1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STATE OF TEXAS, et al.,

Plaintiff,

v.

JOSEPH R. BIDEN, JR., et al.,

Defendants.

Civ. Action No. 3:22-cv-00780-M

PLAINTIFF STATES’ RESPONSE IN OPPOSITION 

TO MOTION TO INTERVENE

FILED BY JESUS, ROSA, TIMOTEO, AND UZIAS

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TABLE OF CONTENTS

TABLE OF CONTENTS......................................................................................... 2

TABLE OF AUTHORITIES.....................................................................................3

I. SUMMARY OF ARGUMENT ...............................................................................5

II. THE PUTATIVE INTERVENORS ARE NOT ENTITLED TO INTERVENE 

AS A MATTER OF RIGHT .................................................................................8

A. Some Of the Putative Intervenors’ Claims Are Precluded ...............8

B. The Putative Intervenors’ Motion Is Not Timely............................11

C. The Putative Intervenors Interests Are Adequately 

Represented by the Defendants.......................................................13

III. THE PUTATIVE INTERVENORS SHOULD NOT BE GRANTED 

PERMISSIVE INTERVENTION..........................................................................19

IV. CONCLUSION.................................................................................................22

CERTIFICATE OF SERVICE ...............................................................................23

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TABLE OF AUTHORITIES

CASES

Argueta v. U.S. Immigration and Customs Enforcement, 

2009 WL 1307236, *10 (D. N. J. 2009) ..............................................................7

Armstrong v. O'Connell, 74 F.R.D. 429, 432 (E.+D. Wis. 1977)...........................11

Brackeen v. Zinker, 2018 WL 10561984, *4 (N. D. Tex. 2018).............................15

Brumfield v. Dodd, 749 F. 3d 339, 341 (5th Cir. 2014)........................8, 13, 18, 19

Bush v. Viterna, 740 F. 2d 350, 359 (5th Cir. 1984).............................................21

Daggett v. Comm’n on Governmental Ethics & Election Practices, 

172 F. 3d 104, 112 (1st Cir. 1999)....................................................................17

Davis v. Lifetime Capital, Inc.,

3:04-CV-00059, 2014 WL 1271149, at *2 (S.D. Ohio Mar. 27, 2014).........................13

Doe v. Duncanville Indep. Sch. Dist., 994 F. 2d 160, 168 (5th Cir. 1993) ...........16

Doe v. McKesson, 945 F. 3d 818 (5th Cir. 2019) .....................................................7

Doe v. Stegall, 653 F. 2d 180, 185 (5th Cir. 1981)..............................................................7

Edwards v. City of Houston, 78 F. 3d 983, 1005 (5th Cir. 1996) ...................14, 19

Entergy Gulf States La., L.L.C. v. EPA, 

817 F. 3d 198, 204–05 (5th Cir. 2016) .............................................................18

Franciscan Alliance, Inc. v. Burwell, 

2016 WL 9281524 (N.D. Tex. 2016).................................................................11

Gratz v. Bollinger, 183 F.R.D. 209, 215 (E.D. Mich. 1998) ..................................12

Hopwood v. State of Texas, 21 F. 3d 603 (5th Cir. 1994)................................12, 16

Ingebretsen v. Jackson Pub. Sch. Dist., 

88 F. 3d 274, 281 (5th Cir. 1996) .........................................................16, 20, 21

In re DeLap, 44 B.R. 21 (BANKR. W. D. WIS. 1984)................................................12

June Medical Services, LLC v. Phillips, 22 F. 4th 512, 520 (5th Cir. 2022)...........7

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League of Women Voters of Michigan v. Johnson, 

2:17-CV-14148, 2018 WL 6272041, at *1 (E.D. Mich. Nov. 30, 2018)............12

New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 

732 F. 2d 452, 470–71 (5th Cir. 1984) .......................................................20, 21

Pruett v. Harris Cnty. Bail Bond Bd., 104 F. App’x 995, 997 (5th Cir. 2004) .....20

