisions are presumptively unreviewable, and that presumption may be overcome only where an agency’s action exceeds an its enforcement discretion, which might include the adoption of an extreme policy effectively abdicating a statutory duty to exercise jurisdiction to enforce the law; (2) where an enforcement decision is otherwise unreviewable, a court may not use the fact that the decision rests on a general legal rationale as a hook to permit judicial review of the underlying enforcement decision; and (3) where an unreviewable enforcement decisions rests on a general legal interpretation of the statute’s substantive commands, a court may in
12

certain situations “carve out” that embedded interpretive rule for review and vacatur (assuming that other prerequisites to judicial review are met), but it may not set aside the underlying enforcement decision.
3. Applying these principles, plaintiffs’ substantive APA claim is not subject to judicial review. Plaintiffs claim that the decision is reviewable because, in their view, the Acting Secretary determined that the prior enforcement policy was unlawful and must be rescinded. That reading is incorrect (Reply Br. 27-29), but in any event it would not make the Acting Secretary’s enforcement decision reviewable.
The Acting Secretary’s decision is a general enforcement policy decision that is presumptively unreviewable, and the presumption is not overcome in this case. There is no claim that, in rescinding the DACA policy, the Acting Secretary exceeded her enforcement discretion or abdicated any statutory responsibilities. Cf. Chaney, 470 U.S. at 832 n.4; Montana Air Chapter, 898 F.2d at 756-57. Nothing in the INA required the Acting Secretary to maintain DACA, and the Acting Secretary’s decision to enforce the law by rescinding a prosecutorial discretion policy does not exceed her enforcement discretion.
Nor—even assuming arguendo that the sole rationale for the decision was that DACA is unlawful—could the Acting Secretary’s purported legal rationale be used as a hook to review the otherwise unreviewable enforcement decision to rescind DACA. As explained, permitting such review is directly contrary to the Supreme Court’s decision in BLE, which expressly rejected the proposition that “if the agency gives a
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‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.” 482 U.S. at 283.
Even if a legal rationale in the Acting Secretary’s memorandum could be carved out for review on its own terms as an interpretive rule embedded in the underlying enforcement policy decision, that would not justify setting aside the rescission of DACA itself. See Montana Air Chapter, 898 F.2d at 757 (citing Brock, 783 F.2d at 24546); Crowley, 37 F.3d at 676. In any event, there is no reviewable substantive interpretation at issue here. There is no question in this case as to the substantive scope of the INA, and the Acting Secretary’s decision to rescind DACA did not directly interpret the INA’s provisions governing the primary conduct of aliens or other parties (e.g., which crimes render an alien removable). All parties agree that nothing in the INA or its regulations requires that deferred action be granted to DACA recipients, and plaintiffs’ legal challenge does not “focus[] on an announcement of a substantive statutory interpretation” that they independently want a court to review. Brock, 783 F.2d 246. Instead, plaintiffs asked the district court to enjoin the rescission of an enforcement policy that was not required by statute and they pointed to the agency’s legality rationale as a hook for review. As BLE makes clear, however, the presence of a reviewable rationale for an agency decision does not make an otherwise unreviewable decision subject to review.
Any embedded legal interpretation here would concern, at most, the scope of the Acting Secretary’s enforcement discretion. But that interpretation does not govern
14

the behavior of the parties—no one disputes that DACA recipients are removable under the statute. Indeed, the decision at issue here rests on enforcement discretion all the way down. In contrast, the embedded legal interpretation at issue in Brock, for example, governed the primary conduct of regulated entities, and the agency’s interpretation of the statute affected the legal rights and obligations of the parties. See 783 F.2d at 246 (“[P]laintiffs challenge the interpretation of the statute precisely because of the immediate and certain effect that it has on employers’ and consultants’ reporting duties.”). But as the D.C. Circuit explained, “[t]here are real and cognizable practical differences distinguishing an agency’s announcement of how it will exercise its discretion, from an agency’s announcement of what a citizen’s duties are under a statute.” Id.
In sum, the Acting Secretary’s enforcement rationale is not reviewable, much less is it is a basis to review her underlying enforcement decision to rescind the DACA policy. Any again, the contrary conclusion would lead to the unprecedented and untenable result that countless changes in prosecutorial discretion based on views about the law would be exposed to judicial review.
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May 2018

Respectfully submitted,
CHAD A. READLER. Acting Assistant Attorney General
ALEX G. TSE Acting United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
S/MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

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CERTIFICATE OF COMPLIANCE This brief complies with page limits contained in this Court’s order of May 1, 2018, because it is 15 pages. This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14-point font, a proportionally spaced typeface.
s/ Mark B. Stern MARK B. STERN

CERTIFICATE OF SERVICE I hereby certify that on May 11, 2018, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/Mark B. Stern MARK B. STERN

 
 Consolidated Case Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs/Appellees
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants/Appellants
_________________

On Appeal from the United States District Court for the Northern District of California, Honorable William H. Alsup, Presiding __________________

SUPPLEMENTAL BRIEF OF APPELLEES THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
JANET NAPOLITANO, AND CITY OF SAN JOSÉ __________________

Jeffrey M. Davidson Mónica Ramírez Almadani Erika Douglas David S. Watnick Breanna K. Jones COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, CA 94111-5356 (415) 591-6000

Robert A. Long Mark H. Lynch Alexander A. Berengaut Megan A. Crowley Ivano M. Ventresca COVINGTON & BURLING LLP One CityCenter 850 Tenth Avenue, NW Washington, DC 20001

Attorneys for Plaintiffs The Regents of the University of California, et al.

Justin T. Berger Brian Danitz COTCHETT, PITRE & MCCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 (650) 697-6000
Attorneys for Plaintiff City of San José

(ADDITIONAL COUNSEL LISTED ON SIGNATURE PAGE)

TABLE OF CONTENTS INTRODUCTION ...........................................................................................1 ARGUMENT ................................................................................................... 2 I. When Agency Action Is Premised On The Agency’s
Conclusions About The Scope Of Its Legal Authority, The Action Is Subject To Judicial Review. ..................................................2 II. The Rescission Is Also Subject To Judicial Review Because It Is A General Enforcement Policy Rather Than A Single-Shot Non-Enforcement Action. .....................................................................8 CONCLUSION .............................................................................................. 13
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TABLE OF AUTHORITIES
Cases
Batalla Vidal v. Duke, 2017 WL 5201116 (E.D.N.Y. Nov. 9, 2017) ...........................................11
Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 2018)........................................................6
Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) ......................................................................4
Casa de Maryland v. DHS, 284 F. Supp. 3d 758 (D. Md. 2018) .........................................................11
Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) ............................................................passim
Edison Elec. Inst. v. EPA, 996 F.2d 326 (D.C. Cir. 1993) .................................................................10
Heckler v. Chaney, 470 U.S. 821 (1985) ..........................................................................passim
ICC v. Bhd. of Locomotive Engineers, 482 U.S. 270 (1987) ...............................................................................5, 7
Int’l Longshoremen’s & Warehousemen’s Union v. Meese, 891 F.2d 1374 (9th Cir. 1989)............................................................10, 11
International Longshoremen’s Ass’n v. National Mediation Bd., 785 F.2d 1098 (D.C. Cir. 1986) .................................................................7
Kenney v. Glickman, 96 F.3d 1118 (8th Cir. 1996) ......................................................................9
Lincoln v. Vigil, 508 U.S. 182 (1993) ...................................................................................5
Massachusetts v. EPA, 549 U.S. 497 (2007) ...................................................................................2
ii

Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) ......................................................................6
Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753 (9th Cir. 1990) .............................................................passim
NAACP v. Trump, 2018 WL 1920079 (D.D.C. Apr. 24, 2018) ......................................passim
Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765 (D.C. Cir. 1992) .................................................................10
Negusie v. Holder, 555 U.S. 511 (2009) ...................................................................................2
OSG Bulk Ships, Inc. v. United States, 132 F.3d 808 (D.C. Cir. 1998) .................................................8, 10, 11, 12
Regents of the Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011 (N.D. Cal. 2018) ...............................................6, 11
SEC v. Chenery Corp., 318 U.S. 80 (1943) .....................................................................................6
Statutes 5 U.S.C. § 701(a)(2) ...............................................................................passim
iii

INTRODUCTION This supplemental brief addresses the application of Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985), and Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753, 756-57 (9th Cir. 1990) to this case, and whether the rescission of DACA is judicially reviewable under 5 U.S.C. § 701(a)(2) because it is a “general enforcement policy, rather than [] a single-shot nonenforcement decision.” May 1 Order (citing Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994); NAACP v. Trump, 2018 WL 1920079, at *11-17 (D.D.C. Apr. 24, 2018)). These authorities confirm—as every court to consider the issue has concluded—that the rescission is not subject to section 701(a)(2)’s narrow jurisdictional bar. First, the cases cited by the Court hold that where, as here, agency action is predicated on an agency’s conclusions about the scope of its legal authority, that action is subject to judicial review under the APA. Second, these cases hold that where an agency announces a general enforcement policy, as opposed to a single-shot non-enforcement decision, that policy is subject to judicial review. The cases recognize that judicial review of agency policy decisions, especially those founded on legal determinations, is the only way to achieve the APA’s goals of ensuring the accountability and rationality of agency decision-making. Because the
1

rescission of DACA was a programmatic decision based on an agency’s conclusion about its authority, section 701(a)(2) does not apply.
ARGUMENT I. When Agency Action Is Premised On The Agency’s Conclusions
About The Scope Of Its Legal Authority, The Action Is Subject To Judicial Review. In Heckler v. Chaney, the Supreme Court concluded that a discretionary non-enforcement decision resting largely on policy, rather than legal, grounds was presumptively non-justiciable. 470 U.S. at 832, 833. The agency’s decision in Chaney rested on a “complicated balancing of a number of factors” rather than a determination about the agency’s legal authority. Id. Chaney expressly reserved judgment on whether a refusal by the agency to institute proceedings “based solely on the belief that it lacks jurisdiction” is non-justiciable. Id. at 833 n.4. Since Chaney, the Supreme Court has repeatedly held that it is the role of the courts to decide the scope of agencies’ legal authority to act. See Negusie v. Holder, 555 U.S. 511, 516 (2009) (remanding because the Board of Immigration Appeals denied relief based on an incorrect reading of Supreme Court precedent); Massachusetts v. EPA, 549 U.S. 497, 528 (2007) (reviewing the EPA’s conclusion that it lacked authority under the Clean Air Act to regulate greenhouse gas emissions from new motor vehicles).
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In Montana Air, this Court reached the same conclusion, holding that an agency decision is “reviewable when that decision is based solely on [the agency’s] belief that [it] lacks jurisdiction” to act. 898 F.2d at 756-57. In Montana Air, unlike in Chaney, the agency’s non-enforcement decision rested on an interpretation of its legal authority. There, the general counsel of the Federal Labor Relations Authority concluded that the agency lacked jurisdiction to issue an unfair labor practice complaint that the plaintiffs had requested. Id. at 755. According to the general counsel, the requested complaint concerned only “negotiability” issues, which could “be raised only” through distinct “negotiability procedures of the [relevant] Statute.” Id. at 755-57. When the plaintiffs challenged that determination, this Court rejected the FLRA’s argument that the agency’s refusal to issue a complaint was exempt from judicial review under section 701(a)(2) and Chaney. Id. at 756. While the basis for the general counsel’s decision was not “free from doubt,” his “opinion letters strongly indicate[d] that his decision was based solely on the belief that he did not have jurisdiction to issue an unfair labor practice complaint,” and, as a result, he “did not exercise his discretion.” Id. at 756-57 & n.1. Accordingly, the Court concluded the general counsel’s decision was reviewable under the APA. See id. at 757 (“We therefore must
3

examine the General Counsel’s statutory and regulatory interpretations to determine if his belief that he lacked jurisdiction was correct.”).
Following Montana Air, in Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016), this Court again underscored that courts have jurisdiction to review agency action premised on an agency’s misunderstanding of the limits of its own legal authority. Bonilla concluded that there was “jurisdiction to review [Board of Immigration Appeals’] decisions denying sua sponte reopening [of deportation proceedings] for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.” Id. This was so even though such single-shot discretionary actions, if taken “against the correct ‘legal background,’” were not subject to judicial review. Id. As the Court explained, judicial review is necessary to “assure” that an agency’s “decision . . . is made on a proper understanding of the underlying law.” Id.
The reviewability of the government’s rescission of DACA is controlled by Montana Air. On the basis of the Attorney General’s determination that “DACA was effectuated . . . without proper statutory authority and . . . was an unconstitutional exercise of authority by the Executive Branch,” the Acting Secretary of Homeland Security concluded— like the FLRA’s general counsel in Montana Air—that the agency lacked the
4

legal authority to continue DACA and therefore rescinded the program. See ER 127-30; ER 176. The Acting Secretary did not exercise discretion or apply expertise in rescinding DACA, but instead concluded that she was required to terminate the program due to the legal limits on DHS’s authority to act. Just as in Montana Air, the Acting Secretary’s belief that she was legally barred from continuing DACA “is the essence of a jurisdictional decision,” and is reviewable under the APA. 898 F.2d at 757.
Thus, notwithstanding the government’s arguments to the contrary, the rescission of DACA is not akin to the non-enforcement action based on a “complicated balancing of . . . factors” at issue in Chaney. See 470 U.S. at 831. There is no “balancing” in the rescission memorandum, but rather a singular focus on the lawfulness of DACA. See, e.g., ER 127-30; ER 176; Pet. for Cert. 31, DHS v. Regents of Univ. of Cal., No. 17-1003 (U.S. Jan. 18, 2018); see id. at 12. The rescission simply is not the type of discretionary non-enforcement decision that Chaney concluded was exempt from review under section 701(a)(2).1
1 The rescission also bears no resemblance to traditionally discretionary decisions like an agency’s “allocation of funds from a lump-sum appropriation,” Lincoln v. Vigil, 508 U.S. 182, 192 (1993), or an agency’s denial of a petition for reconsideration based on material error, ICC v. Bhd. of Locomotive Engineers, 482 U.S. 270, 280 (1987) (BLE).
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The government’s attempts to reframe the Acting Secretary’s legal conclusions as an assessment of “litigation risk” do not alter this result. The district court correctly rejected the agency’s litigation risk rationale because it is a post hoc justification that is not fairly discernable from the record. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943); Regents of the Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1043-44 (N.D. Cal. 2018); Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 430 (E.D.N.Y. 2018).
Moreover, the “litigation risk” rationale articulated by the government’s lawyers in this case is simply a repackaging of the agency’s legal conclusion about the scope of its own authority. It is not meaningfully different for DHS to say that “DACA is outside its legal authority” or that “a court would find that DACA is outside its legal authority.” See NAACP, 2018 WL 1920079, at *16 (an agency cannot “insulate from judicial review any legal interpretation simply by framing it as an enforcement policy and then offering as an additional, ‘discretionary’ justification the assertion that a court would likely agree with the agency’s interpretation”).
The government has sought to cast doubt on the viability of Montana Air in light of BLE, see Appellants’ Resp. and Reply Br. at 9 n.2, but Montana Air post-dates BLE by three years and accordingly is binding precedent. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
6

banc) (holding that a three-judge panel may overrule circuit precedent only
due to “later and controlling authority” (emphasis added)).2
In any event, BLE does not cast doubt on Montana Air. In BLE, the
Supreme Court held that an agency’s denial of a petition to reconsider based
on material error was a “traditionally” unreviewable decision and noted in
dictum that an “otherwise unreviewable action” does not become reviewable
merely because “the agency gives a ‘reviewable’ reason” for its action. Id. at
282-84.3 But that sentence of dictum does not apply here: its language refers
2 The government suggests that this Court can discard Montana Air because that decision cited a D.C. Circuit opinion, International Longshoremen’s Ass’n v. National Mediation Bd., 785 F.2d 1098, 1100 (D.C. Cir. 1986), that, the government contends, the D.C. Circuit has since “recognized . . . was abrogated by the Supreme Court’s later decision in BLE.” Appellants’ Resp. and Reply Br. at 9 n.2. (citing Crowley, 37 F.3d at 675-76). But in Montana Air the Court did not regard itself as bound by the reasoning of the D.C. Circuit; instead, it reached its own conclusion, guided by the “suggest[ions]” of both Chaney and Longshoremen’s Association, that section 701(a)(2) was inapplicable to agency actions taken on the basis of a perceived lack of jurisdiction. See 898 F.2d at 756. 3 As NAACP observed, this point in BLE was the Court’s response to “what it took to be the concurrence’s suggestion” regarding reviewability. 2018 WL 1920079, at *11 (citing BLE, 480 U.S. at 283). The concurrence, however, “disputed this characterization of its argument.” Id. at *11 n.12 (citing BLE, 480 U.S. at 290 n.2 (Stevens, J., concurring in the judgment)). The concurrence contended that, because agency actions can be upheld only on the grounds put forth by the agency, where the agency “base[s] its decision on its reading of a statute or a constitutional provision, its decision cannot be sustained on the conjecture that it has the discretion to deny reopening on a variety of grounds.” BLE, 482 U.S at 290-91 (Stevens, J., concurring in the judgment).
7

only to decisions that are “traditionally” unreviewable, id. at 282, such as the denial of reconsideration for material error at issue in BLE. Here, far from identifying a “tradition” of declining review over a programmatic decision like the rescission, the government has not cited a single case that has done so. See Appellees’ Principal Br. at 6; see also SER 265-66.
Montana Air remains a correctly decided, controlling decision of this Court, and it requires that the rescission—a programmatic administrative action based on DHS’s incorrect interpretation of its own authority—be subject to APA review. 898 F.2d at 756. II. The Rescission Is Also Subject To Judicial Review Because It Is A
General Enforcement Policy Rather Than A Single-Shot NonEnforcement Action. The rescission is also reviewable because it is a programmatic agency action rather than a single-shot non-enforcement decision. In determining reviewability of agency action under section 701(a)(2), courts distinguish between general enforcement policies, which generally are reviewable, and decisions “to decline enforcement in the context of an individual case,” which presumptively are not. Crowley, 37 F.3d at 676; see also OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998) (“[A]n agency’s adoption of a general enforcement policy is subject to review.”).
8

Chaney itself involved such a “single-shot” non-enforcement decision. There, the Supreme Court held that the Food and Drug Administration’s decision not to take enforcement actions to prevent the use of certain drugs in lethal injections was not reviewable. It characterized the FDA’s action as “an agency’s refusal to take requested enforcement action” that “share[d] to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict”—in other words, the case involved a “single-shot” non-enforcement action rather than a general enforcement policy. 470 U.S. at 831-32.
The government has disputed the characterization of Chaney as a single-shot non-enforcement decision, but the courts disagree. See Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996) (concluding that “Chaney applies to individual, case-by-case determinations of when to enforce existing regulations rather than permanent policies or standards”); Crowley, 37 F.3d at 676 (distinguishing Chaney from “a general enforcement policy [that] may be reviewable for legal sufficiency where the agency has . . . articulated it in some form of universal policy statement”).
The D.C. Circuit in Crowley reasoned that a reviewable enforcement policy is distinguishable from an unreviewable single-shot enforcement decision because “[b]y definition, expressions of broad enforcement policies
9

are abstracted from the particular combinations of facts the agency would encounter in individual enforcement proceedings.” Id. at 677. It noted that, unlike the one-shot non-enforcement decisions at issue in Chaney and Crowley, enforcement policies are “more likely to be direct interpretations of the commands of the substantive statute rather than the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision and that are . . . peculiarly within the agency’s expertise and discretion.” Id.
In cases involving general enforcement policies, in contrast, this Court and the D.C. Circuit consistently have concluded that judicial review is available. See Int’l Longshoremen’s & Warehousemen’s Union v. Meese, 891 F.2d 1374, 1378 (9th Cir. 1989) (INS policy of allowing certain nonimmigrant aliens to work in the United States subject to review); OSG Bulk Ships, 132 F.3d at 809, 812 (concluding that the Maritime Administration’s “longstanding interpretation” of a statute was reviewable as “a general enforcement policy”); Edison Elec. Inst. v. EPA, 996 F.2d 326, 331 (D.C. Cir. 1993) (same for EPA enforcement policy); Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765, 772-75 (D.C. Cir. 1992) (same for regulation explaining when EPA could “refuse to initiate proceedings” under the Safe Drinking Water Act).
10

The rescission of DACA is plainly a general enforcement policy, not a single-shot non-enforcement decision—and the government does not claim otherwise. The rescission does not announce a fact-bound decision in an individual case involving a discrete party or parties. Instead, the rescission represents an across-the-board policy change equally applicable to all 700,000 DACA recipients that categorically (i) required the rejection of all initial DACA requests received after September 5, 2017; (ii) barred all DACA renewal requests received after October 5, 2017; and (iii) forbade DHS from processing any advance parole applications for all DACA recipients. ER 130-31. Accordingly, it is beyond the narrow scope of section 701(a)(2). See Meese, 891 F.2d at 1378; Crowley, 37 F.3d at 677; OSG Bulk Ships, 132 F.3d at 812.
Consistent with these authorities, the district court in NAACP properly concluded that the rescission of DACA is a general enforcement policy, 2018 WL 1920079, at *17, and joined every other court to consider the issue in holding that the rescission was subject to judicial review under the APA. Id.; see Regents, 279 F. Supp. 3d at 1029-31; Batalla Vidal v. Duke, 2017 WL 5201116, at *9-11 (E.D.N.Y. Nov. 9, 2017); Casa de Maryland v. DHS, 284 F. Supp. 3d 758, 769-70 (D. Md. 2018).
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In explaining its rationale, the NAACP court reasoned that the rescission was subject to judicial review because it was a general enforcement policy that also “relie[d] solely on the agency’s view of what the law requires.” NAACP, 2018 WL 1920079, at *16 (citing Crowley, 37 F.3d at 676). The NAACP court left open whether an agency’s general enforcement policy could be reviewed if it were based on non-legal considerations, but held that a policy based on legal conclusions certainly was subject to review. See id.
Because Crowley focused on the distinction between general enforcement policies and one-shot enforcement decisions and did not concern itself with whether the policy was based on a legal rationale or not, 37 F.3d at 677, a legal rationale is not necessary to render enforcement policies reviewable under Crowley. See also OSG Bulk Ships, 132 F.3d at 812. However, a legal rationale for an enforcement policy is sufficient to ensure review, and here DHS’s actions are manifestly rooted in its “view of what the law requires.” NAACP, 2018 WL 1920079, at *16. Indeed, defendants have straightforwardly admitted that they rescinded DACA because “continuing the DACA policy would itself have been unlawful.” Pet. for Cert. 31, DHS v. Regents of Univ. of Cal., No. 17-1003 (US. Jan. 18, 2018); see id. at 12. Accordingly, the rescission is subject to judicial review,
12

as it is a general enforcement policy based on a legal conclusion. See NAACP, 2018 WL 1920079, at *17.
CONCLUSION The Court should reject the government’s justiciability arguments and affirm the district court’s preliminary injunction on the merits.
13

Respectfully submitted,

Justin T. Berger Brian Danitz Tamarah Prevost COTCHETT, PITRE & MCCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 (650) 697-6000
Attorneys for Plaintiff City of San José

s/ Jeffrey M. Davidson Jeffrey M. Davidson Mónica Ramírez Almadani Erika Douglas David S. Watnick Breanna K. Jones COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, CA 94111 (415) 591-6000 jdavidson@cov.com

Robert A. Long Mark H. Lynch Alexander A. Berengaut Megan A. Crowley Ivano M. Ventresca COVINGTON & BURLING LLP One CityCenter 850 Tenth Avenue, NW Washington, DC 20001 (202) 662-6000

Attorneys for Plaintiffs The Regents of the University of California and Janet Napolitano, in her official capacity as President of the University of California

CERTIFICATE OF COMPLIANCE I certify that this brief complies with the requirements of the Court’s Order requesting supplemental briefing, and the requirements of Federal Rules of Appellate Procedure 32(a)(5) and 32(a)(6), because it is filed by separately represented parties, is set in a proportionately spaced serif font, has a typeface of 14 points, and does not exceed 15 double-spaced pages.

Dated: May 11, 2018

s/ Jeffrey M. Davidson

CERTIFICATE OF SERVICE I certify that on May 11, 2018, I electronically filed the foregoing document with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: May 11, 2018

s/ Jeffrey M. Davidson

 
 Nos. 18-15068, 18-15069, 18-15070, 18-15071, 18-15072, 18-15128, 18-15133, 18-15134

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees-Cross-Appellants,

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellants-Cross-Appellees.
____________________

On Cross-Appeal from the United States District Court
for the Northern District of California
____________________

SUPPLEMENTAL BRIEF OF THE STATES OF CALIFORNIA, MAINE, MARYLAND, AND MINNESOTA
____________________

JANET T. MILLS Attorney General of Maine Susan P. Herman Deputy Attorney General Attorneys for the State of Maine
BRIAN E. FROSH Attorney General of Maryland Steven M. Sullivan Solicitor General Attorneys for the State of Maryland
LORI SWANSON Attorney General of Minnesota Jacob Campion Assistant Attorney General Attorneys for the State of Minnesota
May 11, 2018

XAVIER BECERRA Attorney General of California Edward C. DuMont Solicitor General Michael J. Mongan Deputy Solicitor General Michael L. Newman Supervising Deputy Attorney General James F. Zahradka II Deputy Attorney General Samuel P. Siegel Associate Deputy Solicitor General CALIFORNIA DEPARTMENT OF JUSTICE 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102-3660 (415) 510-3920 michael.mongan@doj.ca.gov Attorneys for the State of California

TABLE OF AUTHORITIES
CASES
Ass’n of Irritated Residents v. EPA 494 F.3d 1027 (D.C. Cir. 2007)............................................................................8
Batalla Vidal v. Duke ___ F. Supp. 3d ____, 2017 WL 5201116, (E.D.N.Y. Nov. 9, 2017) (Batalla Vidal I ).....................................................2, 12
Batalla Vidal v. Nielsen 279 F. Supp. 3d 401 (E.D.N.Y. 2018) (Batalla Vidal II )...................................11
Casa de Md. v. DHS 284 F. Supp. 3d 758 (D. Md. 2018)................................................................2, 12
City of Arlington v. FCC 569 U.S. 290 (2013)........................................................................................3, 11
Crowley Caribbean Transp., Inc. v. Peña 37 F.3d 671 (D.C. Cir. 1994) .......................................................................passim
Edison Elec. Inst. v. EPA 996 F.2d 326 (D.C. Cir. 1993)..............................................................................8
Heckler v. Chaney 470 U.S. 821 (1985).....................................................................................passim
ICC v. Brotherhood of Locomotive Engineers 482 U.S. 270 (1987) (BLE).................................................................3, 4, 5, 6, 11
Idaho Rivers United v. U.S. Forest Serv. 2013 WL 474851 (D. Idaho Feb. 7, 2013) ...........................................................4
Idaho Rivers United v. U.S. Forest Serv. 857 F. Supp. 2d 1020 (D. Idaho 2012) .................................................................4
Int’l Union, United Auto., Aerospace, & Agric. Implement Workers v. Brock 783 F.2d 237 (D.C. Cir. 1986)..............................................................................9
i

Lincoln v. Vigil 508 U.S. 182 (1993)..............................................................................................2
Montana Air Chapter No. 29 v. FLRA 898 F.2d 753 (9th Cir. 1990) .......................................................................passim
NAACP v. Trump ___ F. Supp. 3d ____, 2018 WL 1920079 (D.D.C. Apr. 24, 2018) ............passim
Negusie v. Holder 555 U.S. 511 (2009)..............................................................................................7
Norton v. Southern Utah Wilderness Alliance 542 U.S. 55 (2004)................................................................................................4
OSG Bulk Ships, Inc. v. United States 132 F.3d 808 (D.C. Cir. 1998)..........................................................................8, 9
Robbins v. Reagan 780 F.2d 37 (D.C. Cir. 1985) (per curiam)...........................................................1
SEC v. Chenery Corp. 318 U.S. 80 (1943) (Chenery I )............................................................................7
Steel Co. v. Citizens for a Better Env’t 523 U.S. 83 (1998)................................................................................................5
United States v. Mandel 914 F.2d 1215 (9th Cir. 1990) ..............................................................................4
STATUTES 5 U.S.C.
§ 701(a)(2) ..................................................................................................1, 4, 12 § 706(1).................................................................................................................4
ii

The Court has asked the parties to address: “the effect of Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985), and Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753, 756-57 (9th Cir. 1990), on the question whether 5 U.S.C. § 701(a)(2) bars judicial review of the Department of Homeland Security’s rescission of the Deferred Action for Childhood Arrivals program”; and “whether the rescission is judicially reviewable as a general enforcement policy, rather than as a single-shot non-enforcement decision. See Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676 (D.C. Cir. 1994); NAACP v. Trump, Nos. 17-1907 & 17-2325, 2018 WL 1920079, at *11-*17 (D.D.C. Apr. 24, 2018) (interpreting the standard in Crowley).” The cases the Court references support the district court’s conclusion that defendants’ rescission of DACA, based on an asserted legal conclusion that the program is unlawful, is subject to review under the APA.
1. There is normally a “‘strong presumption’” in favor of judicial review of agency action. E.g., Robbins v. Reagan, 780 F.2d 37, 44 (D.C. Cir. 1985) (per curiam). In Chaney, the Supreme Court recognized a contrary presumption, against review, for a limited class of decisions that have traditionally been considered unreviewable: discretionary decisions “not to undertake certain enforcement actions.” 470 U.S. at 831. The cases this Court references in its supplemental briefing order address exceptions to that Chaney presumption. As the district court recognized, however, the agency decision at issue here is a
1

wholesale termination of a general program designed to channel and guide individual deferred action decisions with respect to a broad class of potential recipients. Chaney’s presumption against review simply does not apply to that type of decision. See ER 18-21; see also Batalla Vidal v. Duke, ___ F. Supp. 3d ____, 2017 WL 5201116, *10-*11 (E.D.N.Y. Nov. 9, 2017) (Batalla Vidal I); State Br. 17-20 (Dkt. 43). Nor does the decision fall into any other category of actions that courts have “traditionally regarded as committed to agency discretion.” Lincoln v. Vigil, 508 U.S. 182, 192 (1993); see State Br. 18-20.
This decision is therefore subject to the normal strong presumption in favor of review. And that presumption is not rebutted here. As every court to consider the question has held, the decision to terminate DACA, based on a legal conclusion regarding the scope of agency authority, is subject to judicially manageable standards of review. See ER 21; NAACP, 2018 WL 1920079, at *16-*17; Casa de Md. v. DHS, 284 F. Supp. 3d 758, 770 (D. Md. 2018); Batalla Vidal I, 2017 WL 5201116, at *10; State Br. 17-20.
2. Even if the decision to terminate DACA were of a type presumed to be unreviewable under Chaney, see NAACP, 2018 WL 1920079, at *12-*14, it would fall within a well-settled exception to that presumption. Chaney itself suggested that its presumption might not apply to an agency’s action (or inaction) “based solely on the belief that it lacks jurisdiction.” 470 U.S. at 833 n.4. And in
2

Montana Air this Court reached that question and expressly adopted the exception suggested by Chaney. Montana Air held that Chaney’s presumption against review did not apply where an agency’s refusal to initiate an enforcement action was apparently based on a conclusion that it “lacked jurisdiction” to do so. Montana Air, 898 F.2d at 757; State Br. 19, 27.
If defendants’ decision to terminate DACA were subject to Chaney, the jurisdictional exception recognized in Montana Air would apply here. Defendants assert that they rescinded DACA because it “was effectuated . . . without proper statutory authority.” ER 176; see ER 129-130; AOB 38. There is no material difference between an agency’s refusal to act based “on the belief that it lacks jurisdiction,” Montana Air, 898 F.2d at 756, and a decision to rescind a program based on a conclusion that the agency lacks statutory authority to continue it. An “agency’s interpretation of . . . the scope of [its] statutory authority” is the same as an interpretation of “its jurisdiction.” City of Arlington v. FCC, 569 U.S. 290, 296297 (2013).
Defendants have suggested that Montana Air’s analysis is foreclosed by a passage in ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987) (BLE). See ARRB 9 n.2; see also Crowley, 37 F.3d at 676.1 But Montana Air was
1 “ARRB” refers to appellants’ response and reply brief (Dkt. 134); “AOB” refers to appellants’ opening brief (Dkt. 31).
3

decided three years after BLE. A three-judge panel is not “free to revisit” a
decision of this Court based on Supreme Court authority pre-dating that decision.
United States v. Mandel, 914 F.2d 1215, 1221 (9th Cir. 1990). Montana Air thus
remains “binding precedent which can only be overruled on en banc rehearing.” Id.2
In any event, BLE does not address the question reserved in Chaney and
decided in Montana Air. Indeed, BLE did not involve a non-enforcement decision
subject to Chaney. It involved an agency’s discretionary refusal to re-open a prior
proceeding to consider a renewed argument that the agency’s underlying decision
was erroneous, and it held that such a refusal was traditionally unreviewable. BLE,
482 U.S. at 282. Although the Court briefly discussed Chaney, see id., it had no
occasion to consider the question reserved in that case concerning reviewability of
an agency decision based on an asserted lack of jurisdiction. There is no indication
that the Court intended BLE to resolve, or even comment on, that question.
2 A district court in this Circuit once suggested that Montana Air might have been overruled on a different point by Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004). See Idaho Rivers United v. U.S. Forest Serv., 857 F. Supp. 2d 1020, 1031 (D. Idaho 2012). But the same court later held that Montana Air was not overruled. See Idaho Rivers United v. U.S. Forest Serv., 2013 WL 474851, *6 (D. Idaho Feb. 7, 2013). Significantly, Southern Utah did not involve 5 U.S.C. § 701(a)(2); it instead addressed the requirement that claims under 5 U.S.C. § 706(1) must assert a failure to take a discrete agency action that is required by law. See 542 U.S. at 64.
4

Cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (Scalia, J.) (“We have often said that drive-by jurisdictional rulings of this sort (if Gwaltney can even be called a ruling on the point rather than a dictum) have no precedential effect.”); NAACP, 2018 WL 1920079, at *15.
Nor does the passage in BLE invoked by defendants undermine Montana Air. The passage responds to an argument that the refusal to re-open in BLE was reviewable because the agency’s order included a lengthy discussion of the underlying merits. See BLE, 482 U.S. at 289-291 (Stevens, J., concurring in the judgment); id. at 276 (majority opn.) (describing agency order). It rejects “the principle that if the agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.” Id. at 283. The Court draws an analogy to the exercise of prosecutorial discretion in particular cases, noting that a “refusal to prosecute cannot be the subject of judicial review” even if “a common reason for failure to prosecute an alleged criminal violation is the prosecutor’s belief (sometimes publicly stated) that the law will not sustain a conviction.” Id.; cf. Montana Air, 898 F.2d at 757 (“we would be compelled to deny review” if the agency had “determined after passing on the merits of the union’s contention that the facts did not justify issuance of a complaint”).
The point of this passage is that when an agency considering a particular case makes a discretionary and otherwise unreviewable decision, the decision does not
5

become reviewable simply because the agency chooses to proffer an explanation for how it has exercised its discretion. See AOB 23. The denial of the petition to re-open in BLE was wholly discretionary and traditionally unreviewable, and thus was “committed to agency discretion by law” no matter what the agency thought or chose to say about the merits. BLE, 482 U.S. at 282. There is no tension between that conclusion and Montana Air, which holds that an agency action that might be unreviewable if made as an exercise of discretion is reviewable if it is based instead “solely on the belief that [the agency] lacks jurisdiction.” 898 F.2d at 756. Where an agency makes a decision not to act based on a professed belief that it lacks authority to do so, by definition it is not exercising any discretion that has been committed to it by law. On the contrary, it is asserting that the law has left it with no discretion. See id. at 757 (the agency “did not exercise [its] discretion” because it “believed [it] was prevented from issuing a complaint”). That is what defendants did here when they rescinded DACA based on a stated conclusion that the program was “unlawful.” AOB 38; ER 129-130, 176.3
An agency assertion that the law puts a particular action or program outside the scope of the agency’s authority or discretion is properly subject to judicial
3 An analogous decision in the setting of BLE would have been an order concluding that the agency had no legal authority to grant a motion to reopen. Nothing in BLE suggests that the Court would have held such an order unreviewable.
6

review. To be sure, agency action resting on “an exercise of judgment in an area which Congress has entrusted to the agency . . . must not be set aside because the reviewing court might have made a different determination were it empowered to do so.” SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (Chenery I ). But where an agency decision is based instead on a conclusion that Congress has not entrusted a particular decision to the agency’s judgment, it is entirely appropriate—indeed, necessary—for the courts to review that conclusion. If the agency’s position on the scope of its authority is adequately supported, its decision will stand. If not, the agency will be empowered to make (and be required to take responsibility for) whatever judgments Congress intended to commit to its discretion, “free of [any] mistaken legal premise” regarding the scope of its authority. Negusie v. Holder, 555 U.S. 511, 516 (2009); cf. Montana Air, 898 F.2d at 763 (remanding for agency “to exercise [its] discretion” based on a proper understanding of its authority).
3. Finally, Crowley and NAACP establish that the decision to terminate DACA would be reviewable even apart from Montana Air’s exception for decisions based on conclusions about an agency’s jurisdiction or legal authority.
In Crowley, the D.C. Circuit held that Chaney’s presumption against review applied to the Maritime Administration’s decision not to initiate an enforcement action challenging particular conduct by a regulated party, where the agency had concluded that the conduct was not unlawful. 37 F.3d at 672-673. In reaching that
7

holding, the court reasoned that BLE foreclosed applying any exception to Chaney based on agency conclusions about jurisdiction or legal authority in the context of a “single-shot non-enforcement decision.” Id. at 676; see id. at 675-676; NAACP, 2018 WL 1920079, at *11-*12.4 But Crowley “was careful to preserve another line of circuit precedent” holding “that Chaney’s presumption of unreviewability does not apply to ‘an agency’s announcement of its interpretation of a statute’” that is made in the context of “‘an agency’s statement of a general enforcement policy.’” NAACP, 2018 WL 1920079, at *12 (quoting Edison Elec. Inst. v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993), and Crowley, 37 F.3d at 676).5 Applying that exception, the D.C. Circuit later held that Chaney’s presumption did not apply to the Maritime Administration’s general policy of refusing to enforce a statutory provision against certain vessels, where that policy was based on a determination
4 But see Ass’n of Irritated Residents v. EPA, 494 F.3d 1027, 1036 (D.C. Cir. 2007) (noting the “possible exception to the rule of Chaney” but concluding that there is no “concern in this case that EPA has declined to enforce the Acts because it falsely believes that it lacks jurisdiction”). 5 As NAACP recognized, see 2018 WL 1920079, at *13, some language in the D.C. Circuit’s cases suggests that this reasoning extends to all general enforcement policies. See, e.g., OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998) (“[A]n agency’s adoption of a general enforcement policy is subject to review.”).
8

that the vessels were not in violation of the law as the agency construed it. See OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 811-812 (D.C. Cir. 1998).6
The D.C. Circuit has identified “ample reasons for distinguishing” between one-time, “single-shot” decisions not to take a particular enforcement action and general enforcement policies that an agency may adopt. Crowley, 37 F.3d at 677; cf. ER 19-21; State Br. 22-24. Among other things, general statements of enforcement policy typically present “a clearer (and more easily reviewable) statement of [an agency’s] reasons for acting” than individual non-enforcement decisions. Crowley, 37 F.3d at 677. And general statements of enforcement policy are “more likely to be direct interpretations of the commands of the substantive statute than the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision and that are, as Chaney recognizes, peculiarly within the agency’s expertise and discretion.” Id.; see generally NAACP, 2018 WL 1920079, at *12.
6 This Court adopted a similar position in Montana Air (in addition to the agencyjurisdiction point discussed above). See Montana Air, 898 F.2d at 756 (“[A]n agency’s statutory interpretations made in the course of nonenforcement decisions are reviewable.”) (citing Int’l Union, United Auto., Aerospace, & Agric. Implement Workers v. Brock, 783 F.2d 237, 245 (D.C. Cir. 1986)). Montana Air did not expressly distinguish between general enforcement policies and one-time nonenforcement decisions, as the D.C. Circuit has.
9

In NAACP, Judge Bates applied this distinction between “single-shot” nonenforcement decisions and general enforcement policies to defendants’ rescission of DACA. He viewed the rescission as, for these purposes, “a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted.” NAACP, 2018 WL 1920079, at *17. Chaney’s presumption against review does not apply to such a policy. Id.
Defendants argued in NAACP that the rescission of DACA does not come within the reasoning of Crowley because the rescission memorandum “‘does not contain an embedded interpretation of the INA (or any other statute).’” NAACP, 2018 WL 1920079, at *14. They have made the same argument in this case, reasoning that the decision to rescind DACA did not “directly interpret the INA’s provisions governing the primary conduct of aliens or other parties,” but instead addressed the “INA’s constraints on [the Secretary’s] enforcement discretion to maintain DACA.” ARRB 8-9; see also AOB 20 n.5. As Judge Bates explained, however, that is a “distinction without a difference.” NAACP, 2018 WL 1920079, at *14. The letter from Attorney General Sessions “makes clear that DACA’s rescission was based (at least in significant part) on the Attorney General’s view that the program lacked ‘proper statutory authority.’” Id. The conclusion that an agency action is “‘without statutory authority’” is just another way of saying that “no statutory provision authorizes that action.” Id. And there is no “meaningful
10

difference between an agency’s conclusion that it lacks statutory authority and its interpretation of a specific statutory provision.” Id.; see City of Arlington, 569 U.S. at 297.
Judge Bates also properly rejected defendants’ argument based on BLE. See NAACP, 2018 WL 1920079, at *15. He noted that “BLE addressed the reviewability of enforcement decisions only in dictum; its actual holding concerned the reviewability of an agency’s refusal to reconsider a prior decision.” Id. Moreover, the passage on which defendants rely “concerned a prosecutor’s decision not to bring a single criminal charge,” and is best understood as referring only to “individual non-enforcement decisions.” Id. (citing Crowley, 37 F.3d at 676-677).
Finally, in NAACP defendants contended that the decision to rescind DACA was unreviewable because it was based not only on “illegality” but also on an “assessment of what the government now calls ‘litigation risk.’” 2018 WL 1920079, at *15. Unlike the district court in this case and the Eastern District of New York, Judge Bates concluded that the “litigation risk” rationale was not entirely post hoc; but he nonetheless held that the decision remained reviewable under Crowley. See NAACP, 2018 WL 1920079, at *16, *22.7 The “litigation-risk
7 See also ER 38-39; Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 429-430 (E.D.N.Y. 2018) (Batalla Vidal II ); State Br. 53-54.
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justification was too closely bound up with [defendants’] evaluation of DACA’s legality to trigger Chaney’s presumption of unreviewability.” Id. at *16. And the Crowley/OSG rule allowing review of legal interpretations stated or reflected in general enforcement policies “would be seriously undermined if an agency could insulate from judicial review any legal interpretation stated as a general enforcement policy simply by pointing to one case where one court tentatively agreed with the agency on a similar legal issue,” as defendants seek to do in this case. Id.
* * * Four different federal courts have now considered whether 5 U.S.C. § 701(a)(2) bars review of defendants’ termination of DACA. Each court has concluded that it does not. See ER 18-21; Batalla Vidal I, 2017 WL 5201116, at *9-*12; Casa de Maryland, 284 F. Supp. 3d at 770; NAACP, 2018 WL 1920079, at *16-*17. Although they took somewhat different analytical paths, each court relied on the fact that the rescission of DACA was based on an asserted legal conclusion that the program is unlawful. No one disputes that this legal conclusion is subject to judicially manageable standards of review. Indeed, reviewing such questions “is a quintessential role of the courts.” ER 21. Defendants chose to explain their decision to terminate a program that has become essential to the lives and futures of hundreds of thousands of young
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Americans by asserting that they have no lawful power, and thus no discretion, to maintain it. That legal assertion is subject to judicial review under the APA. Defendants “cannot claim that the law ties [their] hands while at the same time denying the courts’ power to unbind” them. NAACP, 2018 WL 1920079, at *28. They “may escape political accountability or judicial review, but not both.” Id.
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CONCLUSION The district court’s order granting a preliminary injunction should be affirmed.

Dated: May 11, 2018
BRIAN E. FROSH Attorney General of Maryland Steven M. Sullivan Solicitor General Leah J. Tulin Assistant Attorney General 200 Saint Paul Place, 20th Floor Baltimore, MD 21202 (410) 576-6325 ssullivan@oag.state.md.us Attorneys for the State of Maryland
LORI SWANSON Attorney General of Minnesota Jacob Campion Assistant Attorney General 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 (651) 757-1136 jacob.campion@ag.state.mn.us Attorneys for the State of Minnesota

Respectfully submitted,
XAVIER BECERRA Attorney General of California Edward C. DuMont Solicitor General s/ Michael J. Mongan Michael J. Mongan Deputy Solicitor General Michael L. Newman Supervising Deputy Attorney General James F. Zahradka II Deputy Attorney General Samuel P. Siegel Associate Deputy Solicitor General 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102 (415) 510-3920 michael.mongan@doj.ca.gov Attorneys for the State of California
JANET T. MILLS Attorney General of Maine Susan P. Herman Deputy Attorney General 6 State House Station Augusta, ME 04333 (207) 626-8814 susan.herman@maine.gov Attorneys for the State of Maine

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CERTIFICATE OF COMPLIANCE I certify that this brief complies with the requirements of Federal Rules of Appellate Procedure 32(a)(5)-(6) and this Court’s supplemental briefing order (Dkt. 157) because it uses a proportionately spaced Times New Roman font, has a typeface of 14 points, is double-spaced, and is 14 pages long.

Dated: May 11, 2018

s/ Michael J. Mongan

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CERTIFICATE OF SERVICE I certify that on May 11, 2018, I electronically filed the foregoing document with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all other participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: May 11, 2018

s/ Michael J. Mongan

 
 Case: 18-15068, 11/08/2018, ID: 11081386, DktEntry: 199-1, Page 1 of 99

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, in her official capacity as President of the University of California,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellants.

No. 18-15068
D.C. No. 3:17-cv-05211-WHA

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REGENTS OF THE UNIV. OF CAL. V. USDHS

STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA,
Defendants-Appellants.

No. 18-15069
D.C. No. 3:17-cv-05235-WHA

CITY OF SAN JOSE, Plaintiff-Appellee,
v.
DONALD J. TRUMP, President of the United States, in his official capacity; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA,
Defendants-Appellants.

No. 18-15070
D.C. No. 3:17-cv-05329-WHA

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DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellants.

No. 18-15071
D.C. No. 3:17-cv-05380-WHA

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COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; JEFFERSON B. SESSIONS III, Attorney General; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY,
Defendants-Appellants.

No. 18-15072
D.C. No. 3:17-cv-05813-WHA

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REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, in her official capacity as President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ; COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellants.

No. 18-15128
D.C. Nos. 3:17-cv-05211-WHA 3:17-cv-05235-WHA 3:17-cv-05329-WHA 3:17-cv-05380-WHA 3:17-cv-05813-WHA

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6

REGENTS OF THE UNIV. OF CAL. V. USDHS

REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, in her official capacity as President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellees.

No. 18-15133
D.C. Nos. 3:17-cv-05211-WHA 3:17-cv-05235-WHA 3:17-cv-05329-WHA 3:17-cv-05380-WHA 3:17-cv-05813-WHA

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REGENTS OF THE UNIV. OF CAL. V. USDHS

7

DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; NORMA RAMIREZ; JIRAYUT LATTHIVONGSKORN; COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellees.

No. 18-15134
D.C. Nos. 3:17-cv-05211-WHA 3:17-cv-05235-WHA 3:17-cv-05329-WHA 3:17-cv-05380-WHA 3:17-cv-05813-WHA
OPINION

Appeal from the United States District Court for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted May 15, 2018 Pasadena, California
Filed November 8, 2018

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Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw; Concurrence by Judge Owens

SUMMARY*

Immigration
In an action challenging the Department of Homeland Security’s rescission of Deferred Action for Childhood Arrivals (DACA), the panel affirmed the district court’s grant of preliminary injunctive relief, and affirmed in part the district court’s partial grant and partial denial of the government’s motion to dismiss for failure to state a claim.
Begun in 2012, DACA allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action—a revocable decision by the government not to deport an otherwise removable person from the country. In 2014, Secretary of Homeland Security Jeh Johnson issued a memorandum that announced the related Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA. All of the policies outlined in the 2014
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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Johnson memorandum were enjoined nationwide in a district court order upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court. After a new presidential administration took office, Acting Secretary of Homeland Security Elaine Duke issued a memorandum in September 2017 rescinding DACA.
Suits were filed in the Northern District of California by the Regents of the University of California, a group of states led by California, the City of San Jose, the County of Santa Clara and Service Employees International Union Local 521, and a group of individual DACA recipients led by Dulce Garcia. The cases were consolidated, and the district court ordered the government to complete the administrative record. Seeking to avoid providing additional documents, the government filed a petition for mandamus, which this court denied. The government petitioned the Supreme Court for the same mandamus relief; the Court did not reach the merits of the administrative record dispute, but instructed the district court to rule on the government’s threshold arguments challenging reviewability of its rescission decision. The district court entered a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients, and the court partially granted and partially denied the government’s motion to dismiss.
The panel held that neither the Administrative Procedure Act nor the Immigration and Nationality Act (INA) barred judicial review of the decision to rescind DACA. With respect to the APA, the panel reviewed the cases of Heckler v. Chaney, 470 U.S. 821 (1985), Montana Air Chapter No. 29 v. Federal Labor Relations Authority, 898 F.2d 753 (9th Cir. 1990), and City of Arlington v. FCC, 569 U.S. 290 (2013). The panel concluded that, where the agency’s decision is based not on an exercise of discretion, but instead

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on a belief that any alternative choice was foreclosed by law because the agency lacked authority, the APA’s “committed to agency discretion” bar to reviewability, 5 U.S.C. § 701(a)(2), does not apply. The panel also concluded that the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. Accordingly, the panel determined that the rescission was within the realm of agency actions reviewable under the APA.
With respect to the INA, the panel rejected the government’s contention that review was barred by 8 U.S.C. § 1252(g), which precludes judicial review of “any cause or claim by or on behalf of any alien arising from the decision or action of the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders.” The panel explained that, under Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999), the rescission does not fall within the three discrete actions mentioned in 8 U.S.C. § 1252(g).
Having concluded that neither the APA nor the INA precludes judicial review, the panel turned to the merits of the preliminary injunction and considered whether the agency was correct in concluding that DACA was unlawful. The Attorney General’s primary bases for concluding that DACA was illegal were that the program was “effectuated . . . without proper statutory authority” and that it amounted to “an unconstitutional exercise of authority.” More specifically, the Attorney General asserted that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA” in the Fifth Circuit litigation. The panel considered the DAPA litigation, comparing aspects of DAPA and DACA, and concluded that that DACA was a permissible exercise of executive discretion,

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notwithstanding the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s statutory authority. Thus, the panel concluded that, because the Acting Secretary was incorrect in her belief that DACA was illegal and had to be rescinded, plaintiffs are likely to succeed in demonstrating that the rescission must be set aside under the APA as arbitrary and capricious.
The panel next concluded that the district court did not abuse its discretion in issuing a nationwide injunction, noting that such relief is commonplace in APA cases, promotes uniformity in immigration enforcement, and is necessary to provide the plaintiffs here with complete redress.
Finally, addressing the district court’s order granting in part and denying in part the government’s motion to dismiss, the court concluded that the district court properly dismissed plaintiffs’ APA notice-and-comment claim, and their claim that the DACA rescission violates their substantive due process rights. The panel further concluded that the district court also properly denied the government’s motion to dismiss plaintiffs’ APA arbitrary-and-capricious claim, their claim that the new information-sharing policy violates their due process rights, and their claim that the DACA rescission violates their right to equal protection.
Concurring in the judgment, Judge Owens wrote that, as he believed the Plaintiffs’ Equal Protection claim has some likelihood of success on the merits, he concurred in the judgment affirming the preliminary injunction. However, Judge Owens disagreed with the majority’s conclusion that otherwise unreviewable agency action is reviewable when the agency justifies its action by reference to its understanding of its jurisdiction. Therefore, Judge Owens would hold that § 701(a)(2) precludes the court from

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subjecting DACA’s rescission to arbitrary-and-capricious review. Judge Owens would also affirm the preliminary injunction and remand for consideration whether Plaintiffs have demonstrated a likelihood of success on the merits of their Equal Protection claim.
As for the government’s appeal from the motions to dismiss, Judge Owens dissented from the majority’s holding to affirm the district court’s denial of the motion to dismiss Plaintiffs’ APA arbitrary-and-capricious claim. However, he concurred in the majority’s holding to affirm the district court’s dismissal of Plaintiffs’ APA notice-and-comment claim. He also concurred in the judgment to affirm the district court’s ruling on Plaintiffs’ Due Process claims. He also agreed with the majority’s decision to affirm the district court’s denial of the motion to dismiss the Equal Protection claim and hold that the Equal Protection claim offers an alternative ground to affirm the preliminary injunction.

COUNSEL
Hashim M. Mooppan (argued), Deputy Assistant Attorney General; Thomas Pulham, Abby C. Wright, and Mark B. Stern, Appellate Staff; Alex G. Tse, Acting United States Attorney; Chad A. Readler, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Michael J. Mongan (argued), Deputy Solicitor General; Samuel P. Siegel, Associate Deputy Solicitor General; James F. Zahradka II, Deputy Attorney General; Michael L. Newman, Supervising Deputy Attorney General; Edward C. DuMont, Solicitor General; Xavier Becerra, Attorney

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General; Office of the Attorney General, San Francisco, California; for Plaintiff-Appellee State of California.

Susan P. Herman, Deputy Attorney General; Janet T. Mills, Attorney General; Office of the Attorney General, Augusta, Maine; for Plaintiff-Appellee State of Maine.

Jacob Campion, Assistant Attorney General; Lori Swanson, Attorney General; Office of the Attorney General, St. Paul, Minnesota; for Plaintiff-Appellee State of Minnesota.

Leah J. Tullin, Assistant Attorney General; Steven M. Sullivan, Solicitor General; Brian E. Frosh, Attorney General; Attorney General’s Office, Baltimore, Maryland; for Plaintiff-Appellee State of Maryland.

Jeffrey Michael Davidson (argued), Breanna K. Jones, David S. Watnick, Erika Douglas, and Mónica Ramírez Almadani, Covington & Burling LLP, San Francisco, California; Ivano M. Ventresca, Megan A. Crowley, Alexander A. Berengaut, Mark H. Lynch, and Robert A. Long, Covington & Burling LLP, Washington, D.C.; for Plaintiff-Appellee The Regents of the University of California, et al.

Brian Danitz, Tamarah Prevost, and Justin T. Berger, Cotchett Pitre & McCarthy LLP, Burlingame, California, for Plaintiff-Appellee City of San José.

Mark D. Rosenbaum (argued), Malhar Shah, and Judy London, Public Counsel, Los Angeles, California; Haley S. Morrisson, Matthew S. Rozen, and Nicole A. Saharsky, Gibson Dunn & Crutcher LLP, Washington, D.C.; Kelsey J. Helland, Jonathan N. Soleimani, Kirsten Galler, Ethan D. Dettmer, and Theodore J. Boutrous Jr., Gibson Dunn &

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Crutcher LLP, Los Angeles, California; Luis Cortes Romera, Barrera Legal Group PLLC, Kent, Washington; Erwin Chemerinsky, Berkeley, California; Laurence H. Tribe, Cambridge, Massachusetts; Leah M. Litman, Irvine, California; for Plaintiffs-Appellees Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Virdiana Chabolla Mendoza, Norma Ramirez, and Jirayut Latthivongskorn.

Andrew Kushner, Eric P. Brown, and Stacey M. Leyton, Altshuler Berzon LLP, San Francisco, California, for Plaintiff-Appellee County of Santa Clara and Service Employees International Union Local 521.

Marcelo Quiñones, Laura S. Trice, Greta S. Hansen, and James R. Williams, Office of the County Counsel, County of Santa Clara, San Jose, California, for Plaintiff-Appellee County of Santa Clara.

Jessica Levin, Melissa Lee, Lorraine K. Bannai, and Robert S. Chang, Ronald A. Peterson Law Clinic, Seattle University School of Law, Seattle, Washington, for Amici Curiae 42 Historians and the Fred T. Korematsu Center for Law and Equality.

Leo Gertner, Deborah L. Smith, and Nicole G. Berner, Service Employees International Union, Washington, D.C.; Deepak Gupta, Gupta Wessler PLLC, Washington, D.C.; David J. Strom, American Federation of Teachers, Washington, D.C.; Judith Rivlin, American Federation of State, County, and Municipal Employees, Washington, D.C.; Patricia M. Shea, Communications Workers of America, Washington, D.C.; Bradley Raymond, International Brotherhood of Teamsters, Washington, D.C.; Joseph E. Kolick Jr., International Union of Painters and Allied Trades, Hanover, Maryland; Mario Martínez,

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Martínez Aguilasocho & Lynch APLC, Bakersfield, California; for Amici Curiae Service Employees International Union; American Federation of Teachers; American Federation of State, County and Municipal Employees; Communications Workers of America; International Brotherhood of Teamsters; International Union of Painters and Allied Trades; and United Farm Workers of America.

Geoffrey S. Brounell and Peter Karanjia, Davis Wright Tremaine LLP, Washington, D.C., for Amicus Curiae United We Dream.

Sean Goldhammer, Lubna A, Alam, Jason Walta, Emma Leheny, and Alice O’Brien, National Education Association, Washington, D.C.; Andra M. Donovan, San Diego Unified School District, San Diego, California; Abhas Hajela, Capitol Advisors Group LLC, Sacramento, California; Eric E. Stevens, Girard Edwards Stevens & Tucker LLP, Sacramento, California; Kathryn M. Sheffield, California Faculty Association, Sacramento, California; Glenn Rothner, Rothner Segall & Greenstone, Pasadena, California; D. Michael Ambrose and Elaine M. YamaGarcia, California School Boards Association Education Legal Alliance, Sacramento, California; Jean Shin and Laura P. Juran, California Teachers Association, Burlingame, California; Vibiana M. Andrade, Los Angeles County Office of Education, Downey, California; Devora Navera Reed and David Holmquist, Los Angeles Unified School District, Los Angeles, California; Sonja H. Trainor and Francisco Negrón, National School Boards Association, Alexandria, Virginia; Michael L. Smith, Oakland Unified School District, Oakland, California; Raoul Bozio, Sacramento City Unified School District, Sacramento, California; for Amici Curiae Public Education Groups.

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Caryn C. Lederer, Chirag G. Badlani, and Matthew J. Piers, Hughes Socol Piers Resnick & Dym Ltd., Chicago, Illinois; Daniel B. Rice and Joshua A. Geltzer, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center, Washington, D.C.; for Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders.

Zachary Kolodin, Michael N. Fresco, Adeel A. Mangi, and Steven A. Zalesin, Patterson Belknap Webb & Tyler LLP, New York, New York; Juvaria Khan, Sirine Shebaya, and Jonathan Smith, Muslim Advocates, Washington, D.C.; for Amici Curiae 119 Religious Organizations.

Jennifer J. Yun, Ishan Bhabha, Lindsay C. Harrison, and Thomas J. Perrelli, Jenner & Block LLP, Washington, D.C., for Amici Curiae Institutions of Higher Education.

Jennifer B. Sokoler and Anton Metlitsky, O’Melveny & Myers LLP, New York, New York, for Amicus Curiae Eighteen Universities.

Lauren R. Goldman and Karen W. Lin, Mayer Brown LLP, New York, New York; Andrew J. Pincus, Mayer Brown LLP, Washington, D.C.; Ari Holzblatt, Patrick J. Carome, and Seth Waxman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; for Amici Curiae 102 Companies and Associations.

John-Paul S. Deol and Daniel J. McCoy, Fenwick & West LLP, Mountain View, California; Mark S. Ross, James L. McGinnis, and Neil A.F. Popović, Sheppard Mullin Richter & Hampton LLP, San Francisco, California; for Amicus Curiae The Bar Association of San Francisco.

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Juan P. Valdivieso, Boies Schiller Flexner LLP, Oakland, California; Albert Giang, Boies Schiller Flexner LLP, Los Angeles, California; J. Wells Harrell and Joshua Riley, Boies Schiller Flexner LLP, Washington, D.C.; for Amici Curiae Former Federal Immigration and Homeland Security Officials.

Kaitland M. Kennelly and William J. Schwartz, Cooley LLP, New York, New York, for Amici Curiae Partnership for Educational Justice, DelawareCAN: The Delaware Campaign for Achievement Now, HawaiiKidsCAN, NewMexicoKidsCAN, and Virginia Excels.

Matthew Scherb, Michael Dundas, Valerie L. Flores, Leela A. Kapur, James P. Clark, and Michael N. Feuer, City Attorney, Office of the City Attorney, Los Angeles, California; Donna R. Ziegler, Alameda County Counsel, Oakland, California; Anne L. Morgan, City Attorney, Austin, Texas; Eugene O’Flaherty, City Corporation Counsel, Boston, Massachusetts; Cheryl Watson Fisher, City Solicitor, Chelsea, Massachusetts; Kimberly M. Foxx, States Attorney for Cook County, Chicago, Illinois; Jeremy Berry, City Attorney, Atlanta, Georgia; Farimah F. Brown, City Attorney, Berkeley, California; Nancy E. Glowa, City Solicitor, Cambridge, Massachusetts; Edward N. Siskel, City Corporation Counsel, Chicago, Illinois; Larry E. Casto, City Attorney, Dallas, Texas; Kristin M. Bronson, City Attorney of the City and County of Denver, Denver, Colorado; Gregory L. Thomas, City Attorney, Gary, Indiana; Ronald C. Lewis, City Attorney, Houston, Texas; Eleanor M. Dilkes, City Attorney, Iowa City, Iowa; Jennifer Vega-Brown, City Attorney, Las Cruces, New Mexico; Karl A. Racine, Attorney General, District of Colombia, Washington, D.C.; Donna Y. L. Leong, Corporation Counsel, Honolulu, Hawaii; Aaron O. Lavine, City

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Attorney, Ithaca, New York; Daniel T. Satterberg, King County Prosecuting Attorney, Seattle, Washington; Charles Parkin, City Attorney, Long Beach, California; Margaret L. Carter, O’Melveny & Myers LLP, Los Angeles, California; Susan Segal, City Attorney, Minneapolis, Minnesota; John Rose Jr., Corporation Counsel, New Haven, Connecticut; Barbara J. Parker, City Attorney, Oakland, California; Tracy P. Reeve, City Attorney, Portland, Oregon; Michael P. May, City Attorney, Madison, Wisconsin; Charles J. McKee, Monterey County Counsel, Salinas, California; Zachary W. Carter, City Corporation Counsel, New York, New York; Marcel S. Pratt, Acting City Solicitor, Philadelphia, Pennsylvania; Jeffrey Dana, City Solicitor, Providence, Rhode Island; Timothy R. Curtin, City Corporation Counsel, Rochester, New York; Dennis J. Herrera, City Attorney for the City and County of San Francisco, San Francisco, California; Lane Dilg, City Attorney, Santa Monica, California; Francis X. Wright Jr., City Solicitor, Somerville, Massachusetts; Matthew D. Ruyak, Interim City Attorney, Sacramento, California; Kelley A. Brennan, City Attorney, Santa Fe, New Mexico; Peter S. Holmes, City Attorney; Seattle, Washington; Mike Rankin, City Attorney, Tucson, Arizona; Michael Jenkins, West Hollywood City Attorney, Jenkins & Hogan LLP, Manhattan Beach, California; John Daniel Reaves, General Counsel, The U.S. Conference of Mayors, Washington, D.C.; for Amici Curiae 40 Cities and Counties, The National League of Cities, and The United States Conference of Mayors.