S.A. v. Trump (Trump II), 

No. 18-cv-03539, 2019 WL 990680 (N.D. Cal. Mar. 1, 2019)......................8, 10

S.A. v. Trump (Trump I), 

363 F. Supp. 3d 1048, 1055 (N.D. Cal. 2018) ....................................................9

S.A. v. Trump (Trump III), 

No. 18-cv-03539, 2019 WL 1593229 (N.D. Cal. 2019).......................................5

Staley v. Harris Cnty., Tex., 160 F. App’x 410, 414 (5th Cir. 2005).....................20

Stallworth v. Monsanto Co., 558 F. 2d 257, 265 (5th Cir. 1977)..........................11

Texas v. United States, 805 F. 3d 653, 662-63 (5th Cir. 2015)...........13, 14, 17, 18

United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977) ..............................12

U.S. Commodity Futures Trading Commission v. Privatefx Global One, 

2010 WL 11468801 (S.D. Tex. 2010)................................................................11

United States v. S. Fla. Water Mgmt. Dist., 

922 F. 2d 704, 711–12 (11th Cir. 1991) ...........................................................21

United States v. Tex. E. Transmission Corp., 

923 F. 2d 410, 416 (5th Cir. 1991) ...................................................................20

Veasey v. Perry, 577 Fed. Appx. 261, 262 (5th Cir. 2014) ................................8, 14

Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 

834 F. 3d 562, 569 (5th Cir. 2016) ...................................................................18

STATUTORY LAWS

Fed. R. Civ. P. 24 ........................................................................................... passim

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I. SUMMARY OF ARGUMENT

The Putative Intervenors, using the pseudonyms “Jesus,” “Rosa,” “Timoteo,” 

and “Uzias”1 (collectively, the “Putative Intervenors”) present a rather complicated 

request to intervene in this straightforward predominantly Administrative Procedure 

Act (APA) case. They do not qualify for intervention as a matter of right under Rule 

24(a) of the Federal Rules of Civil Procedure, nor do they merit permissive 

intervention under Rule 24(b). 

As to intervention of right, the claims for parole of at least two of the four

Putative Intervenors’ (Jesus and Rosa) under the Central American Minors (CAM) 

Program2 have already been granted and are, therefore, res judicata and precluded 

from revisitation by this Court. See S.A. v. Trump, No. 18-cv-03539, 2019 WL 1593229 

(N.D. Cal. 2019) (S.A. III). Additionally, the California District Court granting that 

relief maintains continuing jurisdiction over enforcement of the injunction granted in 

the case. Any concern that Jesus and Rosa have that their sons might not arrive in 

the United States in the future3 must be litigated in the Northern District of 

1 These are not the actual names of the Putative Intervenors. A Motion to Proceed Under Pseudonyms 

has been filed by the Putative Intervenors and the Court has not yet requested a response. See Order 

dated March 29, 2022, requesting only a response to the Motion to Intervene. ECF 29. Answering that 

motion adds an additional, collateral, unnecessary, and burdensome issue to the case, a fact also 

weighing against intervention. See discussion at p. 17.

2 There are three iterations of the CAM Program: 1) the CAM Program under the Obama 

Administration, 2) the termination of the parole portion of the CAM Program by the Trump 

Administration which was reversed in part by the Northern District of California, and 3) the CAM 

Program under the Biden Administration. Each of these iterations are different. This lawsuit only 

relates to the Biden Administration’s CAM Program.

3 It is unclear from the Putative Intervenors’ motion whether Rosa’s son is still in El Salvador or 

whether he is now in the United States. In her affidavit, however, she admits that her son arrived in 

the United States in September 2021. Thus, her entire family appears to be now in the United States.

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California, not here. In addition to res judicata and the lack of jurisdiction of this 

court over their claims, the prior relief certainly removes any “interest relating to” 

the subject matter of this lawsuit.

Second, the Putative Intervenors’ motion is not timely—it is premature. 

President Biden and his administration have not even filed an answer in this case.

4

There have been no motions filed—injunctive or otherwise. No administrative record 

has been filed. It is simply premature, at this early point, for the Putative Intervenors 

to assert that President Biden and his administration will not adequately represent 

their interests or that they do not share the same ultimate objective. Without 

knowing the Defendants’ position, they cannot possibly carry their burden at this 

time.

Third—even if their motion is timely—the Putative Intervenors do not carry 

their burden to show that their interests diverge from those of President Biden and 

his administration or that he will not adequately represent their interests while 

defending his prized program. Rather, they share the same ultimate objective to have 

this Court uphold the Biden CAM Program in all its respects. The thrust of the 

Putative Intervenors’ argument is that they should be allowed to intervene for 

“humanitarian” reasons. But there is no legal basis for intervention to represent 

humanitarian concerns and, even if there were, as the Putative Intervenors 

recognize, President Biden and his administration must represent those interests in 

defending their program—the CAM program explicitly requires it (refugee officers 

4 The Defendants’ Answer is due May 8, 2022.

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must consider whether an applicant qualifies for parole for “urgent humanitarian 

reasons”). There is simply no reason to believe that, to the extent humanitarianism 

is relevant, the Defendants will not represent those interests of the Putative 

Intervenors while pursuing the same shared objective of having the Program upheld

in toto. 

For the same reasons, the Putative Intervenors should not be granted 

permissive intervention under Rule 24(b). At the outset, the existence of parties that 

adequately represent the Putative Intervenors’ interests—President Biden and his 

administration–undercuts their permissive-intervention request. Their intervention 

adds no benefit to this case and, to the extent they have personal information that 

might be useful to the Court, that interest can be appropriately served with an amicus

brief. Beyond that, the addition of the Putative Intervenors as parties to this case 

would inject unnecessary factual and witness credibility issues into an otherwise 

straightforward APA case thereby forcing the Plaintiff States, the Defendants, and 

the Court to expend unnecessary time and resources responding to their arguments.5

5 For example, the first additional issue that their intervention will inject into this case is whether the 

Putative Intervenors should be allowed to proceed anonymously. Without waiving any right to further 

respond when this Court requests, Plaintiff States would point out that “[p]ublic access to this

information is more than a customary procedural formality; First Amendment guarantees are 

implicated when a court decides to restrict public scrutiny of [any aspect of] judicial proceedings.” Doe 

v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). See also Doe v. McKesson, 945 F.3d 818 (5th Cir. 2019)

(affirming denial of pseudonyms) rev. on other grounds McKesson v. Doe, 141 S.Ct. 48 (2020) (“What 

transpires in the court room is public property”) (internal citation omitted). “[N]on-disclosure of 

identity of [Putative Intervenors] undermines public confidence and trust.” Argueta v. U.S. 

Immigration and Customs Enforcement, 2009 WL 1307236, *10 (D. N. J. 2009). It is an “exceptional 

case in which the need for party anonymity overwhelms the presumption of disclosure mandated by 

procedural custom.” Stegall, 653 F.2d. at 185. Additionally, Plaintiffs have a due process right to know 

the identity of opposing parties. Argueta, 2009 WL 1307236, *10. 

Furthermore, parties are not allowed “to proceed anonymously based on generalized concerns.” June 

Medical Services, LLC v. Phillips, 22 F.4th 512, 520 (5th Cir. 2022). “It is the solemn duty of the judge 

to scrupulously examine [the basis for anonymity]. It is not easy, but it is fundamental.” Id. at 521. All 

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Should it appear that their interests are not being adequately represented by 

President Biden and his administration in the future, nothing forecloses them from 

applying for intervention at that time.