Jennifer Chang Newell and Katrina L. Eiland, ACLU Foundation Immigrants’ Rights Project, San Francisco, California; David Hausman, Michael K.T. Tan, and Lee Gelernt, ACLU Foundation Immigrants’ Rights Project, New York, New York; Julia Harumi Mass, ACLU Foundation of Northern California, San Francisco,

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California; Ahilan T. Arulanantham, ACLU Foundation of Southern California, Los Angeles, California; David Loy, ACLU Foundation of San Diego & Imperial Counties, San Diego, California; for Amici Curiae American Civil Liberties Union Foundation, ACLU Foundation of Northern California, ACLU Foundation of Southern California, and ACLU Foundation of San Diego & Imperial Counties.

Claire M. Blakey, Johanna S. Dennehy, and Harry Lee, Steptoe & Johnson LLP, Washington, D.C.; Christopher W. Smith, Steptoe & Johnson, Los Angeles, California; for Amici Curiae Immigration Law Scholars.

Avi Zevin, Jack Lienke, and Richard L. Revesz, Institute for Policy Integrity, New York, New York, for Amicus Curiae Institute for Policy Integrity at New York University School of Law.

Anna-Rose Mathieson and Ben Feuer, California Appellate Law Group LLP, San Francisco, California; Daniel Hemel, Chicago, Illinois; Seth Davis, Irvine, California; for Amici Curiae Twenty-Four Law Professors.

Philicia Hill, Dorian Spence, Dariely Rodriguez, and Jon Greenbaum, The Lawyers’ Committee for Civil Rights Under Law, Washington, D.C.; Sameer P. Sheikh, Martin L. Saad, John F. Cooney, and William D. Coston, Venable LLP, Washington, D.C.; for Amici Curiae The Lawyers’ Committee for Civil Rights Under Law, Anti-Defamation League, and Social Justice Organizations.

Joan R. Li, Kara C. Wilson, Monique R. Sherman, and Maureen P. Alger, Cooley LLP, Palo Alto, California, for Amici Curiae Legal Services Organizations.

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Mary Kelley Persyn, Persyn Law & Policy, San Francisco, California, for Amici Curiae American Professional Society on the Abuse of Children and California Professional Society on the Abuse of Children.

Christopher J. Hajec, Immigration Reform Law Institute, Washington, D.C., for Amicus Curiae The Immigration Reform Law Institute.

OPINION
WARDLAW, Circuit Judge:
It is no hyperbole to say that Dulce Garcia embodies the American dream. Born into poverty, Garcia and her parents shared a San Diego house with other families to save money on rent; she was even homeless for a time as a child. But she studied hard and excelled academically in high school. When her family could not afford to send her to the top university where she had been accepted, Garcia enrolled in a local community college and ultimately put herself through a four-year university, where she again excelled while working full-time as a legal assistant. She then was awarded a scholarship that, together with her mother’s life savings, enabled her to fulfill her longstanding dream of attending and graduating from law school. Today, Garcia maintains a thriving legal practice in San Diego, where she represents members of underserved communities in civil, criminal, and immigration proceedings.
On the surface, Dulce Garcia appears no different from any other productive—indeed, inspiring—young American. But one thing sets her apart. Garcia’s parents brought her to this country in violation of United States immigration laws

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when she was four years old. Though the United States of America is the only home she has ever known, Dulce Garcia is an undocumented immigrant.
Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions. Known as Deferred Action for Childhood Arrivals, or DACA, the program allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action—a revocable decision by the government not to deport an otherwise removable person from the country. DACA also allows recipients to apply for authorization to work in this country legally, paying taxes and operating in the aboveground economy. Garcia, along with hundreds of thousands of other young people, trusting the government to honor its promises, leapt at the opportunity.
But after a change in presidential administrations, in 2017 the government moved to end the DACA program. Why? According to the Acting Secretary of Homeland Security, upon the legal advice of the Attorney General, DACA was illegal from its inception, and therefore could no longer continue in effect. And after Dulce Garcia—along with other DACA recipients and affected states, municipalities, and organizations—challenged this conclusion in the federal courts, the government adopted the position that its fundamentally legal determination that DACA is unlawful is unreviewable by the judicial branch.

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With due respect for the Executive Branch, we disagree. The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose “province and duty” it is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The government’s decision to rescind DACA is subject to judicial review. And, upon review, we conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA—at least as justified on this record—is arbitrary, capricious, or otherwise not in accordance with law. We therefore affirm the district court’s grant of preliminary injunctive relief.1
I.
A. History of Deferred Action
The central benefit available under the DACA program is deferred action. Because much of this dispute revolves around the legitimacy of that practice, we begin by reviewing the Executive Branch’s historical use of deferred action.
The basic concept is a simple one: deferred action is a decision by Executive Branch officials not to pursue deportation proceedings against an individual or class of individuals otherwise eligible for removal from this country. See 6 Charles Gordon et al., Immigration Law & Procedure § 72.03[2][h] (2018) (“To ameliorate a harsh and unjust outcome, the immigration agency may decline to institute proceedings, may terminate proceedings, or may decline to

1 We also affirm in part the district court’s partial grant and partial denial of the government’s motion to dismiss for failure to state a claim.

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execute a final order of deportation. This commendable exercise in administrative discretion . . . is now designated as deferred action.”); Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n.3 (9th Cir. 2001) (“Deferred action refers to an exercise of administrative discretion by the [immigration agency] under which [it] takes no action to proceed against an apparently deportable alien based on a prescribed set of factors generally related to humanitarian grounds.” (internal quotation marks omitted)); Hiroshi Motomura, Immigration Outside the Law 29 (2014) (noting that “deferred action is usually granted only for limited periods of time and does not provide a path to lawful permanent resident status or citizenship”).
Unlike most other forms of relief from deportation, deferred action is not expressly grounded in statute. It arises instead from the Executive’s inherent authority to allocate resources and prioritize cases. Cf. 6 U.S.C. § 202(5) (charging the Secretary of Homeland Security with “[e]stablishing national immigration enforcement policies and priorities”). As such, recipients of deferred action “enjoy no formal immigration status.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 964 (9th Cir. 2017) (Brewer II). But despite its non-statutory origins, Congress has historically recognized the existence of deferred action in amendments to the Immigration and Nationality Act (INA), as well as other statutory enactments. See 8 U.S.C. § 1227(d)(2) (“The denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for . . . deferred action[.]”); REAL ID Act of 2005, Pub. L. No. 109-13, § 202(c)(2), 119 Stat. 231, 313 (2005) (listing proof of “approved deferred action status” as sufficient “evidence of lawful status” for the issuance of a driver’s license). The Supreme Court has also recognized deferred action by name, describing the

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Executive’s “regular practice (which ha[s] come to be known as ‘deferred action’) of exercising discretion for humanitarian reasons or simply for its own convenience.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84 (1999) (AADC). Thus, “it is well settled that the Secretary [of Homeland Security] can exercise deferred action.” Brewer II, 855 F.3d at 967.
Official records of administrative discretion in immigration enforcement date at least back to the turn of the twentieth century, not long after the enactment of the nation’s first general immigration statute in 1882. See Act of Aug. 3, 1882, ch. 376, 22 Stat. 214. A 1909 Department of Justice circular regarding statutorily authorized denaturalization instructed that “as a general rule, good cause is not shown for the institution of proceedings . . . unless some substantial results are to be achieved thereby in the way of betterment of the citizenship of the country.” U.S. Dep’t of Justice, Circular Letter No. 107 (Sept. 20, 1909) (quoted in Memorandum from Sam Bernsen, Gen. Counsel, INS, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion at 4 (Jul. 15, 1976) (Bernsen Memorandum)).
The government’s exercise of deferred action in particular first came to light in the 1970s, as a result of Freedom of Information Act litigation over the government’s efforts to deport John Lennon and Yoko Ono, apparently based on Lennon’s “British conviction for marijuana possession.” Motomura, supra, at 28; see generally Shoba Sivaprasad Wadhia, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases 2–27 (2015). Then known as “nonpriority status,” the practice had been observed in secret within the former Immigration and Naturalization Service (INS) since at least

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the 1950s, but INS officials had publicly denied its existence. See Leon Wildes, The Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of the Freedom of Information Act, 14 San Diego L. Rev. 42, 52–53 (1976); Wadhia, supra, at 16. After the Lennon case revealed the practice, the INS issued its first public guidance on the use of deferred action, stating that “[i]n every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for nonpriority.” Immigration and Naturalization Service, Operations Instructions § 103.1(a)(1)(ii) (1975) (quoted in Wadhia, supra, at 17). Although the 1975 guidance was rescinded in 1997, DHS officials continue to apply the same humanitarian factors in deciding whether to grant an individual deferred action. 6 Gordon et al., supra, § 72.03[2][h] & nn.133–34; see also AADC, 525 U.S. at 484 n.8.
In addition to case-by-case adjudications, the Executive Branch has frequently applied deferred action and related forms of discretionary relief programmatically, to entire classes of otherwise removable noncitizens. Indeed, the Congressional Research Service has compiled a list of twenty-one such “administrative directives on blanket or categorical deferrals of deportation” issued between 1976 and 2011. 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 20–23 (July 13, 2012); see also id. at 9 (“The executive branch has provided blanket or categorical deferrals of deportation numerous times over the years.”).

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To take one early example, in 1956 President Eisenhower extended immigration parole to over thirty thousand Hungarian refugees who were otherwise unable to immigrate to the United States because of restrictive quotas then in existence. See White House Statement on the Termination of the Emergency Program for Hungarian Refugees (Dec. 28, 1957). The power to parole—that is, to allow a noncitizen physically to enter the country, while treating that person as “at the border” for purposes of immigration law—is established by statute, but the version of the INA in existence when President Eisenhower acted did not explicitly authorize programmatic exercises of the parole power.2 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 212(d)(5), 66 Stat. 163, 188. See generally 6 Gordon et al., supra, § 62.01. Subsequent presidents made use of similar categorical parole initiatives. Wadhia, supra, at 30.
Another salient example is the Family Fairness program, established by the Reagan Administration and expanded under President George H.W. Bush. The Immigration Reform and Control Act of 1986 (IRCA) had provided a pathway to legal status for hundreds of thousands of undocumented noncitizens, but did not make any provision for their close relatives unless those individuals separately qualified under the Act’s criteria. See generally 3 Gordon et al., supra, § 38.06. President Reagan’s INS Commissioner interpreted IRCA not to authorize immigration benefits for

2 Indeed, there is evidence that “Congress originally intended that parole would be used on a case-by-case basis on behalf of individual aliens.” Cong. Research Serv., Review of U.S. Refugee Resettlement Programs & Policies 8 (1980); see also S. Rep. No. 89-748, at 17 (1965). The statute was amended in 1980 to expressly prohibit categorical grants of parole. Refugee Act of 1980, Pub. L. No. 96-212, § 203(f), 94 Stat. 102, 108; see 8 U.S.C. § 1182(d)(5).

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anyone outside the statutory criteria, but nevertheless exercised executive discretion to defer the deportation of the minor children of noncitizens legalized under the statute. Alan C. Nelson, Comm’r, INS, Legalization & Family Fairness: An Analysis (Oct. 21, 1987). And in 1990, the INS instituted “significant liberalizations” of the policy by granting one-year periods of extended voluntary departure to children and spouses of individuals legalized under IRCA who could establish admissibility, continuous residency, and a clean criminal record. INS Reverses Family Fairness Policy, 67 No. 6 Interpreter Releases 153 (Feb. 5, 1990); see also 3 Gordon et al., supra, § 38.06. Contemporary estimates by INS officials of the number of people potentially eligible ranged as high as 1.5 million.3 See Immigration Act of 1989 (Part 2): Hearings Before the Subcomm. on Immigration, Refugees & Int’l Law of the H. Comm. on the Judiciary, 101st Cong. 49, 56 (1990) (testimony of Gene McNary, Comm’r, INS). Extended voluntary departure, the mechanism through which these individuals were allowed to remain in the United States is, like deferred action, a creature of executive discretion not specifically authorized by statute. See Hotel & Rest. Emps. Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc) (opinion of Mikva, J.).
Since then, the immigration agency has instituted categorical deferred action programs for self-petitioners under the Violence Against Women Act; applicants for T

3 There is some controversy surrounding this number. See generally Unconstitutionality of Obama’s Executive Actions on Immigration: Hearing Before the House Comm. on the Judiciary, 114th Cong. 84–85 (2015) (written testimony of Professor Stephen H. Legomsky). But even the lowest reported contemporary estimate was that 100,000 people would actually benefit from the program, indicating a major policy initiative. See INS Reverses Family Fairness Policy, supra.

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and U visas (which are issued to victims of human trafficking and of certain crimes, respectively); foreign students unable to fulfill their visa requirements after Hurricane Katrina; and widowed spouses of United States citizens who had been married less than two years. None of these deferred action programs was expressly authorized by statute at the time they were initiated.
B. The DACA Program
DACA was announced in a June 15, 2012, memorandum from Secretary of Homeland Security Janet Napolitano,4 entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” Secretary Napolitano explained that the nation’s immigration laws “are not designed . . . to remove productive young people to countries where they may not have lived or even speak the language,” especially where “many of these young people have already contributed to our country in significant ways,” and, because they were brought here as children, “lacked the intent to violate the law.” She therefore determined that “[p]rosecutorial discretion, which is used in so many other areas, is especially justified here.”
The Napolitano memorandum thus laid out the basic criteria of the DACA program, under which a noncitizen will be considered for a grant of deferred action if he or she:
• came to the United States under the age of sixteen;

4 Napolitano is a party to this appeal in her current capacity as President of the University of California.

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• has continuously resided in the United States for at least five years preceding [June 15, 2012] and is present in the United States on [June 15, 2012];
• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• has not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, nor otherwise poses a threat to national security or public safety; and
• is not above the age of thirty [on June 15, 2012].5
DACA applicants must submit extensive personal information to DHS, along with fees totaling nearly $500. Applicants also submit to biometric screening in which they are photographed and fingerprinted, enabling extensive biographical and biometric background checks. If those checks come back clean, each application is then evaluated for approval by DHS personnel on a case-by-case basis.
If approved into the DACA program, an applicant is granted a renewable two-year term of deferred action— again, “a form of prosecutorial discretion whereby the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the United States.” Brewer II, 855 F.3d at 967. In addition to the deferral of removal itself, pre-existing DHS regulations allow all deferred-action recipients to apply for employment

5 This criterion became known as the “age cap.”

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authorization, enabling them to work legally and pay taxes. 8 U.S.C. § 1324a(h)(3) (empowering the Executive Branch to authorize the employment of noncitizens); 8 C.F.R. § 274a.12(c)(14) (providing that “[a]n alien who has been granted deferred action” is eligible for work authorization upon a showing of “economic necessity for employment”). Indeed, “DACA recipients are required to apply for employment authorization, in keeping with the Executive’s intention that DACA recipients remain ‘productive’ members of society.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062 (9th Cir. 2014) (Brewer I) (emphasis in original). Finally, DHS does not consider deferred-action recipients, including those benefitting from DACA, to accrue “unlawful presence” for purposes of the INA’s reentry bars.6 8 U.S.C. § 1182(a)(9)(B)(ii); see Brewer I, 757 F.3d at 1059.

6 8 U.S.C. §§ 1182(a)(9)(B)(i)(I)–(II) establish a three-year and tenyear bar on admission after specified periods of “unlawful presence.” Additionally, 8 U.S.C. § 1182(a)(9)(C) provides a permanent bar on admission for immigrants who have accrued an aggregate of more than one year of “unlawful presence” and who later attempt to cross the border clandestinely. As the district court noted below, DHS “excludes recipients of deferred action from being ‘unlawfully present’ because their deferred action is considered a period of stay authorized by the government.” Regents of Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1039 (N.D. Cal. 2018). As DHS noted in its DACA Frequently Asked Questions (FAQs), “[f]or 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.” Importantly, however, “deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.”
The FAQs are attached as an exhibit to the Regents complaint, and are cited pervasively throughout the Garcia complaint. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (explaining that for

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In an attempt to build on the success of the DACA program, in 2014 Secretary of Homeland Security Jeh Johnson issued a separate memorandum that both announced the related Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA by (1) removing the age cap, (2) extending the term of deferred-action and related work-authorization grants from two to three years, and (3) moving up the cutoff date by which an applicant must have been in the United States to January 1, 2010. Twenty-six states challenged this extension in federal court, arguing that DAPA is unconstitutional. All of the policies outlined in the Johnson memorandum were enjoined nationwide in a district court order upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court. See United States v. Texas, 136 S. Ct. 2271 (2016); Texas v. United States, 809 F.3d 134 (5th Cir. 2015); Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015); see also Neil v. Biggers, 409 U.S. 188, 192 (1972) (affirmance by an equally divided court has no precedential value). The original DACA program remained in effect.
In 2017, a new presidential administration took office, bringing with it a change in immigration policy. On February 20, 2017, then-Secretary of Homeland Security John Kelly issued a memorandum that set out the

purposes of a motion to dismiss, “[c]ertain written instruments attached to pleadings may be considered part of the pleading. Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s claim.” (internal citation omitted)).

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administration’s new enforcement priorities, stating that “the Department no longer will exempt classes or categories of removable aliens from potential enforcement.” However, the memorandum explicitly left DACA and DAPA in place. In a second memorandum issued June 15, 2017, after “consider[ing] a number of factors, including the preliminary injunction in the [Texas] matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities,” Secretary Kelly rescinded DAPA as an “exercise of [his] discretion.”
Then, on June 28, 2017, Texas Attorney General Ken Paxton wrote to United States Attorney General Jefferson B. Sessions III threatening that if the federal government did not rescind DACA by September 5, 2017, Paxton would amend the complaint in the Texas litigation to challenge DACA as well as DAPA.
On September 4, 2017, the day before Paxton’s deadline, Attorney General Sessions sent his own letter to Acting Secretary of Homeland Security Elaine Duke. The Attorney General’s letter “advise[d] that the Department of Homeland Security . . . should rescind” the DACA memorandum based on his legal opinion that the Department lacked statutory authority to have created DACA in the first place. He wrote:
DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’[s] repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.

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The Attorney General further opined that “[b]ecause the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.”
The very next day, following the Attorney General’s directive, Acting Secretary Duke issued a memorandum rescinding DACA. The memorandum begins with a “Background” section that covers DACA, DAPA, the Texas litigation, Secretary Kelly’s previous memoranda, Texas Attorney General Paxton’s threat, and the Attorney General’s letter. Then, in the section titled “Rescission of the June 15, 2012 DACA Memorandum,” the Duke memorandum states:
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.

The Duke memorandum further states that although DHS would stop accepting initial DACA requests effective immediately, the agency would provide a one-month window in which renewal applications could be filed for current DACA beneficiaries whose benefits were set to expire before March 5, 2018. It also states that DHS would not terminate existing grants of deferred action under DACA

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“solely based on the directives in this memorandum.” Thus, beginning on March 5, 2018, each DACA recipient’s grant of deferred action would be allowed to expire at the end of its two-year term. As of September 4, 2017—the day before the rescission—approximately 689,800 individuals were enrolled in DACA.
C. Procedural History
The rescission of DACA instantly sparked litigation across the country, including the cases on appeal here. Suits were filed in the Northern District of California by the Regents of the University of California, a group of states led by California, the City of San Jose, the County of Santa Clara and Service Employees International Union Local 521, and a group of individual DACA recipients led by Dulce Garcia. The complaints included claims that the rescission was arbitrary and capricious under the Administrative Procedure Act (APA); that it was a substantive rule requiring notice-and-comment rulemaking under the APA; that it violated the due process and equal protection rights protected by the U.S. Constitution; and that DHS was equitably estopped from using the information provided on DACA applications for enforcement purposes. The cases were consolidated before Judge William Alsup in the District Court for the Northern District of California and proceeded to litigation.
On October 17, 2017, the district court ordered the government to complete the administrative record, holding that the record proffered by the government was incomplete in several respects. Seeking to avoid providing additional documents, the government filed a petition for mandamus. In arguing its mandamus petition, the government took the position that the legality of the rescission should stand or fall based solely on the reasons and the record already provided

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by the government. We denied the mandamus petition, stating that “the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible, as the district court concluded.” In re United States, 875 F.3d 1200, 1206 (9th Cir. 2017) (footnotes omitted).
The government next petitioned the Supreme Court for the same mandamus relief; the Court did not reach the merits of the administrative record dispute, but instead instructed the district court to rule on the government’s threshold arguments challenging reviewability of its rescission decision before requiring the government to provide additional documents. In re United States, 138 S. Ct. 443, 445 (2017). Thus, the administrative record in this case still consists of a scant 256 publicly available pages, roughly three-quarters of which are taken up by the three published judicial opinions from the Texas litigation.
Returning to the district court, the government moved to dismiss the consolidated cases on jurisdictional grounds and for failure to state a claim, while the plaintiffs moved for a preliminary injunction. The district court granted the request for a nationwide preliminary injunction, holding that most of the plaintiffs had standing;7 that neither the APA nor the INA barred judicial review; and that plaintiffs were likely to succeed on their claim that the decision to rescind DACA was arbitrary and capricious. The district court therefore entered a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients.

7 Two states were dismissed from the case with leave to amend. That decision is not challenged on appeal.

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In a separate order, the court partially granted and partially denied the government’s motion to dismiss. The court dismissed plaintiffs’ notice-and-comment and Regulatory Flexibility Act claims; a due process claim premised on an entitlement to deferred action; and the equitable estoppel claim. The court denied the motion as to plaintiffs’ equal protection claim and a due process claim premised on an alleged change in DHS’s informationsharing policy.
The district court certified the issues addressed in both its orders for interlocutory review under 28 U.S.C. § 1292(b). We granted the government’s petition for permission to appeal the orders. Plaintiffs cross-appealed, asserting that the district court erroneously dismissed their notice-and-comment and due process claims.
II.
“We review the district court’s decision to grant or deny a preliminary injunction for abuse of discretion.” Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017) (quoting Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam)). Within this inquiry, “[w]e review the district court’s legal conclusions de novo, the factual findings underlying its decision for clear error.” Id. (quoting K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir. 2015)). A district court’s decision on a motion to dismiss for lack of subject matter jurisdiction or for failure to state a claim is also reviewed de novo. See, e.g., Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 963 (9th Cir. 2017).

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III.
The threshold question in this case is in many ways also the most pivotal: is Acting Secretary Duke’s decision to rescind the DACA program reviewable by the courts at all? The government contends that both the APA and the INA bar judicial review; we address each statute in turn.
A. Reviewability under the APA
The APA provides for broad judicial review of agency action: “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. Thus, as a general matter, the Supreme Court has consistently articulated “a ‘strong presumption’ favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)); see also, e.g., Lincoln v. Vigil, 508 U.S. 182, 190 (1993) (“[W]e have read the APA as embodying a ‘basic presumption of judicial review.’”) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)).
However, the APA also forecloses judicial review under its procedures to the extent that “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).8 “This

8 This bar does not affect a plaintiff’s ability to bring freestanding constitutional claims. See Webster v. Doe, 486 U.S. 592, 601–05 (1988); Padula v. Webster, 822 F.2d 97, 101 (D.C. Cir. 1987) (“[E]ven where agency action is ‘committed to agency discretion by law,’ review is still available to determine if the Constitution has been violated.” (quoting Doe v. Casey, 796 F.2d 1508, 1517–18 n.33 (1986), aff’d in part, rev’d in part on other grounds, Webster v. Doe, 486 U.S. 592 (1988))).

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is a very narrow exception” that comes into play only “in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (internal quotation marks omitted), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also Heckler v. Chaney, 470 U.S. 821, 830 (1985) (“[R]eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”).
In Heckler v. Chaney, the Supreme Court analyzed this exception in considering “the extent to which a decision of an administrative agency to exercise its ‘discretion’ not to undertake certain enforcement actions is subject to judicial review under the [APA].” 470 U.S. at 823. In Chaney, the Commissioner of the Food and Drug Administration (FDA) declined to take investigatory and enforcement action against state prison officials’ use of drugs, which had been FDA-approved for medical use, in human executions. Id. at 823–24. A group of prisoners on death row had petitioned the FDA, arguing that using the drugs to execute humans was unlawful because they were only approved for medical use, and not for executions. Id. Responding to the petition, the Commissioner questioned whether the FDA had jurisdiction to prohibit the use of drugs in executions, but went on to conclude that even if the agency did have jurisdiction, it would “decline to exercise it under [the agency’s] inherent discretion to” do so. Id. at 824. The inmates then sued the FDA, attempting to invoke the APA’s framework for judicial review. Id. at 825.
The Supreme Court held that the FDA Commissioner’s discretionary decision not to enforce the Food, Drug, and Cosmetic Act against state prison officials was unreviewable

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under the APA. Chaney, 470 U.S. at 837–38. The Court identified a pre-APA “tradition” under which “an agency’s decision not to prosecute or enforce . . . is a decision generally committed to an agency’s absolute discretion,” and concluded that “the Congress enacting the APA did not intend to alter that tradition.” Id. at 831–32. As the Court summed up its holding, “[t]he 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.” Id. at 838 (citation omitted). That is, the normal presumption in favor of judicial review is reversed when the agency action in question is a refusal to enforce the substantive law.
Importantly for present purposes, the Court explicitly left open the question whether “a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction” might be reviewable notwithstanding this general rule. Chaney, 470 U.S. at 833 n.4 (“[W]e express no opinion on whether such decisions would be unreviewable under § 701(a)(2) . . . .”).9 This reservation makes perfect

9 Chaney’s footnote 4 reads in its entirety:
We do not have in this case a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction. 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, 156 U.S. App. D.C. 267, 480 F.2d 1159 (1973) (en banc). Although we express no opinion on whether such decisions would be unreviewable under

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sense. It is one thing to read the APA’s exception for “agency action [] committed to agency discretion by law” as including the Executive’s discretionary decisions to decline enforcement, given a pre-existing legal tradition that had treated those decisions as unreviewable. It would be quite another to say that an agency’s non-discretionary belief that it lacked the power to enforce the law was similarly “committed to agency discretion.” 5 U.S.C. § 701(a)(2); see Chaney, 470 U.S. at 833 n.4 (“[W]e note that in those situations [involving a belief that the agency lacked discretion,] the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion.’”).
Several years after Chaney, our court directly addressed the question that the Supreme Court had left open. In Montana Air Chapter No. 29 v. Federal Labor Relations Authority, a union representing civilian Air National Guard employees filed an unfair labor practice charge against the National Guard Bureau, but the Federal Labor Relations Authority (FLRA) refused to issue a complaint. 898 F.2d 753, 755 (9th Cir. 1990). The opinion letters issued by FLRA’s general counsel indicated that he had “determined, according to his interpretation of the statutes and regulations, that he lacked jurisdiction to issue an unfair labor practice complaint” under the circumstances. Id. at 757.
Acknowledging Chaney’s rule that “[a]n agency’s decision not to take enforcement action . . . is presumed to

§ 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.”
Heckler v. Chaney, 470 U.S. 821, 833 n.4 (emphasis added).

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be immune from judicial review,” we noted that the Supreme Court had nevertheless “suggested that discretionary nonenforcement decisions may be reviewable when” the refusal to enforce is based on a supposed lack of jurisdiction. Id. at 756 (citing Chaney, 470 U.S. at 833 n.4). We took the next logical step, holding that Chaney’s presumption of nonreviewability “may be overcome if the refusal is based solely on the erroneous belief that the agency lacks jurisdiction.” Id. at 754. Because “the General Counsel’s decision not to issue an unfair labor practice complaint was based on his belief that he lacked jurisdiction to issue such a complaint,” we proceeded to “examine the General Counsel’s statutory and regulatory interpretations to determine if his belief that he lacked jurisdiction was correct.” Id. at 757.10
The final piece of the APA reviewability puzzle is the Supreme Court’s decision in City of Arlington v. FCC, 569 U.S. 290 (2013). There, the Court was faced with the question whether an agency’s determination of its own jurisdiction is entitled to the same deference as any other agency interpretation under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Writing for the Court, Justice Scalia explained in no uncertain terms that in the context of administrative agencies, “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a mirage.” City of

10 We reject the government’s reading of Montana Air, under which the Chaney presumption would be overcome only if the agency action is based on a belief in a lack of jurisdiction, and the refusal to enforce is so extreme as to become an abdication of the agency’s statutory responsibilities. Both Chaney and Montana Air make clear that these are two independent exceptions to the narrow rule of nonreviewability, not two elements of a single test. Chaney, 470 U.S. at 833 n.4; Montana Air, 898 F.2d at 756.

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Arlington, 569 U.S. at 297. With respect to courts, the jurisdictional/nonjurisdictional divide is a real and consequential one, because “[a] court’s power to decide a case is independent of whether its decision is correct . . . . Put differently, a jurisdictionally proper but substantively incorrect judicial decision is not ultra vires.” Id. But the same is not true with respect to agencies: “Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.” Id. Thus, the Court concluded, “[t]he reality, laid bare, is that there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its ‘jurisdiction’) and its exceeding authorized application of authority that it unquestionably has.” Id. at 299 (emphasis in original).11
To summarize, Chaney holds that an agency’s refusal to enforce the substantive law is presumptively unreviewable because that discretionary nonenforcement function is “committed to agency discretion” within the meaning of the APA. Montana Air builds upon the question left open by Chaney’s footnote four, explaining that a nonenforcement decision is reviewable notwithstanding Chaney if the decision was based solely on the agency’s belief that it lacked jurisdiction to act. And City of Arlington teaches that there is no difference between an agency that lacks

11 The opinion is replete with equally emphatic—and equally quotable—formulations of the same point. See, e.g., City of Arlington, 569 U.S. at 301 (“In sum, judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.’ Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.”).

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jurisdiction to take a certain action, and one that is barred by the substantive law from doing the same; the question “is always, simply, whether the agency has stayed within the bounds of its statutory authority.” City of Arlington, 569 U.S. at 297 (emphasis omitted). The rule that emerges is this: an agency’s nonenforcement decision is outside the scope of the Chaney presumption—and is therefore presumptively reviewable—if it is based solely on a belief that the agency lacked the lawful authority to do otherwise. That is, where the agency’s decision is based not on an exercise of discretion, but instead on a belief that any alternative choice was foreclosed by law, the APA’s “committed to agency discretion” bar to reviewability, 5 U.S.C. § 701(a)(2), does not apply.
This rule is fully consistent with the Supreme Court’s decision in ICC v. Brotherhood of Locomotive Engineers (BLE), which rejected the notion that “if the agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.” 482 U.S. 270, 283 (1987). We have no quarrel with that statement in the abstract, but as applied it simply begs the question: is the agency action in question “otherwise unreviewable”?
The BLE case concerned the reviewability of the Interstate Commerce Commission’s denial of a motion to reopen proceedings on grounds of material error. Id. at 280. The Supreme Court held that category of agency action presumptively unreviewable because it “perceive[d] . . . a similar tradition of nonreviewability” to the one it had found in Chaney for nonenforcement decisions. Id. at 282. In reaching its holding, the Court rejected an argument that there was nevertheless “law to apply”—and that therefore the action was not committed to agency discretion—as the agency’s order had discussed the legal merits at length. Id.

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at 280–81. What mattered was that the agency’s “formal action” was one for which a tradition of nonreviewability was discernable, regardless of how the agency explained its action.12 Id.
BLE thus stands for the proposition that if a particular type of agency action is presumptively unreviewable, the fact that the agency explains itself in terms that are judicially cognizable does not change the categorical rule. Fair enough. But the categorical rule announced in Chaney does not encompass nonenforcement decisions based solely on the agency’s belief that it lacked power to take a particular course; instead, the Court explicitly declined to extend its rule to that situation. Chaney, 470 U.S. at 833 n.4. And in Montana Air, we held that such decisions are reviewable. 898 F.2d at 754. BLE’s statement about “otherwise unreviewable” agency decisions, 482 U.S. at 283, therefore has no application to the category of agency action at issue here.
We believe the analysis laid out above follows necessarily from existing doctrine. And, just as importantly,

12 The Court gave as an example a prosecutor’s refusal to institute criminal proceedings based on her “belief . . . that the law will not sustain a conviction.” BLE, 482 U.S. at 283. Such a belief is not equivalent to a conclusion that the government lacked the power to institute a prosecution in the first place. For one colorful example, in Bond v. United States, prosecutors made the “surprising” decision to charge “an amateur attempt by a jilted wife to injure her husband’s lover” under the federal statute implementing the international Convention on Chemical Weapons. 134 S. Ct. 2077, 2083–84 (2014). While the Court ultimately interpreted the statute not to encompass the charged conduct, id. at 2093– 94, no one suggested that the government’s aggressive decision to institute the prosecution was itself ultra vires.

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this approach also promotes values fundamental to the administrative process.
First, the Montana Air rule does not impermissibly encroach on executive discretion; to the contrary, it empowers the Executive. If an agency head is mistaken in her assessment that the law precludes one course of action, allowing the courts to disabuse her of that incorrect view of the law does not constrain discretion, but rather opens new vistas within which discretion can operate. That is, if an administrator chooses option A for the sole reason that she believes option B to be beyond her legal authority, a decision from the courts putting option B back on the table allows a reasoned, discretionary policy choice between the two courses of action. And if the agency’s view of the law is instead confirmed by the courts, no injury to discretion results because the status quo is preserved.
Moreover, allowing judicial review under these circumstances serves the critical function of promoting accountability within the Executive Branch—not accountability to the courts, but democratic accountability to the people. Accountability in this sense is fundamental to the legitimacy of the administrative system: although they are “unelected . . . bureaucrats,” City of Arlington, 569 U.S. at 305, the heads of cabinet-level departments like DHS “are subject to the exercise of political oversight and share the President’s accountability to the people.” Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 886 (1991). Indeed, the Constitution’s “Appointments Clause was designed to ensure public accountability for . . . the making of a bad appointment . . . .” Edmond v. United States, 520 U.S. 651, 660 (1997); see also Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2251– 52 (2001) (“[A]ccountability” is one of the two “principal

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values that all models of administration must attempt to further.”); 1 Richard J. Pierce, Jr., Administrative Law Treatise 114 (5th ed. 2010) (“Agencies are politically accountable because the President is accountable for the actions of agencies.”).
This democratic responsiveness is especially critical for agencies exercising prosecutorial functions because, as Justice Scalia explained in his oft-cited dissent in Morrison v. Olson, “[u]nder our system of government, the primary check against prosecutorial abuse is a political one.” 487 U.S. 654, 728 (1988) (Scalia, J., dissenting). This check works because “when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration.” Id. at 728–29. In other words, when prosecutorial functions are exercised in a manner that is within the law but is nevertheless repugnant to the sensibilities of the people, “the unfairness will come home to roost in the Oval Office.” Id. at 729.
But public accountability for agency action can only be achieved if the electorate knows how to apportion the praise for good measures and the blame for bad ones. Without knowing the true source of an objectionable agency action, “the public cannot ‘determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.’” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 498 (2010) (quoting The Federalist No. 70, at 476 (Alexander Hamilton) (Jacob E. Cooke ed. 1961)). In then-Professor Kagan’s words, “the degree to which the public can understand the sources and levers of bureaucratic action” is “a fundamental precondition of accountability in administration.” Kagan, supra, at 2332.

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The Montana Air rule promotes accountability by ensuring that the public knows where to place blame for an unpopular measure. When an agency justifies an action solely with an assertion that the law prohibits any other course, it shifts responsibility for the outcome from the Executive Branch to Congress (for making the law in question) or the courts (for construing it). If the Executive is correct in its interpretation of the law, then the public is correct to blame the other two branches for any resulting problems. But if the Executive is wrong, then it avoids democratic accountability for a choice that was the agency’s to make all along. Allowing the judiciary—the branch ultimately responsible for interpreting the law, see Marbury, 5 U.S. (1 Cranch) at 177—to review such decisions prevents this anti-democratic and untoward outcome. As Judge Bates of the District Court for the District of Columbia aptly put the point in confronting the very issue we face here, “an official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her. She may escape political accountability or judicial review, but not both.” NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 2018).
We therefore must determine whether the Acting Secretary’s decision to end DACA was based solely on a belief that the program was unlawful, such that the Chaney presumption does not apply.13

13 Because we take this doctrinal course, we need not decide whether the rescission of DACA would be reviewable absent the exception reflected in Montana Air and Chaney’s footnote four. But we do note several points. First, a literal reading of Chaney’s language would not even encompass the decision to rescind DACA, since Chaney by its own terms applies only to “agency decisions not to undertake enforcement action.” 470 U.S. at 832 (emphasis added). Nowhere does the opinion

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We take Attorney General Sessions literally at his word when he wrote to Acting Secretary Duke that “DACA was effectuated . . . without proper statutory authority,” and that DACA “was an unconstitutional exercise of authority by the Executive Branch.” These are the reasons he gave for advising Acting Secretary Duke to rescind DACA. We

suggest the broader proposition that any decision simply related to enforcement should be presumed unreviewable. Our court’s dicta in Morales de Soto v. Lynch, 824 F.3d 822, 827 n.4 (9th Cir. 2016), which addressed a completely separate issue of jurisdiction under the INA, is not to the contrary. Thus, to the extent that the Montana Air exception might not seem a perfect fit for the rescission of DACA—which was not exactly a decision not to enforce—the Chaney presumption itself shares the same defect. There is no daylight between the Chaney rule and the Montana Air exception in terms of the type of agency action to which they apply. So if the rescission of DACA were outside the Montana Air exception by virtue of not being strictly a nonenforcement decision, it would also fall outside the Chaney presumption of unreviewability in the first place.
Second, the D.C. Circuit has developed a line of cases explaining that while Chaney bars judicial review of a “single-shot nonenforcement decision,” on the other hand, “an agency’s adoption of a general enforcement policy is subject to review.” OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998) (quoting Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 674–75 (D.C. Cir. 1994)); see also Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); Nat’l Treasury Emps. Union v. Horner, 854 F.2d 490, 496–97 (D.C. Cir. 1988).
Thus, every one of the four courts that has considered the question has held that the rescission of DACA is reviewable under the APA, although each has employed slightly different reasoning for that conclusion. See NAACP v. Trump, 298 F. Supp. 3d 209, 226–34 (D.D.C. 2018); Casa de Md. v. DHS, 284 F. Supp. 3d 758, 769–70 (D. Md. 2018); Regents of Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1029–31 (N.D. Cal. 2018) (decision below); Batalla Vidal v. Duke, 295 F. Supp. 3d 127, 147–52 (E.D.N.Y. 2017).

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therefore agree with the district court that the basis for the rescission was a belief that DACA was unlawful, and that the discretionary “litigation risk” rationale pressed by the government now is a mere post-hoc rationalization put forward for purposes of this litigation.14 Acting Secretary Duke’s September 5, 2017, rescission memorandum contains exactly one sentence of analysis:
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated.

In the next sentence, the Acting Secretary went on to announce the rescission itself:
In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.

The easy rejoinder to the government’s insistence that the Acting Secretary rescinded DACA due to “litigation risks” is that the Acting Secretary did not mention “litigation risks” as a “consideration.” And both “consideration[s]”

14 After hundreds of pages of briefing and over an hour of oral argument, it remains less than clear how “litigation risk” differs from a substantive belief that DACA is illegal. We take the term to refer to a concern that DACA would be abruptly enjoined, regardless of whether the program was illegal or not. Of course, such a concern is not independent of an on-the-merits assessment of DACA’s legality.

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actually enumerated by the Acting Secretary are most naturally read as supporting a rationale based on DACA’s illegality. The “ongoing litigation” referenced is of course Texas v. United States, in which the Fifth Circuit upheld a preliminary injunction against the related DAPA policy, and the Supreme Court affirmed by an equally divided vote.15 See Texas, 136 S. Ct. 2271 (2016); Texas, 809 F.3d 134 (5th Cir. 2015). The “rulings” in that case are propositions of law—taken alone, they are more readily understood as supporting a legal conclusion (DACA is illegal) than a pragmatic one (DACA might be enjoined). The pragmatic interpretation requires extra analytical steps (someone might sue to enjoin DACA, and they might win) that are entirely absent from the list of factors that the Acting Secretary stated she was “taking into consideration” in making her decision. Acting Secretary Duke easily could have included “the prospect of litigation challenging DACA” in her list of considerations; had she done so, then perhaps the reference to the Texas litigation could be read as supporting a practical worry about an injunction.16 Absent that, however, the mention of the courts’ “rulings” is best read as referencing the courts’ legal conclusions.
Attorney General Sessions’s September 4, 2017, letter likewise focuses on the supposed illegality of DACA, rather

15 This conclusion is only bolstered by the fact that the government’s production of the “administrative record” in this case includes the entirety of the three published judicial opinions in the Texas litigation.
16 The Acting Secretary did reference Texas Attorney General Ken Paxton’s threat to amend the Texas suit to include DACA, but she did so in the “Background” section of her memorandum. If anything, the inclusion of the threat in the background portion renders its omission from the list of factors the Acting Secretary was actually “[t]aking into consideration” all the more stark.

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than any alleged “litigation risk.” Its substantive paragraph states
DACA was effectuated . . . without proper statutory authority and with no established end-date, after Congress’[s] repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.

(emphases added).
These sentences unmistakably reflect the Attorney General’s belief that DACA was illegal and therefore beyond the power of DHS to institute or maintain. The letter goes on to opine that “[b]ecause the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA [in the Texas litigation], it is likely that potentially imminent litigation would yield similar results with respect to DACA.” But in the context of the full paragraph, the reference to “similar results” is best read not as an independent reason for rescinding DACA, but as a natural consequence of DACA’s supposed illegality—which is the topic of the paragraph as a whole. In the words of Judge Garaufis of the District Court for the Eastern District of New York, that reference “is too thin a reed to bear the weight of Defendants’ ‘litigation risk’ argument.” Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 429 (E.D.N.Y. 2018).
In any event, the Attorney General’s letter is relevant only to the extent it illuminates whether Acting Secretary Duke—the official who actually rescinded the DACA program—did so as an exercise of her discretion or because she understood her hand to be forced by the law. In this

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connection, it is helpful to compare the operative language used by Acting Secretary Duke to rescind DACA with that used by her predecessor, Secretary John Kelly, to rescind DAPA just months before. In his June 15, 2017, memorandum, Secretary Kelly wrote:
After consulting with the Attorney General, and in the exercise of my discretion in establishing national immigration enforcement policies and priorities, I hereby rescind the November 20, 2014 memorandum [that established DAPA].

(emphasis added). Placed alongside Acting Secretary Duke’s language, the parallels—and the differences—are stark. Acting Secretary Duke’s memorandum reads:
In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum [that established DACA].

(emphasis added).
The obvious similarities between the two passages strongly suggest that Acting Secretary Duke modeled her language after that of Secretary Kelly’s memo. And indeed, we know that the Acting Secretary considered the Kelly memorandum in reaching her decision, because the government has told us so. See Petition for Writ of Mandamus, In re United States, No. 17-72917 (9th Cir. Oct. 20, 2017) (stating that the government’s proffered administrative record in this case, which includes the Kelly memorandum, “consist[s] of the non-privileged materials considered by the Acting Secretary in reaching her decision

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to rescind the DACA policy”); id. at 18 (taking the position that only materials personally reviewed by the Acting Secretary herself, not by subordinates, are “considered” by the Secretary).
Given that Acting Secretary Duke hewed so closely to Secretary Kelly’s language in general, it is appropriate to draw meaning from the one major difference between the two sentences: Secretary Kelly exercised his “discretion” in ending DAPA; Acting Secretary Duke merely exercised her “authority.” Cf., e.g., Jama v. ICE, 543 U.S. 335, 357 (2005) (“[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.”). The point is that with the example set by the Kelly memorandum in front of her, Acting Secretary Duke clearly would have known how to express that the rescission was a discretionary act— if that were indeed the case.17 Furthermore, the nearverbatim language of the two rescission memoranda suggests that the Acting Secretary adopted the majority of Kelly’s wording, but actively rejected describing the DACA rescission as an act of discretion. This difference in language cuts strongly against any suggestion that the rescission was discretionary.
The government counters that the memorandum “focused from beginning to end principally on litigation concerns, not the legality of DACA per se.” But as the State plaintiffs point out, the memorandum’s references to these

17 Secretary Kelly’s references to the factors he considered, which included obviously discretionary considerations such as “our new immigration enforcement priorities,” provided a further model for how to describe a discretionary decision, which Acting Secretary Duke also chose not to follow.

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supposed “litigation concerns” were limited to a simple summary of the Texas litigation’s procedural history; appeared only in the “Background” section of the memorandum; and were not referenced in the Acting Secretary’s statement of what she was “[t]aking into consideration.” See also note 16, supra.
The government also asserts that because the Acting Secretary wrote that DACA “should” rather than must be ended, she did not view herself as bound to act. But even on its face, “should” is fully capable of expressing obligation or necessity. See, e.g., Should, New Oxford American Dictionary (3d ed. 2010) (“used to indicate obligation, duty, or correctness”); cf. Should, Garner’s Dictionary of Legal Usage (3d ed. 2011) (“should . . . is sometimes used to create mandatory standards”). The Acting Secretary’s use of “should” instead of “must” cannot overcome the absence of any discussion of potential litigation or the “risks” attendant to it from the rescission memorandum’s statement of reasons, and the discrepancy between the rescission of DAPA as an act of “discretion” and the rescission of DACA as an act of “authority.”
Finally, the government takes a quote from the Supreme Court to the effect that courts should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974), and contorts it into an argument that the district court’s “narrow reading of the Acting Secretary’s rationale is hardly the only one that ‘may reasonably be discerned’ from the Acting Secretary’s memorandum.” But Bowman is about finding a reviewable rationale in an agency’s action versus finding no articulation of that rationale. Bowman does not say—and it certainly does not logically follow—that a court must ignore the most

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natural reading of an agency’s statement of reasons just because it may also be “reasonably susceptible” to a (less compelling) reading that the government would prefer. The government is in effect asking the court to defer to agency counsel’s post-hoc rationalization, as long as there is some reading of the rescission memorandum—never mind how strained—that would support it. Bowman does not require this incongruous result.
We agree with the district court that the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. Under Montana Air and Chaney’s footnote four, this conclusion brings the rescission within the realm of agency actions reviewable under the APA. Unless the INA itself deprives the courts of jurisdiction over this case, we must proceed to evaluate the merits of plaintiffs’ arbitrary-and-capricious claim.
B. Jurisdiction under the INA
The government contends that the INA stripped the district court of its jurisdiction in a provision that states:
Except as provided in this section [which sets out avenues of review not applicable here] . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

8 U.S.C. § 1252(g).

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The Supreme Court has explicitly held that this section “applies only to three discrete actions that the [Secretary] may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” AADC, 525 U.S. at 482 (emphasis in original). As the Court put it, “[i]t is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting.” Id.
The government attempts to expand Section 1252(g) to encompass this case in two ways. First, it points out that the AADC Court read that provision as Congress’s effort to shield executive decisions not to grant deferred action from review outside the procedures prescribed by the INA. The Court quoted a treatise describing the practice of deferred action and the litigation that would result when the government declined to grant deferred action: “Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts . . . .” Id. at 484–85 (quoting 6 Charles Gordon et al., Immigration Law and Procedure § 72.03[2][h] (1998)). Having reviewed these developments, the Court concluded: “Section 1252(g) seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations. . . .” Id. at 485.
The government argues that AADC’s reasoning—and therefore Section 1252(g)—applies to the rescission of DACA, which is itself in some sense a “no deferred action” decision. It seems quite clear, however, that AADC reads Section 1252(g) as responding to litigation over individual “no deferred action” decisions, rather than a programmatic

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shift like the DACA rescission. For example, the treatise passage AADC quotes to set the scene for Congress’s action refers explicitly to “[e]fforts to challenge the refusal to exercise [deferred action] on behalf of specific aliens. . . .” Id. (emphasis added). And in any case, the holding of AADC was explicit: “The provision applies only to [the] three discrete actions” mentioned in the statute. Id. at 482.
The government’s fallback argument is thus to cast the rescission of DACA as an initial “action” in the agency’s “commence[ment] [of] proceedings.” 8 U.S.C. § 1252(g). But AADC specifically rejected a broad reading of the three discrete actions listed in Section 1252(g). “[D]ecisions to open an investigation, [or] to surveil the suspected violator” are not included in Section 1252(g)’s jurisdictional bar, AADC, 525 U.S. at 482, even though these actions are also “part of the deportation process,” id., and could similarly be construed as incremental steps toward an eventual “commence[ment] [of] proceedings,” 8 U.S.C. § 1252(g).
Indeed, in a case closely on point, our court rejected the application of Section 1252(g) and allowed to proceed a challenge to INS guidance narrowly interpreting the terms of a “one-time legalization program” for undocumented immigrants. See Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1141 (9th Cir. 2000). We noted that “[a]s interpreted by the Supreme Court in [AADC], [Section 1252(g)] applies only to the three specific discretionary actions mentioned in its text, not to all claims relating in any way to deportation proceedings,” and held that the challenge was not barred. Id. at 1150. The panel did not appear concerned by the fact that it was possible to conceptualize that policy choice by INS as an ingredient in a subsequent decision to commence proceedings against particular individuals.

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The government cites no cases applying the Section 1252(g) bar to a programmatic policy decision about deferred action; the two cases it does cite were challenges to individual “no deferred action” decisions—that is, they fall exactly within Section 1252(g) as interpreted by the Court in AADC. See Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016); Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999). Especially in light of the “‘strong presumption in favor of judicial review of administrative action’ governing the construction of jurisdiction-stripping provisions of IIRIRA,”18 ANA Int’l, Inc. v. Way, 393 F.3d 886, 891 (9th Cir. 2004) (quoting INS v. St. Cyr, 533 U.S. 289, 298 (2001)), we hold that Section 1252(g) does not deprive courts of jurisdiction to review the DACA rescission order.19
IV.
Having concluded that neither the APA nor the INA precludes judicial review, we turn to the merits of the preliminary injunction. The district court held that plaintiffs satisfied the familiar four-factor preliminary injunction

18 Section 1252(g) is one such provision. See AADC, 525 U.S. at 475 (describing § 1252(g)’s passage as part of IIRIRA).
19 In its response and reply brief, the government appears to argue that another provision of the INA, 8 U.S.C. § 1252(b)(9), also stripped the district court of jurisdiction. Although ordinarily an argument not raised in the opening brief would be waived, this argument is jurisdictional so we must consider it. See, e.g., Embassy of the Arab Republic of Egypt v. Lasheen, 603 F.3d 1166, 1171 n.3 (9th Cir. 2010) (“[C]hallenges to subject matter jurisdiction cannot be waived[.]”). But Section 1252(b)(9) does not bar jurisdiction here, because it “appl[ies] only to those claims seeking judicial review of orders of removal.” Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007) (citing St. Cyr, 533 U.S. at 313).

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standard20 with respect to their claim under the APA that the rescission of DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A). The government takes issue with the district court’s conclusion on only one of the preliminary injunction factors: the likelihood of success on the merits.

In an arbitrary-and-capricious challenge, “[i]t is wellestablished that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 50 (1983); see also, e.g., SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (Chenery II) (“[A] reviewing court . . . must judge the propriety of [agency] action solely by the grounds invoked by the agency.” (citing SEC v. Chenery Corp., 318 U.S. 80 (1943) (Chenery I)).

Similarly, it is black letter law that where an agency purports to act solely on the basis that a certain result is legally required, and that legal premise turns out to be incorrect, the action must be set aside, regardless of whether the action could have been justified as an exercise of discretion. That principle goes back at least as far as the Supreme Court’s seminal decision in Chenery I, in which the Court stated:

If [agency] action rests upon an administrative determination—an exercise of judgment in an area which Congress has entrusted to the agency—of course it must

20 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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not be set aside because the reviewing court might have made a different determination were it empowered to do so. But if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law.

Chenery I, 318 U.S. at 94 (emphasis added).
This holding of Chenery I remains good law. See, e.g., United States v. Ross, 848 F.3d 1129, 1134 (D.C. Cir. 2017) (“Where a statute grants an agency discretion but the agency erroneously believes it is bound to a specific decision, we can’t uphold the result as an exercise of the discretion that the agency disavows.”); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007) (setting aside agency action that was justified on a “legally erroneous” basis, and remanding for further consideration under other justifications). As the D.C. Circuit flatly put it, “An agency action, however permissible as an exercise of discretion, cannot be sustained where it is based not on the agency’s own judgment but on an erroneous view of the law.” SeaLand Serv., Inc. v. DOT, 137 F.3d 640, 646 (D.C. Cir. 1998) (internal quotation marks omitted) (quoting Prill v. NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985)).
Thus, if the DACA rescission was based solely on an erroneous legal premise, it must be set aside under 5 U.S.C. § 706(2)(A). We have already concluded, in our discussion of reviewability, that the rescission was indeed premised on

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the belief that the DACA program was unlawful. We next must decide whether that legal conclusion was correct.21
Attorney General Sessions’s September 4, 2017, letter expresses several possible bases for the agency’s ultimate conclusion that DACA was unlawful. First, the Attorney General states that “DACA was effectuated by the previous administration through executive action . . . after Congress’[s] repeated rejection of proposed legislation that would have accomplished a similar result.” But our court has already explained that “Congress’s failure to pass the [DREAM] Act does not signal the illegitimacy of the DACA program,” partly because “the DREAM Act and the DACA program are not interchangeable policies because they provide different forms of relief”: the DREAM Act would have provided a path to lawful permanent resident status, while DACA simply defers removal. Brewer II, 855 F.3d at 976 n.10; see Motomura, supra, at 175 (“DACA is not the DREAM Act; as an interim executive measure, it is limited in duration and provides no durable immigration status.”) (footnote omitted); see also, e.g., DREAM Act of 2011, S. 952, 112th Cong. (2011). Moreover, there is nothing inherently problematic about an agency addressing a problem for which Congress has been unable to pass a legislative fix, so long as the particular action taken is properly within the agency’s power. This argument therefore provides no independent reason to think that DACA is unlawful.

21 The government does not argue that its conclusion is entitled to Chevron deference, likely because “[d]eference to an agency’s interpretation of a statute is not appropriate when the agency wrongly ‘believes that interpretation is compelled by Congress.’” Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1149 (9th Cir. 2013) (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 798 (D.C. Cir. 2004)).

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The Attorney General’s primary bases for concluding that DACA was illegal were that the program was “effectuated . . . without proper statutory authority” and that it amounted to “an unconstitutional exercise of authority.” More specifically, the Attorney General asserted that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA” in the Texas litigation.
The claim of “constitutional defects” is a puzzling one because as all the parties recognize, no court has ever held that DAPA is unconstitutional. The Fifth Circuit and district court in Texas explicitly declined to address the constitutional issue. See Texas, 809 F.3d at 154 (“We decide this appeal . . . without resolving the constitutional claim.”); Texas, 86 F. Supp. 3d at 677 (“[T]he Court is specifically not addressing Plaintiffs’ likelihood of success on . . . their constitutional claims . . . .”). Indeed, the government makes no attempt in this appeal to defend the Attorney General’s assertion that the DACA program is unconstitutional. We therefore do not address it further.
With respect to DACA’s alleged “legal . . . defects,” the district court explained in great detail the long history of deferred action in immigration enforcement, including in the form of broad programs; the fact that the Supreme Court and Congress have both acknowledged deferred action as a feature of the immigration system; and the specific statutory responsibility of the Secretary of Homeland Security for “[e]stablishing national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5). The government does not contest any of these propositions, which themselves go a long way toward establishing DACA’s legality. Instead, the government argues that the Fifth Circuit’s reasons for

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striking down the related DAPA policy would also apply to DACA.
The Fifth Circuit concluded that DAPA was unlawful on two grounds: first, that DAPA was in fact a legislative rule and therefore should have been promulgated through noticeand-comment rulemaking; and second, that DAPA was substantively inconsistent with the INA. See Texas, 809 F.3d at 171–78, 178–86.
With respect to the first holding, notice-and-comment procedures are not required where the agency pronouncement in question is a “general statement[] of policy.” 5 U.S.C. § 553(b)(3)(A). “The critical factor to determine whether a directive announcing a new policy constitutes a rule or a general statement of policy is the extent to which the challenged [directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987) (alterations in original) (internal quotation marks omitted).
On its face, DACA obviously allows (and indeed requires) DHS officials to exercise discretion in making deferred action decisions as to individual cases: Secretary Napolitano’s memorandum announcing DACA specifically states that “requests for relief pursuant to this memorandum are to be decided on a case by case basis.” The Fifth Circuit in Texas held that DAPA was a substantive rule notwithstanding similar discretionary language, based primarily on statistics regarding the approval rates of DACA applications. The court read those statistics as revealing that DACA was discretionary in name only—that is, that DHS personnel had no discretion to deny deferred action if the DACA criteria were met. Texas, 809 F.3d at 172–73.

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But as the dissenting judge in Texas pointed out, DACA’s (then) 5% denial rate—which did not include applications rejected for administrative deficiencies—is consistent with a discretionary program given that applicants self-select: “It should be expected that only those highly likely to receive deferred action will apply; otherwise, applicants would risk revealing their immigration status and other identifying information to authorities, thereby risking removal (and the loss of a sizeable fee).” Texas, 809 F.3d at 210 (King, J., dissenting).
Moreover, the denial rate has risen as the DACA program has matured. DHS statistics included in the record reveal that in fiscal year 2016, for example, the agency approved 52,882 initial DACA applications and denied 11,445; that is, 17.8% of the applications acted upon were denied.22 As Judge King concluded, “Neither of these numbers suggests an agency on autopilot.” Texas, 809 F.3d at 210 n.44 (King, J., dissenting); see also Arpaio v. Obama, 27 F. Supp. 3d 185, 209 n.13 (D.D.C. 2014) (noting that these same statistics “reflect that . . . case-by-case review is in operation”).23 In light of these differences, we do not

22 U.S. Citizenship & Immigration Services, Number of Form I821D, Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012–2017 (March 31, 2017). The number of initial applications is the relevant metric because renewal applications are by definition limited to the pool of those already approved for DACA at least once. Therefore, one would expect an even lower denial rate for renewals.
23 Judge King’s dissent also makes the critical observation that, according to the declarations filed in that case, the reason DHS could not point to specific instances in which DACA applicants met the program criteria but were denied as a matter of discretion was that DHS did not have the ability to track and sort the reasons for DACA denials. Texas, 809 F.3d at 211 (King, J., dissenting).