II. THE PUTATIVE INTERVENORS ARE NOT ENTITLED TO INTERVENE 

AS A MATTER OF RIGHT

A party seeking to intervene as of right must satisfy four requirements: 

(1) the application must be timely; (2) the applicant must have an 

interest relating to the property or transaction that is the subject of the 

action; (3) the applicant must be so situated that the disposition of the 

action may, as a practical matter, impair or impede its ability to protect 

its interest; and (4) the applicant’s interest must be inadequately 

represented by the existing parties to the suit. 

Veasey v. Perry, 577 Fed. Appx. 261, 262 (5th Cir. 2014) (per curiam) citing Brumfield 

v. Dodd, 749 F. 3d 339, 341 (5th Cir. 2014) (citations omitted); Fed. R. Civ. P. 24(a)(2).

The Putative Intervenors fail to meet these requirements in at least three different 

ways.

A. Some of the Putative Intervenors’ Claims Are Precluded

As acknowledged by the Putative Intervenors, the CAM parole claims for the 

children of at least two of the four Putative Intervenors (Jesus and Rosa), have 

already been granted. See ECF 19, p. 226 (Jesus and Rosa are “S.A. settlement 

beneficiaries”) (citing S.A. v. Trump, No. 18-cv-03539, 2019 WL 990680 (N.D. Cal. 

Mar. 1, 2019) (S.A. II)). In S.A., the plaintiffs were “parents lawfully residing in the 

four of the Putative Intervenors request anonymity, each for different reasons. The facts surrounding

the need for anonymity must be “scrupulously examined” to determine source, credibility, severity, 

context, and more. This requires a hearing and could require discovery. It is a time-consuming process

that will complicate and further delay a straightforward proceeding and create additional and 

unnecessary burdens on Plaintiff States.

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United States who applied to the CAM Program,6 their beneficiary children in 

Northern Triangle countries, and the nonprofit immigrant rights organization, 

CASA.” See S.A. v. Trump, 363 F. Supp. 3d 1048, 1055 (N.D. Cal. 2018) (S.A. I). They 

filed a putative class action suit against the same departments as in this lawsuit. 

The plaintiffs there alleged that the government’s termination of the CAM 

Parole Program and its rescission of conditional approvals of parole were unlawful. 

They requested a preliminary injunction, and the defendants filed a motion to 

dismiss. The court considered the motion to dismiss first and allowed the plaintiffs’

APA claims as they related to the government’s mass rescission of conditional 

approvals of parole to move forward but dismissed all other claims by plaintiffs, 

including the termination of the CAM Program. See S.A. I, 363 F. Supp. 3d at 1055, 

1096. Less than three months later, the court granted the motion for preliminary 

injunction and 1) vacated DHS’s “decision to mass-rescind conditional approvals for 

the 2,714 beneficiaries conditionally approved for parole but who had not traveled to 

the United States;” 2) ordered DHS to “continue the post-conditional-approval 

processing for those beneficiaries under the policies and procedures that it had in 

place prior to January 2017;”

7 3) enjoined DHS from “adopting any policy, procedure, 

or practice to not process the beneficiaries or to place their processing on hold en 

masse;” and 4) ordered DHS to submit a “plan for resuming processing of those 2,714 

6 Counsel for the Putative Intervenors, the International Refugee Assistance Project, Linda Evarts, 

Kathryn Meyer, and Mariko Hirose in particular, represented the parents and children in S.A. and 

participated in the court implemented settlement agreement ultimately agreed to.

7 https://www.uscis.gov/archive/central-american-minors-cam-information-for-parole-applicants.

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beneficiaries with benchmarks for assessing compliance.” S.A. II, 2019 WL 990680, 

*13–14.