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agree that DACA is a legislative rule that would require notice-and-comment rulemaking.
As to the substantive holding in Texas, the Fifth Circuit concluded that DAPA conflicted with the INA largely for a reason that is inapplicable to DACA. Specifically, the Fifth Circuit reasoned that the INA provides “an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status” but that “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 . . . that Congress has deliberately imposed.” Texas, 809 F.3d at 179–80. As the district court in this case noted, there is no analogous provision in the INA defining how immigration status may be derived by undocumented persons who arrived in the United States as children. One of the major problems the Fifth Circuit identified with DAPA is therefore not present here.
In resisting this conclusion, the government flips the Fifth Circuit’s reasoning on its head, arguing that “[i]nsofar as the creation of pathways to lawful presence was relevant, the fact that Congress had legislated only for certain individuals similarly situated to DAPA beneficiaries—and not DACA recipients—would make DACA more inconsistent with the INA than DAPA.” To the extent the government meant to draw on the Texas court’s analysis, it gets it exactly backwards: the whole thrust of the Fifth Circuit’s reasoning on this point was that DHS was without authority because “Congress has ‘directly addressed the precise question at issue.’” Texas, 809 F.3d at 186 (quoting Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 52 (2011)). There is no argument that Congress has similarly occupied the field with respect to DACA; as

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the Attorney General himself noted, Congress has repeatedly rejected Dreamer legislation.
The second major element of the Fifth Circuit’s analysis on the substantive issues was that the INA itself “prescribes . . . which classes of aliens can achieve deferred action and eligibility for work authorization.” Texas, 809 F.3d at 186. The court drew the implication that the statute must therefore preclude the Executive Branch from granting these benefits to other classes. Id. (pairing this notion with the pathwayto-lawful-presence argument as the keys to its conclusion).
But “[t]he force of any negative implication . . . depends on context.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013). Indeed, “[w]e do not read the enumeration of one case to exclude another unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Here, the express grants of deferred action cited by the Fifth Circuit were not passed together as part of the original INA; rather, they were added to the statute books piecemeal over time by Congress. See Violence Against Women Act of 2000, Pub. L. No. 106-386, div. B, sec. 1503, § 1154(a)(1)(D)(i), 114 Stat. 1491 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)) (specifying deferred action for certain VAWA self-petitioners); USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361 (same, for family members of lawful permanent residents killed by terrorism); National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694– 95 (same, for relatives of noncitizens killed in combat and posthumously granted citizenship).
Given this context, we find it improbable that Congress “considered the . . . possibility” of all other potential uses for deferred action “and meant to say no” to any other

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application of that tool by the immigration agency. Barnhart, 537 U.S. at 168. We think the much more reasonable conclusion is that in passing its seriatim pieces of legislation, instructing that this and that “narrow class[]” of noncitizens should be eligible for deferred action, Texas, 809 F.3d at 179, Congress meant to say nothing at all about the underlying power of the Executive Branch to grant the same remedy to others. We do not read an “and no one else” clause into each of Congress’s individual express grants of deferred action.
Another element in the Fifth Circuit’s analysis was that “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.’” Id. at 181 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). DACA, on the other hand, had 689,800 enrollees as of September 2017. The government asserts that this difference in size is “legally immaterial,” but that response is unconvincing. If the point is that the “economic and political magnitude” of allowing 4.3 million people to remain in the country and obtain work authorization is such that Congress would have spoken to it directly, then surely it makes a difference that one policy has less than one-sixth the “magnitude” of the other. Id. As the district court laconically put it, “there is a difference between 4.3 million and 689,800.”
Finally, the government finds “an insurmountable obstacle to plaintiffs’ position” in that “the district court’s injunction affirmed by the Fifth Circuit covered both DAPA and expanded DACA.” It is true that the Texas court also

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enjoined the expansions of DACA that were announced in the same memorandum as the DAPA program. See Texas, 809 F.3d at 147 n.11 (“The district court enjoined implementation of the following three DACA expansions, and they are included in the term ‘DAPA’ in this opinion . . . .”). But no analysis was devoted to those provisions by either the Fifth Circuit or the Texas district court, and one of the keys to the Fifth Circuit’s reasoning—that Congress had supposedly occupied the field with respect to obtaining immigration benefits through one’s children—does not apply to either the original DACA program or its expansions. Under these circumstances, we do not find the Texas courts’ treatment of the DACA expansions to be strong persuasive authority, much less an “insurmountable obstacle.” Cf. Bryan A. Garner et al., The Law of Judicial Precedent 170 (2016) (“An authority derives its persuasive power from its ability to convince others to go along with it.”).
In sum, the reality is (and always has been) that the executive agencies charged with immigration enforcement do not have the resources required to deport every single person present in this country without authorization. Compare Bernsen Memorandum, supra, at 1 (stating, in 1976, that “[t]here simply are not enough resources to enforce all of the rules and regulations presently on the books”), with Memorandum from John Morton, Assistant Secretary, DHS, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, at 1 (June 30, 2010) (estimating that ICE has enough resources to deport only 4% of the undocumented population in any given year, and concluding that “ICE must prioritize the use of its . . . removal resources to ensure the removals the agency does conduct promote the agency’s highest enforcement priorities”) and Motomura, supra, at 26 (“The letter of the law creates a large removable population, but

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whether an individual is actually targeted for removal has long depended on government discretion and bad luck.” (footnote omitted)). Recognizing this state of affairs, Congress has explicitly charged the Secretary of Homeland Security with “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5).
It is therefore no surprise that deferred action has been a feature of our immigration system—albeit one of executive invention—for decades; has been employed categorically on numerous occasions; and has been recognized as a practical reality by both Congress and the courts. See, e.g., Brewer II, 855 F.3d at 967 (“[I]t is well settled that the Secretary [of Homeland Security] can exercise deferred action” as part of her statutory authority “to administer and enforce all laws relating to immigration and naturalization.”). In a world where the government can remove only a small percentage of the undocumented noncitizens present in this country in any year, deferred action programs like DACA enable DHS to devote much-needed resources to enforcement priorities such as threats to national security, rather than blameless and economically productive young people with clean criminal records.
We therefore conclude that DACA was a permissible exercise of executive discretion, notwithstanding the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s statutory authority. DACA is being implemented in a manner that reflects discretionary, caseby-case review, and at least one of the Fifth Circuit’s key rationales in striking down DAPA is inapplicable with respect to DACA. With respect for our sister circuit, we find the analysis that seemingly compelled the result in Texas entirely inapposite. And because the Acting Secretary was therefore incorrect in her belief that DACA was illegal and

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had to be rescinded, plaintiffs are likely to succeed in demonstrating that the rescission must be set aside. Chenery I, 318 U.S. at 94; Safe Air for Everyone, 488 F.3d at 1101– 02.
To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion. We hold only that here, where the Executive did not make a discretionary choice to end DACA—but rather acted based on an erroneous view of what the law required—the rescission was arbitrary and capricious under settled law. The government is, as always, free to reexamine its policy choices, so long as doing so does not violate an injunction or any freestanding statutory or constitutional protection.24
V.
Having concluded that the district court was correct in its APA merits holding, we now turn to the question of the appropriate remedy. The district court preliminarily

24 The government has submitted a letter pursuant to Federal Rule of Appellate Procedure 28(j), informing us that the current Secretary of Homeland Security, Kirstjen Nielsen, issued a new memorandum regarding the DACA rescission on June 22, 2018. In the memorandum, Secretary Nielsen “provide[d] additional explanation of the basis for the DACA rescission,” in response to an order filed in a parallel lawsuit. The government’s letter does not argue that the Nielsen memorandum represents fresh agency action that could possibly moot this appeal. We therefore leave it to the district court in the first instance to determine the admissibility of Secretary Nielsen’s letter given that it cannot possibly be a part of the administrative record in this case, and its impact, if any, on this case. And to the extent the Nielsen memorandum is offered as an additional justification of the original DACA rescission, we do not consider it in our review of Acting Secretary Duke’s decision because it is well-settled that “we will not allow the agency to supply post-hoc rationalizations for its actions . . . .” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 603 (9th Cir. 2014).

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enjoined the rescission of DACA with respect to existing beneficiaries on a nationwide basis. The government asserts that this was error, and that a proper injunction would be narrower.
The general rule regarding the scope of preliminary injunctive relief is that it “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the court.” L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (internal citation omitted). But “[t]here is no general requirement that an injunction affect only the parties in the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1987); see also id. at 1170–71 (“[A]n injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.”) (emphasis in original).
It is also important to note that the claim underlying the injunction here is an arbitrary-and-capricious challenge under the APA. In this context, “[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (internal citation omitted). As Justice Blackmun explained while “writing in dissent but apparently expressing the view of all nine Justices on this question,” id.:
The Administrative Procedure Act permits suit to be brought by any person “adversely affected or aggrieved by agency action.” In some cases the “agency action” will consist of a rule of broad applicability; and if the

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plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain “programmatic” relief that affects the rights of parties not before the court.

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 913 (1990) (Blackmun, J., dissenting) (citation omitted).
A final principle is also relevant: the need for uniformity in immigration policy. See Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018) (“Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”). As the Fifth Circuit stated when it affirmed the nationwide injunction against DAPA, “the Constitution requires an uniform Rule of Naturalization; Congress has instructed that the immigration laws of the United States should be enforced vigorously and uniformly; and the Supreme Court has described immigration policy as a comprehensive and unified system.” Texas, 809 F.3d at 187–88 (emphases in original) (citations and internal quotation marks omitted). Allowing uneven application of nationwide immigration policy flies in the face of these requirements.
In its briefing, the government fails to explain how the district court could have crafted a narrower injunction that would provide complete relief to the plaintiffs, including the entity plaintiffs. Cf. Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017) (“[T]he Government has not proposed a workable alternative form of the TRO . . . that would protect the proprietary interests of the States at issue here

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while nevertheless applying only within the States’ borders.”). Nor does it provide compelling reasons to deviate from the normal rule in APA cases, or to disregard the need for uniformity in national immigration policy. The one argument it does offer on this latter point—that “[d]eferred action is itself a departure from vigorous and uniform enforcement of the immigration laws,” and that “enjoining the rescission of DACA on a nationwide basis . . . increases rather than lessens that departure”—is a red herring. DACA is national immigration policy, and an injunction that applies that policy to some individuals while rescinding it as to others is inimical to the principle of uniformity.
We therefore conclude that the district court did not abuse its discretion in issuing a nationwide injunction. Such relief is commonplace in APA cases, promotes uniformity in immigration enforcement, and is necessary to provide the plaintiffs here with complete redress.
VI.
We turn next to the district court’s treatment of the government’s motion to dismiss for failure to state a claim. The government moved to dismiss all of plaintiffs’ claims; the district court dismissed some claims and denied the government’s motion as to others. We take each claim in turn.25

25 Plaintiffs do not challenge the district court’s dismissal of their equitable estoppel claim.

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A. APA: Arbitrary-and-Capricious
For the reasons stated above in discussing plaintiffs’ likelihood of success on the merits, the district court was correct to deny the government’s motion to dismiss plaintiffs’ claim that the DACA rescission was arbitrary and capricious under the APA. See 5 U.S.C. § 706(2)(A).
B. APA: Notice-and-Comment
Plaintiffs also assert that the rescission of DACA is in fact a substantive rule under the APA, and that it therefore could not be validly accomplished without notice-andcomment procedures.
As touched on above with respect to DACA itself, an agency pronouncement is excluded from the APA’s requirement of notice-and-comment procedures if it constitutes a “general statement[] of policy.” 5 U.S.C. § 553(b)(3)(A). General statements of policy are those that “advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” MadaLuna, 813 F.2d at 1012–13 (quoting Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947)). “To qualify as a general statement of policy . . . a directive must not establish a binding norm and must leave agency officials free to consider the individual facts in the various cases that arise and to exercise discretion.” Id. at 1015 (internal quotation marks omitted); see also id. at 1013 (“The critical factor to determine whether a directive announcing a new policy constitutes a rule or a general statement of policy is the extent to which the challenged [directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” (alterations in original) (internal quotation marks omitted)).

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The district court held that because DACA itself was a general statement of policy that did not require notice and comment, it could also be rescinded without those procedures. This proposition finds support in Mada-Luna, in which “we conclude[d] that [a deferred-action Operating Instruction] constituted a general statement of policy, and thus could be validly repealed and superseded without notice-and-comment proceedings.” Id. at 1017. Plaintiffs contest this conclusion, arguing that the DACA rescission was a binding rule, even though DACA’s adoption was a general statement of policy. They provide two bases for this assertion.
First, plaintiffs argue that the rescission is binding because it requires DHS officials to reject new DACA applications and (after a certain date) renewal applications. It is true that Acting Secretary Duke’s rescission memorandum makes rejections of DACA applications mandatory. But the relevant question under the rescission memorandum is not whether DHS officials retained discretion to accept applications for a program that no longer existed; instead, the question is whether DHS officials retained discretion to grant deferred action and collateral benefits outside of the (now-cancelled) DACA program.
For its part, the government asserts that the rescission memorandum made clear that, despite the rescission, “future deferred action requests will be ‘adjudicat[ed] . . . on an individual, case-by-case basis.’” Mildly put, this assertion mischaracterizes the memorandum. The quoted language refers to the treatment of only (a) initial applications pending on the date of the rescission, and (b) renewal applications filed within the one-month wind-down period. It does not refer to how future requests for deferred action outside the DACA program would be handled. Still, the rescission

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memorandum also did not forbid the agency from granting such requests, and it acknowledged the background principle of deferred action as “an act of prosecutorial discretion meant to be applied only on an individualized case-by-case basis.” And the memorandum closed by stating that “no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS”— presumably including granting deferred action on a case-bycase basis to some people who would have been eligible for DACA.
If allowed to go into effect, the rescission of DACA would undoubtedly result in the loss of deferred action for the vast majority of the 689,800 people who rely on the program. But the rescission memorandum does not mandate that result because it leaves in place the background principle that deferred action is available on a case-by-case basis.26 Plaintiffs’ primary argument against this conclusion is a citation to United States ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), which is said to be “the only other decision to address an Executive Branch decision to terminate a deferred-action program without undergoing notice-and-comment rulemaking.” But as the district court noted, the key factor in that case was the contention that under the policy at issue, “‘discretion’ was exercised favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in each such case.” Parco,

26 The Regents argue that “the agency’s discretion to grant deferred action on the basis of the DACA criteria has been eliminated.” This is not quite right either. DHS’s authority to grant deferred action under the DACA program has been eliminated, but the DACA criteria themselves are some of those that have traditionally guided immigration enforcement discretion. See Wadhia, supra, at 57 (“DHS used traditional humanitarian factors to outline the parameters for the DACA program, such as tender age and longtime residence in the United States.”).

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426 F. Supp. at 984. DACA, by contrast, explicitly contemplated case-by-case discretion, and its rescission appears to have left in place background principles of prosecutorial discretion.
Plaintiffs also argue that the DACA rescission is not a general policy statement because it is binding as a legal interpretation that a DACA-like program would be illegal. But again, this argument answers the wrong question. The Acting Secretary’s legal conclusion that a DACA-like program is unlawful does not constrain the discretion of linelevel DHS employees to grant deferred action on a case-bycase basis, and those employees lack authority to institute such an agency-wide program in the first place. And plaintiffs do not point to any reason why this Acting Secretary’s legal conclusion about DACA would bind subsequent Secretaries if they were to disagree with its reasoning—just as Acting Secretary Duke reversed course from previous Secretaries who concluded DACA was legal. This is not a “new ‘binding rule of substantive law,’” MadaLuna, 813 F.2d at 1014, affecting the rights of the people and entities regulated by the agency; it is an interpretation of the agency’s own power, and plaintiffs do not explain why it should be read as binding future DHS Secretaries. The district court correctly dismissed plaintiffs’ notice-andcomment claims.
C. Due Process: Deferred Action
The Garcia plaintiffs—individual DACA recipients— have brought a substantive due process claim alleging that the rescission deprived them of protected interests in their DACA designation, including the renewal of their benefits. The district court dismissed this claim, holding that there is no protected entitlement in either the initial grant of deferred action under DACA or the renewal of benefits for existing

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DACA enrollees. On appeal, the Garcia plaintiffs challenge this ruling only as it applies to the renewal of DACA benefits, not as to the initial grant.
“A threshold requirement to a substantive or procedural due process claim is the plaintiff’s showing of a liberty or property interest protected by the Constitution.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). It is possible to have a property interest in a government benefit, but “a person clearly must have more than an abstract need or desire for [the benefit]. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Although “a benefit is not a protected entitlement if government officials may grant or deny it in their discretion,” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005), a legitimate claim of entitlement may exist where there are “rules or mutually explicit understandings that support [a plaintiff’s] claim of entitlement to the benefit . . . .” Perry v. Sindermann, 408 U.S. 593, 601 (1972); see also, e.g., Gerhart v. Lake Cty., 637 F.3d 1013, 1020 (9th Cir. 2011). The dispute here focuses on whether such “mutually explicit understandings” existed between the government and DACA recipients with respect to the renewal of DACA benefits.
The Garcia plaintiffs assert that they and the government “‘mutually’ understood that DACA recipients would be able to renew their benefits and protection on an ongoing basis so long as they fulfilled the program’s criteria.” But this argument is undercut by the DACA FAQs published by DHS, which explicitly state that “USCIS retains the ultimate discretion to determine whether deferred action is appropriate in any given case even if the [renewal]

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guidelines are met.” The FAQs also state that any individual’s “deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion,” and Secretary Napolitano’s DACA memorandum claims that it “confers no substantive right, immigration status or pathway to citizenship.” Whether or not these provisions are legally operative, they do not indicate that the government shared plaintiffs’ expectation of presumptive renewal.
Attempting to overcome this facially discretionary language, plaintiffs emphasize several factors. First, they say, the very nature of the DACA project was such that presumptive renewal was required to encourage people to participate; a two-year term with no presumption of renewal would not have been attractive enough to outweigh the risks to the applicants. Moreover, Secretary Napolitano’s DACA memorandum itself states that grants of deferred action under DACA will be “subject to renewal,” and the actual criteria for renewal were “nondiscretionary” in nature.27 Finally, the plaintiffs point to a more than 99% approval rate for adjudicated DACA renewal applications. This, they assert, is powerful evidence of a mutual understanding of presumptive renewal.

27 DHS’s DACA FAQs state that “[y]ou 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.”

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All these points might have revealed a question of fact as to whether a mutually explicit understanding of presumptive renewal existed—thereby avoiding dismissal on the pleadings—if plaintiffs were bringing a claim that, for example, their individual DACA renewals were denied for no good reason. But it is hard to see how an expectation of renewal within the confines of the existing DACA policy could have created a mutually explicit understanding that the DACA program itself would not be terminated wholesale. That is, a 99% renewal rate under DACA provides no evidence that the government shared an understanding that the DACA program would continue existing indefinitely to provide such renewals. None of plaintiffs’ cited authorities appear to address this kind of claim.
While we may agree with much of what plaintiffs say about the cruelty of ending a program upon which so many have come to rely, we do not believe they have plausibly alleged a “mutually explicit understanding” that DACA— created by executive action in a politically polarized policy area and explicitly couched in discretionary language— would exist indefinitely, including through a change in presidential administrations. See Gerhart, 637 F.3d at 1020 (“A person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a property right if that belief is not mutually held by the government.”). On that basis, we affirm the district court’s dismissal.
D. Due Process: Information-Sharing
Several of the complaints allege a different due process theory: DACA recipients had a protected interest based on the government’s representations that the personal information they submitted with their applications would not be used for enforcement purposes, and the government

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violated this interest by changing its policy to allow such use. The district court held that the plaintiffs had plausibly alleged facts that state a claim under this theory.
As with their other due process claim, the question whether DACA recipients enjoy a protected due process right protecting them from having the government use their information against them for enforcement purposes turns on the existence of a “mutually explicit understanding[]” on that point between the government and DACA recipients. Perry, 408 U.S. at 601; see also Gerhart, 637 F.3d at 1020. The DACA FAQs published by DHS state the following information-use policy:
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

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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.

(emphasis added). The statement that applicant information “is protected from disclosure” to the enforcement arms of DHS is a strong commitment, and plaintiffs plausibly allege that DACA recipients reasonably relied on it.
The government of course points to the express caveat that the information-sharing policy “may be modified, superseded or rescinded at any time.” But as the district court held, this qualifier is ambiguous as to whether it allows the government to change its policy only prospectively, or also with respect to information already received—and this ambiguity presents a fact question not amenable to resolution on the pleadings. Plaintiffs’ interpretation that a policy change would only apply prospectively is a plausible one, given that the policy is written in terms of what will happen to “[i]nformation provided in this request,” rather than DACA-derived information generally. (emphasis added). It is at least reasonable to think that a change in the policy would apply only to those applications submitted after that change takes effect. And while the government also relies on the language stating that the policy does not create enforceable rights, such a disclaimer by an agency about what its statements do and do not constitute as a legal matter are not dispositive. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022–23 (D.C. Cir. 2000) (declining to give legal effect to agency statement that its guidance did “not represent final Agency action, and cannot be relied upon to create any rights . . . .”). Plaintiffs have plausibly

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alleged a mutually explicit understanding that DACA applicants’ information would be protected from disclosure.
The government argues in the alternative that plaintiffs have failed to plausibly allege that DHS actually changed its policy. Plaintiffs’ allegations rest on a set of FAQs about the DACA rescission that DHS published the same day it issued the rescission memorandum, September 5, 2017. In those rescission FAQs, the previous language stating that personal information “is protected from disclosure” has been replaced with the following:
Information provided to USCIS in DACA requests will not be proactively provided 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).

(emphasis added).
The government’s first response—that the differing language in the two FAQs does not actually reflect a difference in policy—is hard to swallow. It does not take much parsing of the text to see the significant difference between “protect[ing]” something from “disclosure” on the one hand, and merely declining to “proactively provide[]” it on the other. This is especially so when the entities in question (and to which USCIS presumably would now provide information reactively) are fellow components of the same umbrella agency.

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Changing gears, the government also points to yet a third set of FAQs, published months after the rescission and not part of the record in this case, which state:
Information provided to USCIS for the DACA process will not make you an immigration priority for that reason alone. That information will only be proactively provided to ICE or CBP if 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). This information-sharing policy has not changed in any way since it was first announced, including as a result of the Sept. 5, 2017 memo starting a wind-down of the DACA policy.

USCIS, Guidance on Rejected DACA Requests: Frequently Asked Questions (Nov. 30, 2017) (emphases added). The government notes that a district court relied on FAQs containing this language in parallel litigation to dismiss a nearly identical information-use due process claim. See Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279–81 (E.D.N.Y. 2018).
But this case is critically different because in Batalla Vidal the plaintiffs had attached the new version of the FAQs to their complaint. As the court there explained, “Plaintiffs . . . have effectively pleaded themselves out of court by relying on a document that contradicts their otherwiseunsupported allegation of a change to DHS’s informationuse policy.” Id. at 280. By contrast, here the most recent FAQs were not attached to or referenced in any of the

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complaints—indeed, they postdate the filing of the complaints. Therefore, the normal rule applies: materials outside the complaint cannot be considered on a motion to dismiss. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Even if it could be considered, this newest FAQ would not conclusively resolve the question of fact surrounding DHS’s current information-sharing policy because it still contains the language that suggests a change from the prerescission policy. See USCIS, Guidance, supra (“[I]nformation will only be proactively provided to ICE or CBP if the requestor meets the criteria for the issuance of a Notice To Appear[.]”) (emphasis added).28 Plaintiffs have plausibly alleged that DHS has changed its policy.
Finally, in order to state a substantive due process claim, plaintiffs must allege conduct that “shock[s] the conscience and offend[s] the community’s sense of fair play and decency.” Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1195 (9th Cir. 2013) (quoting March v. Cty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012)). The government makes a passing argument that this standard is not satisfied because the information-sharing policy has always contained some exceptions, but as the Garcia plaintiffs put it, “[a]pplicants accepted those limited, acknowledged risks when they applied for DACA. They did not accept the risk that the government would abandon the other assurances that were ‘crucial’ to ‘inducing them to

28 Astonishingly, this sentence—which appears to represent a change from the prior policy of affirmatively protecting information from disclosure—is immediately adjacent to DHS’s assurance that nothing has changed. Cf. George Orwell, Nineteen Eighty-Four (1949), at 175 (“Oceania was at war with Eastasia: Oceania had always been at war with Eastasia.”).

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apply for DACA.’” (alterations incorporated). We agree. Cf. Raley v. Ohio, 360 U.S. 423, 437–39 (1959) (holding that “convicting a citizen for exercising a privilege which the State had clearly told him was available to him” was “the most indefensible sort of entrapment by the State” and violated due process); Cox v. Louisiana, 379 U.S. 559, 568– 71 (1965) (due process violation where defendant was convicted for leading a demonstration in a location where the police chief had given him permission to do so). Plaintiffs have stated a due process claim based on the alleged change in DHS’s information-sharing policy.
E. Equal Protection
The district court also held that plaintiffs stated a viable equal protection claim by plausibly alleging that the DACA rescission disproportionately affected Latinos and individuals of Mexican descent and was motivated by discriminatory animus. See Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015) (holding a facially neutral action unconstitutional where “its enactment or the manner in which it was enforced were motivated by a discriminatory purpose,” and reviewing the Arlington Heights factors for assessing discriminatory purpose) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)).
Because the district court denied the government’s motion to dismiss plaintiffs’ equal protection claim at the pleading stage, we take all of the complaints’ allegations as true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and construe them in the light most favorable to the plaintiffs, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We agree with the district court that plaintiffs plausibly alleged an equal protection claim.

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Most significantly, plaintiffs allege that the rescission of DACA disproportionately impacts Latinos and individuals of Mexican heritage, who account for 93% of DACA recipients. See Arlington Heights, 429 U.S. at 266. The complaints also allege a history of animus toward persons of Hispanic descent29 evidenced by both pre-presidential and post-presidential30 statements by President Trump, who is alleged to have decided to end DACA, even though the directive to the Acting Secretary was issued from Attorney General Sessions. Finally, the district court properly considered “the unusual history behind the rescission,” all of which appeared in the record submitted by the government. See Arlington Heights, 429 U.S. at 267. As the district court noted, “DACA received reaffirmation by the agency as recently as three months before the rescission, only to be hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality). This strange

29 The government argues that the statements by the President cited in the complaints do not provide sufficient evidence to plausibly allege discriminatory intent. The government first submits that nationality, as opposed to ethnicity, is not an invidious classification, and that many of the cited comments go only to Mexican nationality. “Often, however, the two are identical as a factual matter: one was born in the nation whose primary stock is one’s own ethnic group.” St. Francis Coll. v. AlKhazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring). And plaintiffs allege discriminatory intent not only toward “Mexican nationals,” but also toward “individuals of Mexican heritage, and Latinos.”
30 The district court took judicial notice of one such statement by the President: “[o]n December 29, 2017, President Trump tweeted: ‘The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our Country at all cost!’” There were many similar statements made by the President after he took the oath of office leading up to the DACA rescission on September 5, 2017.

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about-face, done at lightning speed, suggests that the normal care and consideration within the agency was bypassed.”
The government contends that the equal protection claim is foreclosed by AADC, in which the Supreme Court stated that “as a general matter . . . an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” 525 U.S. at 488. But in the context of this case, the challenge to the rescission of DACA is not raised “as a defense against [] deportation,” and is not a claim of “selective enforcement.” Id. Rather, it is a freestanding claim that the Executive Branch, motivated by animus, ended a program that overwhelmingly benefits a certain ethnic group. Thus, the equal protection claim does not implicate the concerns motivating the Court in AADC and underscored by the government: inhibiting prosecutorial discretion, allowing continuing violations of immigration law, and impacting foreign relations. The two cases cited by the government do not support its position, as both of them involved an individual noncitizen making an equal protection argument in an attempt to avoid his own deportation. See Kandamar v. Gonzales, 464 F.3d 65, 72–74 (1st Cir. 2006); Hadayat v. Gonzales, 458 F.3d 659, 665 (7th Cir. 2006). Plaintiffs’ challenge to the rescission of DACA—which is itself discretionary—is not such a case.
The government also contends that even if not totally barred by AADC, plaintiffs’ claims must be subject to the heightened pleading standard applied to selectiveprosecution claims in the criminal context. See United States v. Armstrong, 517 U.S. 456, 463–65 (1996). But this argument meets the same objection: as the district court held, plaintiffs’ challenge is not a selective-prosecution claim.

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We are therefore not persuaded by the government’s arguments.
The Supreme Court’s recent decision in Trump v. Hawaii, 138 S. Ct. 2392 (2018), does not foreclose this claim. There, statements by the President allegedly revealing religious animus against Muslims were “[a]t the heart of plaintiffs’ case . . . .” Hawaii, 138 S. Ct. at 2417. The Court assumed without deciding that it was proper to rely on the President’s statements, but nevertheless upheld the challenged executive order under rational basis review. Id. at 2420, 2423. Here, by contrast, plaintiffs provide substantially greater evidence of discriminatory motivation, including the rescission order’s disparate impact on Latinos and persons of Mexican heritage, as well as the order’s unusual history. Moreover, our case differs from Hawaii in several potentially important respects, including the physical location of the plaintiffs within the geographic United States, see Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc), the lack of a national security justification for the challenged government action, and the nature of the constitutional claim raised.
Therefore, we conclude that plaintiffs have stated a plausible equal protection claim.
VII.
The rescission of DACA—based as it was solely on a misconceived view of the law—is reviewable, and plaintiffs are likely to succeed on their claim that it must be set aside under the APA. We therefore affirm the district court’s entry

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of a preliminary injunction.31 The district court also properly dismissed plaintiffs’ APA notice-and-comment claim, and their claim that the DACA rescission violates their substantive due process rights. The district court also properly denied the government’s motion to dismiss plaintiffs’ APA arbitrary-and-capricious claim, their claim that the new information-sharing policy violates their due process rights, and their claim that the DACA rescission violates their right to equal protection.

* * *

The Executive wields awesome power in the enforcement of our nation’s immigration laws. Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public. Whether Dulce Garcia and the hundreds of thousands of other young dreamers like her may continue to live productively in the only country they have ever known is, ultimately, a choice for the political branches of our constitutional government. With the power to make that choice, however, must come accountability for the consequences.

AFFIRMED.

31 We do not disagree with the reasoning of Judge Owens’s concurring opinion that the likelihood of success on plaintiffs’ equal protection claim is a second, alternative ground for affirming the entry of the injunction.

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OWENS, Circuit Judge, concurring in the judgment:
As I believe that Plaintiffs’ Equal Protection claim has some “likelihood of success on the merits,” I concur in the judgment affirming the preliminary injunction. The extraordinary practical impact of allowing DACA’s rescission to take effect before a final adjudication of its legality far outweighs the minimal practical impact of keeping the program in place a bit longer. For that reason, it is better now to risk incorrectly preserving the status quo than to risk incorrectly disrupting it.1 However, I disagree with the portion of the majority’s opinion that we may review the rescission of DACA for compliance with the APA.2
Under 5 U.S.C. § 701(a)(2), “agency action [that] is committed to agency discretion by law” is not subject to judicial review for compliance with the APA. Since Heckler

1 The government appears to share this view. In its petition for certiorari before judgment, the government asserted that “a primary purpose of the Acting Secretary’s orderly wind-down of the DACA policy was to avoid the disruptive effects on all parties of abrupt shifts in the enforcement of the Nation’s immigration laws. Inviting more changes before final resolution of this litigation would not further that interest.”
2 As for the government’s appeal from the motions to dismiss, I dissent, for reasons stated here, from the majority’s holding to affirm the district court’s denial of the motion to dismiss Plaintiffs’ APA arbitraryand-capricious claim (Part VI-A). However, I concur in the majority’s holding to affirm the district court’s dismissal of Plaintiffs’ APA noticeand-comment claim (Part VI-B). I also concur in the judgment to affirm the district court’s ruling on Plaintiffs’ Due Process claims (Part VI-C; Part VI-D). And, as explained here as well, I agree with the majority’s decision to affirm the district court’s denial of the motion to dismiss the Equal Protection claim (Part VI-E) and hold that the Equal Protection claim offers an alternative ground to affirm the preliminary injunction.

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v. Chaney, courts read § 701(a)(2) to preclude judicial review of certain types of administrative action that are “traditionally . . . ‘committed to agency discretion.’” 470 U.S. 821, 832 (1985) (holding unreviewable the decision not to institute enforcement proceedings); Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (same for the allocation of funds from a lump-sum appropriation); Webster v. Doe, 486 U.S. 592, 599–600 (1988) (same for decisions of the Director of the Central Intelligence Agency to terminate an employee due to national security interests); ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 281–82 (1987) (BLE) (same for an agency’s refusal to grant reconsideration of an action due to material error).
An agency decision to rescind a non-enforcement policy in the immigration context is this type of administrative action. From Heckler, we know that agency actions that “involve[] a complicated balancing of a number of factors,” like allocating agency resources and prioritizing agency policies, “are peculiarly within [the agency’s] expertise,” and are therefore “general[ly] unsuitab[le] for judicial review.” 470 U.S. at 831. And in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (AADC), the Supreme Court made clear that Executive Branch decisions that implicate enforcement priorities in the context of immigration are among those that judges are least equipped to review. Id. at 489–90. In AADC, the Court explained that the concerns necessitating the Executive’s “broad discretion” in criminal prosecutions are “greatly magnified in the deportation context.” Id. (citing United States v. Armstrong, 517 U.S. 456, 464 (1996)).
In deciding to rescind an immigration policy of nonenforcement, DHS thus acts with broad discretion that courts cannot review absent clear congressional authorization.

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Here, rather than authorize judicial review, the broad, discretion-granting language of the enabling statute reinforces that DHS’s enforcement decision is not subject to APA review. See 6 U.S.C. § 202(5) (“The Secretary shall be responsible for . . . [e]stablishing national immigration enforcement policies and priorities.”); see also Webster, 486 U.S. at 599–600.
Perhaps recognizing that immigration enforcement decisions exhibit the characteristics of unreviewable agency actions, the majority decides that we should nonetheless review the rescission of DACA because these features are not actually at work here: Acting Secretary Duke explained that DACA was rescinded based on DHS’s belief that the program was unlawful. The majority points to Heckler’s footnote 4, where the Court left open the question whether courts may review agency action if “a refusal by the agency to institute proceedings [is] based solely on the belief that it lacks jurisdiction.” Heckler, 470 U.S. at 833 n.4 (“[W]e express no opinion on whether such decisions would be unreviewable under § 701(a)(2) . . . .”). The majority concludes that the Supreme Court has not yet answered this question, and that our court, in Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753, 756–57 (9th Cir. 1990), has answered it in the affirmative: that otherwise unreviewable agency action is reviewable when the agency justifies its action by reference to its understanding of its jurisdiction. I respectfully disagree.
In Montana Air, we confronted the question left open in Heckler’s footnote 4. Specifically, we held that a decision by the Federal Labor Relations Authority’s General Counsel not to issue an unfair labor practice complaint was reviewable only because his decision was “based solely on his belief that he lacks jurisdiction to issue such a

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complaint.” Id. at 756. But what we held reviewable were the General Counsel’s “statutory and regulatory interpretations to determine if his belief that he lacked jurisdiction was correct.” Id. at 757. Applying Chevron, we found “impermissible” the General Counsel’s interpretations of the statute under which he acted. Id. at 758.
Here, by contrast, Plaintiffs do not ask that we apply Chevron to review whether Acting Secretary Duke impermissibly interpreted 6 U.S.C. § 202(5) in concluding that the statute authorized the rescission of DACA.3 Instead, Plaintiffs ask that we review for arbitrariness and capriciousness the procedures the agency used to rescind DACA. But nothing in Montana Air suggests that Heckler’s footnote 4 authorizes arbitrary-and-capricious, rather than Chevron, review of agency action simply because the agency acted based on its understanding of its enabling statute. And, despite Plaintiffs’ arguments to the contrary, BLE plainly prohibits us from doing so.
In BLE, the Supreme Court held that an agency’s refusal to reconsider a prior adjudicative decision was unreviewable even where the agency based its refusal on its interpretation of its enabling statute. 482 U.S. at 278–84. In so holding, the Court explained that the agency’s refusal to reconsider was unreviewable because it was the type of action that “has traditionally been ‘committed to agency discretion,’” id. at 282 (quoting Heckler, 470 U.S. at 832); thus any inquiry into its reasons for acting was inappropriate, id. at 280–81. “It is

3 This is not surprising: § 202(5) makes the Secretary “responsible for . . . [e]stablishing national immigration enforcement policies and priorities.” If we accept that this broad, discretion-granting statute authorized DACA’s implementation, it surely also sanctions DACA’s termination.

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irrelevant that the [agency’s] order refusing reconsideration discussed the merits of the unions’ claim at length,” the Court explained, as “[i]t would hardly be sensible to say that the [agency] can genuinely deny reconsideration only when it gives the matter no thought.” Id. BLE thus makes clear that when determining the scope of permissible judicial review, courts consider only the type of agency action at issue, not the agency’s reasons for acting.
Finally, Plaintiffs argue that even if BLE precludes review of some types of agency action regardless of the agency’s reason for acting, that rule only applies to singleshot enforcement decisions, not to general statements of policy. See NAACP v. Trump, 298 F. Supp. 3d 209, 227–36 (D.D.C. 2018) (discussing Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994), and permitting APA review on this ground). In other words, Plaintiffs would have us hold that general statements of policy—but not single-shot enforcement decisions—are subject to APA review when the agency’s sole reason for acting is its understanding of its jurisdiction. While the majority acknowledges Plaintiffs’ argument without reaching its merits, I believe that such a distinction collapses Heckler on its head: In deciding whether agency action is reviewable, the first question we ask is what type of agency action is before us—whether it is agency action that courts typically review or agency action “traditionally . . . ‘committed to agency discretion.’” Heckler, 470 U.S. at 832. This initial inquiry includes consideration of whether the action is a single-shot non-enforcement decision or a general statement of policy. It would beg the question to conclude that unreviewable agency action is in fact reviewable because it is the type of action that courts typically review.

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I would therefore hold that § 701(a)(2) precludes us from subjecting DACA’s rescission to arbitrary-and-capricious review.
At the same time, as the government concedes, DACA’s rescission may be reviewed for compliance with the Constitution. I would hold that Plaintiffs have plausibly alleged that the rescission of DACA was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment, and that the district court correctly denied the government’s motion to dismiss this claim.
Notably, Plaintiffs did not seek a preliminary injunction on their Equal Protection claim, instead relying solely on their APA argument. Nonetheless, this court may affirm a preliminary injunction on any basis supported by the record. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1021 (9th Cir. 2013). And because a preliminary injunction preserves the court’s power to render a meaningful decision on the merits, we can affirm an injunction issued on legally erroneous grounds where remand for consideration of alternative grounds is warranted. See Gerling Global Reinsurance Corp. of Am. v. Low, 240 F.3d 739, 754 (9th Cir. 2001) (“It is possible that [the challenged law] violates the Due Process Clause, but the district court did not reach that issue, and it is not fully developed in the record or in the briefs presented to this court. We leave the preliminary injunction in place in order to give the district court an opportunity to consider whether Plaintiffs are likely to succeed on the merits.”); see also United States v. Hovsepian, 359 F.3d 1144, 1157 (9th Cir. 2004) (en banc) (holding that the district court erred in entering an injunction but leaving “the injunction in place . . . pending the conclusion of all proceedings in this case, in aid of the court’s jurisdiction”). Accordingly, I would affirm

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the preliminary injunction and remand for consideration whether Plaintiffs have demonstrated a likelihood of success on the merits of their Equal Protection claim.
As the majority details, the record assembled at this early stage is promising. Plaintiffs highlight (1) the disproportionate impact DACA’s rescission has on “individuals of Mexican heritage, and Latinos, who together account for 93 percent of approved DACA applications”; (2) a litany of statements by the President and high-ranking members of his Administration that plausibly indicate animus toward undocumented immigrants from Central America;4 and (3) substantial procedural irregularities in the challenged agency action.
Such evidence—plus whatever additional evidence Plaintiffs muster on remand—may well raise a presumption that unconstitutional animus was a substantial factor in the rescission of DACA. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977); see also Hawaii, 138 S. Ct. at 2420 (holding that courts “may consider plaintiffs’ extrinsic evidence” as permitted by the applicable level of scrutiny). If the government fails to rebut that presumption, Plaintiffs will have demonstrated a likelihood of success on the merits. See Arlington Heights, 429 U.S. at 270 & n.21 (noting that proof that an action was motivated by a discriminatory purpose shifts to the government the burden of establishing that the same decision would have resulted without the impermissible purpose);

4 Like the majority, I do not interpret Trump v. Hawaii, 138 S. Ct. 2392 (2018), to preclude review of the President’s statements when applying the Arlington Heights standard. At the merits stage, the district court can still decide whether, or to what degree, the President’s statements betray a discriminatory animus behind DACA’s rescission.

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Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006) (affirming the injunction where the government failed to meet its burden at preliminary injunction stage, because “the burdens at the preliminary injunction stage track the burdens at trial”). As such, I believe that Plaintiffs have plausibly alleged an Equal Protection violation and that the district court should decide whether it is an alternative ground to grant the preliminary injunction.
Moreover, the balance of equities here weighs heavily in favor of affirming the preliminary injunction. A merits decision from the district court concluding that the Executive rescinded DACA because of unconstitutional racial animus would be little more than an advisory opinion if by that time thousands of young people had lost their status due to the lack of an injunction preserving it. Preliminary injunctive relief exists precisely for circumstances like these: “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.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Thus, on these facts, the district court was correct to issue a preliminary injunction. See Ashcroft v. ACLU, 542 U.S. 656, 670 (2004) (affirming injunction where “the potential harms from reversing the injunction outweigh those of leaving it in place by mistake”); Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975) (granting preliminary relief because “otherwise a favorable final judgment might well be useless”); Brown v. Chote, 411 U.S. 452, 457 (1973); cf. Winter v. NRDC, Inc., 555 U.S. 7, 26 (2008) (reversing injunction without addressing likelihood of success on the merits where “the balance of equities and consideration of the overall public interest in this case tip strongly in favor of [defendants]”).

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Accordingly, while I would remand for the district court to evaluate the Plaintiffs’ likelihood of success on the merits of their Equal Protection claim as an alternative basis for preliminary relief in the first instance, I join the majority in affirming the preliminary injunction to preserve the status quo while Plaintiffs attempt to prove up that claim.

Notice to Appear Policy Memorandum | USCIS
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Legal Resources Notice to Appear Policy Memorandum

8 CFR

On June 28, we issued a new Notice to Appear (NTA) policy memorandum (PM)

Administrative Decisions

Precedent Decisions

Immigration From the

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Northern Mariana Islands (CNMI)

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Immigration Handbooks, Manuals and Guidance

seekers are provided adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how applicants can

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compliance, or validate departure from the United States.

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The June 2018 NTA Policy Memo will not be implemented with respect to

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We’ll continue to prioritize cases of individuals with criminal records, fraud, or national security concerns and will continue the current processes of using our discretion in issuing NTAs on these case types.
USCIS held a public teleconference on Thursday, Sept. 27, and provided an overview of the PM and responded to pre-submitted questions. The questions and answers, and the overview from the teleconference, are available on the USCIS Teleconference Notice to Appear (NTA) Update Policy Guidance script (PDF, 3.52 MB) posted to the Electronic Reading Room.

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Notice to Appear Policy Memorandum | USCIS

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Bars to Admissibility

The updated policy affects the following categories of cases where the individual is removable:

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Buy American and Hire American
Proposed Change to Public Charge Ground of Inadmissibility
Notice to Appear Policy Memorandum

Cases where fraud or misrepresentation is substantiated, and/or cases where there is evidence the applicant abused any program related to receiving public benefits. We will issue an NTA in these cases, even if we deny the case for reasons other than fraud. Criminal cases where an applicant is charged with (or convicted of) a criminal offense, or committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. We will, where circumstances warrant, refer cases to ICE without issuing an NTA or adjudicating an immigration benefits. Cases where we denied a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense. Cases where an applicant will be unlawfully present in the United States when we deny the petition or application.
The PM did not change USCIS policy for the following categories:

Cases involving national security concerns;

Cases where issuing an NTA is required by statute or regulation;

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► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
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• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
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Case: 18-15068, 11/08/2018, ID: 11081386, DktEntry: 199-3, Page 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

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Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

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

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

PARTIES TO THE PROCEEDING
Petitioners are the Donald J. Trump, President of the United States; Jefferson B. Sessions III, Attorney General of the United States; Kirstjen M. Nielsen, Secretary of Homeland Security; U.S. Department of Homeland Security; and the United States.
Respondents are the Regents of the University of California; Janet Napolitano, President of the University of California; the State of California; the State of Maine; the State of Maryland; the State of Minnesota; the City of San Jose; Dulce Garcia; Miriam Gonzalez Avila; Saul Jimenez Suarez; Viridiana Chabolla Mendoza; Norma Ramirez; Jirayut Latthivongskorn; the County of Santa Clara; and Service Employees International Union Local 521.
(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 2 Statutory provisions involved...................................................... 2 Statement ...................................................................................... 2 Reasons for granting the petition ............................................. 14
I. The questions presented warrant this Court’s immediate review ......................................................... 15
II. The decisions below are wrong ................................... 17 A. DACA’s rescission is unreviewable under the APA .................................................................. 17 B. DACA’s rescission is lawful .................................. 23 1. The rescission is reasonable in light of DHS’s serious doubts about the legality of the DACA policy ............................................. 23 2. The rescission is reasonable in light of DHS’s additional and independent policy concerns ........................................................... 27 3. The rescission is reasonable in light of DHS’s correct determination that DACA is unlawful ........................................................ 28 4. The rescission does not violate equal protection or due process ............................... 30
III. The Court should grant certiorari before judgment in all three cases ......................................... 32
Conclusion ................................................................................... 34 Appendix A — District court order denying FRCP
12(b)(1) dismissal and granting provisional relief (Jan. 9, 2018) .................. 1a Appendix B — District court order granting in part defendants’ motion to dismiss under FRCP 12(b)(6) (Jan. 12, 2018).................. 71a Appendix C — Notice of appeal (Jan. 16, 2018) .................. 91a Appendix D — Court of appeals order (Jan. 25, 2018) ....... 96a

(III)

IV

Table of Contents—Continued:

  Page

Appendix E — Memorandum on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) .......... 97a
Appendix F — Memorandum on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014) ....................... 102a
Appendix G — Memorandum on Rescission of Deferred Action for Childhood Arrivals (Sept. 5, 2017) ........................................... 111a
Appendix H — Memorandum from Secretary Kirstjen M. Nielsen (June 22, 2018) ..................... 120a
Appendix I — Statutory provisions .................................. 127a

Cases:

TABLE OF AUTHORITIES

Arizona v. United States, 567 U.S. 387 (2012) ........... 2, 3, 19 Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281 (1974) ........................................... 24 Casa de Maryland v. Department of Homeland Sec.,
284 F. Supp. 3d 758 (D. Md. 2018) ...................................... 8 Dames & Moore v. Regan, 453 U.S. 654 (1981).................. 17 FCC v. Fox Television Stations, Inc., 556 U.S. 502
(2009) .................................................................................... 23 Harlow v. Fitzgerald, 457 U.S. 800 (1982) .......................... 28 Heckler v. Chaney, 470 U.S. 821 (1985)...................... passim I.C.C. v. Brotherhood of Locomotive Eng’rs,
482 U.S. 270 (1987)........................................................ 18, 21 Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ..................... 22

V

Cases—Continued:

Page

Lincoln v. Vigil, 508 U.S. 182 (1993) ................................... 18
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .................................... 23, 26, 29
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ..........................3, 19, 22, 30, 31
Texas v. United States:
86 F. Supp. 3d 591 (S.D. Tex.), aff  ’d, 809 F.3d 134 (5th Cir. 2015), aff  ’d, 136 S. Ct. 2271 (2016) .................................................. 5
809 F.3d 134 (5th Cir. 2015), aff ’d, 136 S. Ct. 2271 (2016) .............................5, 6, 24, 25, 29
Texas v. United States, No. 18-cv-68, 2018 WL 4178970 (S.D. Tex. Aug. 31, 2018)............... 16, 25
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) .................................................................................... 22
Trump v. Hawaii, 138 S. Ct. 2392 (2018)............................ 31
United States v. Armstrong, 517 U.S. 456 (1996) ........................................................................ 19, 28, 30
United States v. Nixon, 418 U.S. 683 (1974)....................... 17
United States v. Texas, 136 S. Ct. 2271 (2016) ............... 6, 16
Wayte v. United States, 470 U.S. 598 (1985) ...................... 20
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).............................................................. 17

Constitution, statutes, regulation, and rules:
U.S. Const.: Art. III.............................................................................. 31 Amend. V (Due Process Clause) .................................... 30
Administrative Procedure Act, 5 U.S.C. 551 et seq................................................................. 5 5 U.S.C. 701(a)(2)....................................9, 17, 18, 19, 127a 5 U.S.C. 706(2)(A).................................................. 23, 128a

VI

Statutes, regulation, and rules—Continued:

Page

Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq............................................................. 20
Immigration and Nationality Act, 8 U.S.C. 1101 et seq............................................................... 2 8 U.S.C. 1103(a)(1)............................................................. 2 8 U.S.C. 1158(b)(1)(A) ....................................................... 3 8 U.S.C. 1182(a) (2012 & Supp. V 2017) .......................... 2 8 U.S.C. 1227(a) (2012 & Supp. V 2017) .......................... 2 8 U.S.C. 1229b.................................................................... 3 8 U.S.C. 1252.................................................9, 17, 21, 129a 8 U.S.C. 1252(b)(9) ................................................ 22, 138a 8 U.S.C. 1252(g) ..................................................... 21, 143a
Railway Labor Act, 45 U.S.C. 151 et seq. ............................ 21 Regulatory Flexibility Act, 5 U.S.C. 601 et seq. ............. 8, 12 6 U.S.C. 202(5) (2012 & Supp. V 2017) ................ 3, 19, 28, 29 28 U.S.C. 1254(1) ................................................................... 15 28 U.S.C. 1292(b) ............................................................. 11, 12 28 U.S.C. 2101(e) ................................................................... 16 8 C.F.R. 274a.12(c)(14) ............................................................ 3 Fed. R. Civ. P.:
Rule 12(b)(1) .......................................................... 9, 10, 12 Rule 12(b)(6) ................................................................ 9, 12 Sup. Ct. R. 11 ......................................................................... 16

Miscellaneous:

S. 1291, 107th Cong., 1st Sess. (2001) .................................... 4 S. 1545, 108th Cong., 1st Sess. (2003) .................................... 4 S. 2075, 109th Cong., 1st Sess. (2005) .................................... 4 S. 2205, 110th Cong., 1st Sess. (2007) .................................... 4 S. 3827, 111th Cong., 2d Sess. (2010) ..................................... 4

VII

Miscellaneous—Continued:

Page

Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) ..................................................................... 17
The White House, Remarks by the President on Immigration (June 15, 2012), https://go.usa.gov/ xnZFY .................................................................................. 26
U.S. Citizenship & Immigration Servs., U.S. Dep’t of Homeland Sec.:
Deferred Action for Childhood Arrivals: Frequently Asked Questions (Mar. 8, 2018), https://go.usa.gov/xngCd ........................................ 4, 5
Frequently Asked Questions: Recession of DACA (Sept. 5, 2017), https://go.usa.gov/ xPVmE ......................................................................... 7
Guidance on Rejected DACA Requests (Feb. 14, 2018), https://go.usa.gov/xPVmG .......... 7, 31

In the Supreme Court of the United States
No. UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
ET AL., PETITIONERS v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
The Solicitor General, on behalf of the United States Department of Homeland Security and other federal parties, respectfully petitions for a writ of certiorari before judgment to the United States Court of Appeals for the Ninth Circuit.
OPINIONS BELOW
The order of the district court granting respondents’ motion for a preliminary injunction and denying the government’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) (App. 1a-70a) is reported at 279 F. Supp. 3d 1011. The order of the district court granting in part and denying in part the government’s motion to dismiss under Rule 12(b)(6) (App. 71a-90a) is reported at 298 F. Supp. 3d 1304.
(1)

2
JURISDICTION
On January 9, 2018, the district court denied the government’s Rule 12(b)(1) motion, entered a preliminary injunction, and certified its Rule 12(b)(1) decision for interlocutory appeal. On January 12, 2018, the district court granted in part and denied in part the government’s Rule 12(b)(6) motion and certified its decision for interlocutory appeal. The government filed a notice of appeal of both the January 9 and January 12 orders on January 16, 2018 (App. 91a-95a). The Ninth Circuit granted permission to appeal both the January 9 and January 12 orders on January 25, 2018. App. 96a. The court of appeals’ jurisdiction over the appeal of the preliminary injunction rests on 28 U.S.C. 1292(a)(1). The court of appeals’ jurisdiction over the appeal of the certified rulings rests on 28 U.S.C. 1292(b). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) and 28 U.S.C. 2101(e).
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions are set forth in the appendix to this petition. App. 127a-143a.
STATEMENT
1. a. The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., charges the Secretary of Homeland Security “with the administration and enforcement” of the immigration laws. 8 U.S.C. 1103(a)(1). Individual aliens are subject to removal if, inter alia, “they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United States, 567 U.S. 387, 396 (2012); see 8 U.S.C. 1182(a) (2012 & Supp. V 2017); see also 8 U.S.C. 1227(a) (2012 & Supp. V 2017). As a

3
practical matter, however, the federal government cannot remove every removable alien, and a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 567 U.S. at 396.
For any alien subject to removal, Department of Homeland Security (DHS) officials must first “decide whether it makes sense to pursue removal at all.” Arizona, 567 U.S. at 396. After removal proceedings begin, government officials may decide to grant discretionary relief, such as asylum or cancellation of removal. See 8 U.S.C. 1158(b)(1)(A), 1229b. And, “[a]t each stage” of the process, “the Executive has discretion to abandon the endeavor.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999) (AADC). In making these decisions, like other agencies exercising enforcement discretion, DHS must engage in “a complicated balancing of a number of factors which are peculiarly within its expertise.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). Recognizing the need for such balancing, Congress has provided that the “Secretary [of Homeland Security] shall be responsible for * * * [e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. 202(5) (2012 & Supp. V 2017).
b. In 2012, DHS announced the policy known as Deferred Action for Childhood Arrivals (DACA). See App. 97a-101a. Deferred action is a practice in which the Secretary exercises discretion to notify an alien of her decision to forbear from seeking his removal for a designated period. AADC, 525 U.S. at 484. Under DHS regulations, aliens granted deferred action may apply for and receive work authorization for the duration of the deferred-action grant if they establish economic necessity. 8 C.F.R. 274a.12(c)(14). A grant of deferred

4
action does not confer lawful immigration status or provide any defense to removal. DHS retains discretion to revoke deferred action unilaterally, and the alien remains removable at any time.
DACA made deferred action available to “certain young people who were brought to this country as children.” App. 97a. The INA does not provide any exemptions or special relief from removal for such individuals. And, dating back to at least 2001, bipartisan efforts to provide such relief legislatively had failed.1 Under the DACA policy, following successful completion of a background check and other review, an alien would receive deferred action for a period of two years, subject to renewal. App. 99a-100a. The policy made clear that it “confer[red] no substantive right, immigration status or pathway to citizenship,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” App. 101a.
DHS explained that information provided in the DACA request process would be protected from disclosure for the purpose of immigration enforcement proceedings unless certain criteria related to national security or public safety were satisfied, or the individual met the requirements for a Notice to Appear. USCIS, DHS, Deferred Action for Childhood Arrivals: Frequently Asked Questions (Mar. 8, 2018), https://go.usa.gov/xngCd. DHS also stated, however, that this information-sharing policy “may be modified, superseded, or rescinded at any time without notice,” and that it “may not be relied
1 See, e.g., S. 1291, 107th Cong., 1st Sess. (2001); S. 1545, 108th Cong., 1st Sess. (2003); S. 2075, 109th Cong., 1st Sess. (2005); S. 2205, 110th Cong., 1st Sess. (2007); S. 3827, 111th Cong., 2d Sess. (2010).

5
upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” Id. at 6.
Later, in 2014, DHS created a new policy of enforcement discretion referred to as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). App. 102a-110a. Through a process expressly designed to be “similar to DACA,” DAPA made deferred action available for certain individuals who had a child who was a U.S. citizen or lawful permanent resident. App. 107a. At the same time, DHS also expanded DACA by extending the deferred-action period from two to three years and by loosening the age and residency criteria. App. 106a-107a.
c. Soon thereafter, Texas and 25 other States brought suit in the Southern District of Texas to enjoin DAPA and the expansion of DACA. The district court issued a nationwide preliminary injunction, finding a likelihood of success on the claim that the DAPA and expanded DACA memorandum was a “ ‘substantive’ rule that should have undergone the notice-andcomment rule making procedure” required by the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. Texas v. United States, 86 F. Supp. 3d 591, 671 (S.D. Tex. 2015); see id. at 607, 647, 664-678.
The Fifth Circuit affirmed the injunction, holding that the DAPA and expanded DACA policies likely violated both the APA and the INA. Texas v. United States, 809 F.3d 134, 146, 170-186 (2015). The court of appeals concluded that plaintiffs had “established a substantial likelihood of success on the merits of their procedural claim” that DAPA and expanded DACA were invalidly instituted without notice and comment. Id. at

6
178. The court also concluded, “as an alternate and additional ground,” that the policies were substantively contrary to law. Ibid. The court observed that the INA contains an “intricate system of immigration classifications and employment eligibility,” and “does not grant the Secretary discretion to grant deferred action and lawful presence on a class-wide basis to 4.3 million otherwise removable aliens.” Id. at 184, 186 n.202. It also noted that Congress had repeatedly declined to enact legislation “closely resembl[ing] DACA and DAPA.” Id. at 185.
After briefing and argument, this Court affirmed the Fifth Circuit’s judgment by an equally divided Court, United States v. Texas, 136 S. Ct. 2271, 2272 (2016) (per curiam), leaving the nationwide injunction in place.
d. In June 2017, Texas and other plaintiff States in the Texas case announced their intention to amend their complaint to challenge the original DACA policy. D. Ct. Doc. 64-1, at 238-240 (Oct. 6, 2017).2 They asserted that “[f ]or the[] same reasons that DAPA and Expanded DACA’s unilateral Executive Branch conferral of eligibility for lawful presence and work authorization was unlawful, the original June 15, 2012 DACA memorandum is also unlawful.” Id. at 239.
On September 5, 2017, rather than confront litigation challenging DACA on essentially the same grounds that had succeeded in Texas before the same court for the DAPA and expanded DACA policies, DHS decided to wind down DACA in an orderly fashion. App. 111a119a. In the rescission memorandum, then-Acting Secretary of Homeland Security Elaine Duke explained that, “[t]aking into consideration the Supreme Court’s
2 Citations to the district court docket are to Regents of the University of California v. DHS, No. 17-cv-5211.

7
and the Fifth Circuit’s rulings in the ongoing litigation,” as well as the Attorney General’s view that the DACA policy was unlawful and that the “potentially imminent” challenge to DACA would “likely * * * yield similar results” as the Texas litigation, “it is clear that the June 15, 2012 DACA program should be terminated.” App. 116a-117a. The Acting Secretary accordingly announced that, “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,” the original DACA memorandum was “rescind[ed].” App. 117a.
The rescission memorandum stated, however, that the government “[w]ill not terminate the grants of previously issued deferred action * * * solely based on the directives in this memorandum” for the remaining twoyear periods. App. 118a. The memorandum also explained that DHS would “provide a limited window in which it w[ould] adjudicate certain requests for DACA.” App. 117a. Specifically, DHS would “adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests * * * from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.” App. 117a-118a.
DHS has also made clear that the “informationsharing policy has not changed in any way since it was first announced, including as a result of the Sept. 5, 2017” DACA rescission. USCIS, DHS, Guidance on Rejected DACA Requests (Feb. 14, 2018), https://go.usa.gov/ xPVmG (DHS Information-Sharing Guidance); see

8
USCIS, DHS, Frequently Asked Questions: Rescission of DACA (Sept. 5, 2017), https://go.usa.gov/xPVmE.
e. Shortly after DHS’s decision to rescind DACA, respondents brought these five related suits in the Northern District of California challenging the rescission of DACA. Collectively, they allege that the termination of DACA is unlawful because it is arbitrary and capricious under the APA; violates the APA’s requirement for notice-and-comment rulemaking as well as the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.; denies respondents equal protection and due process; and permits the government to use information obtained through DACA in a manner inconsistent with principles of due process and equitable estoppel. See App. 21a-22a. Similar challenges were filed in the Eastern District of New York and in the District of Columbia. See, e.g., Batalla Vidal v. Nielsen, No. 16-cv-4756 (E.D.N.Y. filed Sept. 19, 2017); NAACP v. Trump, No. 17-cv-1907 (D.D.C. filed Sept. 18, 2017). A summary of the proceedings in the Northern District of California (Regents) follows in this petition. A summary of the proceedings in the other district courts can be found in the government’s petitions in those cases, filed simultaneously with this one.3
2. In Regents, the government filed the administrative record in October 2017. Litigation ensued in which respondents obtained orders from the district court directing a vast expansion of the administrative record, in addition to immediate discovery. See, e.g., D. Ct. Doc. 79 (Oct. 17, 2017). The government sought review of
3 The government largely prevailed in a similar challenge to the rescission filed in the District of Maryland. See Casa de Maryland v. Department of Homeland Sec., 284 F. Supp. 3d 758 (2018). An appeal of that decision is pending before the Fourth Circuit.

9
those orders in a mandamus petition in the court of appeals, which a divided panel of the Ninth Circuit denied. 875 F.3d 1200 (2017). After granting a stay of the district court’s orders, 138 S. Ct. 371 (2017), this Court granted the government’s petition for a writ of certiorari, vacated the Ninth Circuit’s judgment, and remanded for further proceedings. 138 S. Ct. 443 (2017) (per curiam). On remand, the district court stayed its orders requiring expansion of the administrative record and authorizing discovery “pending further order.” D. Ct. Doc. 225, at 1 (Dec. 21, 2017).
While the litigation over the record proceeded, the government filed a motion to dismiss all five suits under Federal Rule of Civil Procedure 12(b)(1) and (6). D. Ct. Doc. 114 (Nov. 1, 2017). At the threshold, the government argued that respondents’ claims are not reviewable because DHS’s decision to rescind DACA is committed to agency discretion by law, see 5 U.S.C. 701(a)(2); and because judicial review of the denial of deferred action, if available at all, is barred under the INA prior to the issuance of a final removal order, see 8 U.S.C. 1252. The government also argued that respondents’ arbitraryand-capricious claims fail because DHS rationally explained the decision to wind down the discretionary DACA policy given the Acting Secretary’s conclusion that the policy is unlawful and the imminent risk of its being invalidated in the Texas case. Finally, the government argued that respondents’ other claims are without merit because the rescission of DACA is exempt from notice-and-comment requirements; does not violate principles of equal protection or due process; and does not change or affect the policies governing the use of aliens’ personal information.

10
Respondents opposed the government’s motion to dismiss and filed a motion for a preliminary injunction, seeking to prevent the government from rescinding the DACA policy. D. Ct. Doc. 111 (Nov. 1, 2017); D. Ct. Doc. 205 (Nov. 22, 2017).
3. On January 9, 2018, the district court denied the motion to dismiss to the extent it was based on Rule 12(b)(1), and entered a preliminary injunction requiring the government to “maintain the DACA program on a nationwide basis.” App. 66a; see App. 1a-70a.
The district court first ruled that the rescission of DACA was not committed to agency discretion by law. The court acknowledged that an agency’s decisions “not to prosecute or initiate enforcement actions are generally not reviewable as they are ‘committed to an agency’s absolute discretion.’ ” App. 27a (quoting Chaney, 470 U.S. at 831). But it concluded that the rescission of DACA was different because it involved a “broad enforcement polic[y],” rather than an “ ‘individual enforcement decision’ ”; it rescinded a policy of enforcement discretion, instead of announcing a new one; and the “main” rationale for rescinding the prior policy was its “supposed illegality,” which the court concluded it was authorized to assess. App. 28a-30a (citation omitted). The court also concluded that the INA did not preclude review because “plaintiffs do not challenge any particular removal but, rather, challenge the abrupt end to a nationwide deferred-action and work-authorization program.” App. 30a-31a.
The district court then ruled that respondents were entitled to a preliminary injunction, concluding that they had demonstrated a likelihood of success on their claims that the rescission of DACA was arbitrary and capricious. App. 41a-62a. The court acknowledged that

11
“a new administration is entitled to replace old policies with new policies so long as they comply with the law,” App. 2a, and the court did not dispute that DACA was a discretionary non-enforcement policy that was neither mandated nor specifically authorized by statute. It nonetheless concluded that respondents were likely to succeed because “the agency’s decision to rescind DACA was based on a flawed legal premise” and because the government’s “supposed ‘litigation risk’ rationale” was an invalid “post hoc rationalization” and, “in any event, arbitrary and capricious.” App. 42a.
Finding that respondents had satisfied the remaining equitable requirements for an injunction, App. 62a66a, the district court ordered the government, “pending final judgment” or other order, “to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017.” App. 66a. The court specifically directed that the government must “allow[] DACA enrollees to renew their enrollments.” Ibid.4
The district court sua sponte certified its order for interlocutory appeal under 28 U.S.C. 1292(b), to the ex-
4 The district court identified certain “exceptions” to its injunction —namely, “(1) that new applications from applicants who have never before received deferred action need not be processed; (2) that the advance parole feature need not be continued for the time being for anyone; and (3) that defendants may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.” App. 66a-67a. The court also specified that “[n]othing in [its] order” would prohibit DHS from “remov[ing] any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed.” App. 67a.

12
tent it denied the “questions interposed by the government in its motion to dismiss under [Rule] 12(b)(1).” App. 70a.
4. On January 12, 2018, the district court issued a further order granting in part and denying in part the government’s motion to dismiss to the extent it was based on Rule 12(b)(6). App. 71a-90a. The court declined to dismiss respondents’ arbitrary-and-capricious claims “[f ]or the same reasons” stated in its January 9 order. App. 72a. It declined to dismiss the equalprotection claim, concluding that respondents’ allegations “raise a plausible inference that racial animus towards Mexicans and Latinos was a motivating factor in the decision to end DACA.” App. 87a; see App. 83a-87a. And it declined to dismiss the claim that DHS violated substantive due process by allegedly “chang[ing] its policy” on the use of personal information “provided by DACA recipients,” reasoning that such a change would “ ‘shock[] the conscience.’ ” App. 79a-81a (citation omitted). The court dismissed respondents’ remaining claims, including with respect to notice-and-comment, the Regulatory Flexibility Act, procedural due process, equitable estoppel, and equal protection based on a fundamental right to a job. App. 72a-79a, 81a-83a, 87a. The court again sua sponte certified its order for interlocutory appeal pursuant to 28 U.S.C. 1292(b). App. 89a.
5. Days later, the government filed notices of appeal of the district court’s orders, App. 91a-95a, petitioned the Ninth Circuit for interlocutory appeal of the district court’s decisions resolving the government’s motion to dismiss under Rule 12(b)(1) and (6), and filed a petition for a writ of certiorari before judgment in this Court.

13
The court of appeals granted the government’s petition for interlocutory appeal and consolidated the appeals. App. 96a; see 18-15133 C.A. Doc. 3 (January 26, 2018). On February 26, 2018, this Court denied the government’s certiorari petition “without prejudice,” stating that it “assumed that the Court of Appeals will proceed expeditiously to decide this case.” 138 S. Ct. 1182. But while briefing in the Ninth Circuit was completed on April 17 and oral argument was held on May 15, the court of appeals has not yet issued a decision as of the printing of this petition.5
6. In June 2018, current Secretary of Homeland Security Kirstjen Nielsen issued a memorandum in response to the district court in NAACP v. Trump, supra, providing further explanation of DHS’s decision to rescind DACA. App. 120a-126a. Secretary Nielsen concluded that “the DACA policy properly was—and should be—rescinded, for several separate and independently sufficient reasons.” App. 122a. First, the Secretary agreed that “the DACA policy was contrary to law” and explained that “[a]ny arguable distinctions between the DAPA and DACA policies” were not “sufficiently material” to convince her otherwise. Ibid.; see App. 122a-123a. Second, the Secretary reasoned that, in any event, “[l]ike Acting Secretary Duke, [she] lack[s] sufficient confidence in the DACA policy’s legality to continue this non-enforcement policy, whether the courts would ultimately uphold it or not.” App. 123a.
5 On October 17, 2018, the government informed the court of appeals that, “in order to ensure review by the Supreme Court during its current Term,” it intended to file a petition for a writ of certiorari before judgment if the court of appeals did not issue its judgment by October 31. 18-15068 C.A. Doc. 198.

14
She noted that “[t]here are sound reasons for a law enforcement agency to avoid discretionary policies that are legally questionable.” App. 122a-123a. Third, the Secretary offered several “reasons of enforcement policy to rescind the DACA policy,” regardless of whether the policy is “illegal or legally questionable.” App. 123a. The Secretary also explained that, although she “do[es] not come to these conclusions lightly,” “neither any individual’s reliance on the expected continuation of the DACA policy nor the sympathetic circumstances of DACA recipients as a class” outweigh the reasons to end the policy. App. 125a. The government promptly informed the court of appeals of Secretary Nielsen’s memorandum. 18-15068 C.A. Doc. 184 (June 22, 2018).
REASONS FOR GRANTING THE PETITION
These cases concern the Executive Branch’s authority to revoke a discretionary policy of non-enforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens. The DACA policy is materially indistinguishable from the related policies that the Fifth Circuit held were contrary to federal immigration law in a decision that four Justices of this Court voted to affirm. No one contends that the policy is required by federal law. And, in fact, consistent with the view of the Department of Justice, DHS has decided that the policy is unlawful and should be adopted only by legislative action, not unilateral executive action. Yet as a result of nationwide preliminary injunctions issued by the District Courts in the Northern District of California and the Eastern District of New York, DHS has been required to keep the policy in place, now more than a year since the agency’s decision.
In denying the government’s previous petition for a writ of certiorari before judgment “without prejudice,”

15
this Court “assumed that the Court of Appeals will proceed expeditiously to decide this case.” 138 S. Ct. 1182 (2018). That has not happened. Although the court of appeals heard oral argument on May 15, 2018, it has yet to issue its decision. And while no one, respondents included, contends that the legality of DACA’s rescission will be finally resolved without this Court’s review, absent prompt intervention from this Court, there is little chance the Court would resolve this dispute for at least another year.
Accordingly, the government today is filing petitions for writs of certiorari before judgment to the Second, Ninth, and D.C. Circuits, each of which has before it a decision concluding that the rescission of DACA either is or likely is unlawful. As explained below, those decisions are wrong and they warrant this Court’s immediate review. The government presents each of these petitions to ensure that the Court has an adequate vehicle in which to resolve the questions presented in a timely and definitive manner. The government respectfully submits that the Court should grant each petition for a writ of certiorari before judgment, consolidate these cases for decision, and consider this important dispute this Term.
I. THE QUESTIONS PRESENTED WARRANT THIS
COURT’S IMMEDIATE REVIEW
Congress has vested this Court with jurisdiction to review “[c]ases in the courts of appeals * * * [b]y writ of certiorari * * * before or after rendition of judgment or decree.” 28 U.S.C. 1254(1) (emphasis added). “An application * * * for a writ of certiorari to review a case before judgment has been rendered in the court of appeals may be made at any time before judgment.”

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28 U.S.C. 2101(e). This Court will grant certiorari before judgment “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” Sup. Ct. R. 11. These cases satisfy that standard.
An immediate grant of certiorari is necessary to obtain an appropriately prompt resolution of this important dispute. Even if a losing party were immediately to seek certiorari from a decision of one of the courts of appeals, this Court would not be able to review that decision in the ordinary course until next Term at the earliest. In the interim, the government would be required to retain a discretionary non-enforcement policy that DHS and the Attorney General have correctly concluded is unlawful and that sanctions the ongoing violation of federal law by more than half a million people. And the very existence of this litigation (and resulting uncertainty) would continue to impede efforts to enact legislation addressing the legitimate policy concerns underlying the DACA policy.
Such a delay is untenable and unnecessary. This Court is already familiar with the relevant issues in light of its consideration on plenary review of United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). And as the same district court that heard the Texas case has recently held (and as explained below), the reasoning of the Fifth Circuit’s decision in Texas holding DAPA and the DACA expansion unlawful equally applies to DACA itself. See Texas v. United States, No. 18-cv-68, 2018 WL 4178970, at *38 (S.D. Tex. Aug. 31, 2018). Only this Court can resolve the conflict in the lower courts and provide much-needed clarity to the government and DACA recipients alike.

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More than eight months ago, this Court recognized the need for an “expeditious[]” resolution of this dispute in its order denying without prejudice the government’s earlier petition. 138 S. Ct. 1182. The Court has granted certiorari before judgment to promptly resolve other important and time-sensitive disputes. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); United States v. Nixon, 418 U.S. 683, 686-687 (1974); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584 (1952); cf. Stephen M. Shapiro et al., Supreme Court Practice § 4.20, at 287-288 (10th ed. 2013) (collecting cases where “[t]he public interest in a speedy determination” warranted certiorari before judgment). It should follow the same course here.
II. THE DECISIONS BELOW ARE WRONG
Review is also warranted because the decisions below are incorrect. DHS’s decision to rescind DACA—a policy of enforcement discretion—is a classic determination that is “committed to agency discretion by law,” 5 U.S.C. 701(a)(2), and therefore unreviewable under the APA. Even if DHS’s prospective denial of deferred action were reviewable, that could only be at the behest of an individual alien after a final order of removal was entered against the alien. See 8 U.S.C. 1252. In any event, the decision to rescind the DACA policy is not arbitrary and capricious, does not violate equal-protection or due-process principles, and is not otherwise unlawful.
A. DACA’s Rescission Is Unreviewable Under The APA
1. a. The APA precludes review of agency actions that are “committed to agency discretion by law.” 5 U.S.C. 701(a)(2). “Over the years,” this Court has interpreted that provision to apply to various types of

18
agency decisions that “traditionally” have been regarded as unsuitable for judicial review. Lincoln v. Vigil, 508 U.S. 182, 191 (1993). Section 701(a)(2) precludes review of an agency’s decision not to institute enforcement actions, Heckler v. Chaney, 470 U.S. 821, 831 (1985); an agency’s refusal to reconsider a prior decision based on an alleged “material error,” I.C.C. v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 282 (1987) (BLE); and an agency’s allocation of funds from a lumpsum appropriation, Lincoln, 508 U.S. at 192. Such exercises of discretion, the Court has explained, often require “a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Chaney, 470 U.S. at 831.
With respect to an agency’s enforcement discretion in particular, an agency may “not only assess whether a violation has occurred,” but “whether agency resources are best spent on this violation or another”; whether enforcement in a particular scenario “best fits the agency’s overall policies”; and whether the agency “has enough resources to undertake the action at all.” Chaney, 470 U.S. at 831. In addition, the Court has noted that when an agency declines to enforce, 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.” Id. at 832. In this way and others, agency 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.” Ibid.
b. DHS’s decision to discontinue the DACA policy falls comfortably within the types of agency decisions

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that traditionally have been understood as “committed to agency discretion.” 5 U.S.C. 701(a)(2). Like the decision to adopt a policy of selective non-enforcement, the decision whether to retain such a policy can “involve[] a complicated balancing” of factors that are “peculiarly within [the] expertise” of the agency, including determining how the agency’s resources are best spent and how the policy fits with the agency’s overall policies. Chaney, 470 U.S. at 831. Likewise, a decision to abandon an existing non-enforcement policy will not, in itself, bring to bear the agency’s coercive power over any individual. Indeed, an agency’s decision to reverse a prior policy of civil non-enforcement is akin to changes in policy as to criminal prosecutorial discretion, which regularly occur within the U.S. Department of Justice both within and between presidential administrations, and which have never been considered amenable to judicial review. See United States v. Armstrong, 517 U.S. 456, 464 (1996).
This presumption of nonreviewability applies with particular force when it comes to immigration. As this Court has recognized, the “broad discretion exercised by immigration officials” has become a “principal feature of the removal system.” Arizona v. United States, 567 U.S. 387, 396 (2012); see 6 U.S.C. 202(5) (2012 & Supp. V 2017). And, unlike in the ordinary criminal context, a decision not to enforce tolerates not merely past misconduct but a “continuing violation of United States law.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 490 (1999). Thus, in the absence of a statutory directive “otherwise circumscribing” the agency’s discretion, Chaney, 470 U.S. at 833, the Secretary’s decisions establishing DHS’s enforcement priorities for the Nation’s immigration laws are beyond a

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court’s authority to review. There is no such directive here.
c. The district courts’ reasons for finding DHS’s decision reviewable are unavailing.
First, it makes no difference that the rescission of the DACA policy addressed a “broad enforcement polic[y],” App. 28a, instead of an individual enforcement decision. See Batalla Vidal App. 29a-30a. Agency decisions about how its “resources are best spent” or how certain enforcement activity “best fits the agency’s overall policies,” Chaney, 470 U.S. at 831, are just as susceptible to implementation through broad guidance as through case-by-case enforcement decisions. See, e.g., Wayte v. United States, 470 U.S. 598, 601-603 (1985). And Chaney itself concerned the programmatic determination whether to enforce the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., with respect to drugs used to administer the death penalty. See 470 U.S. at 824-825.
Nor does it matter that DHS has eliminated a policy of non-enforcement, rather than adopted one. App. 29a30a; Batalla Vidal App. 30a. A decision whether to retain a non-enforcement policy implicates all of the same considerations about agency priorities and resources that inform the decision to adopt such a policy in the first instance. And because the rescission does not, by itself, initiate removal proceedings, “like the FDA’s non-enforcement decision in Chaney, there are no agency proceedings here to provide a ‘focus for judicial review,’ and DACA’s rescission does not itself involve the exercise of coercive power over any person.” NAACP App. 33a (citation omitted).
Finally, DHS’s decision is not reviewable simply because it rests on the agency’s view of the legality of the

21
DACA policy, among other independent reasons. App. 30a; Batalla Vidal App. 30a; NAACP App. 42a-43a. An otherwise unreviewable agency action does not “become[] reviewable” because “the agency gives a ‘reviewable’ reason.” BLE, 482 U.S. at 283. In BLE, the ICC’s decision not to reconsider a prior decision was therefore unreviewable, even though the agency based that denial on an interpretation of its legal obligations under the Railway Labor Act, 45 U.S.C. 151 et seq. 482 U.S. at 276, 283. And in Chaney, the Food and Drug Administration’s decision not to enforce the misbranding prohibition did not become reviewable even though it was based, in part, on the agency’s understanding of its authority to initiate such proceedings. 470 U.S. at 824. The same is true here.
2. At a minimum, Congress has foreclosed district courts from adjudicating collateral attacks on DHS’s discretionary enforcement decisions and policies in the manner pursued by respondents.
Under 8 U.S.C. 1252, judicial review of DHS enforcement decisions is generally available, if at all, only through the review procedures of removal orders set forth in that section. In particular, Section 1252(g) states that “[e]xcept as provided in this section * * * no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this subchapter.” Section 1252(g) is “designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside

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the streamlined process that Congress has designed.” AADC, 525 U.S. at 485. That design is also reflected in 8 U.S.C. 1252(b)(9), which channels into the review of final removal orders “all questions of law and fact * * * arising from any action taken * * * to remove an alien from the United States.” See AADC, 525 U.S. at 483 (describing Section 1252(b)(9) is an “unmistakable ‘zipper’ clause”); see also Jennings v. Rodriguez, 138 S. Ct. 830, 839-841 (2018) (plurality opinion); id. at 853-857 (Thomas, J., concurring in part and concurring in the judgment).
Even in instances where the statutory text less clearly precludes review, this Court has held that, when it is fairly discernible that Congress intends a particular review scheme to be exclusive, a plaintiff is not permitted to circumvent that exclusive scheme by filing a preemptive district-court action, but must instead present his or her claims or defenses in the manner and to the extent permitted by that review scheme. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-209 (1994). The rescission of the DACA policy is precisely the sort of “ ‘no deferred action’ decision[],” AADC, 525 U.S. at 485, and “part of the process by which [the alien’s] removability will be determined,” Jennings, 138 S. Ct. at 841 (plurality opinion), that Congress intended to channel through the INA’s careful review scheme. Respondents cannot escape that scheme simply by filing suit before the agency has initiated an enforcement proceeding against the individual respondents. Respondents’ claims, “if they are reviewable at all,” must be litigated in removal proceedings, not through “separate rounds of judicial intervention” in federal district court. AADC, 525 U.S. at 485.

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B. DACA’s Rescission Is Lawful
Even if DHS’s decision to rescind DACA is reviewable under the APA, it is plainly valid. Under the APA, the decision must be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 706(2)(A). That standard of review requires only that the “agency ‘examine the relevant data and articulate a satisfactory explanation for its action.’ ” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (citation omitted). “[A] court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). DHS’s decision to begin an orderly wind-down of an indisputably discretionary policy of non-enforcement based on serious doubts about the legality of the policy, as well as the legal and practical implications of maintaining such a policy without statutory authority, easily passes that test. The district courts’ contrary conclusions are unpersuasive.
1. The rescission is reasonable in light of DHS’s serious
doubts about the legality of the DACA policy
DHS reasonably rested its decision on the legal and practical implications of maintaining a policy of nonenforcement (original DACA) that is materially indistinguishable from policies (DAPA and expanded DACA) that were struck down by the Fifth Circuit in a decision affirmed by this Court. Particularly in the face of the threat by Texas and other States to challenge DACA, that rationale alone provides a permissible reason for initiating an orderly wind-down of the policy.
a. As an initial matter, the district courts in Regents and Batalla Vidal erred in concluding that “[t]he Attorney General’s letter and the Acting Secretary’s memorandum can only be reasonably read as stating DACA

24
was illegal and that, given that DACA must, therefore, be ended.” App. 56a (emphasis omitted); see Batalla Vidal App. 110a. As the court in NAACP correctly recognized, DACA’s rescission is based on concerns that go beyond the ultimate legality of DACA. Such concerns are evident from the original rescission memorandum. NAACP App. 56a; see Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (courts should uphold agency action based on any ground that “may reasonably be discerned” from the decision). And any doubt on that score is eliminated by Secretary Nielsen’s subsequent statement that “regardless of whether the DACA policy is ultimately illegal, it was appropriately rescinded by DHS because there are, at a minimum, serious doubts about its legality.” App. 123a.
b. That rationale is eminently reasonable. In Texas v. United States, the Fifth Circuit concluded that DAPA and expanded DACA were unlawful on both procedural and substantive grounds. 809 F.3d 134, 178 (2015), aff ’d, 136 S. Ct. 2271 (2016); see id. at 147 n.11 (including the “DACA expansions” within the opinion’s references to “DAPA”). The entirety of the Fifth Circuit’s reasoning applies equally to the original DACA policy. With respect to procedure, the Fifth Circuit concluded that the memorandum creating DAPA and expanding DACA was not exempt from notice-and-comment as a statement of policy based entirely on how the original DACA policy had been implemented. See id. at 171-178.
As a matter of substance, the Fifth Circuit held that DAPA and expanded DACA were contrary to the INA because (1) “[i]n specific and detailed provisions,” the INA already “confers eligibility for ‘discretionary re-

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lief,’ ” including “narrow classes of aliens eligible for deferred action,” Texas, 809 F.3d at 179 (citation omitted); (2) the INA’s otherwise “broad grants of authority” could not reasonably be construed to assign to the Secretary the authority to create additional categories of aliens of “vast ‘economic and political significance,’ ” id. at 183 (citation omitted); (3) DAPA and expanded DACA were inconsistent with historical deferred-action policies because they were not undertaken on a “ ‘countryspecific basis * * * in response to war, civil unrest, or natural disasters,’ ” nor served as a “bridge[] from one legal status to another,” id. at 184 (citation omitted); and (4) “Congress ha[d] repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (‘DREAM Act’), features of which closely resemble DACA and DAPA.” Id. at 185 (footnote omitted). Every one of those factors also applies to the original DACA policy. Indeed, the Southern District of Texas recently determined, “guided by [that] Fifth Circuit precedent,” that the INA could not “ ‘reasonably be construed’ ” to authorize the maintenance of that policy. Texas, 2018 WL 4178970, at *38 (citation omitted); see id. at *45-*47 (finding no material differences between DAPA and DACA).6
In light of these similarities, DHS could permissibly rescind the DACA policy based on the agency’s doubts about the legality of the policy and its likely fate in the courts. As Secretary Nielsen explained, “[a] central aspect of the exercise of a discretionary enforcement pol-
6 The Southern District of Texas nevertheless declined to issue a preliminary injunction enjoining the DACA policy in light of, among other things, Texas’s delay in seeking injunctive relief. See Texas, 2018 WL 4178970, at *57-*62.

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icy is a judgment concerning whether DHS has sufficient confidence in the legality of such policy.” App. 123a. The “sound reasons” to insist upon such confidence “include the risk that [legally questionable] policies may undermine public confidence in and reliance on the agency and the rule of law, and the threat of burdensome litigation that distracts from the agency’s work.” Ibid. The arbitrary-and-capricious standard does not allow a court “to substitute its judgment” for such a “rational” explanation by a law-enforcement agency. State Farm, 463 U.S. at 42-43.
c. Contrary to the district courts’ conclusions, DHS did not fail to sufficiently consider the reliance interests of DACA recipients. See App. 58a; Batalla Vidal App. 113a-114a; NAACP App. 106a-108a. When President Obama announced DACA in 2012, he explained that it was a “temporary stopgap measure,” not a “permanent fix.” The White House, Remarks by the President on Immigration (June 15, 2012), https://go.usa.gov/xnZFY. And, by its own terms, DACA made deferred action available for only two-year periods, which could “be terminated at any time at the agency’s discretion.” App. 104a. By choosing a gradual and orderly administrative wind-down of the policy rather than risk an immediate disruptive court-imposed one, DHS ensured that existing DACA grants would be permitted to expire according to their stated two-year terms and even permitted a limited window for additional renewals. In any event, as Secretary Nielsen explained, although the agency was “keenly aware that DACA recipients have availed themselves of the policy in continuing their presence in this country and pursuing their lives,” it reasonably found that any asserted reliance interests did not “outweigh the questionable legality of the DACA policy” or

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the other factors the agency considered. App. 125a. As she observed, “[t]hat is especially so because issues of reliance would best be considered by Congress, which can assess and weigh a range of options.” Ibid. The APA provides no basis to second-guess that judgment.
2. The rescission is reasonable in light of DHS’s
additional and independent policy concerns
DHS’s decision to rescind DACA is independently supported by several additional enforcement-policy concerns. Secretary Nielsen explained that “regardless of whether * * * the DACA policy [is] illegal or legally questionable, there are sound reasons of enforcement policy to rescind the DACA policy.” App. 123a. Those reasons include the agency’s determination that (1) “DHS should enforce the policies reflected in the laws adopted by Congress and should not adopt public policies of non-enforcement of those laws for broad classes and categories of aliens under the guise of prosecutorial discretion”; (2) “DHS should only exercise its prosecutorial discretion not to enforce the immigration laws on a truly individualized, case-by-case basis”; and (3) “it is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws against all classes and categories of aliens,” especially given that “tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years.” App. 123a-124a. Respondents may disagree with these assessments, but they cannot be dismissed as irrational.
The NAACP court criticized these reasons as nothing more than the Secretary’s “attempt to disguise * * * objection[s] to DACA’s legality as * * * policy justification[s] for its rescission,” NAACP App. 100a, and too

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“cursory” to serve as an independent basis for DHS’s decision, id. at 102a-103a. That description, however, runs directly counter to the Secretary’s explanation that her policy concerns provided a “separate and independently sufficient” reason for her conclusion that the DACA policy “properly was—and should be—rescinded.” App. 122a. The presumption of regularity (and principles of inter-Branch comity) require courts to presume that executive officials—and certainly Cabinet officials —are acting in good faith “in the absence of clear evidence to the contrary.” Armstrong, 517 U.S. at 464 (citation omitted); cf. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Neither the fact that the Secretary’s policy concerns may also inform her view on DACA’s legality, nor the succinctness of her explanation, provides remotely sufficient evidence to overcome that presumption.7
3. The rescission is reasonable in light of DHS’s correct determination that DACA is unlawful
Finally, DHS’s decision is also independently supported by its conclusion, informed by the Attorney General’s advice, that indefinitely continuing the DACA policy would itself have been unlawful. As detailed above, the Fifth Circuit had already concluded that the DAPA and expanded DACA policies were invalid in a decision
7 The NAACP court also reasoned that the Secretary’s “messaging” rationale (the third enforcement-policy reason) was an impermissible “post hoc rationalization.” See NAACP App. 94a-95a. But the court itself acknowledged that the purpose of that proposition of administrative law is “simply to prevent courts from considering ‘rationales offered by anyone other than the proper decisionmakers.’ ” Id. at 92a (citation omitted). There is no dispute that Secretary Nielsen is a “proper decisionmaker[]” for matters of immigration enforcement policies and priorities. Ibid.; see 6 U.S.C. 202(5) (2012 & Supp. V 2017).

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that four Justices of this Court voted to affirm. See pp. 24-25, supra. And the Attorney General expressed his agreement with the conclusion reached by the Fifth Circuit in a decision that applies equally to the original DACA policy. See App. 116a. DHS’s conclusion is correct: DACA is unlawful. Regardless, it cannot be that DHS’s decision to rescind DACA on the basis of the Fifth Circuit’s decision, this Court’s equally divided affirmance, and the Attorney General’s opinion was the type of “clear error of judgment,” State Farm, 463 U.S. at 43 (citation omitted), that would make it arbitrary and capricious under the APA.
In Regents and Batalla Vidal, the district courts concluded that DHS could not rely on an assessment of DACA’s legality unless it is correct as a matter of law. See App. 42a; Batalla Vidal App. 91a-92a. Relying on the Secretary’s broad discretion in “[e]stablishing national immigration enforcement policies and priorities,” 6 U.S.C. 202(5) (2012 & Supp. V 2017), and DHS’s “long and recognized practice” of granting deferred action on a programmatic basis, those courts concluded that DACA is lawful. App. 45a; see App. 42a-48a; Batalla Vidal App. 102a-104a. But the Fifth Circuit rejected those precise considerations when offered in support of the DAPA and expanded DACA policies. See Texas, 809 F.3d at 183.
In NAACP, the district court declined to pass on the legality of DACA, but concluded that DHS did not adequately explain its own view. NAACP App. 49a-52a. But, as explained above, the Fifth Circuit’s Texas decision provides a robust analysis of the legality of DAPA and expanded DACA in a manner that applies with full force to the original DACA policy. See pp. 24-25, supra. The Duke and Nielsen memoranda make clear that

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DHS agrees with the Fifth Circuit’s conclusion that the DAPA and expanded DACA policies were unlawful under the INA and sees no meaningful distinctions. See App. 122a (“Any arguable distinctions between the DAPA and DACA policies are not sufficiently material to convince me that the DACA policy is lawful.”); App. 117a. The law requires nothing more.
4. The rescission does not violate equal protection or due process
The district courts also erred in failing to dismiss respondents’ claims that DHS’s actions violate equalprotection or due-process principles.
a. In Regents and Batalla Vidal, the district courts declined to dismiss respondents’ claim that the rescission violates equal-protection principles incorporated in the Due Process Clause of the Fifth Amendment. See App. 83a-87a; Batalla Vidal App. 147a-157a.8 But that claim is foreclosed by this Court’s decision in AADC, which imposed a general bar on discriminatory-motive claims in the immigration-enforcement context. Such claims, the Court explained, “invade a special province of the Executive—its prosecutorial discretion.” 525 U.S. at 489; see Armstrong, 517 U.S. at 463-465. And in the immigration context, this concern is “greatly magnified” because such claims “permit and prolong a continuing violation of United States law,” and also potentially implicate foreign-policy concerns. AADC, 525 U.S. at 490. Although the district courts relied heavily on thencandidate Trump’s “campaign rhetoric” unconnected to DACA or DACA recipients, App. 85a; Batalla Vidal
8 The NAACP court declined to reach the equal-protection challenge to the rescission in light of its statutory holding. See NAACP App. 67a.

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App. 152a-153a, neither court suggested that such statements trigger AADC ’s sole potential exception, reserved for “a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome.” 525 U.S. at 491. Indeed, even apart from AADC, the President’s statements are wholly insufficient to suggest that Secretaries Duke and Nielsen were motivated by racial animus in deciding to rescind a policy sanctioning the ongoing violation of federal immigration law by 700,000 aliens, especially given the serious questions about its legality.
b. The Regents court also found that the respondents adequately stated a claim under substantive due process based on DHS’s alleged change in its informationsharing policy for personal information gathered from DACA requestors. App. 79a-81a. But there has been no such change and respondents have failed to plausibly allege otherwise. See DHS Information-Sharing Guidance; see also Batalla Vidal App. 159a-160a (dismissing a similar claim on that basis); NAACP App. 71a-72a (same). Nor would any change to the scope of exceptions to the information-sharing policy violate substantive due process, especially given DHS’s express reservation of rights to do so. See pp. 4-5, supra.9
9 The district courts also erred in enjoining the rescission of DACA on a nationwide basis. For the reasons given by Justice Thomas in his concurrence in Trump v. Hawaii, 138 S. Ct. 2392, 2424-2429 (2018), such relief exceeded the Article III power of the court to remedy the concrete and particular injuries of the parties before it; is inconsistent with longstanding equitable principles; and undermines the sound administration of the federal court system.

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III. THE COURT SHOULD GRANT CERTIORARI BEFORE
JUDGMENT IN ALL THREE CASES
To ensure an adequate vehicle for the timely and definitive resolution of this dispute, the Court should grant the government’s petitions in Regents, Batalla Vidal, and NAACP, and consolidate the cases for further review.
A. This petition in Regents presents both of the questions presented and all of the relevant claims, including that the rescission of DACA is arbitrary and capricious; denies respondents equal protection and due process; and violates the APA’s requirement for noticeand-comment rulemaking. Although the district court’s preliminary injunction rests only on respondents’ arbitrary-and-capricious claim, the district court addressed the remaining claims in its orders denying the government’s motion to dismiss all of respondents’ claims on reviewability and merits grounds. By virtue of the Ninth Circuit’s acceptance of the interlocutory appeals of those orders and consolidation, a grant of certiorari before judgment would bring before the Court the entire case. Accordingly, this petition should be granted.
B. As fully explained in the NAACP petition, the related cases before the D.C. Circuit also raise both questions presented. Respondents in those cases likewise claim that the rescission is arbitrary and capricious; denies respondents equal protection and due process; and violates the APA’s procedures concerning notice-andcomment rulemaking. In NAACP, however, respondents do not present some of the more tangential claims against the rescission, including, for example, that the rescission violates principles of equitable estoppel. The district court, moreover, did not pass on any constitutional

33
challenges to the rescission. Nevertheless, the Court should also grant certiorari in NAACP because that court invited Secretary Nielsen’s supplemental memorandum, and it is the only district court to have passed on the effect of that memorandum on the questions presented.
C. Finally, as fully explained in the Batalla Vidal petition, the consolidated cases before the Second Circuit at issue in Batalla Vidal in many ways replicate the consolidated cases before the Ninth Circuit at issue here. The respondents in each set of cases present essentially the same challenges to the rescission of DACA, and the district courts entered identical nationwide preliminary injunctions based exclusively on respondents’ arbitraryand-capricious claims. Because an order vacating the injunction issued in Regents would have no practical consequence unless the injunction in Batalla Vidal was similarly vacated, the Court should at least hold the Batalla Vidal petition pending resolution of the other petitions. But to ensure that no developments in the lower courts between the filing of this petition and the Court’s resolution of the case undermine the Court’s ability to provide a definitive resolution of this overall dispute, the government respectfully submits that the Court should also issue a writ of certiorari to the Second Circuit.
* * * * * In 2012, DHS adopted a temporary, stop-gap policy of enforcement discretion, allowing some 700,000 aliens to remain in the United States even though existing laws provided them no ability to do so. After a change in administrations, DHS announced that it was ending that policy based on serious doubts about its legality and the practical implications of maintaining it. Secretary Nielsen has since made clear that DHS’s decision also rests on policy considerations wholly apart from any legality concerns. It

34

is plainly within DHS’s authority to set the Nation’s immigration enforcement priorities and to end the discretionary DACA policy. By order of two district courts, however, DHS has been required to maintain that policy on a nationwide basis for over a year, even while efforts by the President and others to provide a sound legal basis for the policy through the legislative process have failed. More than eight months ago, this Court recognized that this dispute called for an expeditious resolution. That is even more evident today. The Court should grant review in these cases and ensure that it can provide a timely and definitive resolution of the dispute this Term.
CONCLUSION
The petition for a writ of certiorari before judgment should be granted.
Respectfully submitted.

NOVEMBER 2018

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

 
 No. 18-587
In the Supreme Court of the United States
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUPPLEMENTAL BRIEF FOR THE PETITIONERS
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

TABLE OF CONTENTS

Page

Appendix — Court of appeals opinion (Nov. 8, 2018) ........... 1a

TABLE OF AUTHORITIES

Cases:
General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) ................. 9 Gratz v. Bollinger, 537 U.S. 1044 (2002) ............................. 11 Grutter v. Bollinger, 539 U.S. 306 (2003) ............................ 11 Heckler v. Chaney, 470 U.S. 821 (1987)................................. 2 I.C.C. v. Brotherhood of Locomotive Eng’rs,
482 U.S. 270 (1987)................................................................ 6 Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29 (1983)...................................... 10 Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471 (1999) ................................................. 3 Texas v. United States, 809 F.3d 134
(5th Cir. 2015), aff ’d, 136 S. Ct. 2271 (2016) ................... 3, 4 Trump v. Hawaii, 138 S. Ct. 2392 (2018).............................. 6 United States v. Booker, 543 U.S. 220 (2005) ..................... 11 United States v. Fanfan, 542 U.S. 956 (2004)..................... 11 United States v. Windsor :
568 U.S. 1066 (2012) .......................................................... 8 570 U.S. 744 (2013) ........................................................ 8, 9 Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) ........................................... 6

Statutes and rules:
Administrative Procedure Act, 5 U.S.C. 551 et seq. ...................................................................................... 2

(I)

II

Statutes and rules—Continued:

Page

Immigration and Nationality Act, 8 U.S.C. 1101 et seq. ...................................................................................... 3 8 U.S.C. 1252(b)(9) ............................................................ 3 8 U.S.C. 1252(g) ................................................................. 3
6 U.S.C. 202(5) (2012 & Supp. V 2017) ................................ 10 28 U.S.C. 1254(1) ..................................................................... 8 Fed. R. Civ. P.:
Rule 12(b)(1) ...................................................................... 1 Rule 12(b)(6) ...................................................................... 2 Sup. Ct. R. Rule 10 ................................................................................ 7 Rules 10-16......................................................................... 8 Rule 10(c) ........................................................................... 8 Rule 11................................................................................ 7 Rule 15.8 ............................................................................. 1

Miscellaneous:
Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) ................................................................. 9, 11

In the Supreme Court of the United States
No. 18-587 UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
ET AL., PETITIONERS v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUPPLEMENTAL BRIEF FOR THE PETITIONERS
This supplemental brief, filed pursuant to Rule 15.8 of this Court, brings to the Court’s attention the opinion of the court of appeals in these related cases, which was issued after the filing of the government’s petition for a writ of certiorari before judgment, and addresses its impact on the pending petition.
1. On January 9, 2018, the district court entered a preliminary injunction requiring the Department of Homeland Security (DHS) to maintain its policy of immigration enforcement discretion known as Deferred Action for Childhood Arrivals (DACA) for the pendency of these cases challenging the agency’s decision to rescind the policy. Pet. App. 1a-70a. In the same order, the court granted in part and denied in part the government’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and certified the ruling for interlocutory appeal. Pet. App. 69a-70a. On January 12, the
(1)

2
court granted in part and denied in part the government’s Rule 12(b)(6) motion and again certified its decision for interlocutory appeal. Id. at 71a-90a. The government filed a timely notice of appeal, id. at 91a-95a, and, on January 25, the Ninth Circuit granted permission to appeal both orders, id. at 96a. More than eight months later, on November 5, the government filed a petition for a writ of certiorari before judgment in these cases to ensure that this Court could consider this important dispute this Term.
2. Three days later, the court of appeals affirmed the preliminary injunction and the orders resolving the government’s motion to dismiss. App., infra, (App.) 1a-97a.
a. The court of appeals first determined that DHS’s decision to rescind DACA is reviewable under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. App. 23a-45a. The court acknowledged that an agency’s decision not to enforce “is a decision generally committed to an agency’s absolute discretion.” App. 25a (quoting Heckler v. Chaney, 470 U.S. 821, 831 (1985)). But the court reasoned that “an agency’s nonenforcement decision is outside the scope of the Chaney presumption” if it is “based solely on a belief that the agency lacked the lawful authority to do otherwise.” App. 29a. And the court determined that DACA’s rescission, as reflected in the initial rescission memorandum, rested exclusively on “a belief that DACA was unlawful,” not on concerns about maintaining the policy in the face of the then-ongoing litigation or any other exercise of the agency’s discretion. App. 35a; see App. 35a-42a. The court observed that the Acting Secretary did not use the words “litigation risk” or “discretion” in the memorandum and that the noted considerations—i.e., rulings in the ongoing litigation and the Attorney General’s advice—were “more readily

3
understood as supporting a legal conclusion (DACA is illegal) than a pragmatic one (DACA might be enjoined).” App. 35a-36a, 40a.
b. The court of appeals also concluded that the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., did not require that any challenge to the rescission be raised only at the behest of an individual alien after a final order of removal. App. 42a-45a. The court recognized that 8 U.S.C. 1252(g) was designed to “give some measure of protection to ‘no deferred action’ decisions” by channeling any review of such decisions into the INA’s review scheme. App. 43a (quoting Reno v. AmericanArab Anti-Discrimination Comm., 525 U.S. 471, 485 (1999) (AADC)). But it reasoned that the protection reached only “individual ‘no deferred action’ decisions,” not a “programmatic shift like the DACA rescission.” Ibid. And it concluded that 8 U.S.C. 1252(b)(9) only applies to claims seeking review of a final order of removal. App. 45a n.19.
c. Turning to the merits, the court of appeals affirmed the district court’s nationwide preliminary injunction, reasoning that respondents were likely to succeed on their arbitrary-and-capricious claim because DHS’s decision was based on an erroneous legal conclusion that DACA was unlawful. App. 45a-60a.
The court of appeals acknowledged that the Fifth Circuit had held unlawful the related policies known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded DACA. App. 49a, 55a (citing Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff ’d, 136 S. Ct. 2271 (2016)). In the Ninth Circuit’s view, however, the Fifth Circuit had “concluded that DAPA conflicted with the INA largely for a reason that is inapplicable to DACA”—specifically,

4
that the INA provides “ ‘an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status.’ ” App. 51a-52a (citation omitted). It reasoned that “there is no analogous provision in the INA defining how immigration status may be derived by undocumented persons who arrived in the United States as children.” App. 52a.
Moreover, the court of appeals reasoned that, contrary to the Fifth Circuit’s analysis, a deferred-action policy of DACA’s significance was not inconsistent with Congress’s enumeration of only “narrow classes of aliens eligible for deferred action,” Texas, 809 F.3d at 179. See App. 53a-54a. The Ninth Circuit stated that, because the statutory grants of deferred-action eligibility “were added to the statute books piecemeal over time,” no inference could be drawn about the permissibility of designating vastly larger classes of aliens. App. 53a. And it concluded that, in any event, DACA was not a policy of “economic and political” significance, because as of September 2017, DACA had only 689,000 participants, while approximately 4.3 million aliens may have been eligible for DAPA. App. 54a (citation omitted).
The court of appeals thus concluded that “DACA was a permissible exercise of executive discretion.” App. 56a-57a. Because, in the Ninth Circuit’s view, DACA’s rescission was based entirely on DHS’s contrary belief, the court determined that respondents “are likely to succeed in demonstrating that the rescission must be set aside.” App. 57a. In a footnote, the court refused to consider the “impact, if any, on this case” of the June 22 memorandum from current Secretary of Homeland Security Kirstjen Nielsen “ ‘provid[ing] additional explanation of the basis for the DACA rescission,’ ” suggesting that the memorandum was an impermissible “ ‘post-hoc

5
rationalization[]’ ” for DHS’s decision that is not part of the record of this case and “leav[ing] it to the district court in the first instance to determine [its] admissibility.” App. 57a-58a n.24 (citation omitted).
d. The court of appeals also affirmed the resolution of the government’s motion to dismiss respondents’ claims on the merits. App. 61a-78a. The court held that respondents’ notice-and-comment claim was correctly dismissed because DACA’s rescission was a “[g]eneral statement[] of policy * * * advis[ing] the public prospectively of the manner in which the agency proposes to exercise a discretionary power,” which is exempt from notice-and-comment procedures. App. 61a (citations and internal quotation marks omitted); see App. 61a-65a. And it further held that respondents’ due-process claim based on an asserted protected interest in indefinite DACA renewals was correctly dismissed because DHS had consistently stated that it retained discretion to terminate any grant of deferred action or the policy itself. App. 65a-68a.
The court of appeals concluded, however, that the district court had correctly refused to dismiss respondents’ arbitrary-and-capricious claim, information-sharing policy claim, and equal-protection claim. App. 61a, 68a-77a. The court of appeals reasoned that respondents’ arbitrary-and-capricious claim should not be dismissed “[f ]or the reasons stated above in discussing [respondents’] likelihood of success” on that claim. App. 61a. As to the information-sharing policy claim, the court found that respondents plausibly alleged both a protected interest in DHS’s indefinite retention of its informationsharing policy and a change in that policy notwithstanding DHS’s public assurances to the contrary. App. 68a-

6
73a. The court concluded that such a change would “shock[] the conscience.” App. 73a (citations omitted).
Finally, the court of appeals concluded that respondents plausibly alleged an equal-protection claim under the standard described in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-267 (1977). App. 73a-77a. The court reasoned that respondents’ equal-protection claim does not “implicate the concerns motivating th[is] Court in AADC,” like “inhibiting prosecutorial discretion, allowing continuing violations of immigration law, and impacting foreign relations.” App. 75a-76a. And it distinguished Trump v. Hawaii, 138 S. Ct. 2392 (2018), on the grounds that respondents had provided more “evidence of discriminatory motivation, including the rescission order’s disparate impact on Latinos and persons of Mexican heritage, as well as the order’s unusual history.” App. 76a-77a.
e. Judge Owens concurred in the judgment. App. 79a-87a. Judge Owens agreed with the majority’s affirmance of the motion-to-dismiss rulings, but he disagreed that the court “may review the rescission of DACA for compliance with the APA.” App. 79a. He explained that this Court’s decision in I.C.C. v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987) (BLE), “makes clear that when determining the scope of permissible judicial review, courts consider only the type of agency action at issue, not the agency’s reasons for acting.” App. 83a; see BLE, 482 U.S. at 283. He observed that DHS’s decision to “rescind a non-enforcement policy in the immigration context is the type of administrative action” that this Court has recognized is “ ‘committed to agency discretion by law.’ ” App. 79a-80a (citation omitted). And he rejected the majority’s conclusion

7
that the court could still review DHS’s decision if it were based solely on DHS’s understanding of the INA, reasoning that “BLE plainly prohibits [the court] from doing so.” App. 82a.
Nevertheless, Judge Owens explained that he would affirm the preliminary injunction and remand for the district court to consider whether respondents’ equalprotection claim provides an alternative ground for enjoining the rescission. App, infra, 84a-85a. He acknowledged that respondents “did not seek a preliminary injunction on their Equal Protection claim,” but he reasoned that the court of appeals could “affirm an injunction issued on legally erroneous grounds where remand for consideration of alternative grounds is warranted.” App. 84a. And he concluded that such consideration was warranted here. App. 86a.
3. The court of appeals’ decision significantly strengthens the argument for granting certiorari in these cases. The court of appeals affirmed the district court’s orders in every respect, and thus the cases continue to present both questions in the government’s petition. The Ninth Circuit’s analysis also largely echoes the reasoning of the district court, and it is therefore incorrect for largely the same reasons. See Pet. 17-31. Importantly, however, as a result of the court of appeals’ decision, the Court no longer needs to grant certiorari before judgment. The Court can now consider the present petition as one for certiorari after judgment and, if it grants the petition, review the judgment of the court of appeals. Accordingly, the petition need only satisfy the criteria for certiorari under Rule 10, rather than the heightened standard imposed by Rule 11. And there is little question that the court of appeals “has decided an important question

8
of federal law that has not been, but should be, settled by this Court.” Sup. Ct. R. 10(c).
Although the government’s petition in these cases was filed as one for certiorari before judgment, the issuance of the court of appeals’ intervening decision does not deprive the Court of the authority to grant it. If granted, the writ of certiorari would still be directed to the court of appeals, and this Court could still exercise jurisdiction pursuant to 28 U.S.C. 1254(1) (“Cases in the courts of appeals may be reviewed by the Supreme Court by * * * writ of certiorari granted upon the petition of any party * * * before or after rendition of judgment or decree.”). This Court’s Rules do not establish any additional requirements, other than inclusion of the court of appeals’ opinion (attached as an appendix to this brief ), for a petition for a writ of certiorari after judgment. See Sup. Ct. R. 10-16.
Granting this petition would be consistent with the course of proceedings in United States v. Windsor, 570 U.S. 744 (2013), the most analogous example of which the government is aware. In Windsor, the government petitioned for a writ of certiorari before judgment. Before the Court considered that petition, however, the court of appeals rendered its opinion. The government then filed a supplemental brief, to which it attached a copy of the court of appeals’ opinion, requesting that its petition be considered as a petition for a writ of certiorari after judgment. U.S. Supp. Br. at 7 & App., Windsor, supra (No. 12-307).
The Court granted certiorari in Windsor, 568 U.S. 1066 (2012), over the opposition of another party to the proceedings, see Supp. Br. for Resp. Bipartisan Legal Advisory Grp. of the U.S. House of Representatives at 10-12, Windsor, supra (No. 12-307), and reviewed the

9
court of appeals’ decision, 570 U.S. at 751-752. Although there was significant disagreement in that case about the government’s ability to petition for review of a decision with which it agreed, see id. at 781-782 (Scalia, J., dissenting), no Justice questioned the Court’s decision to grant a petition for a writ of certiorari filed before the court of appeals’ decision. The Court granted certiorari in similar circumstances in General Electric Co. v. Gilbert, 429 U.S. 125 (1976). See Stephen M. Shapiro et al., Supreme Court Practice § 2.5, at 87 n.36 (10th ed. 2013) (discussing procedures in Windsor and General Electric). The Court should likewise grant certiorari and review the court of appeals’ decision here.
4. a. At the same time, the court of appeals’ decision also strengthens the case for granting certiorari before judgment in Trump v. National Ass’n for the Advancement of Colored People, No. 18-588 (filed Nov. 5, 2018) (NAACP).
As noted, the Ninth Circuit concluded that DACA’s rescission was based solely on the unlawfulness of the policy, and it refused to consider the explanation contained in Secretary Nielsen’s June 22 memorandum, describing the memorandum as post hoc rationalization. App. 35a, 57a n.24. Each of those steps was error. The initial rescission memorandum indicates that DHS’s decision was also based on the legal and practical implications of maintaining the DACA policy in light of DHS’s concerns about its legality and the then-ongoing litigation challenging DAPA and expanded DACA. See Pet. 23-24; see also Pet. App. 117a (explaining that DACA “should be terminated,” not that it must). And the June 22 memorandum contained a “further explanation” of why DHS’s decision to rescind DACA “was, and remains, sound,” Pet. App. 121a, by the official vested

10
with the responsibility for “[e]stablishing national immigration enforcement policies and priorities,” 6 U.S.C. 202(5) (2012 & Supp. V 2017). It is not irrelevant post hoc rationalization. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (explaining that “courts may not accept appellate counsel’s post hoc rationalizations for agency action,” but must consider only “the basis articulated by the agency itself ”).
More important for present purposes, however, the court of appeals’ errors confirm that the Court should grant the government’s petition in NAACP. The government previously suggested that, by granting that petition, the Court would eliminate any argument that Secretary Nielsen’s memorandum is not squarely before this Court and would bring directly before the Court the NAACP court’s consideration of the impact of that memorandum on the resolution of this dispute. See NAACP Pet. 15-17. The Ninth Circuit’s refusal to undertake that analysis strengthens the argument for following the government’s suggested approach.
b. As for Nielsen v. Batalla Vidal, No. 18-589 (filed Nov. 5, 2018), the government’s petitions explained that the cases at issue there replicate, in many respects, the cases at issue here, and the district courts have thus far resolved the overlapping challenges to the rescission in a substantially similar manner. See Pet. 33; Batalla Vidal Pet. 16-17. The government previously suggested that the Court grant certiorari in both sets of cases to ensure that, if the Ninth Circuit had ruled for the government on any of the claims the government had lost in Batalla Vidal, the Court would still be able to address any such claims in Batalla Vidal. Ibid. The Ninth Circuit’s blanket affirmance of the district court’s orders removes that possible complication and therefore

11
eliminates that reason for granting the government’s petition in Batalla Vidal.
The Court may still wish to grant the Batalla Vidal petition to permit the parties in those cases to participate in the Court’s consideration of the overlapping issues. At a minimum, however, the Court should hold the Batalla Vidal petition pending resolution of the government’s petitions in these cases and in NAACP to ensure that an order vacating the nationwide injunction in these cases would have immediate effect on the identical injunction issued in the Batalla Vidal cases.
c. Granting certiorari before judgment in one or both of the companion cases to ensure that the Court receives a comprehensive presentation of the relevant issues would be consistent with the Court’s past practice in similar circumstances. See, e.g., United States v. Fanfan, 542 U.S. 956 (2004) (No. 04-105) (granting certiorari before judgment in companion case to United States v. Booker, 543 U.S. 220 (2005) (No. 04-104)); Gratz v. Bollinger, 537 U.S. 1044 (2002) (No. 02-516) (granting certiorari before judgment in companion case to Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241)); see also Shapiro § 2.4, at 86 (explaining that the Court has granted certiorari before judgment “not only in cases of great public emergency but also in situations where similar or identical issues of importance were already pending before the Court and where it was considered desirable to review simultaneously the questions posed in the case still pending in the court of appeals”). The Court should follow the same path here.
* * * * *

12

For the foregoing reasons and those stated in the petition for a writ of certiorari, the petitions in these cases and in Trump v. National Ass’n for the Advancement of Colored People, No. 18-588 (filed Nov. 5, 2018), should be granted and the cases consolidated for this Court’s review. The petition in Nielsen v. Batalla Vidal, No. 18-589 (filed Nov. 5, 2018), should either also be granted and consolidated or, at a minimum, be held pending resolution of the other petitions and any further proceedings in this Court.
Respectfully submitted.

NOVEMBER 2018

NOEL J. FRANCISCO Solicitor General

APPENDIX UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 18-15068 D.C. No. 3:17-cv-05211-WHA REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF CALIFORNIA,
PLAINTIFFS-APPELLEES v.
U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS
ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, DEFENDANTS-APPELLANTS
No. 18-15069 D.C. No. 3:17-cv-05235-WHA STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND,
PLAINTIFFS-APPELLEES v.
U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS
ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; UNITED STATES OF AMERICA,
DEFENDANTS-APPELLANTS
(1a)

2a
No. 18-15070 D.C. No. 3:17-cv-05329-WHA CITY OF SAN JOSE, PLAINTIFF-APPELLEE
v. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
IN HIS OFFICIAL CAPACITY; KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; UNITED STATES OF AMERICA, DEFENDANTS-APPELLANTS
No. 18-15071 D.C. No. 3:17-cv-05380-WHA DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ,
PLAINTIFFS-APPELLEES v.
UNITED STATES OF AMERICA; DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, DEFENDANTS-APPELLANTS

3a
No. 18-15072 D.C. No. 3:17-cv-05813-WHA COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521,
PLAINTIFFS-APPELLEES v.
DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES; JEFFERSON B. SESSIONS III, ATTORNEY GENERAL; KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS ACTING SECRETARY OF
THE DEPARTMENT OF HOMELAND SECURITY; U.S. DEPARTMENT OF HOMELAND SECURITY,
DEFENDANTS-APPELLANTS
No. 18-15128 D.C. Nos. 3:17-cv-05211-WHA, 3:17-cv-05235-WHA,
3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv-05813-WHA
REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF CALIFORNIA;
STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA
MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ; COUNTY OF SANTA CLARA; SERVICE
EMPLOYEES INTERNATIONAL UNION LOCAL 521, PLAINTIFFS-APPELLEES v.
UNITED STATES OF AMERICA; DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED
STATES; U.S. DEPARTMENT OF HOMELAND SECURITY;

4a
KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS ACTING SECRETARY OF THE DEPARTMENT OF
HOMELAND SECURITY, DEFENDANTS-APPELLANTS
No. 18-15133 D.C. Nos. 3:17-cv-05211-WHA, 3:17-cv-05235-WHA,
3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv-05813-WHA
REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS
PRESIDENT OF THE UNIVERSITY OF CALIFORNIA; STATE OF CALIFORNIA; STATE OF MAINE;
STATE OF MINNESOTA; STATE OF MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA
MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ, PLAINTIFFS-APPELLANTS
v. UNITED STATES OF AMERICA; DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS
ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, DEFENDANTS-APPELLEES
No. 18-15134 D.C. Nos. 3:17-cv-05211-WHA, 3:17-cv-05235-WHA,
3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv-05813-WHA
DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA
MENDOZA; NORMA RAMIREZ; JIRAYUT LATTHIVONGSKORN; COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION
LOCAL 521, PLAINTIFFS-APPELLANTS

5a
v. UNITED STATES OF AMERICA; DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, DEFENDANTS-APPELLEES
Filed: Nov. 8, 2018
Appeal from the United States District Court for the Northern District of California
William Alsup, District Judge, Presiding
OPINION
Before: KIM MCLANE WARDLAW, JACQUELINE H. NGUYEN, and JOHN B. OWENS, Circuit Judges.
Opinion by Judge WARDLAW; Concurrence by Judge OWENS WARDLAW, Circuit Judge:
It is no hyperbole to say that Dulce Garcia embodies the American dream. Born into poverty, Garcia and her parents shared a San Diego house with other families to save money on rent; she was even homeless for a time as a child. But she studied hard and excelled academically in high school. When her family could not afford to send her to the top university where she had been accepted, Garcia enrolled in a local community college and ultimately put herself through a four-year university, where she again excelled while working full-

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time as a legal assistant. She then was awarded a scholarship that, together with her mother’s life savings, enabled her to fulfill her longstanding dream of attending and graduating from law school. Today, Garcia maintains a thriving legal practice in San Diego, where she represents members of underserved communities in civil, criminal, and immigration proceedings.
On the surface, Dulce Garcia appears no different from any other productive—indeed, inspiring—young American. But one thing sets her apart. Garcia’s parents brought her to this country in violation of United States immigration laws when she was four years old. Though the United States of America is the only home she has ever known, Dulce Garcia is an undocumented immigrant.
Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions. Known as Deferred Action for Childhood Arrivals, or DACA, the program allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action—a revocable decision by the government not to deport an otherwise removable person from the country. DACA also allows recipients to apply for authorization to work in this country legally, paying taxes and operating in the aboveground economy. Garcia, along with hundreds

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of thousands of other young people, trusting the government to honor its promises, leapt at the opportunity.
But after a change in presidential administrations, in 2017 the government moved to end the DACA program. Why? According to the Acting Secretary of Homeland Security, upon the legal advice of the Attorney General, DACA was illegal from its inception, and therefore could no longer continue in effect. And after Dulce Garcia— along with other DACA recipients and affected states, municipalities, and organizations—challenged this conclusion in the federal courts, the government adopted the position that its fundamentally legal determination that DACA is unlawful is unreviewable by the judicial branch.
With due respect for the Executive Branch, we disagree. The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose “province and duty” it is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The government’s decision to rescind DACA is subject to judicial review. And, upon review, we conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA—at least as justified on this record—is arbitrary, capricious, or otherwise not in accordance with law. We therefore affirm the district court’s grant of preliminary injunctive relief.1
1 We also affirm in part the district court’s partial grant and partial denial of the government’s motion to dismiss for failure to state a claim.

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I.
A. History of Deferred Action
The central benefit available under the DACA program is deferred action. Because much of this dispute revolves around the legitimacy of that practice, we begin by reviewing the Executive Branch’s historical use of deferred action.
The basic concept is a simple one: deferred action is a decision by Executive Branch officials not to pursue deportation proceedings against an individual or class of individuals otherwise eligible for removal from this country. See 6 Charles Gordon et al., Immigration Law & Procedure § 72.03[2][h] (2018) (“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.”); Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n.3 (9th Cir. 2001) (“Deferred action refers to an exercise of administrative discretion by the [immigration agency] under which [it] takes no action to proceed against an apparently deportable alien based on a prescribed set of factors generally related to humanitarian grounds.” (internal quotation marks omitted)); Hiroshi Motomura, Immigration Outside the Law 29 (2014) (noting that “deferred action is usually granted only for limited periods of time and does not provide a path to lawful permanent resident status or citizenship”).
Unlike most other forms of relief from deportation, deferred action is not expressly grounded in statute. It arises instead from the Executive’s inherent authority

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to allocate resources and prioritize cases. Cf. 6 U.S.C. § 202(5) (charging the Secretary of Homeland Security with “[e]stablishing national immigration enforcement policies and priorities”). As such, recipients of deferred action “enjoy no formal immigration status.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 964 (9th Cir. 2017) (Brewer II). But despite its non-statutory origins, Congress has historically recognized the existence of deferred action in amendments to the Immigration and Nationality Act (INA), as well as other statutory enactments. See 8 U.S.C. § 1227(d)(2) (“The denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for . . . deferred action[.]”); REAL ID Act of 2005, Pub. L. No. 109-13, § 202(c)(2), 119 Stat. 231, 313 (2005) (listing proof of “approved deferred action status” as sufficient “evidence of lawful status” for the issuance of a driver’s license). The Supreme Court has also recognized deferred action by name, describing the Executive’s “regular practice (which ha[s] come to be known as ‘deferred action’) of exercising discretion for humanitarian reasons or simply for its own convenience.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84 (1999) (AADC). Thus, “it is well settled that the Secretary [of Homeland Security] can exercise deferred action.” Brewer II, 855 F.3d at 967.
Official records of administrative discretion in immigration enforcement date at least back to the turn of the twentieth century, not long after the enactment of the nation’s first general immigration statute in 1882. See Act of Aug. 3, 1882, ch. 376, 22 Stat. 214. A 1909 Department of Justice circular regarding statutorily authorized denaturalization instructed that “as a general rule, good cause is not shown for the institution of

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proceedings . . . unless some substantial results are to be achieved thereby in the way of betterment of the citizenship of the country.” U.S. Dep’t of Justice, Circular Letter No. 107 (Sept. 20, 1909) (quoted in Memorandum from Sam Bernsen, Gen. Counsel, INS, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion at 4 (Jul. 15, 1976) (Bernsen Memorandum)).
The government’s exercise of deferred action in particular first came to light in the 1970s, as a result of Freedom of Information Act litigation over the government’s efforts to deport John Lennon and Yoko Ono, apparently based on Lennon’s “British conviction for marijuana possession.” Motomura, supra, at 28; see generally Shoba Sivaprasad Wadhia, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases 2-27 (2015). Then known as “nonpriority status,” the practice had been observed in secret within the former Immigration and Naturalization Service (INS) since at least the 1950s, but INS officials had publicly denied its existence. See Leon Wildes, The Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of the Freedom of Information Act, 14 San Diego L. Rev. 42, 52-53 (1976); Wadhia, supra, at 16. After the Lennon case revealed the practice, the INS issued its first public guidance on the use of deferred action, stating that “[i]n every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for nonpriority.” Immigration and Naturalization Service, Operations Instructions § 103.1(a)(1)(ii) (1975) (quoted in Wadhia, supra, at 17). Although the 1975 guidance was rescinded in 1997, DHS officials continue to apply

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the same humanitarian factors in deciding whether to grant an individual deferred action. 6 Gordon et al., supra, § 72.03[2][h] & nn.133-34; see also AADC, 525 U.S. at 484 n.8.
In addition to case-by-case adjudications, the Executive Branch has frequently applied deferred action and related forms of discretionary relief programmatically, to entire classes of otherwise removable noncitizens. Indeed, the Congressional Research Service has compiled a list of twenty-one such “administrative directives on blanket or categorical deferrals of deportation” issued between 1976 and 2011. 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 20-23 (July 13, 2012); see also id. at 9 (“The executive branch has provided blanket or categorical deferrals of deportation numerous times over the years.”).
To take one early example, in 1956 President Eisenhower extended immigration parole to over thirty thousand Hungarian refugees who were otherwise unable to immigrate to the United States because of restrictive quotas then in existence. See White House Statement on the Termination of the Emergency Program for Hungarian Refugees (Dec. 28, 1957). The power to parole—that is, to allow a noncitizen physically to enter the country, while treating that person as “at the border” for purposes of immigration law—is established by statute, but the version of the INA in existence when President Eisenhower acted did not explicitly authorize programmatic exercises of the

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parole power.2 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 212(d)(5), 66 Stat. 163, 188. See generally 6 Gordon et al., supra, § 62.01. Subsequent presidents made use of similar categorical parole initiatives. Wadhia, supra, at 30.
Another salient example is the Family Fairness program, established by the Reagan Administration and expanded under President George H.W. Bush. The Immigration Reform and Control Act of 1986 (IRCA) had provided a pathway to legal status for hundreds of thousands of undocumented noncitizens, but did not make any provision for their close relatives unless those individuals separately qualified under the Act’s criteria. See generally 3 Gordon et al., supra, § 38.06. President Reagan’s INS Commissioner interpreted IRCA not to authorize immigration benefits for anyone outside the statutory criteria, but nevertheless exercised executive discretion to defer the deportation of the minor children of noncitizens legalized under the statute. Alan C. Nelson, Comm’r, INS, Legalization & Family Fairness: An Analysis (Oct. 21, 1987). And in 1990, the INS instituted “significant liberalizations” of the policy by granting one-year periods of extended voluntary departure to children and spouses of individuals legalized under IRCA who could establish admissibility, continuous residency, and a clean
2 Indeed, there is evidence that “Congress originally intended that parole would be used on a case-by-case basis on behalf of individual aliens.” Cong. Research Serv., Review of U.S. Refugee Resettlement Programs & Policies 8 (1980); see also S. Rep. No. 89-748, at 17 (1965). The statute was amended in 1980 to expressly prohibit categorical grants of parole. Refugee Act of 1980, Pub. L. No. 96-212, § 203(f ), 94 Stat. 102, 108; see 8 U.S.C. § 1182(d)(5).

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criminal record. INS Reverses Family Fairness Policy, 67 No. 6 Interpreter Releases 153 (Feb. 5, 1990); see also 3 Gordon et al., supra, § 38.06. Contemporary estimates by INS officials of the number of people potentially eligible ranged as high as 1.5 million.3 See Immigration Act of 1989 (Part 2): Hearings Before the Subcomm. on Immigration, Refugees & Int’l Law of the H. Comm. on the Judiciary, 101st Cong. 49, 56 (1990) (testimony of Gene McNary, Comm’r, INS). Extended voluntary departure, the mechanism through which these individuals were allowed to remain in the United States is, like deferred action, a creature of executive discretion not specifically authorized by statute. See Hotel & Rest. Emps. Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc) (opinion of Mikva, J.).
Since then, the immigration agency has instituted categorical deferred action programs for self-petitioners under the Violence Against Women Act; applicants for T and U visas (which are issued to victims of human trafficking and of certain crimes, respectively); foreign students unable to fulfill their visa requirements after Hurricane Katrina; and widowed spouses of United States citizens who had been married less than two years. None of these deferred action programs was expressly authorized by statute at the time they were initiated.
3 There is some controversy surrounding this number. See generally Unconstitutionality of Obama’s Executive Actions on Immigration: Hearing Before the House Comm. on the Judiciary, 114th Cong. 84-85 (2015) (written testimony of Professor Stephen H. Legomsky). But even the lowest reported contemporary estimate was that 100,000 people would actually benefit from the program, indicating a major policy initiative. See INS Reverses Family Fairness Policy, supra.

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B. The DACA Program
DACA was announced in a June 15, 2012, memorandum from Secretary of Homeland Security Janet Napolitano, 4 entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” Secretary Napolitano explained that the nation’s immigration laws “are not designed . . . to remove productive young people to countries where they may not have lived or even speak the language,” especially where “many of these young people have already contributed to our country in significant ways,” and, because they were brought here as children, “lacked the intent to violate the law.” She therefore determined that “[p]rosecutorial discretion, which is used in so many other areas, is especially justified here.”
The Napolitano memorandum thus laid out the basic criteria of the DACA program, under which a noncitizen will be considered for a grant of deferred action if he or she:
• came to the United States under the age of sixteen;
• has continuously resided in the United States for at least five years preceding [June 15, 2012] and is present in the United States on [June 15, 2012];
• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
4 Napolitano is a party to this appeal in her current capacity as President of the University of California.

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• has not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, nor otherwise poses a threat to national security or public safety; and
• is not above the age of thirty [on June 15, 2012].5
DACA applicants must submit extensive personal information to DHS, along with fees totaling nearly $500. Applicants also submit to biometric screening in which they are photographed and fingerprinted, enabling extensive biographical and biometric background checks. If those checks come back clean, each application is then evaluated for approval by DHS personnel on a case-by-case basis.
If approved into the DACA program, an applicant is granted a renewable two-year term of deferred action —again, “a form of prosecutorial discretion whereby the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the United States.” Brewer II, 855 F.3d at 967. In addition to the deferral of removal itself, pre-existing DHS regulations allow all deferred-action recipients to apply for employment authorization, enabling them to work legally and pay taxes. 8 U.S.C. § 1324a(h)(3) (empowering the Executive Branch to authorize the employment of noncitizens); 8 C.F.R. § 274a.12(c)(14) (providing that “[a]n alien who has been granted deferred action” is eligible for work authorization upon a showing of “economic necessity for employment”). Indeed, “DACA recipients are required to apply for employment authorization, in keeping with the Executive’s intention that DACA recipients remain ‘productive’ mem-
5 This criterion became known as the “age cap.”

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bers of society.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062 (9th Cir. 2014) (Brewer I) (emphasis in original). Finally, DHS does not consider deferredaction recipients, including those benefitting from DACA, to accrue “unlawful presence” for purposes of the INA’s reentry bars.6 8 U.S.C. § 1182(a)(9)(B)(ii); see Brewer I, 757 F.3d at 1059.
In an attempt to build on the success of the DACA program, in 2014 Secretary of Homeland Security Jeh Johnson issued a separate memorandum that both an-
6 8 U.S.C. §§ 1182(a)(9)(B)(i)(I)-(II) establish a three-year and ten-year bar on admission after specified periods of “unlawful presence.” Additionally, 8 U.S.C. § 1182(a)(9)(C) provides a permanent bar on admission for immigrants who have accrued an aggregate of more than one year of “unlawful presence” and who later attempt to cross the border clandestinely. As the district court noted below, DHS “excludes recipients of deferred action from being ‘unlawfully present’ because their deferred action is considered a period of stay authorized by the government.” Regents of Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1039 (N.D. Cal. 2018). As DHS noted in its DACA Frequently Asked Questions (FAQs), “[f ]or 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.” Importantly, however, “deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.”
The FAQs are attached as an exhibit to the Regents complaint, and are cited pervasively throughout the Garcia complaint. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (explaining that for purposes of a motion to dismiss, “[c]ertain written instruments attached to pleadings may be considered part of the pleading. Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff ’s claim.” (internal citation omitted)).

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nounced the related Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA by (1) removing the age cap, (2) extending the term of deferred-action and related work-authorization grants from two to three years, and (3) moving up the cutoff date by which an applicant must have been in the United States to January 1, 2010. Twenty-six states challenged this extension in federal court, arguing that DAPA is unconstitutional. All of the policies outlined in the Johnson memorandum were enjoined nationwide in a district court order upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court. See United States v. Texas, 136 S. Ct. 2271 (2016); Texas v. United States, 809 F.3d 134 (5th Cir. 2015); Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015); see also Neil v. Biggers, 409 U.S. 188, 192 (1972) (affirmance by an equally divided court has no precedential value). The original DACA program remained in effect.
In 2017, a new presidential administration took office, bringing with it a change in immigration policy. On February 20, 2017, then-Secretary of Homeland Security John Kelly issued a memorandum that set out the administration’s new enforcement priorities, stating that “the Department no longer will exempt classes or categories of removable aliens from potential enforcement.” However, the memorandum explicitly left DACA and DAPA in place. In a second memorandum issued June 15, 2017, after “consider[ing] a number of factors, including the preliminary injunction in the [Texas] matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration

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enforcement priorities,” Secretary Kelly rescinded DAPA as an “exercise of [his] discretion.”
Then, on June 28, 2017, Texas Attorney General Ken Paxton wrote to United States Attorney General Jefferson B. Sessions III threatening that if the federal government did not rescind DACA by September 5, 2017, Paxton would amend the complaint in the Texas litigation to challenge DACA as well as DAPA.
On September 4, 2017, the day before Paxton’s deadline, Attorney General Sessions sent his own letter to Acting Secretary of Homeland Security Elaine Duke. The Attorney General’s letter “advise[d] that the Department of Homeland Security . . . should rescind” the DACA memorandum based on his legal opinion that the Department lacked statutory authority to have created DACA in the first place. He wrote:
DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’[s] repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.
The Attorney General further opined that “[b]ecause the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.”
The very next day, following the Attorney General’s directive, Acting Secretary Duke issued a memorandum rescinding DACA. The memorandum begins with

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a “Background” section that covers DACA, DAPA, the Texas litigation, Secretary Kelly’s previous memoranda, Texas Attorney General Paxton’s threat, and the Attorney General’s letter. Then, in the section titled “Rescission of the June 15, 2012 DACA Memorandum,” the Duke memorandum states:
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.
The Duke memorandum further states that although DHS would stop accepting initial DACA requests effective immediately, the agency would provide a onemonth window in which renewal applications could be filed for current DACA beneficiaries whose benefits were set to expire before March 5, 2018. It also states that DHS would not terminate existing grants of deferred action under DACA “solely based on the directives in this memorandum.” Thus, beginning on March 5, 2018, each DACA recipient’s grant of deferred action would be allowed to expire at the end of its two-year term. As of September 4, 2017—the day before the rescission—approximately 689,800 individuals were enrolled in DACA.

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C. Procedural History
The rescission of DACA instantly sparked litigation across the country, including the cases on appeal here. Suits were filed in the Northern District of California by the Regents of the University of California, a group of states led by California, the City of San Jose, the County of Santa Clara and Service Employees International Union Local 521, and a group of individual DACA recipients led by Dulce Garcia. The complaints included claims that the rescission was arbitrary and capricious under the Administrative Procedure Act (APA); that it was a substantive rule requiring noticeand-comment rulemaking under the APA; that it violated the due process and equal protection rights protected by the U.S. Constitution; and that DHS was equitably estopped from using the information provided on DACA applications for enforcement purposes. The cases were consolidated before Judge William Alsup in the District Court for the Northern District of California and proceeded to litigation.
On October 17, 2017, the district court ordered the government to complete the administrative record, holding that the record proffered by the government was incomplete in several respects. Seeking to avoid providing additional documents, the government filed a petition for mandamus. In arguing its mandamus petition, the government took the position that the legality of the rescission should stand or fall based solely on the reasons and the record already provided by the government. We denied the mandamus petition, stating that “the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people

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based solely on 256 pages of publicly available documents is not credible, as the district court concluded.” In re United States, 875 F.3d 1200, 1206 (9th Cir. 2017) (footnotes omitted).
The government next petitioned the Supreme Court for the same mandamus relief; the Court did not reach the merits of the administrative record dispute, but instead instructed the district court to rule on the government’s threshold arguments challenging reviewability of its rescission decision before requiring the government to provide additional documents. In re United States, 138 S. Ct. 443, 445 (2017). Thus, the administrative record in this case still consists of a scant 256 publicly available pages, roughly three-quarters of which are taken up by the three published judicial opinions from the Texas litigation.
Returning to the district court, the government moved to dismiss the consolidated cases on jurisdictional grounds and for failure to state a claim, while the plaintiffs moved for a preliminary injunction. The district court granted the request for a nationwide preliminary injunction, holding that most of the plaintiffs had standing; 7 that neither the APA nor the INA barred judicial review; and that plaintiffs were likely to succeed on their claim that the decision to rescind DACA was arbitrary and capricious. The district court therefore entered a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients.
7 Two states were dismissed from the case with leave to amend. That decision is not challenged on appeal.

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In a separate order, the court partially granted and partially denied the government’s motion to dismiss. The court dismissed plaintiffs’ notice-and-comment and Regulatory Flexibility Act claims; a due process claim premised on an entitlement to deferred action; and the equitable estoppel claim. The court denied the motion as to plaintiffs’ equal protection claim and a due process claim premised on an alleged change in DHS’s information-sharing policy.
The district court certified the issues addressed in both its orders for interlocutory review under 28 U.S.C. § 1292(b). We granted the government’s petition for permission to appeal the orders. Plaintiffs cross-appealed, asserting that the district court erroneously dismissed their notice-and-comment and due process claims.
II.
“We review the district court’s decision to grant or deny a preliminary injunction for abuse of discretion.” Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017) (quoting Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam)). Within this inquiry, “[w]e review the district court’s legal conclusions de novo, the factual findings underlying its decision for clear error.” Id. (quoting K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir. 2015)). A district court’s decision on a motion to dismiss for lack of subject matter jurisdiction or for failure to state a claim is also reviewed de novo. See, e.g., Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 963 (9th Cir. 2017).

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III.
The threshold question in this case is in many ways also the most pivotal: is Acting Secretary Duke’s decision to rescind the DACA program reviewable by the courts at all? The government contends that both the APA and the INA bar judicial review; we address each statute in turn.
A. Reviewability under the APA
The APA provides for broad judicial review of agency action: “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. Thus, as a general matter, the Supreme Court has consistently articulated “a ‘strong presumption’ favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)); see also, e.g., Lincoln v. Vigil, 508 U.S. 182, 190 (1993) (“[W]e have read the APA as embodying a ‘basic presumption of judicial review.’ ”) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)).
However, the APA also forecloses judicial review under its procedures to the extent that “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).8 “This is a very narrow exception” that
8 This bar does not affect a plaintiff ’s ability to bring freestanding constitutional claims. See Webster v. Doe, 486 U.S. 592, 601-05 (1988); Padula v. Webster, 822 F.2d 97, 101 (D.C. Cir. 1987) (“[E]ven where agency action is ‘committed to agency discretion by law,’ review is still available to determine if the Constitution has been violated.” (quoting Doe v. Casey, 796 F.2d 1508, 1517-18 n.33 (1986),

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comes into play only “in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (internal quotation marks omitted), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also Heckler v. Chaney, 470 U.S. 821, 830 (1985) (“[R]eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”).
In Heckler v. Chaney, the Supreme Court analyzed this exception in considering “the extent to which a decision of an administrative agency to exercise its ‘discretion’ not to undertake certain enforcement actions is subject to judicial review under the [APA].” 470 U.S. at 823. In Chaney, the Commissioner of the Food and Drug Administration (FDA) declined to take investigatory and enforcement action against state prison officials’ use of drugs, which had been FDA-approved for medical use, in human executions. Id. at 823-24. A group of prisoners on death row had petitioned the FDA, arguing that using the drugs to execute humans was unlawful because they were only approved for medical use, and not for executions. Id. Responding to the petition, the Commissioner questioned whether the FDA had jurisdiction to prohibit the use of drugs in executions, but went on to conclude that even if the agency did have jurisdiction, it would “decline to exercise it under [the agency’s] inherent discretion to” do so. Id. at 824. The inmates then sued the FDA, at-
aff ’d in part, rev’d in part on other grounds, Webster v. Doe, 486 U.S. 592 (1988))).

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tempting to invoke the APA’s framework for judicial review. Id. at 825.
The Supreme Court held that the FDA Commissioner’s discretionary decision not to enforce the Food, Drug, and Cosmetic Act against state prison officials was unreviewable under the APA. Chaney, 470 U.S. at 837-38. The Court identified a pre-APA “tradition” under which “an agency’s decision not to prosecute or enforce . . . is a decision generally committed to an agency’s absolute discretion,” and concluded that “the Congress enacting the APA did not intend to alter that tradition.” Id. at 831-32. As the Court summed up its holding, “[t]he 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.” Id. at 838 (citation omitted). That is, the normal presumption in favor of judicial review is reversed when the agency action in question is a refusal to enforce the substantive law.
Importantly for present purposes, the Court explicitly left open the question whether “a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction” might be reviewable notwithstanding this general rule. Chaney, 470 U.S. at 833 n.4 (“[W]e express no opinion on whether such decisions would be unreviewable under § 701(a)(2) . . . .”).9 This
9 Chaney’s footnote 4 reads in its entirety:
We do not have in this case a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction. Nor do we have a situation where it could justifiably be found

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reservation makes perfect sense. It is one thing to read the APA’s exception for “agency action [] committed to agency discretion by law” as including the Executive’s discretionary decisions to decline enforcement, given a pre-existing legal tradition that had treated those decisions as unreviewable. It would be quite another to say that an agency’s non-discretionary belief that it lacked the power to enforce the law was similarly “committed to agency discretion.” 5 U.S.C. § 701(a)(2); see Chaney, 470 U.S. at 833 n.4 (“[W]e note that in those situations [involving a belief that the agency lacked discretion,] the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion.’ ”).
Several years after Chaney, our court directly addressed the question that the Supreme Court had left open. In Montana Air Chapter No. 29 v. Federal Labor Relations Authority, a union representing civilian Air National Guard employees filed an unfair labor practice charge against the National Guard Bureau, but the Federal Labor Relations Authority (FLRA) refused to issue a complaint. 898 F.2d 753, 755 (9th Cir. 1990). The opinion letters issued by FLRA’s general counsel indicated that he had “determined, according
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, 156 U.S. App. D.C. 267, 480 F.2d 1159 (1973) (en banc). Although we express no opinion on whether such decisions would be unreviewable 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.”
Heckler v. Chaney, 470 U.S. 821, 833 n.4 (emphasis added).

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to his interpretation of the statutes and regulations, that he lacked jurisdiction to issue an unfair labor practice complaint” under the circumstances. Id. at 757.
Acknowledging Chaney’s rule that “[a]n agency’s decision not to take enforcement action . . . is presumed to be immune from judicial review,” we noted that the Supreme Court had nevertheless “suggested that discretionary nonenforcement decisions may be reviewable when” the refusal to enforce is based on a supposed lack of jurisdiction. Id. at 756 (citing Chaney, 470 U.S. at 833 n.4). We took the next logical step, holding that Chaney’s presumption of nonreviewability “may be overcome if the refusal is based solely on the erroneous belief that the agency lacks jurisdiction.” Id. at 754. Because “the General Counsel’s decision not to issue an unfair labor practice complaint was based on his belief that he lacked jurisdiction to issue such a complaint,” we proceeded to “examine the General Counsel’s statutory and regulatory interpretations to determine if his belief that he lacked jurisdiction was correct.” Id. at 757.10
The final piece of the APA reviewability puzzle is the Supreme Court’s decision in City of Arlington v. FCC, 569 U.S. 290 (2013). There, the Court was faced with the question whether an agency’s determination of
10 We reject the government’s reading of Montana Air, under which the Chaney presumption would be overcome only if the agency action is based on a belief in a lack of jurisdiction, and the refusal to enforce is so extreme as to become an abdication of the agency’s statutory responsibilities. Both Chaney and Montana Air make clear that these are two independent exceptions to the narrow rule of nonreviewability, not two elements of a single test. Chaney, 470 U.S. at 833 n.4; Montana Air, 898 F.2d at 756.

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its own jurisdiction is entitled to the same deference as any other agency interpretation under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Writing for the Court, Justice Scalia explained in no uncertain terms that in the context of administrative agencies, “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a mirage.” City of Arlington, 569 U.S. at 297. With respect to courts, the jurisdictional/nonjurisdictional divide is a real and consequential one, because “[a] court’s power to decide a case is independent of whether its decision is correct . . . . Put differently, a jurisdictionally proper but substantively incorrect judicial decision is not ultra vires.” Id. But the same is not true with respect to agencies: “Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.” Id. Thus, the Court concluded, “[t]he reality, laid bare, is that there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its ‘jurisdiction’) and its exceeding authorized application of authority that it unquestionably has.” Id. at 299 (emphasis in original).11
11 The opinion is replete with equally emphatic—and equally quotable—formulations of the same point. See, e.g., City of Arlington, 569 U.S. at 301 (“In sum, judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.’ Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.”).

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To summarize, Chaney holds that an agency’s refusal to enforce the substantive law is presumptively unreviewable because that discretionary nonenforcement function is “committed to agency discretion” within the meaning of the APA. Montana Air builds upon the question left open by Chaney’s footnote four, explaining that a nonenforcement decision is reviewable notwithstanding Chaney if the decision was based solely on the agency’s belief that it lacked jurisdiction to act. And City of Arlington teaches that there is no difference between an agency that lacks jurisdiction to take a certain action, and one that is barred by the substantive law from doing the same; the question “is always, simply, whether the agency has stayed within the bounds of its statutory authority.” City of Arlington, 569 U.S. at 297 (emphasis omitted). The rule that emerges is this: an agency’s nonenforcement decision is outside the scope of the Chaney presumption—and is therefore presumptively reviewable—if it is based solely on a belief that the agency lacked the lawful authority to do otherwise. That is, where the agency’s decision is based not on an exercise of discretion, but instead on a belief that any alternative choice was foreclosed by law, the APA’s “committed to agency discretion” bar to reviewability, 5 U.S.C. § 701(a)(2), does not apply.
This rule is fully consistent with the Supreme Court’s decision in ICC v. Brotherhood of Locomotive Engineers (BLE), which rejected the notion that “if the agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.” 482 U.S. 270, 283 (1987). We have no quarrel with that statement in the abstract, but as applied it simply begs the question: is the agency action in question “otherwise unreviewable”?

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The BLE case concerned the reviewability of the Interstate Commerce Commission’s denial of a motion to reopen proceedings on grounds of material error. Id. at 280. The Supreme Court held that category of agency action presumptively unreviewable because it “perceive[d] . . . a similar tradition of nonreviewability” to the one it had found in Chaney for nonenforcement decisions. Id. at 282. In reaching its holding, the Court rejected an argument that there was nevertheless “law to apply”—and that therefore the action was not committed to agency discretion—as the agency’s order had discussed the legal merits at length. Id. at 280-81. What mattered was that the agency’s “formal action” was one for which a tradition of nonreviewability was discernable, regardless of how the agency explained its action.12 Id.
BLE thus stands for the proposition that if a particular type of agency action is presumptively unreviewable, the fact that the agency explains itself in terms that are judicially cognizable does not change the categorical rule. Fair enough. But the categorical rule
12 The Court gave as an example a prosecutor’s refusal to institute criminal proceedings based on her “belief . . . that the law will not sustain a conviction.” BLE, 482 U.S. at 283. Such a belief is not equivalent to a conclusion that the government lacked the power to institute a prosecution in the first place. For one colorful example, in Bond v. United States, prosecutors made the “surprising” decision to charge “an amateur attempt by a jilted wife to injure her husband’s lover” under the federal statute implementing the international Convention on Chemical Weapons. 134 S. Ct. 2077, 2083-84 (2014). While the Court ultimately interpreted the statute not to encompass the charged conduct, id. at 2093-94, no one suggested that the government’s aggressive decision to institute the prosecution was itself ultra vires.

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announced in Chaney does not encompass nonenforcement decisions based solely on the agency’s belief that it lacked power to take a particular course; instead, the Court explicitly declined to extend its rule to that situation. Chaney, 470 U.S. at 833 n.4. And in Montana Air, we held that such decisions are reviewable. 898 F.2d at 754. BLE’s statement about “otherwise unreviewable” agency decisions, 482 U.S. at 283, therefore has no application to the category of agency action at issue here.
We believe the analysis laid out above follows necessarily from existing doctrine. And, just as importantly, this approach also promotes values fundamental to the administrative process.
First, the Montana Air rule does not impermissibly encroach on executive discretion; to the contrary, it empowers the Executive. If an agency head is mistaken in her assessment that the law precludes one course of action, allowing the courts to disabuse her of that incorrect view of the law does not constrain discretion, but rather opens new vistas within which discretion can operate. That is, if an administrator chooses option A for the sole reason that she believes option B to be beyond her legal authority, a decision from the courts putting option B back on the table allows a reasoned, discretionary policy choice between the two courses of action. And if the agency’s view of the law is instead confirmed by the courts, no injury to discretion results because the status quo is preserved.
Moreover, allowing judicial review under these circumstances serves the critical function of promoting accountability within the Executive Branch—not accountability to the courts, but democratic accountabil-

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ity to the people. Accountability in this sense is fundamental to the legitimacy of the administrative system: although they are “unelected . . . bureaucrats,” City of Arlington, 569 U.S. at 305, the heads of cabinet-level departments like DHS “are subject to the exercise of political oversight and share the President’s accountability to the people.” Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 886 (1991). Indeed, the Constitution’s “Appointments Clause was designed to ensure public accountability for . . . the making of a bad appointment . . . .” Edmond v. United States, 520 U.S. 651, 660 (1997); see also Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2251-52 (2001) (“[A]ccountability” is one of the two “principal values that all models of administration must attempt to further.”); 1 Richard J. Pierce, Jr., Administrative Law Treatise 114 (5th ed. 2010) (“Agencies are politically accountable because the President is accountable for the actions of agencies.”).
This democratic responsiveness is especially critical for agencies exercising prosecutorial functions because, as Justice Scalia explained in his oft-cited dissent in Morrison v. Olson, “[u]nder our system of government, the primary check against prosecutorial abuse is a political one.” 487 U.S. 654, 728 (1988) (Scalia, J., dissenting). This check works because “when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration.” Id. at 728-29. In other words, when prosecutorial functions are exercised in a manner that is within the law but is nevertheless repugnant to the sensibilities of the people, “the unfairness will come home to roost in the Oval Office.” Id. at 729.

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But public accountability for agency action can only be achieved if the electorate knows how to apportion the praise for good measures and the blame for bad ones. Without knowing the true source of an objectionable agency action, “the public cannot ‘determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.’ ” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 498 (2010) (quoting The Federalist No. 70, at 476 (Alexander Hamilton) (Jacob E. Cooke ed. 1961)). In then-Professor Kagan’s words, “the degree to which the public can understand the sources and levers of bureaucratic action” is “a fundamental precondition of accountability in administration.” Kagan, supra, at 2332.
The Montana Air rule promotes accountability by ensuring that the public knows where to place blame for an unpopular measure. When an agency justifies an action solely with an assertion that the law prohibits any other course, it shifts responsibility for the outcome from the Executive Branch to Congress (for making the law in question) or the courts (for construing it). If the Executive is correct in its interpretation of the law, then the public is correct to blame the other two branches for any resulting problems. But if the Executive is wrong, then it avoids democratic accountability for a choice that was the agency’s to make all along. Allowing the judiciary—the branch ultimately responsible for interpreting the law, see Marbury, 5 U.S. (1 Cranch) at 177—to review such decisions prevents this anti-democratic and untoward outcome. As Judge Bates of the District Court for the District of Columbia aptly put the point in confronting the very issue we face here, “an official cannot claim that the

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law ties her hands while at the same time denying the courts’ power to unbind her. She may escape political accountability or judicial review, but not both.” NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 2018).
We therefore must determine whether the Acting Secretary’s decision to end DACA was based solely on a belief that the program was unlawful, such that the Chaney presumption does not apply.13
13 Because we take this doctrinal course, we need not decide whether the rescission of DACA would be reviewable absent the exception reflected in Montana Air and Chaney’s footnote four. But we do note several points. First, a literal reading of Chaney’s language would not even encompass the decision to rescind DACA, since Chaney by its own terms applies only to “agency decisions not to undertake enforcement action.” 470 U.S. at 832 (emphasis added). Nowhere does the opinion suggest the broader proposition that any decision simply related to enforcement should be presumed unreviewable. Our court’s dicta in Morales de Soto v. Lynch, 824 F.3d 822, 827 n.4 (9th Cir. 2016), which addressed a completely separate issue of jurisdiction under the INA, is not to the contrary. Thus, to the extent that the Montana Air exception might not seem a perfect fit for the rescission of DACA—which was not exactly a decision not to enforce—the Chaney presumption itself shares the same defect. There is no daylight between the Chaney rule and the Montana Air exception in terms of the type of agency action to which they apply. So if the rescission of DACA were outside the Montana Air exception by virtue of not being strictly a nonenforcement decision, it would also fall outside the Chaney presumption of unreviewability in the first place.
Second, the D.C. Circuit has developed a line of cases explaining that while Chaney bars judicial review of a “single-shot nonenforcement decision,” on the other hand, “an agency’s adoption of a general enforcement policy is subject to review.” OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998) (quoting Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671,

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We take Attorney General Sessions literally at his word when he wrote to Acting Secretary Duke that “DACA was effectuated . . . without proper statutory authority,” and that DACA “was an unconstitutional exercise of authority by the Executive Branch.” These are the reasons he gave for advising Acting Secretary Duke to rescind DACA. We therefore agree with the district court that the basis for the rescission was a belief that DACA was unlawful, and that the discretionary “litigation risk” rationale pressed by the government now is a mere post-hoc rationalization put forward for purposes of this litigation.14 Acting Secretary Duke’s September 5, 2017, rescission memorandum contains exactly one sentence of analysis:
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney
674-75 (D.C. Cir. 1994)); see also Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); Nat’l Treasury Emps. Union v. Horner, 854 F.2d 490, 496-97 (D.C. Cir. 1988).
Thus, every one of the four courts that has considered the question has held that the rescission of DACA is reviewable under the APA, although each has employed slightly different reasoning for that conclusion. See NAACP v. Trump, 298 F. Supp. 3d 209, 226-34 (D.D.C. 2018); Casa de Md. v. DHS, 284 F. Supp. 3d 758, 769-70 (D. Md. 2018); Regents of Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1029-31 (N.D. Cal. 2018) (decision below); Batalla Vidal v. Duke, 295 F. Supp. 3d 127, 147-52 (E.D.N.Y. 2017).
14 After hundreds of pages of briefing and over an hour of oral argument, it remains less than clear how “litigation risk” differs from a substantive belief that DACA is illegal. We take the term to refer to a concern that DACA would be abruptly enjoined, regardless of whether the program was illegal or not. Of course, such a concern is not independent of an on-the-merits assessment of DACA’s legality.

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General, it is clear that the June 15, 2012 DACA program should be terminated.
In the next sentence, the Acting Secretary went on to announce the rescission itself:
In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.
The easy rejoinder to the government’s insistence that the Acting Secretary rescinded DACA due to “litigation risks” is that the Acting Secretary did not mention “litigation risks” as a “consideration.” And both “consideration[s]” actually enumerated by the Acting Secretary are most naturally read as supporting a rationale based on DACA’s illegality. The “ongoing litigation” referenced is of course Texas v. United States, in which the Fifth Circuit upheld a preliminary injunction against the related DAPA policy, and the Supreme Court affirmed by an equally divided vote.15 See Texas, 136 S. Ct. 2271 (2016); Texas, 809 F.3d 134 (5th Cir. 2015). The “rulings” in that case are propositions of law—taken alone, they are more readily understood as supporting a legal conclusion (DACA is illegal) than a pragmatic one (DACA might be enjoined). The pragmatic interpretation requires extra analytical steps (someone might sue to enjoin DACA, and they might win) that are entirely absent from the list of factors that the Acting Secretary stated she was
15 This conclusion is only bolstered by the fact that the government’s production of the “administrative record” in this case includes the entirety of the three published judicial opinions in the Texas litigation.

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“taking into consideration” in making her decision. Acting Secretary Duke easily could have included “the prospect of litigation challenging DACA” in her list of considerations; had she done so, then perhaps the reference to the Texas litigation could be read as supporting a practical worry about an injunction.16 Absent that, however, the mention of the courts’ “rulings” is best read as referencing the courts’ legal conclusions.
Attorney General Sessions’s September 4, 2017, letter likewise focuses on the supposed illegality of DACA, rather than any alleged “litigation risk.” Its substantive paragraph states
DACA was effectuated . . . without proper statutory authority and with no established end-date, after Congress’[s] repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.
(emphases added).
These sentences unmistakably reflect the Attorney General’s belief that DACA was illegal and therefore beyond the power of DHS to institute or maintain. The letter goes on to opine that “[b]ecause the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA [in the Texas li-
16 The Acting Secretary did reference Texas Attorney General Ken Paxton’s threat to amend the Texas suit to include DACA, but she did so in the “Background” section of her memorandum. If anything, the inclusion of the threat in the background portion renders its omission from the list of factors the Acting Secretary was actually “[t]aking into consideration” all the more stark.

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tigation], it is likely that potentially imminent litigation would yield similar results with respect to DACA.” But in the context of the full paragraph, the reference to “similar results” is best read not as an independent reason for rescinding DACA, but as a natural consequence of DACA’s supposed illegality—which is the topic of the paragraph as a whole. In the words of Judge Garaufis of the District Court for the Eastern District of New York, that reference “is too thin a reed to bear the weight of Defendants’ ‘litigation risk’ argument.” Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 429 (E.D.N.Y. 2018).
In any event, the Attorney General’s letter is relevant only to the extent it illuminates whether Acting Secretary Duke—the official who actually rescinded the DACA program—did so as an exercise of her discretion or because she understood her hand to be forced by the law. In this connection, it is helpful to compare the operative language used by Acting Secretary Duke to rescind DACA with that used by her predecessor, Secretary John Kelly, to rescind DAPA just months before. In his June 15, 2017, memorandum, Secretary Kelly wrote:
After consulting with the Attorney General, and in the exercise of my discretion in establishing national immigration enforcement policies and priorities, I hereby rescind the November 20, 2014 memorandum [that established DAPA].
(emphasis added). Placed alongside Acting Secretary Duke’s language, the parallels—and the differences—are stark. Acting Secretary Duke’s memorandum reads:

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In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum [that established DACA].
(emphasis added).
The obvious similarities between the two passages strongly suggest that Acting Secretary Duke modeled her language after that of Secretary Kelly’s memo. And indeed, we know that the Acting Secretary considered the Kelly memorandum in reaching her decision, because the government has told us so. See Petition for Writ of Mandamus, In re United States, No. 17-72917 (9th Cir. Oct. 20, 2017) (stating that the government’s proffered administrative record in this case, which includes the Kelly memorandum, “consist[s] of the non-privileged materials considered by the Acting Secretary in reaching her decision to rescind the DACA policy”); id. at 18 (taking the position that only materials personally reviewed by the Acting Secretary herself, not by subordinates, are “considered” by the Secretary).
Given that Acting Secretary Duke hewed so closely to Secretary Kelly’s language in general, it is appropriate to draw meaning from the one major difference between the two sentences: Secretary Kelly exercised his “discretion” in ending DAPA; Acting Secretary Duke merely exercised her “authority.” Cf., e.g., Jama v. ICE, 543 U.S. 335, 357 (2005) (“[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.”). The point is that with the example set by the Kelly memorandum

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in front of her, Acting Secretary Duke clearly would have known how to express that the rescission was a discretionary act—if that were indeed the case.17 Furthermore, the near-verbatim language of the two rescission memoranda suggests that the Acting Secretary adopted the majority of Kelly’s wording, but actively rejected describing the DACA rescission as an act of discretion. This difference in language cuts strongly against any suggestion that the rescission was discretionary.
The government counters that the memorandum “focused from beginning to end principally on litigation concerns, not the legality of DACA per se.” But as the State plaintiffs point out, the memorandum’s references to these supposed “litigation concerns” were limited to a simple summary of the Texas litigation’s procedural history; appeared only in the “Background” section of the memorandum; and were not referenced in the Acting Secretary’s statement of what she was “[t]aking into consideration.” See also note 16, supra.
The government also asserts that because the Acting Secretary wrote that DACA “should” rather than must be ended, she did not view herself as bound to act. But even on its face, “should” is fully capable of expressing obligation or necessity. See, e.g., Should, New Oxford American Dictionary (3d ed. 2010) (“used to indicate obligation, duty, or correctness”); cf. Should, Garner’s Dictionary of Legal Usage (3d ed. 2011) (“should . . . is sometimes used to create
17 Secretary Kelly’s references to the factors he considered, which included obviously discretionary considerations such as “our new immigration enforcement priorities,” provided a further model for how to describe a discretionary decision, which Acting Secretary Duke also chose not to follow.

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mandatory standards”). The Acting Secretary’s use of “should” instead of “must” cannot overcome the absence of any discussion of potential litigation or the “risks” attendant to it from the rescission memorandum’s statement of reasons, and the discrepancy between the rescission of DAPA as an act of “discretion” and the rescission of DACA as an act of “authority.”
Finally, the government takes a quote from the Supreme Court to the effect that courts should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974), and contorts it into an argument that the district court’s “narrow reading of the Acting Secretary’s rationale is hardly the only one that ‘may reasonably be discerned’ from the Acting Secretary’s memorandum.” But Bowman is about finding a reviewable rationale in an agency’s action versus finding no articulation of that rationale. Bowman does not say—and it certainly does not logically follow—that a court must ignore the most natural reading of an agency’s statement of reasons just because it may also be “reasonably susceptible” to a (less compelling) reading that the government would prefer. The government is in effect asking the court to defer to agency counsel’s post-hoc rationalization, as long as there is some reading of the rescission memorandum—never mind how strained—that would support it. Bowman does not require this incongruous result.
We agree with the district court that the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. Under Montana Air and Chaney’s footnote four, this

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conclusion brings the rescission within the realm of agency actions reviewable under the APA. Unless the INA itself deprives the courts of jurisdiction over this case, we must proceed to evaluate the merits of plaintiffs’ arbitrary-and-capricious claim.
B. Jurisdiction under the INA
The government contends that the INA stripped the district court of its jurisdiction in a provision that states:
Except as provided in this section [which sets out avenues of review not applicable here] . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
8 U.S.C. § 1252(g).
The Supreme Court has explicitly held that this section “applies only to three discrete actions that the [Secretary] may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’ ” AADC, 525 U.S. at 482 (emphasis in original). As the Court put it, “[i]t is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting.” Id.
The government attempts to expand Section 1252(g) to encompass this case in two ways. First, it points out that the AADC Court read that provision as Con-

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gress’s effort to shield executive decisions not to grant deferred action from review outside the procedures prescribed by the INA. The Court quoted a treatise describing the practice of deferred action and the litigation that would result when the government declined to grant deferred action: “Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts . . . .” Id. at 484-85 (quoting 6 Charles Gordon et al., Immigration Law and Procedure § 72.03[2][h] (1998)). Having reviewed these developments, the Court concluded: “Section 1252(g) seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations. . . .” Id. at 485.
The government argues that AADC’s reasoning— and therefore Section 1252(g)—applies to the rescission of DACA, which is itself in some sense a “no deferred action” decision. It seems quite clear, however, that AADC reads Section 1252(g) as responding to litigation over individual “no deferred action” decisions, rather than a programmatic shift like the DACA rescission. For example, the treatise passage AADC quotes to set the scene for Congress’s action refers explicitly to “[e]fforts to challenge the refusal to exercise [deferred action] on behalf of specific aliens. . . .” Id. (emphasis added). And in any case, the holding of AADC was explicit: “The provision applies only to [the] three discrete actions” mentioned in the statute. Id. at 482.
The government’s fallback argument is thus to cast the rescission of DACA as an initial “action” in the agency’s “commence[ment] [of ] proceedings.” 8 U.S.C.

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§ 1252(g). But AADC specifically rejected a broad reading of the three discrete actions listed in Section 1252(g). “[D]ecisions to open an investigation, [or] to surveil the suspected violator” are not included in Section 1252(g)’s jurisdictional bar, AADC, 525 U.S. at 482, even though these actions are also “part of the deportation process,” id., and could similarly be construed as incremental steps toward an eventual “commence[ment] [of ] proceedings,” 8 U.S.C. § 1252(g).
Indeed, in a case closely on point, our court rejected the application of Section 1252(g) and allowed to proceed a challenge to INS guidance narrowly interpreting the terms of a “one-time legalization program” for undocumented immigrants. See Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1141 (9th Cir. 2000). We noted that “[a]s interpreted by the Supreme Court in [AADC], [Section 1252(g)] applies only to the three specific discretionary actions mentioned in its text, not to all claims relating in any way to deportation proceedings,” and held that the challenge was not barred. Id. at 1150. The panel did not appear concerned by the fact that it was possible to conceptualize that policy choice by INS as an ingredient in a subsequent decision to commence proceedings against particular individuals.
The government cites no cases applying the Section 1252(g) bar to a programmatic policy decision about deferred action; the two cases it does cite were challenges to individual “no deferred action” decisions—that is, they fall exactly within Section 1252(g) as interpreted by the Court in AADC. See Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016); Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999). Especially in light of the “ ‘strong presumption in favor of judicial review of administrative action’ gov-

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erning the construction of jurisdiction-stripping provisions of IIRIRA,”18 ANA Int’l, Inc. v. Way, 393 F.3d 886, 891 (9th Cir. 2004) (quoting INS v. St. Cyr, 533 U.S. 289, 298 (2001)), we hold that Section 1252(g) does not deprive courts of jurisdiction to review the DACA rescission order.19
IV.
Having concluded that neither the APA nor the INA precludes judicial review, we turn to the merits of the preliminary injunction. The district court held that plaintiffs satisfied the familiar four-factor preliminary injunction standard20 with respect to their claim under the APA that the rescission of DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A). The
18 Section 1252(g) is one such provision. See AADC, 525 U.S. at 475 (describing § 1252(g)’s passage as part of IIRIRA).
19 In its response and reply brief, the government appears to argue that another provision of the INA, 8 U.S.C. § 1252(b)(9), also stripped the district court of jurisdiction. Although ordinarily an argument not raised in the opening brief would be waived, this argument is jurisdictional so we must consider it. See, e.g., Embassy of the Arab Republic of Egypt v. Lasheen, 603 F.3d 1166, 1171 n.3 (9th Cir. 2010) (“[C]hallenges to subject matter jurisdiction cannot be waived[.]”). But Section 1252(b)(9) does not bar jurisdiction here, because it “appl[ies] only to those claims seeking judicial review of orders of removal.” Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007) (citing St. Cyr, 533 U.S. at 313).
20 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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government takes issue with the district court’s conclusion on only one of the preliminary injunction factors: the likelihood of success on the merits.
In an arbitrary-and-capricious challenge, “[i]t is wellestablished that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 50 (1983); see also, e.g., SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (Chenery II) (“[A] reviewing court . . . must judge the propriety of [agency] action solely by the grounds invoked by the agency.” (citing SEC v. Chenery Corp., 318 U.S. 80 (1943) (Chenery I)).
Similarly, it is black letter law that where an agency purports to act solely on the basis that a certain result is legally required, and that legal premise turns out to be incorrect, the action must be set aside, regardless of whether the action could have been justified as an exercise of discretion. That principle goes back at least as far as the Supreme Court’s seminal decision in Chenery I, in which the Court stated:
If [agency] action rests upon an administrative determination—an exercise of judgment in an area which Congress has entrusted to the agency—of course it must not be set aside because the reviewing court might have made a different determination were it empowered to do so. But if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law.
Chenery I, 318 U.S. at 94 (emphasis added).

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This holding of Chenery I remains good law. See, e.g., United States v. Ross, 848 F.3d 1129, 1134 (D.C. Cir. 2017) (“Where a statute grants an agency discretion but the agency erroneously believes it is bound to a specific decision, we can’t uphold the result as an exercise of the discretion that the agency disavows.”); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007) (setting aside agency action that was justified on a “legally erroneous” basis, and remanding for further consideration under other justifications). As the D.C. Circuit flatly put it, “An agency action, however permissible as an exercise of discretion, cannot be sustained where it is based not on the agency’s own judgment but on an erroneous view of the law.” Sea-Land Serv., Inc. v. DOT, 137 F.3d 640, 646 (D.C. Cir. 1998) (internal quotation marks omitted) (quoting Prill v. NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985)).
Thus, if the DACA rescission was based solely on an erroneous legal premise, it must be set aside under 5 U.S.C. § 706(2)(A). We have already concluded, in our discussion of reviewability, that the rescission was indeed premised on the belief that the DACA program was unlawful. We next must decide whether that legal conclusion was correct.21
Attorney General Sessions’s September 4, 2017, letter expresses several possible bases for the agency’s ultimate conclusion that DACA was unlawful. First,
21 The government does not argue that its conclusion is entitled to Chevron deference, likely because “[d]eference to an agency’s interpretation of a statute is not appropriate when the agency wrongly ‘believes that interpretation is compelled by Congress.’ ” Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1149 (9th Cir. 2013) (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 798 (D.C. Cir. 2004)).

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the Attorney General states that “DACA was effectuated by the previous administration through executive action . . . after Congress’[s] repeated rejection of proposed legislation that would have accomplished a similar result.” But our court has already explained that “Congress’s failure to pass the [DREAM] Act does not signal the illegitimacy of the DACA program,” partly because “the DREAM Act and the DACA program are not interchangeable policies because they provide different forms of relief ”: the DREAM Act would have provided a path to lawful permanent resident status, while DACA simply defers removal. Brewer II, 855 F.3d at 976 n.10; see Motomura, supra, at 175 (“DACA is not the DREAM Act; as an interim executive measure, it is limited in duration and provides no durable immigration status.”) (footnote omitted); see also, e.g., DREAM Act of 2011, S. 952, 112th Cong. (2011). Moreover, there is nothing inherently problematic about an agency addressing a problem for which Congress has been unable to pass a legislative fix, so long as the particular action taken is properly within the agency’s power. This argument therefore provides no independent reason to think that DACA is unlawful.
The Attorney General’s primary bases for concluding that DACA was illegal were that the program was “effectuated . . . without proper statutory authority” and that it amounted to “an unconstitutional exercise of authority.” More specifically, the Attorney General asserted that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA” in the Texas litigation.
The claim of “constitutional defects” is a puzzling one because as all the parties recognize, no court has

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ever held that DAPA is unconstitutional. The Fifth Circuit and district court in Texas explicitly declined to address the constitutional issue. See Texas, 809 F.3d at 154 (“We decide this appeal . . . without resolving the constitutional claim.”); Texas, 86 F. Supp. 3d at 677 (“[T]he Court is specifically not addressing Plaintiffs’ likelihood of success on . . . their constitutional claims . . . .”). Indeed, the government makes no attempt in this appeal to defend the Attorney General’s assertion that the DACA program is unconstitutional. We therefore do not address it further.
With respect to DACA’s alleged “legal . . . defects,” the district court explained in great detail the long history of deferred action in immigration enforcement, including in the form of broad programs; the fact that the Supreme Court and Congress have both acknowledged deferred action as a feature of the immigration system; and the specific statutory responsibility of the Secretary of Homeland Security for “[e]stablishing national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5). The government does not contest any of these propositions, which themselves go a long way toward establishing DACA’s legality. Instead, the government argues that the Fifth Circuit’s reasons for striking down the related DAPA policy would also apply to DACA.
The Fifth Circuit concluded that DAPA was unlawful on two grounds: first, that DAPA was in fact a legislative rule and therefore should have been promulgated through notice-and-comment rulemaking; and second, that DAPA was substantively inconsistent with the INA. See Texas, 809 F.3d at 171-78, 178-86.

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With respect to the first holding, notice-and-comment procedures are not required where the agency pronouncement in question is a “general statement[] of policy.” 5 U.S.C. § 553(b)(3)(A). “The critical factor to determine whether a directive announcing a new policy constitutes a rule or a general statement of policy is the extent to which the challenged [directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987) (alterations in original) (internal quotation marks omitted).
On its face, DACA obviously allows (and indeed requires) DHS officials to exercise discretion in making deferred action decisions as to individual cases: Secretary Napolitano’s memorandum announcing DACA specifically states that “requests for relief pursuant to this memorandum are to be decided on a case by case basis.” The Fifth Circuit in Texas held that DAPA was a substantive rule notwithstanding similar discretionary language, based primarily on statistics regarding the approval rates of DACA applications. The court read those statistics as revealing that DACA was discretionary in name only—that is, that DHS personnel had no discretion to deny deferred action if the DACA criteria were met. Texas, 809 F.3d at 172-73.
But as the dissenting judge in Texas pointed out, DACA’s (then) 5% denial rate—which did not include applications rejected for administrative deficiencies—is consistent with a discretionary program given that applicants self-select: “It should be expected that only those highly likely to receive deferred action will apply; otherwise, applicants would risk revealing their immigra-

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tion status and other identifying information to authorities, thereby risking removal (and the loss of a sizeable fee).” Texas, 809 F.3d at 210 (King, J., dissenting).
Moreover, the denial rate has risen as the DACA program has matured. DHS statistics included in the record reveal that in fiscal year 2016, for example, the agency approved 52,882 initial DACA applications and denied 11,445; that is, 17.8% of the applications acted upon were denied.22 As Judge King concluded, “Neither of these numbers suggests an agency on autopilot.” Texas, 809 F.3d at 210 n.44 (King, J., dissenting); see also Arpaio v. Obama, 27 F. Supp. 3d 185, 209 n.13 (D.D.C. 2014) (noting that these same statistics “reflect that . . . case-by-case review is in operation”).23 In light of these differences, we do not agree that DACA is a legislative rule that would require notice-and-comment rulemaking.
As to the substantive holding in Texas, the Fifth Circuit concluded that DAPA conflicted with the INA largely for a reason that is inapplicable to DACA.
22 U.S. Citizenship & Immigration Services, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012-2017 (March 31, 2017). The number of initial applications is the relevant metric because renewal applications are by definition limited to the pool of those already approved for DACA at least once. Therefore, one would expect an even lower denial rate for renewals.
23 Judge King’s dissent also makes the critical observation that, according to the declarations filed in that case, the reason DHS could not point to specific instances in which DACA applicants met the program criteria but were denied as a matter of discretion was that DHS did not have the ability to track and sort the reasons for DACA denials. Texas, 809 F.3d at 211 (King, J., dissenting).

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Specifically, the Fifth Circuit reasoned that the INA provides “an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status” but that “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 . . . that Congress has deliberately imposed.” Texas, 809 F.3d at 179-80. As the district court in this case noted, there is no analogous provision in the INA defining how immigration status may be derived by undocumented persons who arrived in the United States as children. One of the major problems the Fifth Circuit identified with DAPA is therefore not present here.
In resisting this conclusion, the government flips the Fifth Circuit’s reasoning on its head, arguing that “[i]nsofar as the creation of pathways to lawful presence was relevant, the fact that Congress had legislated only for certain individuals similarly situated to DAPA beneficiaries—and not DACA recipients—would make DACA more inconsistent with the INA than DAPA.” To the extent the government meant to draw on the Texas court’s analysis, it gets it exactly backwards: the whole thrust of the Fifth Circuit’s reasoning on this point was that DHS was without authority because “Congress has ‘directly addressed the precise question at issue.’ ” Texas, 809 F.3d at 186 (quoting Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 52 (2011)). There is no argument that Congress has similarly occupied the field with respect to DACA; as the Attorney General himself noted, Congress has repeatedly rejected Dreamer legislation.

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The second major element of the Fifth Circuit’s analysis on the substantive issues was that the INA itself “prescribes . . . which classes of aliens can achieve deferred action and eligibility for work authorization.” Texas, 809 F.3d at 186. The court drew the implication that the statute must therefore preclude the Executive Branch from granting these benefits to other classes. Id. (pairing this notion with the pathway-tolawful-presence argument as the keys to its conclusion).
But “[t]he force of any negative implication . . . depends on context.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013). Indeed, “[w]e do not read the enumeration of one case to exclude another unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Here, the express grants of deferred action cited by the Fifth Circuit were not passed together as part of the original INA; rather, they were added to the statute books piecemeal over time by Congress. See Violence Against Women Act of 2000, Pub. L. No. 106-386, div. B, sec. 1503, § 1154(a)(1)(D)(i), 114 Stat. 1491 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)) (specifying deferred action for certain VAWA self-petitioners); USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361 (same, for family members of lawful permanent residents killed by terrorism); National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)-(d), 117 Stat. 1392, 1694-95 (same, for relatives of noncitizens killed in combat and posthumously granted citizenship).
Given this context, we find it improbable that Congress “considered the . . . possibility” of all other

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potential uses for deferred action “and meant to say no” to any other application of that tool by the immigration agency. Barnhart, 537 U.S. at 168. We think the much more reasonable conclusion is that in passing its seriatim pieces of legislation, instructing that this and that “narrow class[]” of noncitizens should be eligible for deferred action, Texas, 809 F.3d at 179, Congress meant to say nothing at all about the underlying power of the Executive Branch to grant the same remedy to others. We do not read an “and no one else” clause into each of Congress’s individual express grants of deferred action.
Another element in the Fifth Circuit’s analysis was that “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.’ ” Id. at 181 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). DACA, on the other hand, had 689,800 enrollees as of September 2017. The government asserts that this difference in size is “legally immaterial,” but that response is unconvincing. If the point is that the “economic and political magnitude” of allowing 4.3 million people to remain in the country and obtain work authorization is such that Congress would have spoken to it directly, then surely it makes a difference that one policy has less than one-sixth the “magnitude” of the other. Id. As the district court laconically put it, “there is a difference between 4.3 million and 689,800.”

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Finally, the government finds “an insurmountable obstacle to plaintiffs’ position” in that “the district court’s injunction affirmed by the Fifth Circuit covered both DAPA and expanded DACA.” It is true that the Texas court also enjoined the expansions of DACA that were announced in the same memorandum as the DAPA program. See Texas, 809 F.3d at 147 n.11 (“The district court enjoined implementation of the following three DACA expansions, and they are included in the term ‘DAPA’ in this opinion . . . .”). But no analysis was devoted to those provisions by either the Fifth Circuit or the Texas district court, and one of the keys to the Fifth Circuit’s reasoning—that Congress had supposedly occupied the field with respect to obtaining immigration benefits through one’s children—does not apply to either the original DACA program or its expansions. Under these circumstances, we do not find the Texas courts’ treatment of the DACA expansions to be strong persuasive authority, much less an “insurmountable obstacle.” Cf. Bryan A. Garner et al., The Law of Judicial Precedent 170 (2016) (“An authority derives its persuasive power from its ability to convince others to go along with it.”).
In sum, the reality is (and always has been) that the executive agencies charged with immigration enforcement do not have the resources required to deport every single person present in this country without authorization. Compare Bernsen Memorandum, supra, at 1 (stating, in 1976, that “[t]here simply are not enough resources to enforce all of the rules and regulations presently on the books”), with Memorandum from John Morton, Assistant Secretary, DHS, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, at 1 (June 30,

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2010) (estimating that ICE has enough resources to deport only 4% of the undocumented population in any given year, and concluding that “ICE must prioritize the use of its . . . removal resources to ensure the removals the agency does conduct promote the agency’s highest enforcement priorities”) and Motomura, supra, at 26 (“The letter of the law creates a large removable population, but whether an individual is actually targeted for removal has long depended on government discretion and bad luck.” (footnote omitted)). Recognizing this state of affairs, Congress has explicitly charged the Secretary of Homeland Security with “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5).
It is therefore no surprise that deferred action has been a feature of our immigration system—albeit one of executive invention—for decades; has been employed categorically on numerous occasions; and has been recognized as a practical reality by both Congress and the courts. See, e.g., Brewer II, 855 F.3d at 967 (“[I]t is well settled that the Secretary [of Homeland Security] can exercise deferred action” as part of her statutory authority “to administer and enforce all laws relating to immigration and naturalization.”). In a world where the government can remove only a small percentage of the undocumented noncitizens present in this country in any year, deferred action programs like DACA enable DHS to devote much-needed resources to enforcement priorities such as threats to national security, rather than blameless and economically productive young people with clean criminal records.
We therefore conclude that DACA was a permissible exercise of executive discretion, notwithstanding

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the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s statutory authority. DACA is being implemented in a manner that reflects discretionary, case-by-case review, and at least one of the Fifth Circuit’s key rationales in striking down DAPA is inapplicable with respect to DACA. With respect for our sister circuit, we find the analysis that seemingly compelled the result in Texas entirely inapposite. And because the Acting Secretary was therefore incorrect in her belief that DACA was illegal and had to be rescinded, plaintiffs are likely to succeed in demonstrating that the rescission must be set aside. Chenery I, 318 U.S. at 94; Safe Air for Everyone, 488 F.3d at 1101-02.
To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion. We hold only that here, where the Executive did not make a discretionary choice to end DACA—but rather acted based on an erroneous view of what the law required—the rescission was arbitrary and capricious under settled law. The government is, as always, free to reexamine its policy choices, so long as doing so does not violate an injunction or any freestanding statutory or constitutional protection.24
24 The government has submitted a letter pursuant to Federal Rule of Appellate Procedure 28( j), informing us that the current Secretary of Homeland Security, Kirstjen Nielsen, issued a new memorandum regarding the DACA rescission on June 22, 2018. In the memorandum, Secretary Nielsen “provide[d] additional explanation of the basis for the DACA rescission,” in response to an order filed in a parallel lawsuit. The government’s letter does not argue that the Nielsen memorandum represents fresh agency action that could possibly moot this appeal. We therefore leave it to the district court in the first instance to determine the admissibility of Secretary Nielsen’s letter given that it cannot possibly be a part

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V.
Having concluded that the district court was correct in its APA merits holding, we now turn to the question of the appropriate remedy. The district court preliminarily enjoined the rescission of DACA with respect to existing beneficiaries on a nationwide basis. The government asserts that this was error, and that a proper injunction would be narrower.
The general rule regarding the scope of preliminary injunctive relief is that it “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the court.” L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (internal citation omitted). But “[t]here is no general requirement that an injunction affect only the parties in the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1987); see also id. at 1170-71 (“[A]n injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.”) (emphasis in original).
It is also important to note that the claim underlying the injunction here is an arbitrary-and-capricious challenge under the APA. In this context, “[w]hen a reviewing court determines that agency regulations are unlaw-
of the administrative record in this case, and its impact, if any, on this case. And to the extent the Nielsen memorandum is offered as an additional justification of the original DACA rescission, we do not consider it in our review of Acting Secretary Duke’s decision because it is well-settled that “we will not allow the agency to supply post-hoc rationalizations for its actions . . . .” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 603 (9th Cir. 2014).

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ful, the ordinary result is that the rules are vacated— not that their application to the individual petitioners is proscribed.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (internal citation omitted). As Justice Blackmun explained while “writing in dissent but apparently expressing the view of all nine Justices on this question,” id.:
The Administrative Procedure Act permits suit to be brought by any person “adversely affected or aggrieved by agency action.” In some cases the “agency action” will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain “programmatic” relief that affects the rights of parties not before the court.
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 913 (1990) (Blackmun, J., dissenting) (citation omitted).
A final principle is also relevant: the need for uniformity in immigration policy. See Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018) (“Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”). As the Fifth Circuit stated when it affirmed the nationwide injunction against DAPA, “the Constitution requires an uniform Rule of Naturalization; Congress has instructed that the immigration laws of the United States should be enforced vigorously and uniformly; and the Supreme Court has described immigration policy as a comprehensive and unified system.” Texas,

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809 F.3d at 187-88 (emphases in original) (citations and internal quotation marks omitted). Allowing uneven application of nationwide immigration policy flies in the face of these requirements.
In its briefing, the government fails to explain how the district court could have crafted a narrower injunction that would provide complete relief to the plaintiffs, including the entity plaintiffs. Cf. Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017) (“[T]he Government has not proposed a workable alternative form of the TRO . . . that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders.”). Nor does it provide compelling reasons to deviate from the normal rule in APA cases, or to disregard the need for uniformity in national immigration policy. The one argument it does offer on this latter point—that “[d]eferred action is itself a departure from vigorous and uniform enforcement of the immigration laws,” and that “enjoining the rescission of DACA on a nationwide basis . . . increases rather than lessens that departure” —is a red herring. DACA is national immigration policy, and an injunction that applies that policy to some individuals while rescinding it as to others is inimical to the principle of uniformity.
We therefore conclude that the district court did not abuse its discretion in issuing a nationwide injunction. Such relief is commonplace in APA cases, promotes uniformity in immigration enforcement, and is necessary to provide the plaintiffs here with complete redress.

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VI.
We turn next to the district court’s treatment of the government’s motion to dismiss for failure to state a claim. The government moved to dismiss all of plaintiffs’ claims; the district court dismissed some claims and denied the government’s motion as to others. We take each claim in turn.25
A. APA: Arbitrary-and-Capricious
For the reasons stated above in discussing plaintiffs’ likelihood of success on the merits, the district court was correct to deny the government’s motion to dismiss plaintiffs’ claim that the DACA rescission was arbitrary and capricious under the APA. See 5 U.S.C. § 706(2)(A).
B. APA: Notice-and-Comment
Plaintiffs also assert that the rescission of DACA is in fact a substantive rule under the APA, and that it therefore could not be validly accomplished without notice-and-comment procedures.
As touched on above with respect to DACA itself, an agency pronouncement is excluded from the APA’s requirement of notice-and-comment procedures if it constitutes a “general statement[] of policy.” 5 U.S.C. § 553(b)(3)(A). General statements of policy are those that “advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Mada-Luna, 813 F.2d at 1012-13 (quoting Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947)). “To qualify as a general statement of policy . . . a directive must not estab-
25 Plaintiffs do not challenge the district court’s dismissal of their equitable estoppel claim.

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lish a binding norm and must leave agency officials free to consider the individual facts in the various cases that arise and to exercise discretion.” Id. at 1015 (internal quotation marks omitted); see also id. at 1013 (“The critical factor to determine whether a directive announcing a new policy constitutes a rule or a general statement of policy is the extent to which the challenged [directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” (alterations in original) (internal quotation marks omitted)).
The district court held that because DACA itself was a general statement of policy that did not require notice and comment, it could also be rescinded without those procedures. This proposition finds support in MadaLuna, in which “we conclude[d] that [a deferred-action Operating Instruction] constituted a general statement of policy, and thus could be validly repealed and superseded without notice-and-comment proceedings.” Id. at 1017. Plaintiffs contest this conclusion, arguing that the DACA rescission was a binding rule, even though DACA’s adoption was a general statement of policy. They provide two bases for this assertion.
First, plaintiffs argue that the rescission is binding because it requires DHS officials to reject new DACA applications and (after a certain date) renewal applications. It is true that Acting Secretary Duke’s rescission memorandum makes rejections of DACA applications mandatory. But the relevant question under the rescission memorandum is not whether DHS officials retained discretion to accept applications for a program that no longer existed; instead, the question is whether DHS officials retained discretion to grant deferred

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action and collateral benefits outside of the (nowcancelled) DACA program.
For its part, the government asserts that the rescission memorandum made clear that, despite the rescission, “future deferred action requests will be ‘adjudicat[ed] . . . on an individual, case-by-case basis.’ ” Mildly put, this assertion mischaracterizes the memorandum. The quoted language refers to the treatment of only (a) initial applications pending on the date of the rescission, and (b) renewal applications filed within the one-month wind-down period. It does not refer to how future requests for deferred action outside the DACA program would be handled. Still, the rescission memorandum also did not forbid the agency from granting such requests, and it acknowledged the background principle of deferred action as “an act of prosecutorial discretion meant to be applied only on an individualized case-by-case basis.” And the memorandum closed by stating that “no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS”—presumably including granting deferred action on a case-by-case basis to some people who would have been eligible for DACA.
If allowed to go into effect, the rescission of DACA would undoubtedly result in the loss of deferred action for the vast majority of the 689,800 people who rely on the program. But the rescission memorandum does not mandate that result because it leaves in place the background principle that deferred action is available on a case-by-case basis.26 Plaintiffs’ primary argu-
26 The Regents argue that “the agency’s discretion to grant deferred action on the basis of the DACA criteria has been eliminated.”

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ment against this conclusion is a citation to United States ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), which is said to be “the only other decision to address an Executive Branch decision to terminate a deferred-action program without undergoing notice-andcomment rulemaking.” But as the district court noted, the key factor in that case was the contention that under the policy at issue, “ ‘discretion’ was exercised favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in each such case.” Parco, 426 F. Supp. at 984. DACA, by contrast, explicitly contemplated case-by-case discretion, and its rescission appears to have left in place background principles of prosecutorial discretion.
Plaintiffs also argue that the DACA rescission is not a general policy statement because it is binding as a legal interpretation that a DACA-like program would be illegal. But again, this argument answers the wrong question. The Acting Secretary’s legal conclusion that a DACA-like program is unlawful does not constrain the discretion of line-level DHS employees to grant deferred action on a case-by-case basis, and those employees lack authority to institute such an agency-wide program in the first place. And plaintiffs do not point to any reason why this Acting Secretary’s legal conclusion about DACA would bind subsequent Secretaries if they were to disagree with its reasoning—just as Act-
This is not quite right either. DHS’s authority to grant deferred action under the DACA program has been eliminated, but the DACA criteria themselves are some of those that have traditionally guided immigration enforcement discretion. See Wadhia, supra, at 57 (“DHS used traditional humanitarian factors to outline the parameters for the DACA program, such as tender age and longtime residence in the United States.”).

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ing Secretary Duke reversed course from previous Secretaries who concluded DACA was legal. This is not a “new ‘binding rule of substantive law,’ ” Mada-Luna, 813 F.2d at 1014, affecting the rights of the people and entities regulated by the agency; it is an interpretation of the agency’s own power, and plaintiffs do not explain why it should be read as binding future DHS Secretaries. The district court correctly dismissed plaintiffs’ notice-and-comment claims.
C. Due Process: Deferred Action
The Garcia plaintiffs—individual DACA recipients —have brought a substantive due process claim alleging that the rescission deprived them of protected interests in their DACA designation, including the renewal of their benefits. The district court dismissed this claim, holding that there is no protected entitlement in either the initial grant of deferred action under DACA or the renewal of benefits for existing DACA enrollees. On appeal, the Garcia plaintiffs challenge this ruling only as it applies to the renewal of DACA benefits, not as to the initial grant.
“A threshold requirement to a substantive or procedural due process claim is the plaintiff ’s showing of a liberty or property interest protected by the Constitution.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). It is possible to have a property interest in a government benefit, but “a person clearly must have more than an abstract need or desire for [the benefit]. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. Of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Although “a benefit is not a protected entitlement if gov-

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ernment officials may grant or deny it in their discretion,” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005), a legitimate claim of entitlement may exist where there are “rules or mutually explicit understandings that support [a plaintiff ’s] claim of entitlement to the benefit . . . .” Perry v. Sindermann, 408 U.S. 593, 601 (1972); see also, e.g., Gerhart v. Lake Cty., 637 F.3d 1013, 1020 (9th Cir. 2011). The dispute here focuses on whether such “mutually explicit understandings” existed between the government and DACA recipients with respect to the renewal of DACA benefits.
The Garcia plaintiffs assert that they and the government “ ‘mutually’ understood that DACA recipients would be able to renew their benefits and protection on an ongoing basis so long as they fulfilled the program’s criteria.” But this argument is undercut by the DACA FAQs published by DHS, which explicitly state that “USCIS retains the ultimate discretion to determine whether deferred action is appropriate in any given case even if the [renewal] guidelines are met.” The FAQs also state that any individual’s “deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion,” and Secretary Napolitano’s DACA memorandum claims that it “confers no substantive right, immigration status or pathway to citizenship.” Whether or not these provisions are legally operative, they do not indicate that the government shared plaintiffs’ expectation of presumptive renewal.
Attempting to overcome this facially discretionary language, plaintiffs emphasize several factors. First, they say, the very nature of the DACA project was such that presumptive renewal was required to encourage people to participate; a two-year term with no

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presumption of renewal would not have been attractive enough to outweigh the risks to the applicants. Moreover, Secretary Napolitano’s DACA memorandum itself states that grants of deferred action under DACA will be “subject to renewal,” and the actual criteria for renewal were “nondiscretionary” in nature.27 Finally, the plaintiffs point to a more than 99% approval rate for adjudicated DACA renewal applications. This, they assert, is powerful evidence of a mutual understanding of presumptive renewal.
All these points might have revealed a question of fact as to whether a mutually explicit understanding of presumptive renewal existed—thereby avoiding dismissal on the pleadings—if plaintiffs were bringing a claim that, for example, their individual DACA renewals were denied for no good reason. But it is hard to see how an expectation of renewal within the confines of the existing DACA policy could have created a mutually explicit understanding that the DACA program itself would not be terminated wholesale. That is, a 99% renewal rate under DACA provides no evidence that the government shared an understanding that the DACA program would continue existing indefinitely to provide such renewals. None of plaintiffs’ cited authorities appear to address this kind of claim.
27 DHS’s DACA FAQs state that “[y]ou 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.”

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While we may agree with much of what plaintiffs say about the cruelty of ending a program upon which so many have come to rely, we do not believe they have plausibly alleged a “mutually explicit understanding” that DACA—created by executive action in a politically polarized policy area and explicitly couched in discretionary language—would exist indefinitely, including through a change in presidential administrations. See Gerhart, 637 F.3d at 1020 (“A person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a property right if that belief is not mutually held by the government.”). On that basis, we affirm the district court’s dismissal.
D. Due Process: Information-Sharing
Several of the complaints allege a different due process theory: DACA recipients had a protected interest based on the government’s representations that the personal information they submitted with their applications would not be used for enforcement purposes, and the government violated this interest by changing its policy to allow such use. The district court held that the plaintiffs had plausibly alleged facts that state a claim under this theory.
As with their other due process claim, the question whether DACA recipients enjoy a protected due process right protecting them from having the government use their information against them for enforcement purposes turns on the existence of a “mutually explicit understanding[]” on that point between the government and DACA recipients. Perry, 408 U.S. at 601; see also Gerhart, 637 F.3d at 1020. The DACA FAQs published by DHS state the following information-use policy:

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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.
(emphasis added). The statement that applicant information “is protected from disclosure” to the enforcement arms of DHS is a strong commitment, and plaintiffs plausibly allege that DACA recipients reasonably relied on it.
The government of course points to the express caveat that the information-sharing policy “may be modified, superseded or rescinded at any time.” But as the district court held, this qualifier is ambiguous as to whether it allows the government to change its policy only prospectively, or also with respect to information

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already received—and this ambiguity presents a fact question not amenable to resolution on the pleadings. Plaintiffs’ interpretation that a policy change would only apply prospectively is a plausible one, given that the policy is written in terms of what will happen to “[i]nformation provided in this request,” rather than DACAderived information generally. (emphasis added). It is at least reasonable to think that a change in the policy would apply only to those applications submitted after that change takes effect. And while the government also relies on the language stating that the policy does not create enforceable rights, such a disclaimer by an agency about what its statements do and do not constitute as a legal matter are not dispositive. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022-23 (D.C. Cir. 2000) (declining to give legal effect to agency statement that its guidance did “not represent final Agency action, and cannot be relied upon to create any rights . . . .”). Plaintiffs have plausibly alleged a mutually explicit understanding that DACA applicants’ information would be protected from disclosure.
The government argues in the alternative that plaintiffs have failed to plausibly allege that DHS actually changed its policy. Plaintiffs’ allegations rest on a set of FAQs about the DACA rescission that DHS published the same day it issued the rescission memorandum, September 5, 2017. In those rescission FAQs, the previous language stating that personal information “is protected from disclosure” has been replaced with the following:
Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the

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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).
(emphasis added).
The government’s first response—that the differing language in the two FAQs does not actually reflect a difference in policy—is hard to swallow. It does not take much parsing of the text to see the significant difference between “protect[ing]” something from “disclosure” on the one hand, and merely declining to “proactively provide[]” it on the other. This is especially so when the entities in question (and to which USCIS presumably would now provide information reactively) are fellow components of the same umbrella agency.
Changing gears, the government also points to yet a third set of FAQs, published months after the rescission and not part of the record in this case, which state:
Information provided to USCIS for the DACA process will not make you an immigration priority for that reason alone. That information will only be proactively provided to ICE or CBP if 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). This information-sharing policy has not changed in any way since it was first announced, including as a result of the Sept. 5, 2017 memo starting a wind-down of the DACA policy.
USCIS, Guidance on Rejected DACA Requests: Frequently Asked Questions (Nov. 30, 2017) (emphases added). The government notes that a district court relied on FAQs containing this language in parallel litiga-

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tion to dismiss a nearly identical information-use due process claim. See Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279-81 (E.D.N.Y. 2018).
But this case is critically different because in Batalla Vidal the plaintiffs had attached the new version of the FAQs to their complaint. As the court there explained, “Plaintiffs . . . have effectively pleaded themselves out of court by relying on a document that contradicts their otherwise-unsupported allegation of a change to DHS’s information-use policy.” Id. at 280. By contrast, here the most recent FAQs were not attached to or referenced in any of the complaints—indeed, they postdate the filing of the complaints. Therefore, the normal rule applies: materials outside the complaint cannot be considered on a motion to dismiss. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Even if it could be considered, this newest FAQ would not conclusively resolve the question of fact surrounding DHS’s current information-sharing policy because it still contains the language that suggests a change from the pre-rescission policy. See USCIS, Guidance, supra (“[I]nformation will only be proactively provided to ICE or CBP if the requestor meets the criteria for the issuance of a Notice To Appear[.]”) (emphasis added).28 Plaintiffs have plausibly alleged that DHS has changed its policy.
28 Astonishingly, this sentence—which appears to represent a change from the prior policy of affirmatively protecting information from disclosure—is immediately adjacent to DHS’s assurance that nothing has changed. Cf. George Orwell, Nineteen Eighty-Four (1949), at 175 (“Oceania was at war with Eastasia: Oceania had always been at war with Eastasia.”).

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Finally, in order to state a substantive due process claim, plaintiffs must allege conduct that “shock[s] the conscience and offend[s] the community’s sense of fair play and decency.” Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1195 (9th Cir. 2013) (quoting March v. Cty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012)). The government makes a passing argument that this standard is not satisfied because the information-sharing policy has always contained some exceptions, but as the Garcia plaintiffs put it, “[a]pplicants accepted those limited, acknowledged risks when they applied for DACA. They did not accept the risk that the government would abandon the other assurances that were ‘crucial’ to ‘inducing them to apply for DACA.’ ” (alterations incorporated). We agree. Cf. Raley v. Ohio, 360 U.S. 423, 437-39 (1959) (holding that “convicting a citizen for exercising a privilege which the State had clearly told him was available to him” was “the most indefensible sort of entrapment by the State” and violated due process); Cox v. Louisiana, 379 U.S. 559, 568-71 (1965) (due process violation where defendant was convicted for leading a demonstration in a location where the police chief had given him permission to do so). Plaintiffs have stated a due process claim based on the alleged change in DHS’s information-sharing policy.
E. Equal Protection
The district court also held that plaintiffs stated a viable equal protection claim by plausibly alleging that the DACA rescission disproportionately affected Latinos and individuals of Mexican descent and was motivated by discriminatory animus. See Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015) (holding a facially neutral action unconstitutional where “its enactment or the

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manner in which it was enforced were motivated by a discriminatory purpose,” and reviewing the Arlington Heights factors for assessing discriminatory purpose) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977)).
Because the district court denied the government’s motion to dismiss plaintiffs’ equal protection claim at the pleading stage, we take all of the complaints’ allegations as true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and construe them in the light most favorable to the plaintiffs, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We agree with the district court that plaintiffs plausibly alleged an equal protection claim.
Most significantly, plaintiffs allege that the rescission of DACA disproportionately impacts Latinos and individuals of Mexican heritage, who account for 93% of DACA recipients. See Arlington Heights, 429 U.S. at 266. The complaints also allege a history of animus toward persons of Hispanic descent 29 evidenced by both pre-presidential and post-presidential 30 state-
29 The government argues that the statements by the President cited in the complaints do not provide sufficient evidence to plausibly allege discriminatory intent. The government first submits that nationality, as opposed to ethnicity, is not an invidious classification, and that many of the cited comments go only to Mexican nationality. “Often, however, the two are identical as a factual matter: one was born in the nation whose primary stock is one’s own ethnic group.” St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring). And plaintiffs allege discriminatory intent not only toward “Mexican nationals,” but also toward “individuals of Mexican heritage, and Latinos.”
30 The district court took judicial notice of one such statement by the President: “[o]n December 29, 2017, President Trump tweeted: ‘The Democrats have been told, and fully understand, that there

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ments by President Trump, who is alleged to have decided to end DACA, even though the directive to the Acting Secretary was issued from Attorney General Sessions. Finally, the district court properly considered “the unusual history behind the rescission,” all of which appeared in the record submitted by the government. See Arlington Heights, 429 U.S. at 267. As the district court noted, “DACA received reaffirmation by the agency as recently as three months before the rescission, only to be hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality). This strange about-face, done at lightning speed, suggests that the normal care and consideration within the agency was bypassed.”
The government contends that the equal protection claim is foreclosed by AADC, in which the Supreme Court stated that “as a general matter . . . an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” 525 U.S. at 488. But in the context of this case, the challenge to the rescission of DACA is not raised “as a defense against [] deportation,” and is not a claim of “selective enforcement.” Id. Rather, it is a freestanding claim that the Executive Branch, motivated by animus, ended a program that overwhelmingly benefits a certain ethnic group. Thus, the equal protection claim does not implicate the concerns motivating
can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our Country at all cost!’ ” There were many similar statements made by the President after he took the oath of office leading up to the DACA rescission on September 5, 2017.

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the Court in AADC and underscored by the government: inhibiting prosecutorial discretion, allowing continuing violations of immigration law, and impacting foreign relations. The two cases cited by the government do not support its position, as both of them involved an individual noncitizen making an equal protection argument in an attempt to avoid his own deportation. See Kandamar v. Gonzales, 464 F.3d 65, 72-74 (1st Cir. 2006); Hadayat v. Gonzales, 458 F.3d 659, 665 (7th Cir. 2006). Plaintiffs’ challenge to the rescission of DACA—which is itself discretionary—is not such a case.
The government also contends that even if not totally barred by AADC, plaintiffs’ claims must be subject to the heightened pleading standard applied to selective-prosecution claims in the criminal context. See United States v. Armstrong, 517 U.S. 456, 463-65 (1996). But this argument meets the same objection: as the district court held, plaintiffs’ challenge is not a selective-prosecution claim. We are therefore not persuaded by the government’s arguments.
The Supreme Court’s recent decision in Trump v. Hawaii, 138 S. Ct. 2392 (2018), does not foreclose this claim. There, statements by the President allegedly revealing religious animus against Muslims were “[a]t the heart of plaintiffs’ case . . . .” Hawaii, 138 S. Ct. at 2417. The Court assumed without deciding that it was proper to rely on the President’s statements, but nevertheless upheld the challenged executive order under rational basis review. Id. at 2420, 2423. Here, by contrast, plaintiffs provide substantially greater evidence of discriminatory motivation, including the rescission order’s disparate impact on Latinos and per-

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sons of Mexican heritage, as well as the order’s unusual history. Moreover, our case differs from Hawaii in several potentially important respects, including the physical location of the plaintiffs within the geographic United States, see Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc), the lack of a national security justification for the challenged government action, and the nature of the constitutional claim raised.
Therefore, we conclude that plaintiffs have stated a plausible equal protection claim.
VII.
The rescission of DACA—based as it was solely on a misconceived view of the law—is reviewable, and plaintiffs are likely to succeed on their claim that it must be set aside under the APA. We therefore affirm the district court’s entry of a preliminary injunction.31 The district court also properly dismissed plaintiffs’ APA notice-and-comment claim, and their claim that the DACA rescission violates their substantive due process rights. The district court also properly denied the government’s motion to dismiss plaintiffs’ APA arbitrary-andcapricious claim, their claim that the new informationsharing policy violates their due process rights, and their claim that the DACA rescission violates their right to equal protection.
* * *
31 We do not disagree with the reasoning of Judge Owens’s concurring opinion that the likelihood of success on plaintiffs’ equal protection claim is a second, alternative ground for affirming the entry of the injunction.

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The Executive wields awesome power in the enforcement of our nation’s immigration laws. Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public. Whether Dulce Garcia and the hundreds of thousands of other young dreamers like her may continue to live productively in the only country they have ever known is, ultimately, a choice for the political branches of our constitutional government. With the power to make that choice, however, must come accountability for the consequences.
AFFIRMED.

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OWENS, Circuit Judge, concurring in the judgment:
As I believe that Plaintiffs’ Equal Protection claim has some “likelihood of success on the merits,” I concur in the judgment affirming the preliminary injunction. The extraordinary practical impact of allowing DACA’s rescission to take effect before a final adjudication of its legality far outweighs the minimal practical impact of keeping the program in place a bit longer. For that reason, it is better now to risk incorrectly preserving the status quo than to risk incorrectly disrupting it.1 However, I disagree with the portion of the majority’s opinion that we may review the rescission of DACA for compliance with the APA.2
Under 5 U.S.C. § 701(a)(2), “agency action [that] is committed to agency discretion by law” is not subject to judicial review for compliance with the APA. Since
1 The government appears to share this view. In its petition for certiorari before judgment, the government asserted that “a primary purpose of the Acting Secretary’s orderly wind-down of the DACA policy was to avoid the disruptive effects on all parties of abrupt shifts in the enforcement of the Nation’s immigration laws. Inviting more changes before final resolution of this litigation would not further that interest.”
2 As for the government’s appeal from the motions to dismiss, I dissent, for reasons stated here, from the majority’s holding to affirm the district court’s denial of the motion to dismiss Plaintiffs’ APA arbitrary-and-capricious claim (Part VI-A). However, I concur in the majority’s holding to affirm the district court’s dismissal of Plaintiffs’ APA notice-and-comment claim (Part VI-B). I also concur in the judgment to affirm the district court’s ruling on Plaintiffs’ Due Process claims (Part VI-C; Part VI-D). And, as explained here as well, I agree with the majority’s decision to affirm the district court’s denial of the motion to dismiss the Equal Protection claim (Part VI-E) and hold that the Equal Protection claim offers an alternative ground to affirm the preliminary injunction.

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Heckler v. Chaney, courts read § 701(a)(2) to preclude judicial review of certain types of administrative action that are “traditionally . . . ‘committed to agency discretion.’ ” 470 U.S. 821, 832 (1985) (holding unreviewable the decision not to institute enforcement proceedings); Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (same for the allocation of funds from a lump-sum appropriation); Webster v. Doe, 486 U.S. 592, 599-600 (1988) (same for decisions of the Director of the Central Intelligence Agency to terminate an employee due to national security interests); ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 281-82 (1987) (BLE) (same for an agency’s refusal to grant reconsideration of an action due to material error).
An agency decision to rescind a non-enforcement policy in the immigration context is this type of administrative action. From Heckler, we know that agency actions that “involve[] a complicated balancing of a number of factors,” like allocating agency resources and prioritizing agency policies, “are peculiarly within [the agency’s] expertise,” and are therefore “general[ly] unsuitab[le] for judicial review.” 470 U.S. at 831. And in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (AADC), the Supreme Court made clear that Executive Branch decisions that implicate enforcement priorities in the context of immigration are among those that judges are least equipped to review. Id. at 489-90. In AADC, the Court explained that the concerns necessitating the Executive’s “broad discretion” in criminal prosecutions are “greatly magnified in the deportation context.” Id. (citing United States v. Armstrong, 517 U.S. 456, 464 (1996)).

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In deciding to rescind an immigration policy of non-enforcement, DHS thus acts with broad discretion that courts cannot review absent clear congressional authorization. Here, rather than authorize judicial review, the broad, discretion-granting language of the enabling statute reinforces that DHS’s enforcement decision is not subject to APA review. See 6 U.S.C. § 202(5) (“The Secretary shall be responsible for . . . [e]stablishing national immigration enforcement policies and priorities.”); see also Webster, 486 U.S. at 599-600.
Perhaps recognizing that immigration enforcement decisions exhibit the characteristics of unreviewable agency actions, the majority decides that we should nonetheless review the rescission of DACA because these features are not actually at work here: Acting Secretary Duke explained that DACA was rescinded based on DHS’s belief that the program was unlawful. The majority points to Heckler’s footnote 4, where the Court left open the question whether courts may review agency action if “a refusal by the agency to institute proceedings [is] based solely on the belief that it lacks jurisdiction.” Heckler, 470 U.S. at 833 n.4 (“[W]e express no opinion on whether such decisions would be unreviewable under § 701(a)(2) . . . .”). The majority concludes that the Supreme Court has not yet answered this question, and that our court, in Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753, 756-57 (9th Cir. 1990), has answered it in the affirmative: that otherwise unreviewable agency action is reviewable when the agency justifies its action by reference to its understanding of its jurisdiction. I respectfully disagree.
In Montana Air, we confronted the question left open in Heckler’s footnote 4. Specifically, we held that a

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decision by the Federal Labor Relations Authority’s General Counsel not to issue an unfair labor practice complaint was reviewable only because his decision was “based solely on his belief that he lacks jurisdiction to issue such a complaint.” Id. at 756. But what we held reviewable were the General Counsel’s “statutory and regulatory interpretations to determine if his belief that he lacked jurisdiction was correct.” Id. at 757. Applying Chevron, we found “impermissible” the General Counsel’s interpretations of the statute under which he acted. Id. at 758.
Here, by contrast, Plaintiffs do not ask that we apply Chevron to review whether Acting Secretary Duke impermissibly interpreted 6 U.S.C. § 202(5) in concluding that the statute authorized the rescission of DACA.3 Instead, Plaintiffs ask that we review for arbitrariness and capriciousness the procedures the agency used to rescind DACA. But nothing in Montana Air suggests that Heckler’s footnote 4 authorizes arbitraryand-capricious, rather than Chevron, review of agency action simply because the agency acted based on its understanding of its enabling statute. And, despite Plaintiffs’ arguments to the contrary, BLE plainly prohibits us from doing so.
In BLE, the Supreme Court held that an agency’s refusal to reconsider a prior adjudicative decision was unreviewable even where the agency based its refusal on its interpretation of its enabling statute. 482 U.S.
3 This is not surprising: § 202(5) makes the Secretary “responsible for . . . [e]stablishing national immigration enforcement policies and priorities.” If we accept that this broad, discretiongranting statute authorized DACA’s implementation, it surely also sanctions DACA’s termination.

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at 278-84. In so holding, the Court explained that the agency’s refusal to reconsider was unreviewable because it was the type of action that “has traditionally been ‘committed to agency discretion,’ ” id. at 282 (quoting Heckler, 470 U.S. at 832); thus any inquiry into its reasons for acting was inappropriate, id. at 280-81. “It is irrelevant that the [agency’s] order refusing reconsideration discussed the merits of the unions’ claim at length,” the Court explained, as “[i]t would hardly be sensible to say that the [agency] can genuinely deny reconsideration only when it gives the matter no thought.” Id. BLE thus makes clear that when determining the scope of permissible judicial review, courts consider only the type of agency action at issue, not the agency’s reasons for acting.
Finally, Plaintiffs argue that even if BLE precludes review of some types of agency action regardless of the agency’s reason for acting, that rule only applies to single-shot enforcement decisions, not to general statements of policy. See NAACP v. Trump, 298 F. Supp. 3d 209, 227-36 (D.D.C. 2018) (discussing Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994), and permitting APA review on this ground). In other words, Plaintiffs would have us hold that general statements of policy—but not single-shot enforcement decisions—are subject to APA review when the agency’s sole reason for acting is its understanding of its jurisdiction. While the majority acknowledges Plaintiffs’ argument without reaching its merits, I believe that such a distinction collapses Heckler on its head: In deciding whether agency action is reviewable, the first question we ask is what type of agency action is before us—whether it is agency action that courts typically review or agency action “traditionally . . . ‘com-

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mitted to agency discretion.’ ” Heckler, 470 U.S. at 832. This initial inquiry includes consideration of whether the action is a single-shot non-enforcement decision or a general statement of policy. It would beg the question to conclude that unreviewable agency action is in fact reviewable because it is the type of action that courts typically review.
I would therefore hold that § 701(a)(2) precludes us from subjecting DACA’s rescission to arbitrary-andcapricious review.
At the same time, as the government concedes, DACA’s rescission may be reviewed for compliance with the Constitution. I would hold that Plaintiffs have plausibly alleged that the rescission of DACA was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment, and that the district court correctly denied the government’s motion to dismiss this claim.
Notably, Plaintiffs did not seek a preliminary injunction on their Equal Protection claim, instead relying solely on their APA argument. Nonetheless, this court may affirm a preliminary injunction on any basis supported by the record. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1021 (9th Cir. 2013). And because a preliminary injunction preserves the court’s power to render a meaningful decision on the merits, we can affirm an injunction issued on legally erroneous grounds where remand for consideration of alternative grounds is warranted. See Gerling Global Reinsurance Corp. of Am. v. Low, 240 F.3d 739, 754 (9th Cir. 2001) (“It is possible that [the challenged law] violates the Due Process Clause, but the district court did not reach that issue, and it is not fully developed in the record or in

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the briefs presented to this court. We leave the preliminary injunction in place in order to give the district court an opportunity to consider whether Plaintiffs are likely to succeed on the merits.”); see also United States v. Hovsepian, 359 F.3d 1144, 1157 (9th Cir. 2004) (en banc) (holding that the district court erred in entering an injunction but leaving “the injunction in place . . . pending the conclusion of all proceedings in this case, in aid of the court’s jurisdiction”). Accordingly, I would affirm the preliminary injunction and remand for consideration whether Plaintiffs have demonstrated a likelihood of success on the merits of their Equal Protection claim.
As the majority details, the record assembled at this early stage is promising. Plaintiffs highlight (1) the disproportionate impact DACA’s rescission has on “individuals of Mexican heritage, and Latinos, who together account for 93 percent of approved DACA applications”; (2) a litany of statements by the President and high-ranking members of his Administration that plausibly indicate animus toward undocumented immigrants from Central America;4 and (3) substantial procedural irregularities in the challenged agency action.
Such evidence—plus whatever additional evidence Plaintiffs muster on remand—may well raise a presumption that unconstitutional animus was a substantial factor in the rescission of DACA. See Vill. of Arlington
4 Like the majority, I do not interpret Trump v. Hawaii, 138 S. Ct. 2392 (2018), to preclude review of the President’s statements when applying the Arlington Heights standard. At the merits stage, the district court can still decide whether, or to what degree, the President’s statements betray a discriminatory animus behind DACA’s rescission.

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Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977); see also Hawaii, 138 S. Ct. at 2420 (holding that courts “may consider plaintiffs’ extrinsic evidence” as permitted by the applicable level of scrutiny). If the government fails to rebut that presumption, Plaintiffs will have demonstrated a likelihood of success on the merits. See Arlington Heights, 429 U.S. at 270 & n.21 (noting that proof that an action was motivated by a discriminatory purpose shifts to the government the burden of establishing that the same decision would have resulted without the impermissible purpose); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006) (affirming the injunction where the government failed to meet its burden at preliminary injunction stage, because “the burdens at the preliminary injunction stage track the burdens at trial”). As such, I believe that Plaintiffs have plausibly alleged an Equal Protection violation and that the district court should decide whether it is an alternative ground to grant the preliminary injunction.
Moreover, the balance of equities here weighs heavily in favor of affirming the preliminary injunction. A merits decision from the district court concluding that the Executive rescinded DACA because of unconstitutional racial animus would be little more than an advisory opinion if by that time thousands of young people had lost their status due to the lack of an injunction preserving it. Preliminary injunctive relief exists precisely for circumstances like these: “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.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Thus, on these facts, the district court was correct to issue a preliminary injunction. See

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Ashcroft v. ACLU, 542 U.S. 656, 670 (2004) (affirming injunction where “the potential harms from reversing the injunction outweigh those of leaving it in place by mistake”); Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975) (granting preliminary relief because “otherwise a favorable final judgment might well be useless”); Brown v. Chote, 411 U.S. 452, 457 (1973); cf. Winter v. NRDC, Inc., 555 U.S. 7, 26 (2008) (reversing injunction without addressing likelihood of success on the merits where “the balance of equities and consideration of the overall public interest in this case tip strongly in favor of [defendants]”).
Accordingly, while I would remand for the district court to evaluate the Plaintiffs’ likelihood of success on the merits of their Equal Protection claim as an alternative basis for preliminary relief in the first instance, I join the majority in affirming the preliminary injunction to preserve the status quo while Plaintiffs attempt to prove up that claim.

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Notice to Appear Policy Memorandum On June 28, we issued a new Notice to Appear (NTA) policy memorandum (PM) (PDF, 140 KB), providing guidance on when USCIS may issue Form I-862, Notice to Appear. An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings against them. Starting Oct. 1, USCIS may issue NTAs on denied status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status. USCIS will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.

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The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.
We’ll continue to prioritize cases of individuals with criminal records, fraud, or national security concerns and will continue the current processes of using our discretion in issuing NTAs on these case types.
USCIS held a public teleconference on Thursday, Sept. 27, and provided an overview of the PM and responded to pre-submitted questions. The questions and answers, and the overview from the teleconference, are available on the USCIS Teleconference Notice to Appear (NTA) Update Policy Guidance script (PDF, 3.52 MB) posted to the Electronic Reading Room.
Background
The updated policy affects the following categories of cases where the individual is removable:
• Cases where fraud or misrepresentation is sub-
stantiated, and/or cases where there is evidence the applicant abused any program related to receiving public benefits. We will issue an NTA in these cases, even if we deny the case for reasons other than fraud.
• Criminal cases where an applicant is charged
with (or convicted of ) a criminal offense, or committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. We will, where circumstances warrant, re-

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fer cases to ICE without issuing an NTA or adjudicating an immigration benefits.
• Cases where we denied a Form N-400, Applica-
tion for Naturalization, on good moral character grounds because of a criminal offense.
• Cases where an applicant will be unlawfully pre-
sent in the United States when we deny the petition or application.
The PM did not change USCIS policy for the following categories:
• Cases involving national security concerns;
• Cases where issuing an NTA is required by
statute or regulation;
• Temporary Protected Status (TPS) cases, except
where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status; and
• Cases involving deferred action for childhood
arrivals (DACA) recipients and requestors when (1) processing an initial or renewal DACA request or DACA-related benefit request or (2) processing a DACA recipient for possible termination of DACA. Read the PM (PDF, 77 KB) that applies to cases involving DACA recipients and requestors.

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United States Court of Appeals for the Ninth Circuit
Office of the Clerk 95 Seventh Street San Francisco, CA 94103
Information Regarding Judgment and Post-Judgment Proceedings
Judgment
• This Court has filed and entered the attached
judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.
Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)
• The mandate will issue 7 days after the expira-
tion of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(1) A. Purpose (Panel Rehearing):
• A party should seek panel rehearing only if
one or more of the following grounds exist:

92a
► A material point of fact or law was overlooked in the decision;
► A change in the law occurred after the case was submitted which appears to have been overlooked by the panel; or
► An apparent conflict with another decision of the Court was not addressed in the opinion.
• Do not file a petition for panel rehearing mere-
ly to reargue the case.
B. Purpose (Rehearing En Banc)
• A party should seek en banc rehearing only if
one or more of the following grounds exist:
► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or
► The opinion directly conflicts with an existing opinion by another court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing:
• A petition for rehearing may be filed within
14 days after entry of judgment. Fed. R. App. P. 40(a)(1).

93a
• If the United States or an agency or officer
thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1).
• If the mandate has issued, the petition for re-
hearing should be accompanied by a motion to recall the mandate.
• See Advisory Note to 9th Cir. R. 40-1 (petitions
must be received on the due date).
• An order to publish a previously unpublished
memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel
• A petition should contain an introduction stat-
ing that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
• The petition shall not exceed 15 pages unless it
complies with the alternative length limitations of 4,200 words or 390 lines of text.
• The petition must be accompanied by a copy of
the panel’s decision being challenged.

94a
• An answer, when ordered by the Court, shall
comply with the same length limitations as the petition.
• If a pro se litigant elects to file a form brief
pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.
• The petition or answer must be accompanied by
a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts. gov under Forms.
• You may file a petition electronically via the
appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)
• The Bill of Costs must be filed within 14 days
after entry of judgment.
• See Form 10 for additional information, avail-
able on our website at www.ca9.uscourts.gov under Forms.
Attorneys Fees
• Ninth Circuit Rule 39-1 describes the content
and due dates for attorneys fees applications.

95a
• All relevant forms are available on our website
at www.ca9.uscourts.gov under Forms or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari
• Please refer to the Rules of the United States
Supreme Court at www.supremecourt.gov
Counsel Listing in Published Opinions
• Please check counsel listing on the attached
decision.
• If there are any errors in a published opinion,
please send a letter in writing within 10 days to:
► Thomson Reuters; 610 Opperman Drive; PO Box 64526; Eagan, MN 55123 (Attn: Jean Green, Senior Publications Coordinator);
► and electronically file a copy of the letter via the appellate ECF system by using “File Correspondence to Court,” or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.

96a
Form 10. Bill of Costs…………………….....(Rev. 12-1-09)
United States Court of Appeals for the Ninth Circuit
BILL OF COSTS
This form is available as a fillable version at:
http://cdn.ca9.uscourts.gov/datastore/uploads/ forms/Form%2010%20-%20Bill%20of %20Costs.pdf.
Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

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* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.
Attorneys’ fees cannot be requested on this form.

 
 Nos. 18-587, 18-588, and 18-589
In the Supreme Court of the United States
DEPARTMENT OF HOMELAND SECURITY, ET AL.,
PETITIONERS
v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT REPLY BRIEF FOR THE PETITIONERS
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217
Additional Captions Listed on Inside Cover

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND SECURITY, ET AL., PETITIONERS v.
MARTIN JONATHAN BATALLA VIDAL, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

TABLE OF CONTENTS

Page

A. The Nielsen Memorandum should be considered.......... 2 B. DACA’s rescission is not reviewable ............................... 7 C. DACA’s rescission is lawful............................................ 13 D. The judgments and orders should be reversed............ 22

TABLE OF AUTHORITIES

Cases:
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962)................................................................ 3
Camp v. Pitts, 411 U.S. 138 (1973)......................................... 4 Casa de Maryland v. DHS, 924 F.3d 684
(4th Cir. 2019), petition for cert. pending, No. 18-1469 (filed May 24, 2019) ......................................... 8 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)................................................................ 4 Department of Commerce v. New York, 139 S. Ct. 2551 (2019) ................................................. 3, 6, 23 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).............................................................. 16 FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775 (1978).............................................................. 21 Heckler v. Chaney, 470 U.S. 821 (1985)................. 7, 9, 10, 12 ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987).......................................................... 9, 10 INS v. St. Cyr, 533 U.S. 289 (2001) ...................................... 12 Judulang v. Holder, 565 U.S. 42 (2011) .............................. 12 Massachusetts v. EPA, 549 U.S. 497 (2007) ................... 8, 21 Michigan v. EPA, 135 S. Ct. 2699 (2015) ............................ 17 Morgan Stanley Capital Grp. Inc. v. Public Util. Dist. No. 1, 554 U.S. 527 (2008) ........................................... 6

(I)

II

Cases—Continued:

Page

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .......................................... 17, 20
NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969) ............. 6
National Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989)................................................................ 5
PDK Labs., Inc. v. DEA, 362 F.3d 786 (D.C. Cir. 2004) ..................................................................... 6
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ......................................... 10, 22
United States v. Armstrong, 517 U.S. 456 (1996) .............. 10
Utility Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014) .................................................................................... 19

Constitution and statutes:

U.S. Const. Art. II ................................................................. 19 Administrative Procedure Act,
5 U.S.C. 551 et seq., 5 U.S.C. 701 et seq.: 5 U.S.C. 551(4) ................................................................... 4 5 U.S.C. 551(13) ................................................................. 5 5 U.S.C. 701(a)(2)................................................... 9, 10, 12 5 U.S.C. 706........................................................................ 6 5 U.S.C. 706(2)(A)............................................................ 12
Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 568(c), 123 Stat. 2186 ...................................................................... 18
Immigration and Nationality Act, 8 U.S.C. 1101 et seq.: 8 U.S.C. 1103(a)(1)........................................................... 11 8 U.S.C. 1182(d)(5)(A) ..................................................... 19 8 U.S.C. 1252(b) (1988 & Supp. II 1990) ....................... 19 8 U.S.C. 1324a.................................................................. 19 8 U.S.C. 1324a(h)(3) ........................................................ 19

III

Miscellaneous:

Page

Dep’t of Homeland Sec., Memorandum from Secretary Kirstjen M. Nielsen on the Rescission of DACA (June 22, 2018), https://go.usa.gov/xp3BE............. 5
H.R. Rep. No. 911, 110th Cong., 2d Sess. (2008) ................ 18
Memorandum from Donald Neufeld, Acting Assoc. Dir., Office of Domestic Operations, USCIS, to Field Leadership, USCIS, Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (Sept. 4, 2009) ............................................ 18
The White House, Remarks by the President on Immigration (June 15, 2012), https://go.usa.gov/xnZFY .................................................. 17
U.S. Citizenship & Immigration Servs., Dep’t of Homeland Sec., Adjudicator’s Field Manual ................ 19

In the Supreme Court of the United States
No. 18-587 DEPARTMENT OF HOMELAND SECURITY, ET AL.,
PETITIONERS
v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 18-588 DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 18-589 KEVIN K. MCALEENAN, ACTING SECRETARY OF
HOMELAND SECURITY, ET AL., PETITIONERS v.
MARTIN JONATHAN BATALLA VIDAL, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
(1)

2
In 2012, the Department of Homeland Security (DHS) adopted DACA, a temporary policy of enforcement discretion that created a mechanism for up to 1.7 million aliens to receive forbearance from removal and federal benefits, even though existing laws make it illegal for them to remain in the United States. That policy was itself illegal, and at a minimum legally questionable. For those reasons, and a host of policy concerns, DHS has been trying to rescind DACA for more than two years. Although respondents claim to accept DHS’s authority to do so, they ask this Court to review the change in policy under such rigorous requirements as to effectively preclude it. In their view, the “true costbenefit analysis” that the Administrative Procedure Act (APA) purportedly requires “could not possibly justify this change.” Ind. Br. 59. Respondents’ approach to the APA bears no resemblance to this Court’s. DHS’s decision to rescind a purely discretionary nonenforcement policy is not reviewable under the APA. And even if it were, the decision of a law-enforcement agency to rescind this legally dubious policy not to enforce the law plainly satisfies any narrow review the APA provides.
A. The Nielsen Memorandum Should Be Considered
Although the Duke Memorandum provides ample basis to reverse the judgments below, the Court can and should also consider Secretary Nielsen’s explanation for DACA’s rescission, which confirms that it is both unreviewable and lawful. U.S. Br. 28-31. No one argues that the Nielsen Memorandum is not properly before the Court at all. And although respondents argue that the Court should disregard the parts of it that doom their case, they are wrong for three related reasons.
1. As the D.C. district court correctly concluded, most of Secretary Nielsen’s explanation is simply an

3
“amplified articulation” of Acting Secretary Duke’s explanation. NAACP Pet. App. 92a (citation omitted). No respondent meaningfully argues that the Court cannot consider Secretary Nielsen’s explanation of the unlawfulness rationale contained in the Duke Memorandum. And respondents offer (D.C. Br. 22) only one reason for disregarding her further explanation that, even if DACA ultimately might be found lawful, it should be rescinded based on the costs of maintaining such a legally questionable nonenforcement policy—namely, that the Duke Memorandum purportedly did not sufficiently articulate those concerns. That is wrong. See p. 11, infra. Regardless, respondents acknowledge that, at a court’s invitation, an agency may offer a fuller explanation of a rationale that existed at the time of its decision but was too “curt[ly]” expressed. D.C. Br. 50 (citation omitted). That is precisely what Secretary Nielsen did when she explained that, “[l]ike Acting Secretary Duke,” she “lack[ed] sufficient confidence in the DACA policy’s legality” to maintain it. Regents Pet. App. 123a.
2. More fundamentally, considering even new policy rationales offered by Secretary Nielsen would not violate the rule prohibiting a reviewing court from accepting “post hoc rationalizations for agency action.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). That principle prevents thrusting courts “into the domain which Congress has set aside exclusively for the administrative agency,” id. at 169 (citation omitted), and generally precludes “judicial inquiry into ‘executive motivation’ [that] represents ‘a substantial intrusion’ into the workings of another branch,” Department of Commerce v. New York, 139 S. Ct. 2551, 2573 (2019) (citation omitted). It is not implicated when, as

4
here, the agency itself offers the explanation for agency action through proper agency procedures.
Camp v. Pitts, 411 U.S. 138 (1973) (per curiam), is not to the contrary. There, the Court discussed the appropriate scope of “affidavits or testimony” that the agency could offer in defense of its action directly to the reviewing court, regardless of the required procedures for taking the action in the first place. Id. at 143. The Court, however, placed no limitations on the explanation an agency might offer if a court found the reasons initially offered were insufficient and the agency provided additional ones in accordance with all relevant procedures. Ibid.; cf. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420-421 (1971) (permitting consideration of the agency’s additional “formal findings,” even if considered “to some extent” “post hoc rationalization”). And, here, neither the Immigration and Nationality Act (INA) nor the APA requires any particular procedures at all for changes in enforcement policies.
Respondents appear to acknowledge that Secretary Nielsen was free to offer entirely new rationales in a “new agency action.” D.C. Br. 52. But nothing in the APA required that the new action reinstate DACA and rescind it again, rather than ratify the rescission and state her reasons for doing so. And the latter is precisely what Secretary Nielsen did, explicitly stating that the prior decision “remains” sound, that the DACA policy “should be” rescinded, and that she both “decline[d] to disturb” the rescission and “concur[red] with” it for the reasons she articulated. Regents Pet. App. 121a, 123a, 126a. Secretary Nielsen’s Memorandum is a “rule” setting forth “an agency statement of general * * * applicability and future effect designed to implement * * * policy.” 5 U.S.C. 551(4). It thus is

5
“agency action,” 5 U.S.C. 551(13), not solely an explanation of a past action.
There is no need to “reset” the litigation for any new reasons to be considered. D.C. Br. 53 (citation omitted). Secretary Nielsen expressly based her decision on an already available administrative record—namely, the Duke Memorandum, the administrative record proffered for that decision, Acting Secretary Duke’s accompanying statement, and the then-existing judicial opinions reviewing the Duke Memorandum, see Regents Pet. App. 121a—and the questions before the Court are purely legal. In resolving them, the Court can and should consider new agency actions “to the extent they supplement or displace [DHS’s] original directive.” National Treasury Emps. Union v. Von Raab, 489 U.S. 656, 661 n.1 (1989).
Respondents offer no sound reason why it should matter for purposes of considering the Nielsen Memorandum that the D.C. district court’s vacatur of the Duke Memorandum had not taken effect or that the government continues to defend the Duke Memorandum. Such a rule would not serve “principle[s] of agency accountability.” D.C. Br. 51 (citation omitted). Contrary to respondents’ suggestion (id. at 52), Secretary Nielsen did not offer her explanation only in court filings. She publicly issued it in the same manner as the Duke Memorandum (and the original DACA memorandum). DHS, Memorandum from Secretary Kirstjen M. Nielsen on the Rescission of DACA (June 22, 2018), https://go.usa.gov/xp3BE. There is no “reason to suspect” that it “does not reflect the agency’s fair and considered judgment.” D.C. Br. 52-53 (citation omitted).
And respondents’ assertion (Cal. Br. 51) that considering Secretary Nielsen’s reasons for rescinding the

6
DACA policy would “reduce the agency’s incentives for offering a sustainable rationale in the first instance” is not realistic. Even if it were costless to redo agency action, it is implausible that an agency would risk delaying the implementation of new policy by intentionally withholding a well-reasoned explanation in the first instance. That is particularly so where, as is often true, doing so would require the agency to undertake time-consuming and costly efforts such as notice-and-comment rulemaking or adjudicative procedures.
3. At a minimum, if the Nielsen Memorandum provides an adequate basis to uphold DACA’s rescission, remanding the matter based on an inadequacy in the Duke Memorandum “would be an idle and useless formality.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969) (plurality opinion). The APA “does not require” courts to “convert judicial review of agency action into a ping-pong game.” Morgan Stanley Capital Grp. Inc. v. Public Util. Dist. No. 1, 554 U.S. 527, 545 (2008) (citation omitted); see PDK Labs., Inc. v. DEA, 362 F.3d 786, 800, 808-809 (D.C. Cir. 2004) (Roberts, J., concurring in part and in the judgment) (“No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result.”) (citation omitted). To the contrary, the APA requires courts to take “due account * * * of the rule of prejudicial error.” 5 U.S.C. 706; see Department of Commerce, 139 S. Ct. at 2573;
Respondents contend (D.C. Br. 56) that it is “impossible * * * to predict” how DHS would respond if the Court remanded the matter to it. But that is manifestly untrue. DHS already has determined that the rescission of the DACA policy was “proper” and therefore

7
that the policy “should” be terminated. Regents Pet. App. 122a. That judgment did not depend on whether DACA was lawful. Ibid. And DHS continues to defend all of Secretary Nielsen’s reasons before this Court. There is no basis for concluding that the agency’s position might change if it were required to consider the question a third time.
B. DACA’s Rescission Is Not Reviewable
As reflected in both the Duke and Nielsen Memoranda, DHS’s decision to rescind its nonenforcement policy is a quintessential enforcement decision of the sort traditionally “committed to an agency’s absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). It is therefore unreviewable absent a statute “circumscribing [the] agency’s power to discriminate among issues or cases it will pursue.” Id. at 833; see U.S. Br. 1732. Respondents do not claim that the INA restricted DHS’s authority to rescind DACA. Their arguments that the rescission nevertheless is reviewable—because of the type of decision or the reasons given—are all flawed.
1. Respondents principally attempt to distinguish DACA’s rescission from the type of decision at issue in Chaney on the ground (Ind. Br. 18-21) that the rescission concerned a general enforcement policy, rather than an enforcement decision in an individual case. But Chaney itself concerned a categorical enforcement policy. Although the Food and Drug Administration (FDA) reached its decision in response to a request by individual inmates, in rejecting that request, FDA categorically stated that “the use of lethal injection by State penal systems is a practice over which FDA has no jurisdiction” and, regardless, it would “decline, as a matter of enforcement discretion, to pursue supplies of

8
drugs under State control that will be used for execution by lethal injection.” Pet. App. at 82a, 85a, Chaney, supra (No. 83-1878). Indeed, none of the relief that the inmates sought was specific to their cases; they sought system-wide relief. See id. at 81a-82a; e.g., id. at 82a (requesting that FDA “[a]dopt a policy” for seizing lethal-injection drugs “from prisons or State departments of correction”). That forecloses respondents’ implausible suggestion (Cal. Br. 16) that Chaney would have been decided differently if FDA had announced its nonenforcement policy, like DHS did here, as a general “framework” before applying it to specific individuals.
Respondents cite lower-court decisions that distinguish between single-shot enforcement decisions and general policies on the ground that the latter are more likely to contain “direct interpretations of the commands of the substantive statute.” D.C. Br. 32 (citation omitted). But the Duke and Nielsen Memoranda address only the scope of DHS’s enforcement discretion, not the INA’s substantive commands. U.S. Br. 25-26. To the extent that some lower-court decisions may be read to authorize review of an enforcement policy itself, rather than an otherwise-reviewable substantive interpretation contained within it, they “simply cannot be reconciled with Chaney.” Casa de Maryland v. DHS, 924 F.3d 684, 713 (4th Cir. 2019) (Richardson, J., dissenting in relevant part). As for respondents’ reliance (D.C. Br. 33) on Massachusetts v. EPA, 549 U.S. 497 (2007), that case concerned an agency’s denial of a petition for rulemaking, which the Court specifically distinguished from the type of “nonenforcement decision[]”at issue in Chaney and here. Id. at 527.
Finally, respondents are wrong to suggest (Ind. Br. 19) that DACA’s rescission itself is coercive because it

9
denies “DACA recipients the ability to work.” The Duke Memorandum explained that the agency would not “revoke Employment Authorization Documents solely based on the” rescission. Regents Pet. App. 118a. And the inability to obtain new or renewed work authorization is simply a collateral consequence of the termination of the deferred-action policy—no different than if a prosecutor ends a nonenforcement policy that diverts certain low-level offenders into job-training or drugrehabilitation programs.
2. Respondents are also wrong to contend (Cal. Br. 17-21) that, even if DACA’s rescission fits within the tradition identified in Chaney, it is reviewable because it was based solely on the conclusion that DACA was unlawful. U.S. Br. 23-32.
a. Legally, where “the type of agency decision in question ‘has traditionally been “committed to agency discretion,” ’ ” it does not “become[] reviewable” whenever the agency “gives a ‘reviewable’ reason” for the action. ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 282-283 (1987) (BLE) (quoting Chaney, 470 U.S. at 832). Particularly where, as here, the government has no legal obligation to give any public explanation for its otherwise-unreviewable decision, it would be perverse to subject the decision to years of litigation because the government volunteered one. In determining whether an action is committed to agency discretion, “it is the [agency]’s formal action, rather than its discussion, that is dispositive.” Id. at 281. Section 701(a)(2) precludes review of “agency action,” not agency “reasons.”
Respondents observe (Cal. Br. 21) that the agency action at issue in BLE was not a “non-enforcement decision” and was not “based on any purported lack of au-

10
thority.” But the Court refused to review the legal analysis in the agency’s reconsideration decision in BLE by analogizing to precisely such a nonenforcement decision. It explained that “a common reason for failure to prosecute an alleged criminal violation is the prosecutor’s belief (sometimes publicly stated) that the law will not sustain a conviction. * * * [Y]et it is entirely clear that the refusal to prosecute cannot be the subject of judicial review.” BLE, 482 U.S. at 283.
That was not because of any “longstanding rule against suits to compel criminal prosecutions.” D.C. Br. 28. It was based on the longstanding tradition of not subjecting “decision[s] whether or not to prosecute” to judicial review, reflecting concerns about invading the “special province” of the Executive and the general unsuitability of that class of decisions for judicial review. United States v. Armstrong, 517 U.S. 456, 464 (1996) (emphasis added) (quoting Chaney, 470 U.S. at 832). The same concerns apply to decisions to enforce federal immigration laws and, indeed, are “greatly magnified” given that the consequence of review is to “prolong a continuing violation” of federal law. Reno v. AmericanArab Anti-Discrimination Comm., 525 U.S. 471, 490 (1999) (AADC).
Moreover, while it is true that BLE identified distinct reasons for the tradition of not reviewing requests to reopen for material error, Regents Br. 25-26, the salient point is that, whatever the particular reason for a tradition of unreviewability, Section 701(a)(2) “was meant to preserve” it. BLE, 482 U.S. at 282. And while the BLE Court did note that some types of refusal to reopen are reviewable (D.C. Br. 27), that is not due to the reasons the agency chooses to provide, but rather the substantive basis of the petitioner’s request.

11
482 U.S. at 278 (distinguishing “petitions alleging ‘new evidence’ or ‘changed circumstances’ ”).
b. In any event, as a factual matter, DACA’s rescission was not based solely on a legal conclusion. Acting Secretary Duke emphasized the threat of impending litigation, the Attorney General’s conclusion that it was “likely” that such litigation “would yield similar results” to the earlier litigation, and her resulting decision that the DACA policy “should” be wound down. Regents Pet. App. 115a-117a. The Duke Memorandum alone thus demonstrates that the decision has always been based, in part, on the Secretary’s “exercise of [her] authority in establishing national immigration policy,” id. at 117a, not just the Attorney General’s authority to issue “controlling” determinations of relevant “questions of law,” 8 U.S.C. 1103(a)(1).
Respondents suggest (D.C. Br. 22-23) that Acting Secretary Duke must not have exercised such discretion because her memorandum does not contain an explicit “assessment of the costs of rescinding the policy weighed against the legal risk of maintaining it.” But such an exercise would serve little purpose where, as here, the relevant costs of maintaining the policy were not only monetary, but the damage to public confidence in DHS and in the rule of law, as well as the potential distraction from the agency’s important work. Regents Pet. App. 123a. And even if that criticism were relevant to whether the litigation-risk rationale was valid on the merits, it fails to show that the decision was not actually based on serious doubts about DACA’s legality.
It is likewise irrelevant that the concerns about maintaining a legally questionable policy were paired with a conclusion that the DACA policy is, in fact, un-

12
lawful. It is not uncommon for courts or agencies to offer independent, alternative rationales for their decisions. Indeed, FDA in Chaney similarly concluded both that the agency “ha[d] no jurisdiction” over the States’ “use of lethal injection,” and that, even if it did, “as a secondary and separate basis of denial,” the agency would not, “as a matter of enforcement discretion,” take the requested actions. Pet. App. at 82a, 85a, Chaney, supra (No. 83-1878). That fact provides no basis to call into question the sincerity of either ground.
c. The Nielsen Memorandum, moreover, makes clear that DACA’s rescission is not based exclusively on legal rationales and thus is unreviewable. See Regents Pet. App. 123a-124a. Respondents are wrong that DACA’s rescission would still be reviewable to ensure that it was not “ ‘arbitrary’ and ‘capricious’ or an ‘abuse of discretion.’ ” Ind. Br. 26-27 (quoting 5 U.S.C. 706(2)(A)). “[B]efore any review at all may be had, a party must first clear the hurdle of § 701(a),” and Section 701(a)(2) bars “abuse of discretion” review for actions traditionally committed to agency discretion. Chaney, 470 U.S. at 828, 830.
Judulang v. Holder, 565 U.S. 42 (2011), does not hold otherwise. That case did not involve enforcement discretion. Instead, in an appeal from a final order of removal, the alien challenged the denial of a form of discretionary relief that conferred lawful status. See INS v. St. Cyr, 533 U.S. 289, 295 (2001) (“If relief is granted, * * * the alien remains a permanent resident.”). The agency’s policy was reviewable because it did not fit within the tradition of unreviewability identified in Chaney, not because Section 706(2)(A) applies to all discretionary decisions. Indeed, the case did not even address Section 701(a)(2).

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C. DACA’s Rescission Is Lawful
Even if judicially reviewable under the APA, DHS’s decision to rescind a nonenforcement policy that was at best legally uncertain—and, at worst, unlawful—was plainly rational. U.S. Br. 32-56.
1. DACA’s rescission is justified by DHS’s concerns about maintaining the legally questionable nonenforcement policy, particularly in the face of impending litigation. U.S. Br. 33-37.
One set of respondents suggests that “litigation risk” can never be “an adequate, independent rationale for agency action.” Regents Br. 53-54. But not even the D.C. district court was willing to go that far. See NAACP Pet. App. 40a. And other respondents rightly disavow it. See Cal. Br. 21 (acknowledging that, in some contexts, a litigation-risk rationale “might” render the rescission unreviewable). Indeed, it is commonplace for an agency to acquiesce in a federal court’s determination that a prior action is unlawful, even if it disagrees. After all, an agency is not required to push its questionable legal authority to its logical extreme.
Recognizing such a possibility does not permit an agency to evade judicial review (assuming such review is even available). It simply shifts the focus of any review from the agency’s legal determination to its evaluation of the costs of maintaining a policy in the face of legal uncertainty. Abandoning administrative efforts on that basis will not always survive scrutiny because the legal doubts must be rational. But in the face of the Fifth Circuit’s decision affirming a preliminary nationwide injunction against DAPA and expanded DACA, and this Court’s equally divided affirmance, DHS was (more than) reasonably concerned about the legality of DACA, the possibility of an immediate court-ordered shutdown,

14
and the intangible costs to this law-enforcement agency of maintaining a legally dubious policy not to enforce the law, regardless whether courts might ultimately uphold it. Regents Pet. App. 123a; accord id. at 117a.
Like the lower courts, respondents fault DHS for failing to address possible distinctions between DAPA and DACA that might have led the Fifth Circuit to reach a different conclusion with respect to DACA. N.Y. Br. 36-39. But respondents do no better in identifying any material distinction. U.S. Br. 35-36. And in nearly 300 pages of briefing, none of the respondents meaningfully grapples with the fact that the Fifth Circuit held that both DAPA and expanded DACA were substantively unlawful—a judgment this Court affirmed by an equally divided court. That was not a judicial oversight. Everyone in that case simply agreed that the policies stood or fell together. See, e.g., U.S. Br. at 10-11, 45, United States v. Texas, No. 15-674.
Some respondents assert that, unlike DACA, DAPA “would have classified recipients as ‘lawfully present in the United States.’ ” Ind. Br. 51 (citation omitted). But as other respondents effectively recognize (Cal. Br. 26 n.5, 35), DACA is no different with respect to “lawful presence” than DAPA: while neither policy in fact makes it lawful to remain in the country, deferred action under either policy is deemed to satisfy statutory “lawful presence” requirements for purposes of certain federal benefits (e.g., social security) and the INA’s reentry bars. Indeed, the highlighted portion of the DAPA memorandum explained the consequences of “deferred action” generally, not DAPA specifically. Regents Pet. App. 104a.
Respondents criticize (Ind. Br. 52) DHS for failing to consider whether the Texas district court would have

15
exercised its discretion not to order an immediate shutdown of the DACA policy based on a balancing of the equities. Even if so, that would not address the intangible costs of maintaining a legally questionable nonenforcement policy. And in any event, as long as DHS reasonably determined that the court likely would declare DACA substantively unlawful (as it did), it cannot be irrational for DHS to have concluded that—one way or another—the policy likely would be brought to an end. The question was whether the policy’s termination would be pursuant to a court-ordered plan or one set by DHS. The fact that the Texas court recently declined on equitable grounds to enjoin the DACA policy at an interlocutory stage of the latest challenge does not undermine that judgment. Cf. Regents Br. 54. Indeed, the court’s conclusion that the Fifth Circuit’s prior decision controls the unlawfulness of DACA on the merits powerfully vindicates DHS’s legal concerns.
2. The rescission is independently justified by Secretary Nielsen’s enforcement-policy concerns. U.S. Br. 37-43.
Respondents inaccurately characterize Secretary Nielsen’s policy concerns as “recapitulat[ing]” her legal concerns. Cal. Br. 50 (citation omitted). Secretary Nielsen explicitly stated that her policy concerns apply “regardless of whether the[] concerns about the DACA policy render it illegal or legally questionable.” Regents Pet. App. 123a. There is nothing unusual in maintaining that, even if certain substantive values reflected in the law (e.g., federalism or the separation of powers) do not legally foreclose a particular action, they provide an independent policy rationale for not pursuing that course. FDA did precisely that in its decision in Chaney, and no Member of the Court questioned its sincerity. U.S. Br. 30.

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Respondents contend (Ind. Br. 55) that the Secretary’s preference for truly individualized prosecutorial discretion is inconsistent with past categorical deferred-action policies and current categorical asylum rules. But DHS’s past deferred-action policies were nothing like DACA. See pp. 17-19, infra. And in any event, DHS was free to change its position on the desirability of categorical nonenforcement policies. Indeed, although he had made an exception for DACA, Secretary Kelly had already announced such a change. J.A. 857-867. There is also no inconsistency between Secretary Nielsen’s desire to avoid categorical deferredaction policies that tilt the scales against enforcing federal immigration law as written, and the agency’s use of categorical rules in other contexts to enforce those laws.
Respondents complain (Cal. Br. 51) that the Secretary’s desire to project a message of consistent immigration enforcement to discourage further illegal immigration is not supported by evidence in the administrative record. But the basis for the Secretary’s policy preference is “an exercise in logic rather than clairvoyance.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 521 (2009). DHS is committed to vigorous enforcement of the federal immigration laws. Toward that end, it seeks to send a strong, consistent message that illegal immigration will not be tolerated. Policies like DACA plainly undermine the clarity of that message by facilitating ongoing illegality on a massive scale through prospective assurance that the immigration laws will not be enforced coupled with affirmative benefits.
In light of those reasonable policy goals, the Secretary adequately acknowledged and balanced the asserted reliance interests in the indefinite continuance of DACA. No one disputes that, from the outset, DACA

17
was a temporary, discretionary policy; was granted in only two-year increments; and created no lawful status or substantive rights. Regents Pet. App. 101a. Indeed, President Obama made clear that the policy represented only a “stopgap measure,” not a “permanent fix.” The White House, Remarks by the President on Immigration (June 15, 2012). Against this backdrop, the DACA policy could not engender any legally cognizable reliance interests in the government’s continuing facilitation of DACA recipients’ unlawful status. And while respondents assert that law-abiding institutions have “ordered their affairs” in response to DACA (Ind. Br. 34), those interests are concededly “derivative” (D.C. Br. 60) of the aliens’ ongoing violations of the immigration laws.
In any event, DHS did not “entirely fail[] to consider” the asserted reliance interests. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). To the contrary, Secretary Nielsen expressly acknowledged them and weighed them against her other concerns. Respondents would demand more, but the INA neither imposes any requirement on DHS to determine whether this policy is “appropriate and necessary” based on a formal study, Michigan v. EPA, 135 S. Ct. 2699, 2705 (2015) (citation omitted), nor provides any other reason to conclude that the Secretary is required to perform a technical cost-benefit analysis before enforcing the statute as written.
3. DACA’s rescission is also independently justified by DHS’s conclusion that the DACA policy itself is unlawful. U.S. Br. 43-52.
a. In arguing to the contrary, respondents rely on DHS’s historical deferred-action policies and other discretionary-relief policies. But the nature and scope

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of the DACA policy make it fundamentally different from the handful of prior class-based deferred-action policies. DACA does not simply delay removal until the alien can obtain (or recover) some lawful status already afforded by Congress; it provides a reprieve from removal to a class of aliens that Congress has repeatedly declined to grant permanent relief. And it offers deferred action, triggering additional affirmative benefits, on a much larger scale than any such prior policy. Thus, while DHS’s prior deferred-action policies are fairly described as interstitial, DACA is not.
Respondents identify (Cal. Br. 30) one prior deferred-action policy—which applied to certain widows and widowers of U.S. citizens seeking visas—that they wrongly assert was “ ‘interstitial’ only in hindsight” because the INA at the time did not provide those aliens any “avenue of immigration relief.” Memorandum from Donald Neufeld, Acting Assoc. Dir., Office of Domestic Operations, USCIS, to Field Leadership, USCIS, Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children 1 (Sept. 4, 2009). As DHS explained, although the agency did not interpret the INA to afford the affected aliens relief, several circuits had disagreed and bills were pending in both houses of Congress to ratify that view. Ibid. The pending legislation—which was expected to affect fewer than 100 aliens per year, H.R. Rep. No. 911, 110th Cong., 2d Sess. 4 (2008)—was enacted into law less than five months later, and the policy ended. Pub. L. No. 111-83, § 568(c), 123 Stat. 2186. At most, then, DHS effectively acquiesced in lower-court rulings to allow Congress to enact a legislative fix. By contrast, DACA recipients indisputably have no path to lawful status, and the

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maintenance of DACA is impeding any path to legislative resolution.
The rest of the historical policies on which respondents rely all at least purported to implement either separate, specific statutory authority, see 8 U.S.C. 1252(b) (1988 & Supp. II 1990) (voluntary departure); 8 U.S.C. 1182(d)(5)(A) (parole), the President’s Article II authority over foreign affairs, see USCIS, DHS, Adjudicator’s Field Manual Ch. 38.2 (deferred enforced departure), or both. Any congressional approval or tolerance of such policies, at most, ratified or acquiesced in the asserted scope of that distinct authority. And, in fact, with respect to extended-voluntary-departure policies, like Family Fairness, any arguable statutory basis has since been foreclosed. U.S. Br. 48-49.
The affirmative benefits triggered by DACA are not irrelevant simply because they are afforded under separate, longstanding regulations. Cf. Cal. Br. 38-39. Although the benefit-conferring regulations predate DACA and apply to all deferred action, the DACA policy triggered those benefits in a manner that had never previously been done. Section 1324a may have ratified extending work authorization to aliens who received deferred action on an individualized basis or pursuant to interstitial class-based deferred-action policies. See 8 U.S.C. 1324a(h)(3) (referring to aliens “authorized to be so employed * * * by the Attorney General”). But it cannot reasonably be interpreted to have “br[ought] about [the] enormous and transformative expansion” in the Secretary’s authority that would be required to support conferring work authorization in conjunction with a deferred-action policy like DACA. Utility Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014). And that is so whether deferred action and associated benefits

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are granted to everyone, or nearly everyone, who meets the eligibility criteria. Cf. N.Y. Br. 31-34.
b. Because the DACA policy is unlawful, DHS had no choice but to rescind it and the APA provides no basis for vacating its termination. Although respondents urge (Ind. Br. 37) the Court not to reach a conclusion on the policy’s lawfulness, the Ninth Circuit’s judgment rests on its unequivocal conclusion that “DACA was a permissible exercise of executive discretion.” Regents Supp. Br. App. 56a. To be sure, the Court can hold that rescinding DACA based on the Executive’s own view of its enforcement duties was not a “clear error of judgment,” U.S. Br. 50 (quoting State Farm, 463 U.S. at 43), without addressing DACA’s legality. But if the Court disagrees, DACA’s ultimate legality is squarely presented.
Respondents argue (Regents Br. 44) that DHS’s legal conclusion must survive de novo review. But they fail to identify any case finding an agency enforcement decision arbitrary and capricious merely because the court disagrees with the agency’s reasonable interpretation of the scope of its legal authority to not enforce federal law. And in the context that respondents identify as most analogous—the denial of a petition for rulemaking—this Court explained that review under the APA must be “ ‘extremely limited’ ” and “ ‘highly deferential,’ ” and found the agency’s decision not to exercise its authority arbitrary and capricious only after concluding that “[t]he statute [wa]s unambiguous.” Massachusetts, 549 U.S. at 527-528, 529 (citation omitted).
Respondents contend (N.Y. Br. 31-42) that DHS offered an inadequate explanation for its legal analysis. But the APA requires only that “the agency’s path may reasonably be discerned.” State Farm, 463 U.S. at 43

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(citation omitted). Both memoranda reflect DHS’s conclusion that the DACA policy exceeded the agency’s “statutory authority.” Regents Pet. App. 116a, 123a. That conclusion does not depend on whether DACA prevented DHS officials from exercising any discretion. See pp. 19-20, supra. And neither Secretary “place[d] any significant weight” on Attorney General Sessions’ statement that DACA was unconstitutional, FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 804 n.23 (1978)—which, in any event, simply underscored his strongly held view that DACA was based on a statutorily unauthorized exercise of Executive power.
DHS was not required to consider whether DACA’s illegality could be addressed by separating deferred action—generally or under DACA specifically—from at least some of the benefits it triggers. D.C. Br. 39-44. Deferred action coupled with the associated benefits are the two legs upon which the DACA policy stands, as many of the briefs in support of respondents confirm. See, e.g., Inst. of Higher Educ. Amicus Br. 5-11. Indeed, it is largely the eligibility for benefits triggered by deferred action that allows DACA recipients to “come out of the shadows and become productive members of their communities.” N.Y. Br. 2. It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.
4. Finally, DACA’s rescission does not violate equal protection principles. U.S. Br. 52-57. As an initial matter, all of the respondents in the California litigation and the non-State respondents in the New York litigation have forfeited any defense of the lower courts’ refusal to dismiss their equal protection claims. Although the individual respondents assert (at 12 n.1) that their equal protection claims are not before the Court, the

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district-court orders refusing to dismiss those claims were certified for interlocutory appeal and consolidated with the preliminary-injunction appeals, Regents Supp. Br. App. 22a; Batalla Vidal Pet. App. 147a-157a, 175a176a; and the Ninth Circuit specifically affirmed the California district court’s equal protection analysis in the judgment under review, Regents Supp. Br. App. 73a-77a.
The substantive defense from the New York State respondents (at 53-56) is also unpersuasive. Respondents do not even attempt to demonstrate that DACA’s rescission is “so outrageous” that it overcomes this Court’s concerns about recognizing a discriminatorymotive challenge to an exercise of immigration enforcement discretion. AADC, 525 U.S. at 491. Instead, they contend that AADC is not implicated because vacating the rescission would protect their proprietary interests and not interfere with DHS’s exercise of enforcement discretion in any individual case. But vacating the rescission would interfere with DHS’s categorical exercise of enforcement discretion for all its cases, and respondents’ interests are protected only by “prolong[ing] * * * continuing violation[s]” of federal immigration law. Id. at 490. The reasoning of AADC fully applies. In any event, respondents offer nothing more than the lower courts’ opinions to defend their equal protection claims even under the Arlington Heights standard. As explained, their allegations fall woefully short of stating a claim even under that standard. U.S. Br. 54-57.
D. The Judgments And Orders Should Be Reversed
Because DACA’s rescission is unreviewable and in any event lawful, the judgments and orders before this

23
Court should be reversed. Respondents’ incorrect arguments about the scope of the administrative record should not prevent the Court from doing so. As an initial matter, those arguments are irrelevant to the Court’s review of the D.C. district court’s final judgment. Respondents in that case did not challenge the completeness of the administrative record, NAACP Pet. App. 18a, and do not challenge it here. As for the other cases, respondents themselves recognize that the record dispute is irrelevant if DACA’s rescission is unreviewable. Cal. Br. 54. Regardless, given the nature of the rescission, no dispute over the record could show that the rescission was arbitrary and capricious or sustain the district courts’ nationwide preliminary injunctions.
There is no basis to think that reasons offered by either Secretary were pretextual. Cf. Regents Br. 56-58. At most, respondents identify unstated policy reasons why the President or the former Attorney General may have wanted to see DACA rescinded. But “a court may not reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons.” Department of Commerce, 139 S. Ct. at 2573. A fortiori, it may not do so based on such alleged reasons of other officials.

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* * * * *
For the foregoing reasons and those stated in our opening brief, the judgments of the Ninth Circuit and the District Court for the District of Columbia, as well as the orders of the Eastern District of New York, should be reversed.
Respectfully submitted.

OCTOBER 2019

NOEL J. FRANCISCO Solicitor General

 
 Secretary
U.S. Department of Homeland Security Washington, DC 20528

July 28, 2020

MEMORANDUM FOR:
FROM: SUBJECT:

Mark Morgan Senior Official Performing the Duties of Commissioner U.S. Customs and Border Protection
Matthew Albence Senior Official Performing the Duties of Director U.S. Immigration and Customs Enforcement
Joseph Edlow Deputy Director of Policy U.S. Citizenship and Immigration Services
Chad F. Wolf Acting Secretary
Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”

On June 15, 2012, Secretary of Homeland Security Janet Napolitano established the policy known as Deferred Action for Childhood Arrivals (DACA) through a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” Ever since, the policy has been subject to substantial controversy. In recent years, Acting Secretary of Homeland Security Elaine Duke and Secretary of Homeland Security Kirstjen Nielsen concluded that the DACA policy should be fully rescinded and issued additional memoranda in 2017 and 2018, respectively, to effect that decision.

On June 18, 2020, the U.S. Supreme Court issued a decision that did not question the authority of the Department of Homeland Security (DHS) to rescind the DACA policy, but determined that the 2017 and 2018 memoranda had not complied with certain requirements for doing so. See Department of Homeland Security v. Regents of the University of California, Nos. 18-587, 18-588, 18-589. Accordingly, the Court concluded that the rescission must be vacated and remanded to DHS so that it “may consider the problem anew.” Regents, Slip op. at 29.

By this memorandum, I am rescinding the 2017 and 2018 memoranda, and making certain immediate changes to the DACA policy to facilitate my thorough consideration of how to address DACA in light of the Supreme Court’s decision. For the reasons outlined below, pending my full reconsideration of the DACA policy, I direct DHS personnel to take all appropriate actions to reject all pending and future initial requests for DACA, to reject all

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pending and future applications for advance parole absent exceptional circumstances, and to shorten DACA renewals consistent with the parameters established in this memorandum.
Background
On June 15, 2012, Secretary Napolitano issued the memorandum (Napolitano Memorandum) establishing the DACA policy. The policy provided for the granting of deferred action to certain individuals with no lawful immigration status “who were brought to this country as children” and who satisfied a list of additional specified criteria. The memorandum described this deferred action as an exercise of “prosecutorial discretion” to forbear from removing an alien who would otherwise be subject to removal. Under pre-existing regulations, a grant of deferred action made aliens eligible for certain other attendant benefits, such as work authorization. The memorandum directed U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) to establish procedures for granting deferred action and work authorization to eligible aliens for a two-year period, subject to renewal, and for notifying those aliens of DHS’s decision to do so. The memorandum stated, however, that it “confer[red] no substantive right, immigration status or pathway to citizenship.”
On November 20, 2014, Secretary of Homeland Security Jeh Johnson issued a memorandum (Johnson Memorandum) to expand the DACA policy and establish a new, related policy known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). With regard to DACA, this memorandum eliminated a criterion relating to the age of DACA requestors when the policy was announced, extended the deferred-action and work-authorization period from two to three years, and adjusted the date by which requestors must have entered the United States to be eligible for DACA. The DAPA policy allowed for deferred action to be provided to certain parents whose children are U.S. citizens or lawful permanent residents through a process similar to DACA.
Shortly thereafter, the U.S. District Court for the Southern District of Texas issued a nationwide preliminary injunction preventing both the DAPA policy and the expansion of the DACA policy from taking effect. In 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed, holding that DAPA and expanded DACA likely violated both the Administrative Procedure Act (APA) and the Immigration and Nationality Act (INA). In 2016, the U.S. Supreme Court affirmed the court of appeals’ decision by an equally divided vote. On June 15, 2017, Secretary of Homeland Security John Kelly issued a memorandum rescinding the Johnson Memorandum.
Also in June 2017, several of the state plaintiffs from the Texas lawsuit announced their intent to amend their complaint in the then still-pending litigation to challenge the original DACA policy as well. The States argued that the DACA policy was unlawful for the same reasons as the DAPA policy and the expansion of the DACA policy. On September 4, 2017, then-Attorney General Jefferson B. Sessions III issued a letter to Acting Secretary Duke (Sessions Letter), concluding that the DACA policy was indeed unlawful and likely would also be enjoined.
On September 5, 2017, Acting Secretary Duke issued her memorandum (Duke Memorandum) rescinding the Napolitano Memorandum and initiating an orderly wind-down of the DACA policy. The Duke Memorandum explained that, “[t]aking into consideration the Supreme Court’s and the Fifth Circuit’s rulings” in the litigation concerning the Johnson Memorandum, and the Sessions Letter, it was clear to the Acting Secretary that the DACA policy “should be terminated.”

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Litigation challenging the Duke Memorandum promptly ensued. As relevant here, suits were filed in the U.S. District Courts for the Northern District of California, Eastern District of New York, District of Maryland, and the District of Columbia. The District of Columbia district court vacated the rescission entirely, but stayed its ruling for 90 days to permit DHS to reissue a memorandum rescinding the DACA policy and providing a fuller explanation.
In response to that ruling, on June 22, 2018, Secretary Nielsen issued an additional memorandum (Nielsen Memorandum) providing further explanation for the rescission of the DACA policy. The Nielsen Memorandum explained that “the DACA policy properly was—and should be— rescinded, for several separate and independently sufficient reasons,” including that the policy is contrary to law; that, even if it were not unlawful, Secretary Nielsen lacked sufficient confidence in the policy’s legality to continue it; and that it was not sound enforcement policy in multiple respects. Despite the Nielsen Memorandum, the District of Columbia district court declined to reconsider its previous order vacating the rescission.
On June 18, 2020, having granted review in the California, New York, and D.C. cases, the U.S. Supreme Court held that the rescission of the DACA policy must be vacated. See Department of Homeland Security v. Regents of the University of California, Nos. 18-587, 18-588, 18-589. The Court observed that “[a]ll parties agree[d]” that “DHS may rescind DACA,” and the Court provided no reason to doubt that consensus. Slip op. at 9. But it held that DHS violated the APA in the manner in which it had rescinded the policy.
As a threshold matter, the Court determined that, although agency non-enforcement decisions are generally not reviewable under the APA, the rescission of the DACA policy was reviewable “because DACA is not simply a non-enforcement policy.” Id. at 11. Rather, the Court stated, the Napolitano Memorandum “created a program for conferring affirmative immigration relief,” the creation and rescission of which is subject to review under the APA. Id. And it added that the “benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy.” Id.
On the merits, the Court found that when DHS rescinded the DACA policy, it failed to consider important aspects of the problem. In making that determination, the Court declined to consider the Nielsen Memorandum. Instead, the Court characterized that memorandum as an impermissible post hoc rationalization of the rescission, because in the Court’s view Secretary Nielsen “chose to elaborate on the reasons for the initial rescission rather than take new administrative action.” Id. at 14. As to the Duke Memorandum, the Court held that it was arbitrary and capricious because (1) the Acting Secretary did not adequately consider whether DHS could and should address the illegality of the DACA policy by retaining the forbearance aspect of the policy (i.e., deferred action), while declining to make DACA recipients eligible for the other associated benefits, such as work authorization, id. at 17-23; and (2) the Acting Secretary did not adequately consider how, if at all, to address any “legitimate reliance ” on the Napolitano Memorandum, id. at 23-26. The Court thus concluded that the rescission must be vacated and that the matter should be “remand[ed] to DHS so that it may consider the problem anew.” Id. at 29.
The Court affirmed the District of Columbia district court’s final judgment, vacated the Ninth Circuit’s affirmance of the preliminary injunction issued by the Northern District of California, and vacated the preliminary injunction issued by the Eastern District of New York. Id.

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On June 30, 2020, Attorney General William Barr withdrew the Sessions Letter and directed the Department of Justice’s Office of Legal Counsel to withdraw all guidance it had provided to DHS on the legality of DACA and related deferred-action policies, including an Office of Legal Counsel opinion that briefly addressed the legality of DACA in connection with related deferredaction policies. Attorney General Barr explained that he did not “wish to maintain a determination as the Attorney General about the legality of DACA that might constrain the discretion [I] otherwise possess as Acting Secretary of Homeland Security to consider whether and how to rescind DACA.”
Rescission of the Nielsen and Duke Memoranda, and Reconsideration of the Napolitano Memoranda
In light of the Supreme Court’s decision to vacate the Duke Memorandum and remand to the Department of Homeland Security, and in my capacity as the Acting Secretary of Homeland Security, I am considering anew the DACA policy. To date, I have considered the Napolitano Memorandum itself, the Duke Memorandum and Acting Secretary Duke’s accompanying statement, the Nielsen Memorandum, the administrative record produced in litigation challenging the Duke Memorandum, the briefs and joint appendix filed in the Supreme Court from that litigation, the joint appendix filed in the Fourth Circuit on appeal in the District of Maryland litigation, all of the judicial opinions issued in the litigation over the Duke Memorandum, including the June 18 decision of the Supreme Court, the letter from Attorney General Barr, and letters expressing support for the DACA policy that have been submitted to the President and DHS since the Supreme Court’s June 18 decision.
As those materials demonstrate, whether to retain the DACA policy presents significant questions of law and legal policy. More importantly for present purposes, having considered those materials, I have concluded that the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission. At the same time, I have concluded that fully rescinding the policy would be a significant administration decision that warrants additional careful consideration. Accordingly, in the exercise of my authority and discretion in establishing national immigration policies and priorities, see 8 U.S.C. § 1103(a)(1); 6 U.S.C. § 202(5), I am rescinding the Nielsen Memorandum and the Duke Memorandum, and making certain immediate changes to the DACA policy to mitigate my enforcement policy concerns while I conduct a full and careful consideration of a full rescission. Below, I address each of my enforcement policy concerns and then explain the immediate interim changes.
Enforcement Policy Concerns: There are several reasons of enforcement policy that may warrant the full rescission of the DACA policy.
First, even if the DACA policy could have been justified as a temporary measure when it was created, Congress arguably has had more than sufficient time to consider affording permanent status or immigration relief to the class of aliens covered by the policy. And yet, although various proposals have been advanced to do that, Congress has so far declined to take action. Particularly in the face of this failure to reach a legislative solution, I have serious doubts as to whether DHS should continue to provide either a reprieve from removal or a grant of attendant benefits to more than half a million aliens through a broad, class-based deferred-action policy.
By contrast, rescinding DACA entirely may well create a more pressing need for Congress to decide whether it wants to address this issue and the underlying conditions that led to a

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population of this size to remain in the United States in violation of our immigration laws for so long, and any other efforts to reform our immigration system in a manner that advances the national interest. As unilateral executive action, the DACA policy necessarily lacks the permanence of statutory law; it is more akin to a stopgap measure. For example, DACA recipients, as such, are not entitled to become lawful permanent residents and are not on a path to citizenship. Congress is best positioned to address that and other concerns on a more permanent basis through duly enacted statutes.
Second, there has been much debate about the discretion exercised by DHS personnel in implementing the DACA policy. In my view, however, regardless of the amount of discretion that has been exercised or could be exercised under the policy, I have reservations as a matter of policy about setting out a list of detailed criteria, and maintaining a formal process, for nonenforcement. I am concerned that doing so may tilt the scales in deciding which aliens should receive deferred action and may inhibit individualized consideration of each case, at least for a non-enforcement policy of this scale.
Third, because DHS is a law enforcement agency, I am concerned about sending mixed messages about DHS’s intention to consistently enforce the immigration laws as Congress has written them. DACA makes clear that, for certain large classes of individuals, DHS will at least tolerate, if not affirmatively sanction, their ongoing violation of the immigration laws. I am deeply troubled that the message communicated by non-enforcement policies like DACA may contribute to the general problem of illegal immigration in a manner that is inconsistent with DHS’s law enforcement mission.
Fourth, these concerns are all the more pressing in the context of children. It is vitally important to convey a message that discourages individuals from undertaking what can often be a perilous journey to this country with no legitimate claim to enter or remain. Of course, the DACA policy would not apply to children who are sent or brought to this country today. But rescinding the DACA policy may further DHS’s efforts to discourage illegal immigration involving children going forward. By contrast, I am concerned that retaining the policy creates some risk of communicating the contrary message and encouraging such illegal conduct by suggesting a potential for similar future policies.
Changes Pending Reconsideration of the DACA Policy: In accordance with the Supreme Court’s decision, I am determined to give careful consideration to whether the DACA policy should be maintained, rescinded, or modified. In the meantime, given my serious concerns about the policy, I have determined that some changes should immediately be made to the policy to limit its scope in the interim. First, while my reconsideration of the DACA policy continues, no new initial requests for DACA should be accepted. Second, advance parole should be granted to current DACA beneficiaries only in exceptional circumstances. Third, going forward, renewals of deferred action and the accompanying work authorization should be granted for one-year, rather than two-year, periods.
These changes will mitigate my concerns without encroaching materially on the reliance interests that have been raised by individuals, organizations, and state and local governments during the course of the extensive litigation over the Duke and Nielsen Memoranda, and in recent letters to the President and DHS. As noted by the Supreme Court, these groups have argued that, as the Napolitano Memorandum itself stated, many DACA recipients were brought or sent to the country as children, through no fault of their own, and may have never known another home.

Page 6
They assert that DACA recipients have structured their lives around the expectation that DHS would forbear from enforcing the immigration laws against them and have come to rely on the other associated benefits—like work authorization, Social Security, and Medicare, as well as advance parole—that are made available to DACA recipients. They point out that other parties, too, would be affected by the rescission of the DACA policy, including the family members, schools, employers, and employees of DACA recipients. They have offered estimates of the amount of economic activity DACA recipients generate and the federal, state, and local tax revenue that DACA recipients provide. And some have even argued that the current COVID-19 and economic crises provide additional reasons to continue the DACA policy, in light of the many DACA recipients who have pursued careers in healthcare and other essential services or who serve in other critical roles in the workforce.
Whatever the merits of these asserted reliance interests on the maintenance of the DACA policy, they are significantly lessened, if not entirely lacking, with regard to aliens who have never before received deferred action pursuant to the policy. And any reliance interests possessed by an alien or a third party within the United States on that alien’s ability to remain in the country does not depend on the extraordinary ability to come and go from the country as they please. In light of my concerns about the policy as a whole, I do not believe that, at least absent exceptional circumstances, DHS should continue to make the benefit of advance parole available while I reconsider whether the DACA policy itself should exist. Indeed, even after determining that DHS’s prior full rescission of the policy was likely unlawful, the district courts in the previous litigation did not require DHS to consider requests for DACA from aliens who had not previously received it or to grant any requests for advance parole. Accordingly, that has been the status quo for more than two years. It makes sense to continue that approach while I reconsider whether to rescind or revise the policy. If I ultimately determine to maintain the policy, there is nothing in the policy that would preclude aliens from making an initial request for DACA or renewing requests for advance parole at that time. And, even in the interim, nothing in this memorandum precludes the exercise of deferred action on a truly individualized, case-by-case basis when and if warranted.
Nor are the asserted reliance interests significantly affected by shortening the renewal periods from two years to one year. Shortening renewal periods granted during this reconsideration period will have the potential benefit of significantly lessening the lasting effects of the DACA policy if I ultimately decide to rescind it. And the costs will be limited in the meantime, because the aliens who currently have DACA grants and have structured their affairs based on their expectation of its continuance may still seek renewal. They will merely have to seek renewal on an annual, rather than biannual, basis. In a similar manner, the third parties who are benefiting from those aliens’ continued presence today will continue to receive the same derivative benefits that they are receiving as long as the aliens’ renewals continue—whether on an annual or biannual basis. Put differently, even assuming that aliens with DACA have legitimate reliance interests in being able to renew at all, they have minimal if any reliance interests in the length of each renewal period, especially since a grant of DACA was and remains revocable.
I recognize that shortening renewal periods on a prospective basis will have the effect, during this interim period as I consider how to address the DACA policy, of increasing the total amount of renewal fees that an alien will be required to pay over a multi-year period. But the fee per application will remain constant, and the fee that DHS charges for the application is associated with the processing costs to DHS. DHS personnel should consider whether it is possible to

Page 7
reduce renewal fees during this interim period of reconsideration. In my current view, however, even if renewal fees cannot be reduced, shortening the renewal period is still warranted by my strong desire to limit the scope of the policy during this interim period despite any additional fees incurred by DACA beneficiaries as a result.
Finally, to further mitigate my concerns, I have determined that these changes should apply both to DACA and advance parole requests submitted after the issuance of this memorandum and requests that are currently pending before the agency. Since the issuance of the Supreme Court’s decision, DHS has, on an interim basis, generally held properly submitted initial requests for DACA in anticipation of potential policy changes. Since July 24, DHS has likewise, on an interim basis, held all requests for advanced parole from current DACA recipients.1 Consistent with the Court’s express remand for the agency’s reconsideration and the Napolitano Memorandum’s clear statement that it conferred no substantive rights, DHS did not expand beyond the status quo of the past several years for a few weeks while it was determining next steps. I now conclude that all pending and future requests should be treated in the same manner, rather than be subject to differential treatment depending on the fortuity of when DHS received the request within a short period of uncertainty. Nothing in the Napolitano Memo purports to preclude me from exercising my enforcement discretion to make these changes on an interim basis while I consider whether to make more substantial changes on a permanent basis. Even under the Napolitano Memo, no aliens had a legal entitlement to receive DACA—much less a legal entitlement to a particular renewal period. Nor can aliens with pending requests assert any meaningfully greater reliance interests in their initial or continued enjoyment of the policy and the attendant benefits than aliens who submit such requests after the issuance of this memorandum.
Accordingly, effective immediately, DHS shall:
• Reject all initial DACA requests and associated applications for Employment Authorization Documents, and refund all associated fees, without prejudice to re-filing such requests should DHS determine to begin accepting initial requests again in the future.
• Adjudicate all pending and future properly submitted DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries.
• Limit the period of any deferred action granted pursuant to the DACA policy after the issuance of this memorandum (and thereby limit the period of any associated work authorization) to one year.
• Refrain from terminating any grants of previously issued deferred action or revoking any Employment Authorization Documents based solely on the directives in this memorandum for the remaining duration of their validity periods.

1

Prior to July 24, DHS’s treatment of advance parole requests from DACA recipients varied. Many were

rejected, while some were accepted and receipted. To the extent any rejected requestor believes exceptional

circumstances support his or her request, he or she may now renew the request for advance parole, and it will be

adjudicated on the terms set forth in this memorandum.

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• Reject all pending and future Form I-131 applications for advance parole from beneficiaries of the DACA policy and refund all associated fees, absent exceptional circumstances.
• Refrain from terminating any grants of previously approved advance parole based solely on the directives in this memorandum for the remaining duration of their validity periods.
• Exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
• Continue to comply with the information-sharing policy as reflected in the DACA Frequently Asked Questions issued alongside the Napolitano Memorandum, and as set forth in USCIS’s Form I-821D instructions. Nothing in this memorandum makes any change to that policy.
* * * * *
This document is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or equity by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS. Finally, if any aspect of the changes to the DACA policy in this memorandum is found to be unlawful, the remainder of the changes should nonetheless continue in effect.

 
 (Slip Opinion)

OCTOBER TERM, 2019

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
DEPARTMENT OF HOMELAND SECURITY ET AL. v. REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 18–587. Argued November 12, 2019—Decided June 18, 2020*
In 2012, the Department of Homeland Security (DHS) issued a memorandum announcing an immigration relief program known as Deferred Action for Childhood Arrivals (DACA), which allows certain unauthorized aliens who arrived in the United States as children to apply for a two-year forbearance of removal. Those granted such relief become eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Two years later, DHS expanded DACA eligibility and created a related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). If implemented, that program would have made 4.3 million parents of U. S. citizens or lawful permanent residents eligible for the same forbearance from removal, work eligibility, and other benefits as DACA recipients. Texas, joined by 25 other States, secured a nationwide preliminary injunction barring implementation of both the DACA expansion and DAPA. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act (INA), which carefully defines eligibility for benefits. This Court affirmed by an equally divided vote, and
—————— * Together with No. 18–588, Trump, President of the United States, et
al. v. National Association for the Advancement of Colored People et al., on certiorari before judgment to the United States Court of Appeals for the District of Columbia Circuit, and No. 18–589, Wolf, Acting Secretary of Homeland Security, et al. v. Batalla Vidal et al., on certiorari before judgment to the United States Court of Appeals for the Second Circuit.

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Syllabus

the litigation then continued in the District Court. In June 2017, following a change in Presidential administrations,
DHS rescinded the DAPA Memorandum, citing, among other reasons, the ongoing suit by Texas and new policy priorities. That September, the Attorney General advised Acting Secretary of Homeland Security Elaine C. Duke that DACA shared DAPA’s legal flaws and should also be rescinded. The next day, Duke acted on that advice. Taking into consideration the Fifth Circuit and Supreme Court rulings and the Attorney General’s letter, Duke decided to terminate the program. She explained that DHS would no longer accept new applications, but that existing DACA recipients whose benefits were set to expire within six months could apply for a two-year renewal. For all other DACA recipients, previously issued grants of relief would expire on their own terms, with no prospect for renewal.
Several groups of plaintiffs challenged Duke’s decision to rescind DACA, claiming that it was arbitrary and capricious in violation of the Administrative Procedure Act (APA) and infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause. District Courts in California (Regents, No. 18–587), New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588) all ruled for the plaintiffs. Each court rejected the Government’s arguments that the claims were unreviewable under the APA and that the INA deprived the courts of jurisdiction. In Regents and Batalla Vidal, the District Courts further held that the equal protection claims were adequately alleged, and they entered coextensive nationwide preliminary injunctions based on the conclusion that the plaintiffs were likely to succeed on their APA claims. The District Court in NAACP took a different approach. It deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, finding that the rescission was inadequately explained. The court then stayed its order for 90 days to permit DHS to reissue a memorandum rescinding DACA, this time with a fuller explanation of the conclusion that DACA was unlawful. Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded to the court’s order. She declined to disturb or replace Duke’s rescission decision and instead explained why she thought her predecessor’s decision was sound. In addition to reiterating the illegality conclusion, she offered several new justifications for the rescission. The Government moved for the District Court to reconsider in light of this additional explanation, but the court concluded that the new reasoning failed to elaborate meaningfully on the illegality rationale.
The Government appealed the various District Court decisions to the Second, Ninth, and D. C. Circuits, respectively. While those appeals were pending, the Government filed three petitions for certiorari

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Syllabus

before judgment. Following the Ninth Circuit affirmance in Regents, this Court granted certiorari.
Held: The judgment in No. 18–587 is vacated in part and reversed in part; the judgment in No. 18–588 is affirmed; the February 13, 2018 order in No. 18–589 is vacated, the November 9, 2017 order is affirmed in part, and the March 29, 2018 order is reversed in part; and all of the cases are remanded.
No. 18–587, 908 F. 3d 476, vacated in part and reversed in part; No. 18– 588, affirmed; and No. 18–589, February 13, 2018 order vacated, November 9, 2017 order affirmed in part, and March 29, 2018 order reversed in part; all cases remanded. THE CHIEF JUSTICE delivered the opinion of the Court, except as to Part IV, concluding: 1. DHS’s rescission decision is reviewable under the APA and is within this Court’s jurisdiction. Pp. 9–13. (a) The APA’s “basic presumption of judicial review” of agency action, Abbott Laboratories v. Gardner, 387 U. S. 136, 140, can be rebutted by showing that the “agency action is committed to agency discretion by law,” 5 U. S. C. §701(a)(2). In Heckler v. Chaney, the Court held that this narrow exception includes an agency’s decision not to institute an enforcement action. 470 U. S. 821, 831–832. The Government contends that DACA is a general non-enforcement policy equivalent to the individual non-enforcement decision in Chaney. But the DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. Therefore, unlike the non-enforcement decision in Chaney, DACA’s creation—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832. In addition, by virtue of receiving deferred action, 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. Access to such benefits is an interest “courts often are called upon to protect.” Ibid. DACA’s rescission is thus subject to review under the APA. Pp. 9–12. (b) The two jurisdictional provisions of the INA invoked by the Government do not apply. Title 8 U. S. C. §1252(b)(9), which bars review of claims arising from “action[s]” or “proceeding[s] brought to remove an alien,” is inapplicable where, as here, the parties do not challenge any removal proceedings. And the rescission is not a decision “to commence proceedings, adjudicate cases, or execute removal orders” within the meaning of §1252(g). Pp. 12–13. 2. DHS’s decision to rescind DACA was arbitrary and capricious under the APA. Pp. 13–26. (a) In assessing the rescission, the Government urges the Court to consider not just the contemporaneous explanation offered by Acting Secretary Duke but also the additional reasons supplied by Secretary

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Syllabus

Nielsen nine months later. Judicial review of agency action, however, is limited to “the grounds that the agency invoked when it took the action.” Michigan v. EPA, 576 U. S. 743, 758. If those grounds are inadequate, a court may remand for the agency to offer “a fuller explanation of the agency’s reasoning at the time of the agency action,” Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (emphasis added), or to “deal with the problem afresh” by taking new agency action, SEC v. Chenery Corp., 332 U. S. 194, 201. Because Secretary Nielsen chose not to take new action, she was limited to elaborating on the agency’s original reasons. But her reasoning bears little relationship to that of her predecessor and consists primarily of impermissible “post hoc rationalization.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 420. The rule requiring a new decision before considering new reasons is not merely a formality. It serves important administrative law values by promoting agency accountability to the public, instilling confidence that the reasons given are not simply convenient litigating positions, and facilitating orderly review. Each of these values would be markedly undermined if this Court allowed DHS to rely on reasons offered nine months after the rescission and after three different courts had identified flaws in the original explanation. Pp. 13–17.
(b) Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the problem before the agency. Although Duke was bound by the Attorney General’s determination that DACA is illegal, see 8 U. S. C. §1103(a)(1), deciding how best to address that determination involved important policy choices reserved for DHS. Acting Secretary Duke plainly exercised such discretionary authority in winding down the program, but she did not appreciate the full scope of her discretion. The Attorney General concluded that the legal defects in DACA mirrored those that the courts had recognized in DAPA. The Fifth Circuit, the highest court to offer a reasoned opinion on DAPA’s legality, found that DAPA violated the INA because it extended eligibility for benefits to a class of unauthorized aliens. But the defining feature of DAPA (and DACA) is DHS’s decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance component from the associated benefits eligibility. Eliminating benefits eligibility while continuing forbearance thus remained squarely within Duke’s discretion. Yet, rather than addressing forbearance in her decision, Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy. 463 U. S. 29, 51. While DHS

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5

Syllabus

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

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

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1

Opinion of the Court

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

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589

_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

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

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

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

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

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

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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

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

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

recipients.
Before the DAPA Memorandum was implemented, 26 States, led by Texas, filed suit in the Southern District of Texas. The States contended that DAPA and the DACA
expansion violated the APA’s notice and comment requirement, the Immigration and Nationality Act (INA), and the
Executive’s duty under the Take Care Clause of the Constitution. The District Court found that the States were likely to succeed on the merits of at least one of their claims and
entered a nationwide preliminary injunction barring implementation of both DAPA and the DACA expansion. See Texas v. United States, 86 F. Supp. 3d 591, 677–678 (2015).
A divided panel of the Court of Appeals for the Fifth Circuit affirmed the preliminary injunction. Texas v. United
States, 809 F. 3d 134, 188 (2015). In opposing the injunction, the Government argued that the DAPA Memorandum
reflected an unreviewable exercise of the Government’s enforcement discretion. The Fifth Circuit majority disagreed.
It reasoned that the deferred action described in the DAPA Memorandum was “much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated
benefits on a class of unlawfully present aliens.” Id., at 166. From this, the majority concluded that the creation of the
DAPA program was not an unreviewable action “committed to agency discretion by law.” Id., at 169 (quoting 5 U. S. C. §701(a)(2)).
The majority then upheld the injunction on two grounds. It first concluded the States were likely to succeed on their
procedural claim that the DAPA Memorandum was a substantive rule that was required to undergo notice and comment. It then held that the APA required DAPA to be set
aside because the program was “manifestly contrary” to the INA, which “expressly and carefully provides legal designa-
tions allowing defined classes” to “receive the benefits” associated with “lawful presence” and to qualify for work

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Opinion of the Court
authorization, 809 F. 3d, at 179–181, 186 (internal quotation marks omitted). Judge King dissented.
This Court affirmed the Fifth Circuit’s judgment by an equally divided vote, which meant that no opinion was issued. United States v. Texas, 579 U. S. ___ (2016) (per curiam). For the next year, litigation over DAPA and the DACA expansion continued in the Southern District of Texas, while implementation of those policies remained enjoined.
Then, in June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum. In explaining that decision, DHS cited the preliminary injunction and ongoing litigation in Texas, the fact that DAPA had never taken effect, and the new administration’s immigration enforcement priorities.
Three months later, in September 2017, Attorney General Jefferson B. Sessions III sent a letter to Acting Secretary of Homeland Security Elaine C. Duke, “advis[ing]” that DHS “should rescind” DACA as well. App. 877. Citing the Fifth Circuit’s opinion and this Court’s equally divided affirmance, the Attorney General concluded that DACA shared the “same legal . . . defects that the courts recognized as to DAPA” and was “likely” to meet a similar fate. Id., at 878. “In light of the costs and burdens” that a rescission would “impose[ ] on DHS,” the Attorney General urged DHS to “consider an orderly and efficient wind-down process.” Ibid.
The next day, Duke acted on the Attorney General’s advice. In her decision memorandum, Duke summarized the history of the DACA and DAPA programs, the Fifth Circuit opinion and ensuing affirmance, and the contents of the Attorney General’s letter. App. to Pet. for Cert. 111a–117a. “Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings” and the “letter from the Attorney General,” she concluded that the “DACA program should be terminated.” Id., at 117a.

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Duke then detailed how the program would be wound
down: No new applications would be accepted, but DHS would entertain applications for two-year renewals from DACA recipients whose benefits were set to expire within
six months. For all other DACA recipients, previously issued grants of deferred action and work authorization
would not be revoked but would expire on their own terms, with no prospect for renewal. Id., at 117a–118a.

B
Within days of Acting Secretary Duke’s rescission announcement, multiple groups of plaintiffs ranging from individual DACA recipients and States to the Regents of the University of California and the National Association for the Advancement of Colored People challenged her decision in the U. S. District Courts for the Northern District of California (Regents, No. 18–587), the Eastern District of New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588). The relevant claims are that the rescission was arbitrary and capricious in violation of the APA and that it infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause.1
All three District Courts ruled for the plaintiffs, albeit at different stages of the proceedings.2 In doing so, each court rejected the Government’s threshold arguments that the

—————— 1 Plaintiffs also raised notice and comment claims, which uniformly
failed below, and assorted due process challenges, some of which survived motions to dismiss. Those claims are not before us.
2 In a related challenge not at issue here, the District Court for the District of Maryland granted partial summary judgment in favor of the Government. Casa de Maryland v. United States Dept. of Homeland Security, 284 F. Supp. 3d 758 (2018). After the Government filed petitions for certiorari in the instant cases, the Fourth Circuit reversed that decision and vacated Acting Secretary Duke’s rescission as arbitrary and capricious. Casa de Maryland v. United States Dept. of Homeland Security, 924 F. 3d 684 (2019), cert. pending, No. 18–1469. The Fourth Circuit has since stayed its mandate.

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Opinion of the Court
claims were unreviewable under the APA and that the INA deprived the court of jurisdiction. 298 F. Supp. 3d 209, 223–224, 234–235 (DC 2018); 279 F. Supp. 3d 1011, 1029– 1033 (ND Cal. 2018); 295 F. Supp. 3d 127, 150, 153–154 (EDNY 2017).
In Regents and Batalla Vidal, the District Courts held that the equal protection claims were adequately alleged. 298 F. Supp. 3d 1304, 1315 (ND Cal. 2018); 291 F. Supp. 3d 260, 279 (EDNY 2018). Those courts also entered coextensive nationwide preliminary injunctions, based on the conclusion that the plaintiffs were likely to succeed on the merits of their claims that the rescission was arbitrary and capricious. These injunctions did not require DHS to accept new applications, but did order the agency to allow DACA recipients to “renew their enrollments.” 279 F. Supp. 3d, at 1048; see 279 F. Supp. 3d 401, 437 (EDNY 2018).
In NAACP, the D. C. District Court took a different course. In April 2018, it deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, holding that Acting Secretary Duke’s “conclusory statements were insufficient to explain the change in [the agency’s] view of DACA’s lawfulness.” 298 F. Supp. 3d, at 243. The District Court stayed its order for 90 days to permit DHS to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” Id., at 245.
Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded via memorandum. App. to Pet. for Cert. 120a–126a. She explained that, “[h]aving considered the Duke memorandum,” she “decline[d] to disturb” the rescission. Id., at 121a. Secretary Nielsen went on to articulate her “understanding” of Duke’s memorandum, identifying three reasons why, in Nielsen’s estimation, “the decision to rescind the DACA policy was, and remains, sound.” Ibid. First, she reiterated that, “as the Attorney

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

General concluded, the DACA policy was contrary to law.”
Id., at 122a. Second, she added that, regardless, the agency had “serious doubts about [DACA’s] legality” and, for law enforcement reasons, wanted to avoid “legally questiona-
ble” policies. Id., at 123a. Third, she identified multiple policy reasons for rescinding DACA, including (1) the belief
that any class-based immigration relief should come from Congress, not through executive non-enforcement; (2) DHS’s preference for exercising prosecutorial discretion on
“a truly individualized, case-by-case basis”; and (3) the importance of “project[ing] a message” that immigration laws
would be enforced against all classes and categories of aliens. Id., at 123a–124a. In her final paragraph, Secretary
Nielsen acknowledged the “asserted reliance interests” in DACA’s continuation but concluded that they did not “outweigh the questionable legality of the DACA policy and the
other reasons” for the rescission discussed in her memorandum. Id., at 125a.
The Government asked the D. C. District Court to revise its prior order in light of the reasons provided by Secretary Nielsen, but the court declined. In the court’s view, the new
memorandum, which “fail[ed] to elaborate meaningfully” on the agency’s illegality rationale, still did not provide an
adequate explanation for the September 2017 rescission. 315 F. Supp. 3d 457, 460, 473–474 (2018).
The Government appealed the various District Court de-
cisions to the Second, Ninth, and D. C. Circuits, respectively. In November 2018, while those appeals were pend-
ing, the Government simultaneously filed three petitions for certiorari before judgment. After the Ninth Circuit affirmed the nationwide injunction in Regents, see 908 F. 3d
476 (2018), but before rulings from the other two Circuits, we granted the petitions and consolidated the cases for ar-
gument. 588 U. S. ___ (2019). The issues raised here are (1) whether the APA claims are reviewable, (2) if so,

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

10

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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

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

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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

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

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

14

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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

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

16

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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

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

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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

—————— carried any independent weight.

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

20

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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

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

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

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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

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

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

24

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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

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25

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

26

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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

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27

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

28

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

OpOinpiionnioonf oRfOtBhEeRCTSo,uCrt. J.

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

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29

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

It is so ordered.

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

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1

SOOpTiOnMioAnYOofRS, JO.T,OcMonAcYuOrRr,inJg.

SUPREME COURT OF THE UNITED STATES
_________________

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

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

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

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

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

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

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

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

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of SOTOMAYOR, J.

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

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3

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

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of SOTOMAYOR, J.

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

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

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

1

TOHpOinMiAoSn, oJf.,TdHisOsMeAnSti,nJg.

SUPREME COURT OF THE UNITED STATES
_________________

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

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

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

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

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

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

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

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

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

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

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3

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

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

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

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

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5

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

6

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The then-Attorney General reviewed the thorough deci-
sions of the District Court and the Fifth Circuit. Those courts exhaustively examined the INA’s text and structure, the relevant provisions of other federal immigration stat-
utes, the historical practice of deferred action, and the general grants of statutory authority to set immigration policy.
Both decisions concluded that DAPA and expanded DACA violated the carefully crafted federal immigration scheme, that such violations could not be justified through reference
to past exercises of deferred action, and that the general grants of statutory authority did not give DHS the power to enact such a sweeping nonenforcement program. Based on
the reasoning of those decisions, then-Attorney General Sessions concluded that DACA was likewise implemented
without statutory authority. He directed DHS to restore the rule of law. DHS followed the then-Attorney General’s legal analysis and rescinded the program. This legal con-
clusion more than suffices to supply the “reasoned analysis” necessary to rescind an unlawful program. State Farm, 463
U. S., at 42. The majority has no answer except to suggest that this
approach is inconsistent with State Farm. See ante, at 21– 22. But in doing so, the majority ignores the fact that, unlike the typical “prior policy” contemplated by the Court in

—————— Ante, at 19, n. 5. But that misses the point. Those regulations were promulgated before “anyone with deferred action under the DACA process applie[d]” for those benefits. See 77 Fed. Reg. 52616 (2012). By contrast, DACA recipients have been eligible for and have received Medicare, Social Security, and work authorization for years. DHS therefore is not writing on a blank slate. Under the majority’s rule, DHS would need to amend all relevant regulations and explain why all recipients of deferred action who have previously received such benefits may no longer receive them. Alternatively and perhaps more problematically, it would need to provide a reason why other recipients of deferred action should continue to qualify, while DACA recipients should not. It thus seems highly likely that the majority’s proposed course of action would be subject to serious arbitrary and capricious challenges.

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

23

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
State Farm, DACA is unlawful. Neither State Farm nor any other decision cited by the majority addresses what an agency must do when it has inherited an unlawful program. It is perhaps for this reason that, rather than responding with authority of its own, the majority simply opts to excise the “unlawful policy” aspect from its discussion.
B
Second, the majority claims that DHS erred by failing to take into account the reliance interests of DACA recipients. Ante, at 23–26. But reliance interests are irrelevant when assessing whether to rescind an action that the agency lacked statutory authority to take. No amount of reliance could ever justify continuing a program that allows DHS to wield power that neither Congress nor the Constitution gave it. Any such decision would be “not in accordance with law” or “in excess of statutory . . . authority.” 5 U. S. C. §§706(2)(A), (C). Accordingly, DHS would simply be engaging in yet another exercise of unlawful power if it used reliance interests to justify continuing the initially unlawful program, and a court would be obligated to set aside that action.15
Even if reliance interests were sometimes relevant when rescinding an ultra vires action, the rescission still would not be arbitrary and capricious here. Rather, as the majority does not dispute, the rescission is consistent with how deferred action has always worked. As a general matter, deferred action creates no rights—it exists at the Government’s discretion and can be revoked at any time. See App.

—————— 15 The majority contends that this argument does not carry force be-
cause the rescission implemented a winddown period during which recipients would continue to receive benefits. But whether DHS’ decision to wind down DACA was lawful is a separate question from whether DHS was required to consider reliance interests before discontinuing an unlawful program.

24

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

to Pet. for Cert. in No. 18–587, at 104a (DACA and ex-
panded DACA); 8 CFR §214.11(j)(3) (T visas); §214.14(d)(2) (U visas); 62 Fed. Reg. 63249, 63253 (1997) (discussing Exec. Order No. 12711 for certain citizens of the People’s
Republic of China). The Government has made clear time and again that, because “deferred action is not an immigra-
tion status, no alien has the right to deferred action. It is used solely in the discretion of the [Government] and confers no protection or benefit upon an alien.” DHS Immigra-
tion and Customs Enforcement Office of Detention and Removal, Detention and Deportation Officers’ Field Manual §20.8 (Mar. 27, 2006); see also Memorandum from D. Meiss-
ner, Comm’r, INS, to Regional Directors et al., pp. 11–12 (Nov. 17, 2000); Memorandum from W. Yates, Assoc. Direc-
tor of Operations, DHS, Citizenship and Immigration Servs., to Director, Vt. Serv. Center, p. 5 (2003). Thus, contrary to the majority’s unsupported assertion, ante, at 23,
this longstanding administrative treatment of deferred action provides strong evidence and authority for the proposi-
tion that an agency need not consider reliance interests in this context.16
Finally, it is inconceivable to require DHS to study reliance interests before rescinding DACA considering how the program was previously defended. DHS has made clear
since DACA’s inception that it would not consider such reliance interests. Contemporaneous with the DACA memo, DHS stated that “DHS can terminate or renew deferred ac-
tion at any time at the agency’s discretion.” Consideration

—————— 16 The majority’s approach will make it far more difficult to change
deferred-action programs going forward, which is hardly in keeping with this Court’s own understanding that deferred action is an “exercise in administrative discretion” used for administrative “convenience.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 484 (1999). Agencies will likely be less willing to grant deferred action knowing that any attempts to undo it will require years of litigation and time-consuming rulemakings.

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

25

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

26

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

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

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

1

Opinion of ALITO, J.

SUPREME COURT OF THE UNITED STATES
_________________

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

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

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

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

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

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

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

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

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of ALITO, J.

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

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

1

Opinion of KAVANAUGH, J.

SUPREME COURT OF THE UNITED STATES
_________________

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

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

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

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

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

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

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

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

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

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

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

3

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

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

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

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

5

Opinion of KAVANAUGH, J.
DACA. Ante, at 14–16. Under our precedents, however, the post hoc justification doctrine merely requires that courts assess agency action based on the official explanations of the agency decisionmakers, and not based on after-the-fact explanations advanced by agency lawyers during litigation (or by judges). See, e.g., State Farm, 463 U. S., at 50 (“courts may not accept appellate counsel’s post hoc rationalizations for agency action”); FPC v. Texaco Inc., 417 U. S. 380, 397 (1974) (same); NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438, 443–444 (1965) (same); Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168–169 (1962) (same). As the D. C. Circuit has explained, the post hoc justification doctrine “is not a time barrier which freezes an agency’s exercise of its judgment after an initial decision has been made and bars it from further articulation of its reasoning. It is a rule directed at reviewing courts which forbids judges to uphold agency action on the basis of rationales offered by anyone other than the proper decisionmakers.” Alpharma, Inc. v. Leavitt, 460 F. 3d 1, 6 (2006) (Garland, J.) (internal quotation marks omitted).
Indeed, the ordinary judicial remedy for an agency’s insufficient explanation is to remand for further explanation by the relevant agency personnel. It would make little sense for a court to exclude official explanations by agency personnel such as a Cabinet Secretary simply because the explanations are purportedly post hoc, and then to turn around and remand for further explanation by those same agency personnel. Yet that is the upshot of the Court’s application of the post hoc justification doctrine today. The Court’s refusal to look at the Nielsen Memorandum seems particularly mistaken, moreover, because the Nielsen Memorandum shows that the Department, back in 2018, considered the policy issues that the Court today says the Department did not consider. Ante, at 20–26.
To be sure, cases such as Overton Park and Camp v. Pitts suggest that courts reviewing certain agency adjudications

6

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

may in some circumstances decline to examine an after-thefact agency explanation. See Camp v. Pitts, 411 U. S. 138, 142–143 (1973) (per curiam); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 419–421 (1971). But agency adjudications are “concerned with the determination of past and present rights and liabilities,” Attorney General’s Manual on the Administrative Procedure Act 14 (1947), and implicate the due process interests of the individual parties to the adjudication. Judicial review of an adjudication therefore ordinarily focuses on what happened during the agency’s adjudication process of deciding that individual case.
Even if certain agency adjudications have a slightly more stringent restriction on post hoc explanations, the APA is “based upon a dichotomy between rule making and adjudication,” ibid., and this case involves an ongoing agency rule that has future effect—the rescission of DACA. The Nielsen Memorandum implements and explains the rescission of DACA. I am aware of no case from this Court, and the Court today cites none, that has employed the post hoc justification doctrine to exclude an agency’s official explanation of an agency rule. For purposes of arbitrary-and-capricious review, it does not matter whether the latest official explanation was two years ago or three years ago. What matters is whether the explanation was reasonable and followed the requisite procedures. In my view, the Court should consider the Nielsen Memorandum in deciding whether the Department’s rescission of DACA satisfies the APA’s arbitrary-and-capricious standard.
Because the Court excludes the Nielsen Memorandum, the Court sends the case back to the Department of Homeland Security for further explanation. Although I disagree with the Court’s decision to remand, the only practical consequence of the Court’s decision to remand appears to be some delay. The Court’s decision seems to allow the Department on remand to relabel and reiterate the substance

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

7

Opinion of KAVANAUGH, J.
of the Nielsen Memorandum, perhaps with some elaboration as suggested in the Court’s opinion. Ante, at 23–26.*
* * *
The Court’s resolution of this narrow APA issue of course cannot eliminate the broader uncertainty over the status of the DACA recipients. That uncertainty is a result of Congress’s inability thus far to agree on legislation, which in turn has forced successive administrations to improvise, thereby triggering many rounds of relentless litigation with the prospect of more litigation to come. In contrast to those necessarily short-lived and stopgap administrative measures, the Article I legislative process could produce a sturdy and enduring solution to this issue, one way or the other, and thereby remove the uncertainty that has persisted for years for these young immigrants and the Na-

—————— * Because I conclude that the Executive Branch satisfied the APA’s ar-
bitrary-and-capricious standard, I need not consider whether its prosecutorial enforcement policy was “committed to agency discretion by law” and therefore not subject to APA arbitrary-and-capricious review in the first place. 5 U. S. C. §701(a)(2). Several judges have advanced arguments suggesting that DACA—at least to the extent it was simply an exercise of forbearance authority—and the repeal of DACA are decisions about whether and to what extent to exercise prosecutorial discretion against a class of offenses or individuals, and are therefore unreviewable under the APA as “committed to agency discretion by law.” Ibid.; see Casa De Maryland v. United States Dept. of Homeland Security, 924 F. 3d 684, 709–715 (CA4 2019) (Richardson, J., concurring in part and dissenting in part); Regents of Univ. Cal. v. United States Dept. of Homeland Security, 908 F. 3d 476, 521–523 (CA9 2018) (Owens, J., concurring in judgment); see also Texas v. United States, 809 F. 3d 134, 196–202 (CA5 2015) (King, J., dissenting); Texas v. United States, 787 F. 3d 733, 770– 776 (CA5 2015) (Higginson, J., dissenting); cf. Heckler v. Chaney, 470 U. S. 821, 831–835 (1985); ICC v. Locomotive Engineers, 482 U. S. 270, 277–284 (1987); United States v. Nixon, 418 U. S. 683, 693 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); In re Aiken County, 725 F. 3d 255, 262–264 (CADC 2013).

8

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

tion’s immigration system. In the meantime, as to the narrow APA question presented here, I appreciate the Court’s careful analysis, but I ultimately disagree with its treatment of the Nielsen Memorandum. I therefore respectfully dissent from the Court’s judgment on plaintiffs’ APA claim, and I concur in the judgment insofar as the Court rejects plaintiffs’ equal protection claim.

 
 Case 3:17-cv-05211-WHA Document 311 Filed 11/02/20 Page 1 of 32

1 Jeffrey M. Davidson (Bar No. 248620)

Charles F. Robinson (Bar No. 113197)

David Watnick (Bar No. 305909)

Margaret Wu (Bar No. 184167)

2 COVINGTON & BURLING LLP

Sonya Sanchez (Bar No. 247541)

Salesforce Tower

University of California

3 415 Mission Street, Suite 5400

Office of the General Counsel

San Francisco, CA 94105-2533

1111 Franklin Street, 8th Floor

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Facsimile: + 1 (415) 591-6091

Telephone: + 1 (510) 987-9800

5 Email: jdavidson@cov.com,

Facsimile: + 1 (510) 987-9757

dwatnick@cov.com

Email: charles.robinson@ucop.edu,

6

margaret.wu@ucop.edu,

Lanny A. Breuer (admitted pro hac vice)

sonya.sanchez@ucop.edu

7 Mark H. Lynch (admitted pro hac vice)

Alexander A. Berengaut (admitted pro hac vice)

8 Megan A. Crowley (admitted pro hac vice)

Carlton E. Forbes (pro hac vice application

9 forthcoming)

Rebecca Yergin (pro hac vice application

10 forthcoming)

COVINGTON & BURLING LLP

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12 Washington, DC 20001-4956

Telephone: + 1 (202) 662-6000

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E-mail: lbreuer@cov.com, mlynch@cov.com,

14 aberengaut@cov.com, mcrowley@cov.com,

cforbes@cov.com, ryergin@cov.com

15

Attorneys for Plaintiff

16 THE REGENTS OF THE UNIVERSITY

OF CALIFORNIA

17

18

UNITED STATES DISTRICT COURT

19

FOR THE NORTHERN DISTRICT OF CALIFORNIA

20 THE REGENTS OF THE UNIVERSITY OF 21 CALIFORNIA,

22

Plaintiff,

23

v.

24

U.S. DEPARTMENT OF HOMELAND SECURITY and CHAD WOLF, in his

25

official capacity as purported Acting Secretary of the Department of Homeland Security,

26

Defendants.

27

Civil Case No.: 17-cv-05211-WHA FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

28

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case No. 17-5211

Case 3:17-cv-05211-WHA Document 311 Filed 11/02/20 Page 2 of 32

1

The Regents of the University of California (“UC” or “the University”), on its own behalf and on

2 behalf of all students currently enrolled at the University, brings this action for declaratory and

3 injunctive relief against the Department of Homeland Security (“DHS”) and purported Acting Secretary

4 of Homeland Security, Chad Wolf (together, “Defendants”), and alleges as follows:

5

INTRODUCTION

6

1. Since its inception in 2012, the Deferred Action for Childhood Arrivals (“DACA”)

7 program has provided more than 800,000 individuals the ability to live, study, and work in the United

8 States without fear that they could be detained and deported at any time. The program has allowed

9 DACA recipients to pursue opportunities in higher education, to more readily obtain driver’s licenses

10 and access lines of credit, to obtain jobs, and to access certain Social Security and Medicare benefits.

11 The opportunities afforded by DACA have permitted recipients to better care for their families,

12 including their approximately 200,000 U.S.-citizen children. At the same time, DACA recipients have

13 made invaluable contributions to American society, including through their professional, intellectual,

14 and cultural achievements.

15

2. The University, in particular, has directly benefited from the DACA program in its

16 capacities as educator and employer. UC has more than 4,000 undocumented students, including

17 approximately 1,700 current DACA recipients and as many as 1,700 more students who would have

18 been eligible for DACA but for Defendants’ unlawful actions described below. Many of the

19 University’s staff members are also DACA recipients. These individuals make important contributions

20 to University life by expanding the intellectual vitality of the University; filling crucial roles as medical

21 residents, research assistants, and student government leaders; and increasing the diversity of the

22 community.

23

3. Despite the clear successes and benefits of DACA, the federal government has sought

24 arbitrarily to rescind the program for shifting and untenable reasons. In 2017, DHS abruptly and

25 arbitrarily sought to rescind the program without reason (the “Rescission”). This Court enjoined the

26 Rescission, the Ninth Circuit affirmed, and on June 18, 2020, the Supreme Court of the United States

27 held that the Rescission was arbitrary and capricious in violation of the Administrative Procedure Act

28
2
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case No. 17-5211

Case 3:17-cv-05211-WHA Document 311 Filed 11/02/20 Page 3 of 32

1 (“APA”). The Supreme Court’s decision rested on a finding that, even if DHS’s purported concerns

2 about the lawfulness of DACA were credited, DHS had failed to consider options for modifying DACA

3 short of rescinding the program altogether and failed to address whether there had been legitimate

4 reliance on the program.

5

4. Despite clear directives from the Supreme Court, as well as the decisions of many other

6 courts—including the Ninth Circuit—that previously found the Rescission arbitrary and capricious,

7 Defendants have persisted in their efforts to harm DACA and DACA recipients.

8

5. Forty days after the Supreme Court’s decision—and only 11 days after a district court

9 reinstated DACA in its entirety—Defendants announced immediate “interim” modifications to the

10 program. On July 28, 2020, Defendant Chad Wolf, the purported Acting Secretary of DHS, issued—

11 without authority—a memorandum directing DHS personnel to (1) reject all pending and future DACA

12 applications, (2) cut the DACA renewal period (and accompanying work authorization) in half, and (3)

13 reject all pending and future applications for advance parole (i.e., permission to travel outside the United

14 States and return lawfully). See Memorandum from Chad Wolf, Acting Secretary of DHS, to Mark

15 Morgan, Senior Official Performing the Duties of Commissioner, U.S. Customs and Border Protection,

16 et al., Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion

17 with Respect to Individuals Who Came to the United States as Children” (July 28, 2020) (the “Wolf

18 Memorandum”). As a result of these efforts, despite the ruling of the Supreme Court, DACA is once

19 again imperiled by arbitrary administrative action.

20

6. By eliminating new DACA applications, the Wolf Memorandum cuts off DACA for

21 applicants who are indistinguishable from current DACA recipients aside from the timing of their

22 applications or the year of their birth. For example, a first immigrant who aged into eligibility the day

23 after the unlawful Rescission is deprived of the benefits of DACA, while a second immigrant approved

24 for DACA the day before the unlawful Rescission maintains the right to stay in the program. The first

25 immigrant will be unable to lawfully work in the United States, will not have access to employer-

26 sponsored healthcare, and may be arrested and deported at any time. The second immigrant can work

27 lawfully, will have access to healthcare, and can participate in United States civic life without fear of

28
3
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case No. 17-5211

Case 3:17-cv-05211-WHA Document 311 Filed 11/02/20 Page 4 of 32

1 deportation. There is no basis for treating the two differently, but that is exactly what the Wolf

2 Memorandum does. The Wolf Memorandum is all the more arbitrary because it denies DACA

3 eligibility to individuals who aged into the program while the illegal Rescission was in place and who,

4 but for the illegal Rescission, would be current DACA recipients.

5

7. The Wolf Memorandum also chops the DACA renewal period in half, requiring DACA

6 recipients to renew every year rather than every other year. The result is a doubling of the already steep

7 renewal fee, a likely slowdown in processing times due to the doubling of renewal applications, and an

8 increased likelihood that DACA grants will lapse, resulting in job loss and deportation.

9

8. The Wolf Memorandum offers no basis for these modifications to DACA other than

10 purported Acting Secretary Wolf’s “strong desire” to “mitigate” supposed concerns about the program

11 while he buys time to “consider[] anew the DACA policy.” Id. at 4, 7. As with DHS’s earlier efforts to

12 rescind DACA, the Wolf Memorandum fails to adequately take account the vast programmatic benefits

13 of the policy or of the reliance interests it has engendered, nor does it conduct any reasoned policy

14 analysis for why DACA should be restricted and impaired.

15

9. The Wolf Memorandum scarcely acknowledges the exigent circumstances of COVID-19

16 before concluding that the population that would be eligible for DACA—and its attendant work

17 authorization and health care benefits—has no reliance interest on the program in the midst of a global

18 pandemic. But the 2012 DACA Memorandum created a legitimate expectation that upon aging into the

19 program, eligible immigrants would be able to avail themselves of the benefits of DACA, including

20 access to lawful work, employer-sponsored healthcare, and heightened employment prospects in a

21 depressed job market. The Wolf Memorandum does not acknowledge the essential ways DACA

22 recipients have contributed (and continue to contribute) during the pandemic, for example the

23 contributions of an estimated 29,000 DACA recipients who work as frontline health care workers. Nor

24 does the Wolf Memorandum explain Defendants’ sudden abandonment of their earlier supposed

25 concerns about DACA’s lawfulness that had been put forward as the reason for the original Rescission.

26

10. The Wolf Memorandum’s modifications of the DACA policy have significant

27 consequences for the University and its students. Thousands of University students who could have

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1 enjoyed the benefits and made the contributions that DACA facilitates will be unable to do so simply

2 because of the year they were born. For example, without work authorization, many will not have the

3 opportunity to work as, for instance, research assistants and teaching fellows, as well as the opportunity

4 to work lawfully in their chosen fields after graduation. Without the ability to work, some students will

5 not be able to afford their education, and will have to abandon their studies prematurely. This obvious

6 harm to those students would also negatively impact the University in turn, as it relies on the diverse

7 perspectives those students bring to the classroom and beyond, and has made considerable investments

8 in those students’ educations.

9

11. Further, halving the renewal period from two years to one creates additional monitoring

10 costs for the University, which now has a heightened burden of keeping track of its employees’ work

11 authorization expiration dates and compliance with the shortened timeframe. This shortened timeframe

12 also increases the risk of lapses in work authorization, and those lapses would disrupt and harm ongoing

13 research and services by depriving the University of the talents and efforts of DACA recipients who rely

14 on work authorization to contribute outside of the classroom. Specifically, the effective doubling of

15 renewal applications clogs an already burdened processing pipeline at the United States Citizenship and

16 Immigration Services (“USCIS”), which frequently takes extensive time to process renewal applications.

17 Yet USCIS will now outright reject (rather than simply hold) DACA renewal requests received more

18 than 150 days prior to the recipient’s DACA expiration. Thus lapses in work authorization are likely to

19 occur even for DACA recipients who timely file their renewal applications. Moreover, the doubled

20 renewal fees have significant consequences for DACA students, who will incur greater financial burdens

21 or may not be able to afford to remain in the DACA program. In certain cases, the doubled fees may

22 have direct financial impact on the University itself. And the University bears further direct economic

23 harm by having to increase financial aid amounts to those students able to secure such aid who

24 otherwise would have been able to support themselves without it.

25

12. As explained below, Defendants’ capricious modifications to the DACA program

26 violates both the procedural and substantive requirements of the APA, 5 U.S.C. § 706, the Due Process

27 Clause of the Fifth Amendment, the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, the Homeland

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1 Security Act, 6 U.S.C. § 112 et seq. (“HSA”), the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et

2 seq. (“FVRA”), and constitutes ultra vires agency action. Accordingly, Defendants’ unconstitutional,

3 unjust, and unlawful action must be set aside.

4

THE PARTIES

5

13. Plaintiff The Regents of the University of California is a California public corporation,

6 authorized and empowered to administer a public trust known as the University of California, pursuant

7 to Article IX, Section 9, subdivisions (a) and (f) of the California Constitution. Its principal place of

8 business is in Oakland, Alameda County, California. The University brings this complaint on behalf of

9 itself and on behalf of all students currently enrolled at the University. More than 4,000 undocumented

10 students are enrolled at the University, of whom about 1,700 are DACA recipients and approximately

11 1,700 would have aged into DACA eligibility but for Defendants’ actions. Some of these recipients are

12 also employed by the University.

13

14. Defendant DHS is a federal cabinet agency responsible for implementing and enforcing

14 the Immigration and Nationality Act (“INA”). DHS is a Department of the Executive Branch of the

15 United States Government and an agency within the meaning of 5 U.S.C. § 551(1). DHS, as well as its

16 component agencies USCIS, U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and

17 Customs Enforcement (“ICE”), have responsibility for, among other things, administering and enforcing

18 the nation’s immigration laws and policies, including the DACA program.

19

15. Defendant Chad Wolf is the purported Acting Secretary of DHS, although he has not

20 been lawfully designated to serve in that capacity, and cannot lawfully exercise the purported powers of

21 the Acting Secretary of DHS. Purported Acting Secretary Wolf issued the Memorandum making

22 “interim” modifications to DACA on July 28, 2020, under his purported authority.

23

16. USCIS is a component of DHS, 6 U.S.C. § 271, and an agency within the meaning of the

24 APA, 5 U.S.C. § 551(1). USCIS is responsible for processing and adjudicating DACA applications.

25

17. Joseph Edlow is the purported Deputy Director for Policy of USCIS, although he has not

26 been lawfully designated to serve in that capacity and cannot lawfully exercise the purported powers of

27

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1 his office. Purported Deputy Director Edlow issued additional guidance regarding the implementation

2 of the Wolf Memorandum on August 21, 2020.

3

JURISDICTION

4

18. This action arises under the Due Process Clause of the Fifth Amendment, U.S. Const.

5 amend. V; the Appointments Clause, U.S. Const. art. II, § 2, cl. 2; the FVRA, 5 U.S.C. § 3345 et seq.;

6 the HSA, 6 U.S.C. § 112 et seq.; and the APA, 5 U.S.C. § 550 et seq. This Court has jurisdiction

7 pursuant to 28 U.S.C. §§ 1331, 1361, and 2201–2202.

8

19. There exists an actual and justiciable controversy between Plaintiff and Defendants

9 requiring resolution by this Court. Plaintiff has no adequate remedy at law.

10

VENUE

11

20. Venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1391(e),

12 because this is a civil action in which Defendants are an agency, or officers of an agency, of the United

13 States, because a substantial part of the events or omissions giving rise to this action occurred in the

14 District, and, further, because Plaintiff resides in this District and no real property is involved in the

15 action.

16

INTRADISTRICT ASSIGNMENT

17

21. Pursuant to Local Rule 3-2(c), intradistrict assignment is proper in San Francisco or

18 Oakland because a substantial part of the events or omissions which give rise to the claim occurred in

19 the County of Alameda.

20

BACKGROUND

21

A. The DACA Program

22

22. On June 15, 2012, the Secretary of Homeland Security Janet Napolitano announced that

23 individuals who arrived in the United States as children and met certain criteria could apply for deferred

24 action for two-year periods, subject to renewal. See DACA Memorandum. In establishing the program,

25 the Secretary elected to extend deferred action to “certain young people who were brought to this

26 country as children and know only this country as home.” Id. The Secretary emphasized that federal

27 immigration laws are “not designed . . . to remove productive young people to countries where they may

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1 not have lived or even speak the language. Indeed, many of these young people have already

2 contributed to our country in significant ways.” Id. This program is known as Deferred Action for

3 Childhood Arrivals or “DACA.”

4

23. Individuals were eligible for the program if they (1) came to the United States when they

5 were under the age of sixteen; (2) continuously resided in the United States since June 15, 2007, and

6 were present in the United States on June 15, 2012, and on the date they requested DACA; (3) were

7 currently in school, had graduated from high school, had obtained a general education development

8 certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the United

9 States; (4) had not been convicted of a felony, a significant misdemeanor, or three or more other

10 misdemeanors, and otherwise did not pose a threat to national security or public safety; (5) did not have

11 lawful immigration status on June 15, 2012; and (6) were under the age of 31 as of June 15, 2012. See

12 id.; see also U.S. Citizenship & Immigration Servs.: Consideration of Deferred Action for Childhood

13 Arrivals Process (Aug. 26, 2017) (hereinafter “USCIS FAQs”). Individuals must generally be 15 years

14 old in order to apply. Individuals who met these criteria were then eligible for an exercise of

15 prosecutorial discretion, following an individualized review of their applications. See DACA

16 Memorandum.

17

24. When they applied for admission to the program, DACA recipients were required to

18 disclose sensitive, personal information to Defendants, including their lack of lawful immigration status

19 as of June 15, 2012, their date of initial entry into the United States, their country of birth, their current

20 and previous mailing addresses, and other contact information. See USCIS Form I-821D; USCIS Form

21 I-821D Instructions.

22

25. Continuing their longstanding practice with respect to deferred-action applications,

23 Defendants repeatedly promised DACA applicants that the information they submitted as part of their

24 applications would not be used for civil immigration enforcement purposes against DACA applicants or

25 their families. See USCIS FAQs; Form I-821D Instructions. Because only individuals who might be

26 subject to removal proceedings would apply for DACA, this promise was necessary for individuals to

27

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1 submit applications without fear that the Executive Branch was using DACA as a way to find and

2 remove undocumented immigrants.

3

26. Individuals who received deferred action under DACA were not subject to removal for a

4 period of two years, subject to renewal. See DACA Memorandum.

5

27. DACA recipients also were eligible for work authorizations that allowed them to work

6 legally in the United States, pursuant to a long-standing federal regulation. See id.; 8 C.F.R.

7 § 274a.12(c)(14) (providing that “an alien who has been granted deferred action” may obtain work

8 authorization upon demonstrating economic necessity); USCIS FAQs (“Under existing regulations, an

9 individual whose case has been deferred is eligible to receive employment authorization for the period

10 of deferred action, provided he or she can demonstrate ‘an economic necessity for employment.’”). An

11 individual’s work authorization expires at the same time as his or her DACA grant and could be

12 renewed upon a renewal of a DACA grant.

13

28. DACA recipients were “not considered to be unlawfully present during the period in

14 which deferred action [was] in effect.” USCIS FAQs.

15

29. Since the program was first introduced in 2012, more than 825,000 individuals received

16 DACA benefits. This includes an estimated 238,623 residents of the State of California. Dkt. 299-1 at

17 6.

18

B. The Many Benefits of DACA

19

30. As noted above, DACA recipients have contributed in innumerable ways to the

20 University.

21

31. As an institution whose core mission is serving the interests of the State of California, the

22 University seeks “to achieve diversity among its student bodies and among its employees.” See

23 Academic Senate of the Univ. of Cal., Regents Policy 4400: Policy of University of California Diversity

24 Statement, UNIV. OF CAL.: BOARD OF REGENTS, http://regents.universityofcalifornia.edu/

25 governance/policies/4400.html. The University recognizes the importance of diversity to its academic

26 mission, as it allows “students and faculty [to] learn to interact effectively with each other, preparing

27 them to participate in an increasingly complex and pluralistic society.” Id. The educational experience

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1 of all University students is fuller and more enriching when ideas are “born and nurtured in a diverse

2 community.” Id. DACA students and DACA-eligible students at the University are an integral part of

3 that community. Their talents, perspectives, and experiences contribute enormously to University life.

4 DACA students, for instance, volunteer as interpreters, bring nuanced perspectives to class discussions,

5 serve in student government, and serve as leaders in various student organizations. Dkts. 118, Ex. 41 ¶

6 10; 118-1, Ex. 48 ¶¶ 8, 11.

7

32. DACA recipients also make significant contributions to University life in their role as

8 employees. They work at UC campuses and in UC medical centers as teaching assistants, research

9 assistants, post-doctoral fellows, and health care providers. DACA recipients often possess valuable

10 foreign language skills. By allowing DACA recipients to work lawfully, DACA moved recipients out of

11 the informal economy, increasing the pool of talent from which UC could fill positions at the University.

12

33. Additionally, DACA recipients who are enrolled as students support themselves and

13 cover a portion of their tuition through work, including work for the University. For many of these

14 students, DACA work authorization is what allows them to attend UC and continue each year with their

15 chosen program of study.

16

34. The University has invested considerable resources in recruiting and retaining these

17 individuals—as students and employees. It has made scarce enrollment space available to these students

18 on the basis of their individual achievements. It also has invested substantial time, financial aid,

19 research dollars, housing benefits, and other resources in them on the expectation that these students will

20 complete their course of study and become productive members of the communities in which the

21 University operates, and other communities throughout the nation. The University has significant

22 interests in retaining this wealth of talent and in continuing to enjoy the many benefits of their

23 participation in University life.

24

35. Furthermore, by allowing recipients to receive deferred action and obtain work

25 authorization, DACA opened myriad opportunities to them. As noted above, and as emphasized by the

26 Supreme Court, DACA recipients became eligible for federal work authorization, which significantly

27 improved their opportunities for employment, medical benefits, and higher paying jobs. Dep’t of

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1 Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1906 (2020). Under the program,

2 DACA recipients received social security numbers and therefore were able to access credit more easily.

3 DACA enabled recipients to obtain driver’s licenses in a number of states where they otherwise could

4 not. It also protected these individuals’ right to travel freely by making them eligible to receive

5 “advance parole,” which allowed them to travel abroad temporarily for humanitarian, educational, or

6 employment purposes, and to return to the United States lawfully. See 8 C.F.R. § 212.5(f); USCIS

7 FAQs.

8

C. Defendants’ Attempt to Unlawfully Rescind DACA

9

36. Although the Administration initially stated a commitment to DACA, see, e.g.,

10 Memorandum from John Kelly, Secretary of Homeland Security, Enforcement of the Immigration Laws

11 to Serve the National Interest, at 2 (Feb. 20, 2017), on September 5, 2017, Defendants abruptly

12 announced their plan to rescind the program.

13

37. Prior to DHS’s issuance of the attempted Rescission, then-Attorney General Jeff Sessions

14 held a press conference in which he asserted that “[o]ur collective wisdom is that the policy is

15 vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the

16 DAPA [Deferred Action for Parents of Americans] program.” See Attorney General Sessions Delivers

17 Remarks On DACA (Sept. 5, 2017), https://www.justice.gov/opa/speech/attorney-general-sessions-

18 delivers-remarks-daca (“Press Conference”). Similarly, a September 4, 2017 letter from the Attorney

19 General to then-Acting Secretary of Homeland Security Duke reiterated that DACA “was effectuated . .

20 . without proper statutory authority” and “was an unconstitutional exercise of authority by the Executive

21 Branch.” See Letter from Attorney General Sessions to Acting Secretary of DHS Duke (Sept. 4, 2017).

22 The Attorney General also noted the potential of litigation from several states and that DACA was

23 “likely” to be enjoined in that yet-to-be-filed litigation.

24

38. After the press conference, Acting Secretary Duke, purporting to act “[i]n the exercise of

25 [her] authority in establishing national immigration policies and priorities,” formally rescinded the

26 DACA Memorandum. The attempted Rescission stated that DACA “should be terminated” in light of

27 the Fifth Circuit’s ruling regarding DAPA in Texas v. United States, 809 F.3d 134 (5th Cir. 2015), the

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1 Supreme Court’s non-precedential affirmance of that ruling by an equally divided court, and the

2 Attorney General’s September 4 letter. Acting Secretary Duke did not cite any policy reason for

3 eliminating DACA and instead relied solely on Attorney General Sessions’s assertion of DACA’s

4 illegality in rescinding the program.

5

39. The President, however, apparently disagreed with DHS’s and his Attorney General’s

6 views on the legality of DACA. In contradiction to Acting Secretary Duke’s and Attorney General

7 Sessions’ position that the prior administration had exceeded the authority of the Executive Branch in

8 establishing DACA, see Press Conference, the President tweeted on the night of the attempted

9 Rescission, “Congress now has 6 months to legalize DACA (something the Obama Administration was

10 unable to do). If they can’t, I will revisit this issue!” See Donald J. Trump (@realDonaldTrump),

11 Twitter (Sept. 5, 2017, 5:38 PM), https://twitter.com/realDonaldTrump/status/905228667336499200.

12

40. In fact, the Administration meant to use the attempted Rescission as a bargaining chip

13 with Congress. For example, on October 8, 2017, President Trump sent a letter to Congressional leaders

14 setting forth the “Immigration Principles and Policies” that he said “must be included as part of any

15 legislation addressing the status of [DACA] recipients.” President Donald J. Trump’s Letter to House

16 and Senate Leaders & Immigration Principles and Policies (Oct. 8, 2017),

17 https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-letter-house-senate-leaders-

18 immigration-principles-policies/. By linking the attempted Rescission to the Administration’s

19 legislative strategy, Defendants used the decision to rescind DACA to make DACA recipients a

20 bargaining chip in order to secure support for harsh immigration legislation from members of Congress

21 who support DACA recipients and would not otherwise support the Administration’s immigration

22 agenda.

23

41. President Trump then made the ploy explicit in advertising that “[t]he Democrats have

24 been told, and fully understand, that there can be no DACA without the desperately needed WALL at

25 the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of

26 Immigration etc. We must protect our Country at all cost!” See Donald J. Trump (@realDonaldTrump),

27 Twitter (Dec. 29, 2017, 5:16 AM), https://twitter.com/realDonaldTrump/status/946731576687235072.

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1

D. The Court Preliminarily Enjoins the Attempted Rescission

2

42. On September 8, 2017, the University filed a complaint challenging Defendants’ attempt

3 to rescind DACA. The initial Complaint contended, among other things, that Defendants’ decision to

4 rescind DACA was arbitrary and capricious and violated the APA because it was not adequately

5 explained and failed to account for reliance interests. Dkt. 1.

6

43. On November 1, 2017, the University moved for provisional relief on its APA claims,

7 seeking a preliminary injunction prohibiting Defendants from proceeding with the attempted Rescission

8 during the pendency of the litigation. Dkt. 111.

9

44. On January 9, 2018, the Court granted in substantial part the University’s motion and

10 issued a nationwide injunction prohibiting Defendants from rescinding active DACA grants (and

11 attendant work authorizations) and generally requiring Defendants to continue permitting DACA

12 renewals consistent with preexisting procedures. Dkt. 234. The Court found that the University was

13 likely to succeed on its claim that the attempted Rescission was arbitrary and capricious and that the

14 other preliminary injunction factors were satisfied based on the extraordinary harm the University and

15 the hundreds of thousands of individual DACA recipients would have faced if DACA were rescinded.

16 Id. at 43–46.

17

45. On November 8, 2018, the Ninth Circuit upheld the Court’s preliminary injunction in

18 full. Regents of the Univ. of California v. U.S. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018).

19

46. On November 12, 2019, hours before the Supreme Court heard oral argument in the

20 instant action, President Trump falsely smeared DACA recipients as supposed “hardened criminals,” yet

21 implored the Supreme Court to reinstate the Rescission with a promise to “deal . . . with Dems for them

22 to stay!” See Donald J. Trump (@realDonaldTrump), Twitter (Nov. 12, 2019, 3:45 AM),

23 https://twitter.com/realDonaldTrump/status/1194219655717642240.

24

E. The Supreme Court Rules the Rescission Arbitrary and Capricious

25

47. The Supreme Court rejected DHS’s attempt to rescind DACA and upheld the finding that

26 the Rescission was arbitrary and capricious in violation of the APA. Regents, 140 S. Ct. at 1913–15.

27

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1

48. Specifically, the Supreme Court held that DHS’s attempt to rescind DACA was arbitrary

2 and capricious and thus violated the APA because the agency failed to consider important aspects of the

3 issue, including both “the options of retaining forbearance” of deportation of DACA recipients, and

4 “particular reliance interests” on the DACA program. Id. at 1915. Accordingly, the Supreme Court

5 vacated the attempted Rescission in its entirety, re-establishing the status quo from before the 2017

6 Duke Memorandum. See id. at 1901, 1916 n.7. The Administration should at that time have reinstated

7 DACA in full, including accepting new applications from those who had aged into the program during

8 the pendency of the unlawful Rescission.

9

49. That did not occur. The day after the Supreme Court’s decision, Edlow stated on

10 USCIS’s official website that the Supreme Court’s decision “has no basis in law” and “merely delays the

11 President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program,”

12 which he falsely stated allowed DACA recipients to “take jobs” from “Americans.”

13

F. Defendants’ Arbitrary and Capricious Modifications to DACA

14

50. On June 30, 2020, in a letter to purported Acting Secretary Chad Wolf, Attorney General

15 William Barr withdrew both Attorney General Sessions’s September 4, 2017 letter to Acting Secretary

16 Duke and an earlier opinion by the Office of Legal Counsel finding that DACA is lawful. Attorney

17 General Barr explicitly withheld any determination regarding DACA. Rather, he stated that he

18 “wish[ed] to wipe the slate clean” to give purported Acting Secretary Wolf full discretion over the

19 DACA program. Letter from Attorney General Barr to Acting Secretary of DHS Wolf (June 30, 2020).

20 Having eliminated the sole ground for the prior Rescission, and with the Supreme Court having rejected

21 the Rescission as arbitrary and capricious, one would have expected Defendants to keep DACA in place.

22

51. On July 17, 2020, a district court in the District of Maryland vacated the attempted

23 Rescission and ordered the restoration of DACA “to its pre-September 5, 2017 status.” Casa De

24 Maryland v. U.S. Dep’t of Homeland Sec., No. PWG-17-2942 (D. Md. July 17, 2020) ECF No. 97 at 3.

25

52. On July 28, 2020, purported Acting Secretary Wolf, abandoning the prior rationales for

26 the Rescission, issued a memorandum making “immediate” modifications to DACA in an effort to buy

27 time while he conducts a “full reconsideration of the DACA policy.” See Wolf Memorandum at 1. The

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1 Wolf Memorandum, issued without notice and comment rulemaking, makes “interim” changes to

2 DACA including rejection of “all pending and future initial requests for DACA,” rejection of “all

3 pending and future applications for advance parole,” and halving the renewal period from two years to

4 one. Id. at 1–2, 5.

5

53. Specifically, the Wolf Memorandum rescinds both the 2017 Duke and the 2018

6 memorandum in which then-DHS Secretary Nielsen articulated her “understanding” of the 2017 Duke

7 memorandum, and makes “certain immediate changes” to DACA “to mitigate” purported Acting

8 Secretary Wolf’s supposed “enforcement policy concerns” while he considers which ultimate action he

9 wishes to take. See id. at 4. The Wolf Memorandum recites supposed enforcement policy concerns,

10 none of which has anything to do with the welfare of DACA recipients, their families, or the national

11 economy, among other interests noted by the Supreme Court. Rather, the Wolf Memorandum makes

12 explicit that Defendants once more wish to use DACA recipients as a bargaining chip, stating that

13 “rescinding DACA entirely may well create a more pressing need for Congress to decide whether it

14 wants to address this issue.” Id. at 4–5. The idea that hundreds of thousands of people should be

15 purposefully and grievously injured in order to prompt congressional action is an appalling breach of the

16 basic principle that the government should aim to improve, rather than harm, people’s lives.

17

54. The Wolf Memorandum then states that given his purported enforcement policy

18 concerns, “some changes should immediately be made” to DACA to “limit its scope” while purported

19 Acting Secretary Wolf considers whether the program “should be maintained, rescinded, or modified”—

20 an Orwellian euphemism for eliminating DACA for vast numbers of otherwise eligible individuals who,

21 by sheer accident of their birth year, are now denied important work and health care benefits in the midst

22 of a pandemic. Id. at 5.

23

55. The Wolf Memorandum asserts that the immediate changes will not materially encroach

24 on the reliance interests of DACA recipients. It claims, for example, that reliance interests are not

25 “significantly affected” by cutting the renewal periods in half because this change might have the

26 “potential” benefit of lessening the impact in case purported Acting Secretary Wolf “ultimately

27

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1 decide[s] to rescind” the program. Id. at 5–6. This tenuous chain of possibilities, however, cannot offer

2 an adequate explanation for the significant burden of limiting the renewal periods.

3

56. The Wolf Memorandum further brushes aside the steep application fees DACA recipients

4 must now pay twice as often merely because of purported Acting Secretary Wolf’s “strong desire to

5 limit the scope of the policy.” See id. at 6–7. Nor does it address the fact that DACA recipients who

6 paid for a two-year renewal application but whose applications have not yet been granted can now only

7 benefit from their DACA grants for one year.

8

57. And the Wolf Memorandum claims that no reliance interests exist at all for would-be

9 DACA recipients who are no longer eligible to apply for DACA. It merely states that it “makes sense to

10 continue” the “status quo” of not requiring consideration of new DACA requests while DHS evaluates

11 the program. Id. at 6. This purported “status quo” was only the status quo because of Defendants’

12 illegal 2017 Rescission. The proper status quo is the restoration of DACA as it would have existed

13 absent the illegal Rescission.

14

58. At bottom, none of the explanations proffered by the Wolf Memorandum is remotely

15 plausible. The Wolf Memorandum fails to follow the Supreme Court’s direction to consider alternative

16 ways of mitigating those supposed enforcement policy concerns. Nor does it explain why Defendants

17 have abandoned Defendants’ prior justifications based on DACA’s alleged illegality and their supposed

18 concerns about executive overreach. Instead, Defendants’ action seems calculated to harm DACA based

19 on no clear rationale at all.

20

59. On August 21, 2020, Edlow issued additional guidance regarding the implementation of

21 the Wolf Memorandum. Memorandum from Joseph Edlow, Implementing Acting Secretary Chad

22 Wolf’s July 28, 2020 Memorandum (Aug. 21, 2020) (“Edlow Memorandum”). Among other things, the

23 Edlow Memorandum generally instructs that any DACA renewal application filed “more than 150 days

24 before the [applicant’s] current DACA period expires” should be rejected. Edlow Memorandum at 3–5.

25 According to the Memorandum, rejecting—rather than simply holding—early renewal applications will

26 promote “efficient use of agency resources.” Id. at 5. Further, the Memorandum asserts that “it is not

27 necessary to accept DACA renewal requests more than 150 days before the [applicant’s] current DACA

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1 period expires,” because, according to USCIS, most renewal applications are processed in fewer than

2 150 days. Id.

3

60. In practice, this 150-day rule, coupled with growing delays in the processing of DACA

4 renewal applications, will prevent many DACA recipients from applying for renewal with adequate time

5 for USCIS to adjudicate and approve the renewal request before the prior DACA grant expires. This

6 will lead to lapses in DACA protections and employment authorization, terminations from employment,

7 and interruptions in access to higher education.

8

61. The Edlow Memorandum also acknowledges that the one-year limitation the Wolf

9 Memorandum places on DACA renewals effectively doubles the cost of renewals. Id. at 5–6. Although

10 the Edlow Memorandum recognizes that the Wolf Memorandum “asked USCIS to consider whether it is

11 possible to reduce renewal fees,” the Edlow Memorandum proposes no reduction, instead offering only

12 the vague representation that “USCIS is currently considering the merits and feasibility of reducing

13 DACA-related fees.” Id.

14

G. The Unlawful Designation of Chad Wolf as Purported Acting Secretary of DHS, and

15

of Joseph Edlow as Purported USCIS Deputy Director for Policy.

16

62. Although Defendant Wolf has purported to be Acting Secretary of the Department of

17 Homeland Security since November 13, 2019, he has no legally valid claim to that title. He thus lacked

18 authority to issue the Wolf Memorandum, which is void and lacks any legal force.

19

63. This is not an issue of mere formality—Defendant Wolf’s unauthorized actions as

20 purported Acting Secretary implicate constitutional concerns. The Constitution’s Appointments Clause

21 provides that the president

22

shall nominate, and by and with the Advice and Consent of the Senate, shall

23

appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose

24

Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of

25

such inferior Officers, as they think proper, in the President alone, in the

Courts of Law, or in the Heads of Departments. 26
U.S. Const. art. II, § 2, cl. 2 (emphasis added).

27

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1

64. Because the Secretary of Homeland Security is a principal Officer (rather than inferior

2 Officer), the Appointments Clause requires that the person holding office of Secretary be appointed by

3 the President “with the Advice and Consent of the Senate.” Id.

4

65. Federal statute also requires that the Secretary of Homeland Security be nominated by the

5 president and confirmed by the Senate. 6 U.S.C. § 112(a)(1).

6

66. The FVRA establishes the “exclusive means for temporarily authorizing an acting official

7 to perform the functions and duties of any office of an Executive agency . . . for which appointment is

8 required to be made by the President, by and with the advice and consent of the Senate,” unless another

9 statute expressly provides for another means of temporarily designating an acting officer. 5 U.S.C. §

10 3347(a).

11

67. The FVRA does not provide the President with the power to circumvent fundamental

12 separation of powers by indefinitely installing “acting” officials without the advice and consent of the

13 Senate. Among other things, the FVRA limits the time during which an office may be filled by an

14 acting official, providing that “the person serving as an acting officer . . . may serve in the office . . . for

15 no longer than 210 days beginning on the date the vacancy occurs.” Id. § 3346.

16

68. Separately, the Homeland Security Act (“HSA”), rather than the FVRA, governs the

17 order of succession for the position of Acting Secretary of Homeland Security when the office of the

18 Secretary is vacant. See 6 U.S.C. § 113(a)(1)(A), (g).

19

69. The HSA provides that any vacancy in the office of the Secretary of Homeland Security

20 is to be filled by the Deputy Secretary of Homeland Security or, if that office is likewise vacant, by the

21 Under Secretary for Management. Id. § 113(a)(1)(A), (g)(1). The HSA permits the Secretary of

22 Homeland Security to establish a further succession order to apply in the event the offices of both the

23 Deputy Secretary of Homeland Security and Under Secretary for Management are vacant. Id.

24 § 113(g)(2).

25

70. DHS has established multiple orders of succession and/or delegations pertaining to the

26 office of the Secretary and other DHS offices. See Dep’t of Homeland Sec., Delegation No. 00106,

27 Revision No. 08.5 (Dec. 15, 2016) (“DHS Orders”).

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1

71. From at least December 15, 2016, through and beyond April 11, 2019, DHS Orders

2 Section II.A stated: “In case of the Secretary’s death, resignation, or inability to perform the functions of

3 the Office, the orderly succession of officials is governed by Executive Order 13753, amended on

4 December 9, 2016.” Id. (emphases added).

5

72. Executive Order 13753, in turn, requires succession to the Acting Secretary role in the

6 following order: (1) the Deputy Secretary of Homeland Security; (2) the Under Secretary for

7 Management; (3) the Administrator of the Federal Emergency Management Agency; (4) the Under

8 Secretary for National Protection and Programs; (5) the Under Secretary for Science and Technology;

9 (6) the Under Secretary for Intelligence and Analysis; and (7) Commissioner of U.S. Customs and

10 Border Protection.

11

73. From at least December 15, 2016, through and beyond April 11, 2019, DHS Orders

12 Section II.B provided: “I [the Secretary of Homeland Security] hereby delegate to the officials

13 occupying the identified positions in the order listed ([at] Annex A), my authority to exercise the powers

14 and perform the functions and duties of my office, to the extent not otherwise prohibited by law, in the

15 event I am unavailable to act during a disaster or catastrophic emergency.” DHS Orders § II.B

16 (emphases added).

17

74. As of April 10, 2019, Annex A, which applied only when the Secretary is “unavailable to

18 act during a disaster or catastrophic emergency,” and not in the event of resignation, placed the

19 Commissioner of U.S. Customs and Border Protection third in the succession order, behind the Deputy

20 Secretary of Homeland Security and the Under Secretary for Management. DHS Orders Annex A. If,

21 however, the Secretary of Homeland Security resigned, the Commissioner of U.S. Customs and Border

22 Protection remained seventh in the standard order of succession. See Exec. Order No. 13753 § 1.

23

75. On or about April 9 or 10, 2019, then-Secretary of Homeland Security Kirstjen Nielsen

24 issued an amendment to DHS Orders Annex A (“April 2019 Amendment”). Again, by its explicit terms

25 Annex A only applies when the Secretary is “unavailable to act during a disaster or catastrophic

26 emergency.” DHS, Orders of Succession and Delegations of Authorities for Named Positions,

27 Delegation No. 00106, Revision No. 08.5 (Apr. 10, 2019). The amended text listed the Commissioner

28
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1 of U.S. Customs and Border Protection third behind the Deputy Secretary of Homeland Security and

2 Under Secretary for Management. The Amendment to Annex A labeled and identified the Annex not as

3 an “order of succession,” but instead as an “Order for Delegation of Authority.”

4

76. Annex A did not—and does not—apply to succession in the case of resignation of the

5 Secretary of Homeland Security. The April 2019 Amendment did not direct any changes to the text of

6 DHS Orders Section II.A. Thus, notwithstanding the April 2019 Amendment, DHS Orders Section II.A

7 still required following the order of succession specified in Executive Order 13753 in the event of a

8 Secretary’s resignation.

9

77. Secretary Nielsen, the most recent Senate-confirmed Secretary of Homeland Security,

10 resigned her position effective no later than April 10, 2019.

11

78. Following Secretary Nielsen’s resignation, on April 11, 2019, Kevin McAleenan, who

12 was then serving as CBP Commissioner, purportedly, but unlawfully, assumed the position of Acting

13 Secretary of Homeland Security.

14

79. McAleenan’s purported assumption of the Acting Secretary office was unlawful because,

15 under the applicable DHS Orders, two other Senate-confirmed individuals were ahead of McAleenan to

16 succeed to that office: Christopher Krebs, who then served as the Senate-confirmed Under Secretary for

17 National Protection and Programs, and David Glawe, who then served as the Senate-confirmed Under

18 Secretary for Intelligence and Analysis.

19

80. Because McAleenan’s purported succession was unlawful under the HSA and DHS

20 Orders of Succession and Delegations, he had no valid legal claim to the office of Acting Secretary of

21 Homeland Security, and could not lawfully exercise the authority of that office.

22

81. On November 8, 2019, the 211th day of his purported tenure as Acting Secretary,

23 McAleenan issued a directive attempting to amend the order of succession for the Secretary of

24 Homeland Security to elevate the Under Secretary for Strategy, Policy, and Plans to be fourth in line to

25 lead the agency in the event of the Secretary’s resignation. DHS, Orders of Succession and Delegations

26 of Authorities for Named Positions, Delegation No. 00106, Revision No. 08.6 (Nov. 8, 2019).

27

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1

82. Unlike Secretary Nielsen’s April 2019 Amendment, McAleenan did purport to change

2 DHS Orders Section II.A such that, like Section II.B, it would now rely upon Annex A to establish the

3 order of succession; thus Annex A for the first time would apply in the event of the Secretary of

4 Homeland Security’s resignation. See Amendment to the Order of Succession for the Secretary of

5 Homeland Security. McAleenan’s attempted change confirmed the invalidity of his own service as

6 Acting Secretary, since the change would have been superfluous if Annex A had otherwise already

7 applied to establish the succession order in the event of the Secretary’s resignation.

8

83. McAleenan likewise purported to change the order of the positions listed in Annex A,

9 moving the position of Under Secretary for Strategy, Policy, and Plans to fourth in line, behind only the

10 then-vacant Offices of Deputy Secretary of Homeland Security and Under Secretary for Management, as

11 well as the Office then held by McAleenan, Commissioner of U.S. Customs and Border Protection. Id.

12

84. McAleenan’s attempted directive was without force of law because McAleenan was not

13 validly serving as Acting Secretary under the HSA, as his purported succession to the office of Acting

14 Secretary violated the applicable DHS order of succession.

15

85. Likewise, at the time he purported to change the Acting Secretary succession order,

16 McAleenan’s purported service as Acting Secretary violated the FVRA, as his service had already

17 exceeded the 210-day time limit for acting-official service set forth in that statute.

18

86. Irrespective of the legality of his purported service as Acting Secretary, McAleenan was

19 not legally authorized to alter the DHS order of succession, as the HSA extends such power only to the

20 Secretary of Homeland Security, not the Acting Secretary. 6 U.S.C. § 113(g)(2) (“the Secretary may

21 designate such other officers of the Department in further order of succession to serve as Acting

22 Secretary” (emphases added)).

23

87. On October 11, 2019, McAleenan announced his resignation as Acting Secretary.

24

88. On November 13, 2019, Defendant Wolf, who on that day was confirmed as Under

25 Secretary for Strategy, Policy, and Plans, purported to assume the office of Acting Secretary of

26 Homeland Security according to McAleenan’s invalid succession directive.

27

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1

89. Because the succession directive that purported to designate Defendant Wolf as Acting

2 Secretary was unlawful and invalid, Defendant Wolf was not, and has never been, the Acting Secretary

3 of Homeland Security according to the Homeland Security Act.

4

90. Likewise, Defendant Wolf’s purported service as Acting Secretary violates, and has

5 always violated, the FRVA, because the office of Secretary of Homeland Security had been vacant for

6 more than 210 days before Defendant Wolf purported to assume the office of Acting Secretary. On

7 November 6, 2019, the Office of the Secretary of Homeland Security had been vacant for 210 days since

8 April 10, 2019, the date that former Secretary Nielsen purported to resign. After November 6, 2019, at

9 the latest, the FVRA required the office to “remain vacant” until the president submitted a new nominee

10 for Senate confirmation. 5 U.S.C. § 3348(b)(1). Defendant Wolf began serving as Acting DHS

11 Secretary on November 13, 2019, after the 210-day period under the FVRA had run.

12

91. On August 14, 2020, the Government Accountability Office (“GAO”) issued an opinion

13 reviewing the legality of Defendant Wolf’s designation as Acting DHS Secretary and concluded that

14 Wolf was improperly designated. GAO, Matter of Department of Homeland Security – Legality of

15 Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties

16 of Deputy Secretary of Homeland Security, B-331650 (Aug. 14, 2020).

17

92. DHS requested that GAO rescind its decision, but GAO affirmed its decision after

18 concluding that DHS had not shown material errors of fact or law, nor provided information not

19 previously considered that warranted reversal or modification of the decision. GAO, Department of

20 Homeland Security – Legality of Service of Acting Secretary of Homeland Security and Service of Senior

21 Official Performing the Duties of Deputy Secretary of Homeland Security – Reconsideration, B-332451,

22 August 21, 2020.

23

93. On September 10, 2020, in response to the GAO opinion and litigation over the legality

24 of purported Acting Secretary Wolf’s service, Peter Gaynor, Administrator of the Federal Emergency

25 Management Agency, purporting to exercise the functions of Acting Secretary “[a]s the most senior

26 successor listed” under Executive Order No. 13753, issued an order to make another change to the DHS

27 order of succession. This order purported to re-issue the November 2019 order of succession Kevin

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1 McAleenan unlawfully attempted to enact, thereby placing Defendant Wolf’s position above Gaynor’s

2 own position in the order of succession, and purportedly retroactively rendering Wolf the Acting

3 Secretary of Homeland Security.

4

94. Gaynor, however, was never lawfully the Acting Secretary of Homeland Security, and

5 lacked any power to issue such order. The succession orders lawfully in place upon Secretary Nielsen’s

6 resignation, Executive Order 13753, provided that Christopher Krebs became Acting Secretary upon

7 Secretary Nielsen’s resignation. Because Krebs never resigned that role, there was no vacancy for Peter

8 Gaynor to fill on September 10, 2020.

9

95. In addition, as an inferior officer, Gaynor was not constitutionally authorized to modify

10 the DHS order of succession.

11

96. Gaynor also failed to report his purported acting service to the Comptroller General and

12 Congress, as the FVRA requires. 5 U.S.C. § 3349(a).

13

97. Irrespective of the legality of Gaynor’s purported service as Acting Secretary, he was not

14 legally authorized to alter the DHS order of succession, as the HSA extends such power only to the

15 Secretary of Homeland Security, not the Acting Secretary. 6 U.S.C. § 113(g)(2) (“the Secretary may

16 designate such other officers of the Department in further order of succession to serve as Acting

17 Secretary” (emphases added)).

18

98. Moreover, Gaynor never resigned his purported role as Acting Secretary, leaving no

19 vacancy for Defendant Wolf to purportedly fill.

20

99. Also on September 10, 2020, President Trump nominated Defendant Wolf as Secretary of

21 Homeland Security.

22

100. In addition to the other legal defects rendering his purported service as Acting Secretary

23 unlawful, having been nominated as Secretary of Homeland Security, Defendant Wolf thereby became

24 statutorily ineligible to serve as Acting Secretary of Homeland Security under the FVRA, 5 U.S.C.

25 § 3345(b)(1).

26

27

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1

101. On September 17, 2020, Defendant Wolf, “out of an abundance of caution,” purported to

2 ratify his actions taken prior to the order issued by Gaynor on September 10, 2020, 85 Fed. Reg. 59,651

3 (Sept. 23, 2020).

4

102. On October 7, 2020, Defendant Wolf purported to ratify actions taken by Commissioner

5 McAleenan and Edlow. Ratification of Department Actions, 85 Fed. Reg. 65,653 (Oct. 16, 2020).

6

103. As a result of Defendant Wolf’s unlawful service as purported Acting DHS Secretary,

7 Edlow’s service as purported USCIS Deputy Director for Policy is also unlawful.

8

104. Defendant Wolf purportedly designated Edlow Deputy Director for Policy at USCIS on

9 February 19, 2020.

10

105. Because he was not lawfully serving as Acting Secretary, Defendant Wolf lacked any

11 legal authority to designate Edlow to the position of USCIS Deputy Director for Policy.

12

106. Nor can Defendant Wolf’s September 17, 2020 memorandum legitimize either Defendant

13 Wolf or Edlow’s unlawful actions, as the FVRA prohibits the ratification of these actions. See 5 U.S.C.

14 § 3348(b)(1), (d)(1)–(2) (“An action taken by any person who is not acting under section 3345, 3346, or

15 3347 . . . shall have no force or effect” and “may not be ratified.”).

16

107. In turn, Edlow is not lawfully serving as, and has never had any lawful basis to serve as,

17 USCIS Deputy Director for Policy. Thus, the Edlow Memorandum purportedly issued pursuant to

18 Edlow’s authority as USCIS Deputy Director for Policy is void and lacks any legal force.

19

FIRST CLAIM FOR RELIEF

20

Agency Action That Is Arbitrary and Capricious, An Abuse of Discretion, and Otherwise Not In Accordance with Law

21

in Violation of 5 U.S.C. § 706(2)(A)–(C)

108. The above paragraphs are incorporated herein by reference.

22

109. DHS is an agency subject to the requirements of the APA. 5 U.S.C. § 701(b)(1).

23

110. The Wolf Memorandum, issued by DHS, constitutes final agency action that is

24

reviewable by this Court under the APA.

25

111. The Edlow Memorandum, issued by USCIS, constitutes final agency action that is

26

reviewable by this Court under the APA.

27

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1

112. The APA provides that courts “shall . . . hold unlawful and set aside” final agency action

2 that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary

3 to constitutional right, power, privilege, or immunity”; and “in excess of statutory jurisdiction, authority,

4 or limitations, or short of statutory right.” Id. § 706(2)(A)–(C).

5

113. Pursuant to the arbitrary-and-capricious standard, an agency must engage in “reasoned

6 decisionmaking.” Michigan v. EPA, 576 U. S. 743, 750 (2015). A court reviewing such a decision must

7 assess whether the decision was “based on a consideration of the relevant factors and whether there has

8 been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416

9 (1971); San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014).

10

114. The Wolf Memorandum is arbitrary and capricious under this standard—as was the

11 unsuccessful Rescission, see Regents, 140 S. Ct. at 1915—for the following reasons among others.

12

115. First, in their attempt to modify DACA, Defendants have brushed aside and ignored the

13 relevant factors set out by the Supreme Court a mere 40 days earlier. Id.

14

116. Significantly, the Wolf Memorandum fails to adequately address the reliance interests

15 occasioned by DACA, instead relying on a tenuous chain of inferences in purporting to consider such

16 interests. Id. The Wolf Memorandum, for example, brushes aside the significant burden the doubling of

17 application fees imposes on DACA recipients such as the University’s students. And in merely stating

18 that it “makes sense” to keep the supposed “status quo” of rejecting new DACA requests during the

19 pendency of this litigation, the Wolf Memorandum fails to consider the detrimental effects of stripping

20 otherwise eligible individuals of the ability to apply for DACA in light of the current global crisis.

21 Where, as here, significant reliance interests are at stake, Defendants must, in addition to demonstrating

22 that “there are good reasons” for the newest policy, offer “a reasoned explanation . . . for disregarding

23 facts and circumstances that underlay or were engendered by the prior policy.” FCC v. Fox Television

24 Stations, Inc., 556 U.S. 502, 515–16 (2009).

25

117. Second, in outright rejecting all pending and future DACA applications, the Wolf

26 Memorandum fails to explain its arbitrary treatment of individuals who are now otherwise DACA-

27 eligible simply because they were not yet old enough to apply before the unlawful Rescission. The

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1 desire to maintain the “status quo” is specious, because the “status quo” of failing to accept new initial

2 DACA applications was created by the unlawful Rescission, which has now been set aside by the courts.

3

118. Third, the Wolf Memorandum is arbitrary and capricious, an abuse of discretion, and not

4 in accordance with law because it effectively doubles the fees for renewal applications without

5 explanation, and because the increase creates an inconsistency with a previous rulemaking.

6

119. Fourth, the Wolf Memorandum is arbitrary and capricious, an abuse of discretion, and

7 not in accordance with law because it continues a pattern of using the lives of DACA recipients as a

8 bargaining chip for Defendants’ political advantage with scant regard for the reliance interests at play.

9

120. Fifth, because Defendant Wolf has been unlawfully serving as purported Acting

10 Secretary of Homeland Security since November 13, 2019, he has no authority to take any actions in

11 that capacity. His purported issuance of the Wolf Memorandum is thus not in accordance with law, in

12 violation of the Homeland Security Act and Vacancies Reform Act, in violation of the Appointments

13 Clause, and is invalid and void.

14

121. The Edlow Memorandum is also arbitrary and capricious, an abuse of discretion, and

15 otherwise not in accordance with law because it: (1) was issued by an individual who did not have legal

16 authority to issue the Memorandum because Edlow was designated to serve in his position by Defendant

17 Wolf, who was and is unlawfully serving as Acting DHS Secretary, and (2) fails to offer a reasoned

18 basis for instructing the rejection of DACA renewal applications filed more than 150 days before the

19 applicant’s current DACA grant expires, and fails to consider the harmful consequences of the 150-day

20 rule—namely, that it will result in lapses in DACA protections and work authorization, and thus lapses

21 in employment and access to education and healthcare.

22

122. The University and its students were harmed and continue to be harmed by these

23 unlawful acts.

24

SECOND CLAIM FOR RELIEF

25

Agency Action Without Observance of Procedure Required by Law in Violation of 5 U.S.C. § 706(2)(D)

26

123.

The above paragraphs are incorporated herein by reference.

27

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1

124.

The APA requires courts to set aside agency action taken “without observance of

2 procedure required by law.” 5 U.S.C. § 706(2)(D).

3

125.

Under the APA, federal agencies must follow notice-and-comment rulemaking

4 procedures to promulgate substantive rules. See 5 U.S.C. § 553. The APA defines “rule” that is
5

6 substantive broadly to include:

7

the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe

8

law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the

9

future of rates, wages . . . .

10 5 U.S.C. § 551(4). A substantive rule is a rule that “impose[s] new rights or obligations by changing an

11 existing law.” Grier v. Hood, 46 F. App’x 433, 439 (9th Cir. 2002) (citations omitted).

12

126. The Wolf Memorandum constitutes a substantive rule subject to APA’s notice-and-

13 comment requirements because it effectively doubles the fees for renewal applications, and such fees are

14 required to be fixed via notice-and-comment rulemaking.

15

127. In issuing the Wolf Memorandum and imposing interim limiting modifications to DACA

16 that double the already steep fees, Defendants impermissibly announced a new rule without undertaking

17 notice-and-comment rulemaking.

18

128. The University and its students were harmed and continue to be harmed by these

19 unlawful acts.

20

THIRD CLAIM FOR RELIEF

21

Violation of Procedural Due Process Under the Fifth Amendment

22

129. The above paragraphs are incorporated herein by reference.

23

130. The Due Process clause of the Constitution provides that “[n]o person shall . . . be

24 deprived of life, liberty, or property, without due process of law[.]” Both UC students who are DACA

25 recipients and the University are “persons” who have constitutionally-protected interests within the

26 meaning of the Due Process Clause.

27

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1

131. First, UC students who are DACA recipients have constitutionally-protected interests in

2 the benefits that the DACA program provides them, including the ability to work, to pursue

3 opportunities in higher education, to more readily obtain driver’s licenses and access lines of credit, to

4 obtain jobs, and to access certain Social Security and Medicare benefits. These DACA recipients paid

5 for a two-year renewal application, but can now only receive benefits for one year. The terms of their

6 existing participant has been changed, depriving them of such benefits, with no forewarning.

7

132. Second, UC students with pending applications filed before the Wolf Memorandum

8 issued have a constitutional right to have notice and an opportunity to be heard under the Due Process

9 clause. Under the true status quo of the DACA program—as acknowledged by the Supreme Court in

10 Regents and the court in Casa de Maryland—Defendants were required to adjudicate new applications

11 for DACA, applications for two-year DACA renewals, and applications for advance parole.

12 Defendants’ outright retroactive rejection of those applications violates those otherwise-DACA eligible

13 applicants’ due process rights.

14

133. Third, the University also has constitutionally-protected interests in the multiple

15 educational benefits that flow from a diverse student body. Thousands of DACA students have earned

16 prized places as undergraduate and graduate students at the University of California through their record

17 of high—even extraordinary—personal achievement in high school and college. In reliance on DACA,

18 the University has chosen to make scarce enrollment space available to these students and to invest in

19 them substantial time, financial aid, research dollars, housing benefits, and other resources, on the

20 expectation that these students will complete their course of study and become productive members of

21 the communities in which the University operates, and other communities throughout the nation. If

22 these students leave the University before completing their education, UC will lose the benefits it

23 derives from their contributions, as well as the value of the time and money it invested in these students

24 with the expectation that they would be allowed to graduate and apply their talents in the United States

25 job market.

26

27

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1

134. The Wolf Memorandum and Edlow Memorandum unlawfully deprive both UC students

2 and the University of these and other constitutionally-protected interests without due process of law.

3 Such deprivation occurred with no notice or opportunity to be heard.

4

135. Defendants therefore have violated the Fifth Amendment to the United States

5 Constitution.

6

136. The University and its students were harmed and continue to be harmed by these

7 unlawful acts.

8

FOURTH CLAIM FOR RELIEF

9

Violation of the Appointments Clause, U.S. Const. art. II, § 2, cl. 2

10

137. The above paragraphs are incorporated herein by reference.

11

138. The Secretary of Homeland Security is a principal officer of the United States whose

12 appointment requires presidential nomination and Senate confirmation.

13

139. Defendant Wolf is purporting to perform the functions and duties of the office of

14 Secretary of Homeland Security even though he has not been confirmed by the Senate to hold that office

15 and there is no legal basis for him to exercise the functions and duties of that office.

16

140. Defendant Wolf’s exercise of those functions and duties without having been confirmed

17 by the Senate or otherwise having the legal authority to exercise them violates the Appointments Clause.

18 His purported issuance of the Wolf Memorandum is therefore invalid and void.

19

FIFTH CLAIM FOR RELIEF

20

Unlawful Appointment Under the Homeland Security Act, 6 U.S.C. §§ 112–13 and/or the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq.

21

141. The above paragraphs are incorporated herein by reference.

22

142. The Secretary of Homeland Security may be appointed by the president only with the

23 advice and consent of the Senate. 6 U.S.C. § 112(a)(1).

24

143. When the Office of the Secretary of Homeland Security is vacant, the order of succession

25 is governed by 6 U.S.C. § 113 and any lawful, valid agency succession orders issued pursuant to that

26 statute.

27

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29
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case No. 17-5211

Case 3:17-cv-05211-WHA Document 311 Filed 11/02/20 Page 30 of 32

1

144. Pursuant to those authorities, Defendant Wolf is not, and has never been, legally

2 authorized to hold the position of Acting Secretary, or to perform the functions and duties of that office.

3

145. Furthermore, Defendant Wolf’s purported service as Acting Secretary, and purported

4 exercise of the functions and duties of that office, are unlawful under the FVRA because the applicable

5 210-day time limit for an Acting Secretary to serve has expired (and had already expired at the time that

6 Defendant Wolf purported to assume the office of Acting Secretary). Since the applicable time limit

7 under the FVRA has expired, Defendant Wolf’s actions “shall have no force or effect” and “may not be

8 ratified.” 5 U.S.C. § 3348(d)(1)–(2).

9

146. Because Defendant Wolf is purporting to serve as Acting Secretary, and purporting to

10 perform the functions and duties of the Secretary of Homeland Security without having been confirmed

11 by the Senate, and without any other legal authority to do so, his purported issuance of the Wolf

12 Memorandum was ultra vires, and therefore invalid and void.

13

SIXTH CLAIM FOR RELIEF

14

Ultra Vires Agency Action

147. The above paragraphs are incorporated herein by reference.

15

148. Courts have equitable authority to enjoin ultra vires agency action. See, e.g., Larson v. 16

Domestic & Foreign Com. Corp., 337 U.S. 682, 689 (1949). 17

149. Because Defendant Wolf is purporting to serve as Acting Secretary, and purporting to

18

perform the functions and duties of the Secretary of Homeland Security without having been confirmed

19

by the Senate, and without any other legal authority to do so, his purported issuance of the Wolf

20

Memorandum was ultra vires, and therefore invalid and void.

21

RELIEF REQUESTED

22

WHEREFORE, Plaintiff respectfully request that this Court:

23

A. Vacate and set aside the Wolf Memorandum;

24

B. Vacate and set aside the Edlow Memorandum;

25

C. Declare that the Wolf Memorandum is void and without legal force or effect;

26

D. Declare that the Edlow Memorandum is void and without legal force or effect;

27

28
30
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case No. 17-5211

Case 3:17-cv-05211-WHA Document 311 Filed 11/02/20 Page 31 of 32

1

E. Declare that the Wolf Memorandum is arbitrary, capricious, an abuse of

2

discretion, otherwise not in accordance with law, and without observance of procedure required

3

by law in violation of 5 U.S.C. §§ 702–706;

4

F. Declare that the Edlow Memorandum is arbitrary, capricious, an abuse of

5

discretion, and otherwise not in accordance with law in violation of 5 U.S.C. §§ 702–706;

6

G. Declare that the Department of Homeland Security must consider new

7

applications from individuals who are eligible under the criteria set by the 2012 DACA

8

Memorandum;

9

H. Declare that the Wolf Memorandum is in violation of the Constitution and

10

contrary to the laws of the United States;

11

I. Declare that the Edlow Memorandum is in violation of the Constitution and

12

contrary to the laws of the United States;

13

J.

Declare that Defendant Wolf is not lawfully serving as Secretary of Homeland

14

Security or Acting Secretary of Homeland Security, and any policies, orders, or directives he

15

issues are void;

16

K. Declare that Edlow is not lawfully serving as USCIS Deputy Director for Policy,

17

and any policies, orders, or directives he issues are void;

18

L. Preliminarily and permanently enjoin and restrain Defendants, their agents,

19

servants, employees, attorneys, and all persons in active concert or participation with any of

20

them, from implementing or enforcing the Wolf Memorandum or the Edlow Memorandum and

21

from taking any other action to rescind DACA that is not in compliance with applicable law;

22

M. Preliminarily and permanently enjoin and restrain Defendant Wolf from

23

exercising or performing any of the powers or duties of the office of Secretary of Homeland

24

Security or Acting Secretary of Homeland Security, and from holding himself out as the

25

Secretary of Homeland Security or Acting Secretary of Homeland Security;

26

N. Grant such further relief as this Court deems just and proper.

27

28
31
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case No. 17-5211

Case 3:17-cv-05211-WHA Document 311 Filed 11/02/20 Page 32 of 32

1 DATED: November 2, 2020

COVINGTON & BURLING LLP

2

By: /s/ Jeffrey M. Davidson

3

Jeffrey M. Davidson (Bar No. 248620) Salesforce Tower

4

415 Mission Street, Suite 5400 San Francisco, CA 94105-2533

5

Telephone: + 1 (415) 591-6000 Facsimile: + 1 (415) 591-6091

6

Email: jdavidson@cov.com

7

Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case No. 17-5211

 
 Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 1 of 8

1 JEFFREY M. DAVIDSON (SBN 248620)

MATTHEW RODRIQUEZ

ALAN BERSIN (SBN 63874)

Acting Attorney General of California

2 COVINGTON & BURLING LLP

CHRISTINE CHUANG

One Front Street, 35th Floor

JAMES F. ZAHRADKA II (SBN 196822)

3 San Francisco, CA 94111-5356

Supervising Deputy Attorneys General

Telephone: (415) 591-6000

1515 Clay Street, 20th Floor

4 Facsimile: (415) 591-6091

Oakland, CA 94612-0550

Email: jdavidson@cov.com,

Telephone: (510) 879-1247

5 abersin@cov.com

Email: James.Zahradka@doj.ca.gov

Attorneys for Plaintiff The Regents of the

Attorneys for Plaintiff State of California

6 University of California

JOSEPH W. COTCHETT (SBN 36324)

7 THEODORE J. BOUTROUS, JR. (SBN 132099) JUSTIN T. BERGER (SBN 250346)

ETHAN D. DETTMER (SBN 196046)

COTCHETT, PITRE & McCARTHY, LLP

8 GIBSON, DUNN & CRUTCHER LLP

San Francisco Airport Office Center

333 South Grand Avenue

840 Malcolm Road, Suite 200

9 Los Angeles, CA 90071-3197

Burlingame, CA 94010

Telephone: (213) 229-7000

Telephone: (650) 697-6000

10 Facsimile: (213) 229-7520

Facsimile: (650) 697-0577

Email: tboutrous@gibsondunn.com,

Email: jberger@cpmlegal.com

11 edettmer@gibsondunn.com

Attorneys for Plaintiff City of San Jose

Attorneys for Plaintiffs Dulce Garcia, Miriam

12 Gonzalez Avila, Saul Jimenez Suarez, Norma

STACEY M. LEYTON (SBN 203827)

Ramirez, Jirayut Latthivongskorn, Marco

ALTSHULER BERZON LLP

13 Antonio Salinas Munoz, Dulce Berenice Vargas 177 Post Street, Suite 300

Baltazar, Ericka Lisseth Daniel Santellan, Grisel San Francisco, CA 94108

14 Guadalupe Chavez Diaz, and Felipe Alvarez

Telephone: (415) 421-7151

Carrillo

Facsimile: (415) 362-8064

15

Email: sleyton@altber.com

Attorneys for Plaintiffs County of Santa Clara and

16

Service Employees International Union Local 521

17

(Additional counsel listed on signature page)

18 UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

20 THE REGENTS OF THE UNIVERSITY OF

CASE NO. 17-CV-05211-WHA

21 CALIFORNIA,

STIPULATION RE: VACATION OF

22

Plaintiff,

DEADLINES AND STAY OF

23

v.

PROCEEDINGS PENDING DEFENDANTS’ ACTIONS PURSUANT TO JANUARY 20,

24 U.S. DEPARTMENT OF HOMELAND

2021 PRESIDENTIAL MEMORANDUM RE: DACA

25 SECURITY and ALEJANDRO MAYORKAS,1 in his official capacity as
26 Secretary of the Department of Homeland Security,

Judge:

Hon. William Alsup

Trial Date: None set

Action Filed: September 8, 2017

27
1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary of Homeland Security Alejandro 28 Mayorkas is automatically substituted as a Defendant in his official capacity for former Acting Secretary

of Homeland Security David Pekoske.

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 2 of 8

1 Defendants.
2 STATE OF CALIFORNIA, STATE OF MAINE, STATE OF MARYLAND, and
3 STATE OF MINNESOTA,

CASE NO. 17-CV-05235-WHA

4

Plaintiffs,

5

v.

6 U.S. DEPARTMENT OF HOMELAND
7 SECURITY; ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland
8 Security; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; JOSEPH
9 EDLOW, in his purported official capacity as Deputy Director for Policy of the U.S.
10 Citizenship and Immigration Services2; and UNITED STATES OF AMERICA,
11 Defendants.
12
CITY OF SAN JOSE, a municipal corporation, CASE NO. 17-CV-05329-WHA 13
Plaintiffs, 14
v. 15
JOSEPH R. BIDEN, President of the United 16 States, in his official capacity,3 ALEJANDRO
MAYORKAS, in his official capacity, and the 17 UNITED STATES OF AMERICA,

18

Defendants.

19

CASE NO. 17-CV-05380-WHA

DULCE GARCIA; MIRIAM GONZALEZ 20 AVILA; SAUL JIMENEZ SUAREZ;

NORMA RAMIREZ; JIRAYUT 21 LATTHIVONGSKORN; MARCO ANTONIO

SALINAS MUNOZ; DULCE BERENICE 22 VARGAS BALTAZAR; ERICKA LISSETH

DANIEL SANTELLAN; GRISEL 23 GUADALUPE CHAVEZ DIAZ; and FELIPE

ALVAREZ CARRILLO, 24

Plaintiffs, 25

v. 26

27

2 Joseph Edlow left the Department of Homeland Security in January of 2021, and the office he

formerly occupied is currently vacant.

28

3 Pursuant to Federal Rule of Civil Procedure 25(d), President Joseph R. Biden is automatically

substituted as a Defendant in his official capacity for former President Donald J. Trump.

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 3 of 8

1 UNITED STATES OF AMERICA; U.S.
2 DEPARTMENT OF HOMELAND SECURITY; ALEJANDRO MAYORKAS, in
3 his official capacity as Secretary of Homeland Security; JOSEPH EDLOW, in his official
4 capacity as purported DHS Deputy Director of Policy; and UNITED STATES CITIZENSHIP
5 AND IMMIGRATION SERVICES,

6

Defendants.

7
COUNTY OF SANTA CLARA and 8 SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521, 9
Plaintiffs, 10
v. 11
JOSEPH R. BIDEN, in his official capacity as 12 President of the United States; ALEJANDRO
MAYORKAS, in his official capacity as 13 Secretary of the Department of Homeland
Security; U.S. DEPARTMENT OF 14 HOMELAND SECURITY; JOSEPH
EDLOW, in his official capacity as Deputy 15 Director of Policy of USCIS; and U.S.
CITIZENSHIP AND IMMIGRATION 16 SERVICES,

17

Defendants.

18

19

20

21

22

23

24

25

26

27

28

CASE NO. 17-CV-05813-WHA

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 4 of 8

1

STIPULATION RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS

PENDING DEFENDANTS’ ACTIONS PURSUANT TO JANUARY 20, 2021

2

PRESIDENTIAL MEMORANDUM RE: DACA

3

Per Defendants’ filing on January 21, 2021, ECF No. 315, on January 20, 2021, President

4 Biden issued a memorandum entitled “Preserving and Fortifying Deferred Action for Childhood

5 Arrivals (DACA).” 86 Fed. Reg. 7053 (Jan. 25, 2021). In that memorandum, the President

6 instructed the Secretary of Homeland Security, in consultation with the Attorney General, to “take

7 all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.”

8 Id. at 7053. The Secretary of Homeland Security, in consultation with the Attorney General, is

9 currently working to implement the recent Presidential Memorandum, which may result in further

10 agency action that impacts the substantive and procedural aspects of this litigation.

11

In light of the above, to prevent the unnecessary expenditure of public resources, and to

12 promote judicial economy, the parties hereby stipulate to the following, and request that the

13 Court:

14

 Vacate all pending deadlines in this matter;

15

 Stay further proceedings in this matter pending further court order; and

16

 Order the parties to submit joint status reports every 60 days pending further court order,

17

with the first joint status report to be filed on May 24, 2021.

18 IT IS SO STIPULATED THIS 22 DAY OF MARCH, 2021

19

20

21

22

23

24

25

26

27

28
1
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 5 of 8

1 Dated: March 22, 2021

Respectfully submitted,

2 COVINGTON & BURLING LLP

MATTHEW RODRIQUEZ

Acting Attorney General of California

3 /s/ Jeffrey M. Davidson

4

JEFFREY M. DAVIDSON Attorneys for Plaintiffs The Regents of the

/s/ James F. Zahradka II JAMES F. ZAHRADKA II

5

University of California and Janet Napolitano, in Supervising Deputy Attorney General her official capacity as President of the University Attorneys for Plaintiff State of California

6

of California

AARON FREY

7 GIBSON, DUNN & CRUTCHER LLP

Attorney General of Maine KIMBERLY L. PATWARDHAN (pro hac

8 /s/ Ethan D. Dettmer ETHAN D. DETTMER
9

vice) Deputy Attorney General Attorneys for Plaintiff State of Maine

PUBLIC COUNSEL 10

BRIAN E. FROSH

11

/s/ Mark D. Rosenbaum MARK D. ROSENBAUM

Attorney General of Maryland STEVEN M. SULLIVAN (pro hac vice)

12 Attorneys for Plaintiffs Dulce Garcia, Miriam Solicitor General

Gonzalez Avila, Saul Jimenez Suarez, Norma

Attorneys for Plaintiff State of Maryland

13 Ramirez, Jirayut Latthivongskorn, Marco Antonio

Salinas Munoz, Dulce Berenice Vargas Baltazar, KEITH ELLISON

14 Ericka Lisseth Daniel Santellan, Grisel

Attorney General State of Minnesota

15 Guadalupe Chavez Diaz, and Felipe Alvarez Carrillo

JULIANNA F. PASSE (pro hac vice) Attorneys for Plaintiff State of Minnesota

16 COTCHETT, PITRE & McCARTHY, LLP
17

/s/ Justin T. Berger 18 JUSTIN T. BERGER
Attorneys for Plaintiff City of San Jose 19

20

21

22

23

24

25

26

27

28
2
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 6 of 8

1

ALTSHULER BERZON LLP

2

/s/ Stacey M. Leyton

STACEY M. LEYTON

3

Attorneys for Plaintiffs COUNTY OF

SANTA CLARA AND SERVICE

4

EMPLOYEES INTERNATIONAL

UNION LOCAL 521

5

JAMES R. WILLIAMS (SBN 271253)

6

County Counsel

GRETA S. HANSEN (SBN 251471)

7

LAURA S. TRICE (SBN 284837)

MARCELO QUIÑONES (SBN 279132)

8

HANNAH KIESCHNICK (SBN 319011)

OFFICE OF THE COUNTY COUNSEL

9

70 West Hedding Street, East Wing, Ninth

Floor

10

San Jose, California 95110

Telephone: (408) 299-5900

11

Facsimile: (408) 292-7240

Email: laura.trice@cco.sccgov.org,

12

marcelo.quinones@cco.sccgov.org,

hannah.kieschnick@cco.sccgov.org

13

/s/ Hannah Kieschnick

14

HANNAH KIESCHNICK

Attorneys for Plaintiff COUNTY OF

15

SANTA CLARA

16

17

BRIAN M. BOYNTON

Acting Assistant Attorney General

18

BRAD P. ROSENBERG

19

Assistant Branch Director

20 /s/ Stephen M. Pezzi

21

STEPHEN M. PEZZI (DC Bar #995500)

Trial Attorney

22

United States Department of Justice

Civil Division, Federal Programs Branch

23

1100 L Street, N.W.

24

Washington, DC 20005

Telephone: (202) 305-8576

25

Facsimile: (202) 616-8460

E-mail: stephen.pezzi@usdoj.gov 26

27

Attorneys for Defendants

28
3
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 7 of 8

1

[PROPOSED] ORDER

2

Pursuant to the parties’ stipulation, this Court hereby issues the following ORDER:

3

•

All pending deadlines in this matter are hereby VACATED;

4

•

All further proceedings in this matter are hereby STAYED pending further court

5 order; and

6

•

The parties are hereby ORDERED to submit joint status reports every 60 days

7 pending further court order, with the first joint status report due on May 24, 2021.

8

IT IS SO ORDERED.

9

10

____________________________

11

WILLIAM ALSUP UNITED STATES DISTRICT

12

JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 8 of 8

1

ATTESTATION OF SIGNATURES

2 I, James F. Zahradka II, hereby attest, pursuant to Local Civil Rule 5-1(i)(3) of the Northern
3 District of California that concurrence in the filing of this document has been obtained from each
4 signatory hereto.
5

6 Dated: March 22, 2021 7 8

/s/ James F. Zahradka II JAMES F. ZAHRADKA II Supervising Deputy Attorney General Attorney for State of California

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
5
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)