A little over two months later, the parties entered into a Binding Memorandum 

of Agreement which was subsequently adopted as an Order of the Court (ECF 91) 

and, on May 17, 2019 the Court entered its Stipulated Final Judgment and Order for 

Permanent Injunction in the case issuing a final injunction on the above terms and, 

in accordance with the parties agreement, retaining “continuing jurisdiction to 

enforce [the permanent] injunction and the Parties’ Agreement.” S.A., No. 18-cv03539, ECF 99 at 4. The Defendants have since filed twelve quarterly reports setting 

forth the problems, especially caused by COVID-19 travel and quarantine restrictions 

in the United States and the Northern Triangle countries, in getting medical exams, 

approvals, and travel over the two years following the entry of the final judgment.8

As of March 14, 2022, 2051 applicants have been directly notified of their approval 

for parole, 2,031 have received medical exams, 1,665 have been cleared for travel, and 

1,578 applicants have travelled to the United States. See S.A, No. 18-cv-03539, ECF 

114. Although Jesus’ son, apparently, has not yet travelled to the United States, he 

still has the right to come here protected under the final judgment in S.A.

As the Putative Intervenors recognize, Jesus, Rosa, and their sons are intended 

beneficiaries of the Obama CAM Program. Their claims to parole pursuant to that 

program have been recognized and protected pursuant to the final judgment of the 

U.S. District Court for the Northern District of California in S.A. v. Trump. These 

8 See Quarterly Reports at ECF 102-114.

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claims are, therefore, res judicata and thus precluded from revisitation by this Court.

The Northern District of California maintains continuing jurisdiction over 

enforcement of the injunction it granted in that case. Any concern that Jesus has that 

his son might not arrive in the United States in the future must be litigated there. 

B. The Putative Intervenors’ Motion Is Not Timely9

Whether Jesus and Rosa’s motion is subject to claim preclusion or an objection 

to the jurisdiction of this court, they—and Timoteo and Uzias—have filed their 

motion prematurely. 

The Fifth Circuit has cautioned against granting premature motions to

intervene, because there may not be enough reliable information early in the lawsuit 

to evaluate the motion. See Stallworth v. Monsanto Co., 558 F. 2d 257, 265 (5th Cir.

1977). Numerous courts have denied motions to intervene on that ground. See, e.g., 

Franciscan Alliance, Inc. v. Burwell, 2016 WL 9281524 (N.D. Tex. 2016) (“considering 

the motion to intervene after Defendants file their answer will ‘provide the Court 

with enough information to determine whether the Putative Intervenors have met 

their burden to show that their interests are inadequately represented.”); U.S. 

Commodity Futures Trading Commission v. Privatefx Global One, 2010 WL 11468801 

(S.D. Tex. 2010) (“Since the Receiver has yet to file a plan for distribution, the court 

agrees that intervention would be premature.”); Armstrong v. O'Connell, 74 F.R.D. 

9 The Plaintiff States here raise the prematurity of the motion as part of their timeliness argument 

but also realize that many courts only consider dilatory filings as “untimely.” All courts recognize, 

however, that the prematurity of the filing contributes to intervenors inability to prove that one of the 

parties will not adequately represent their interests. The Plaintiff States reargue the prematurity of 

the filing, again, in Part C of this Response.

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429, 432 (E.D. Wis. 1977) (“The critical inquiry here is whether or not on the facts of 

this case the petition is premature.”); League of Women Voters of Michigan v. 

Johnson, 2:17-CV-14148, 2018 WL 6272041, at *1 (E.D. Mich. Nov. 30, 2018)

(“Legislative Intervenors’ Motion is premature, because they merely ‘speculate about 

the ‘possibility’ that the executive branch will end its participation in this matter.’”); 

Gratz v. Bollinger, 183 F.R.D. 209, 215 (E.D. Mich. 1998), rev’d sub nom. Grutter v. 

Bollinger, 188 F.3d 394 (6th Cir. 1999); Hopwood v. State of Texas, 21 F.3d 603 (5th 

Cir. 1994) (denying motion for intervention on behalf of the Thurgood Marshall Legal 

Society and the Black Pre–Law Association in a lawsuit challenging the University 

of Texas Law School’s affirmative action program); In re DeLap, 44 B.R. 21 (Bankr. 

W. D. Wis. 1984) citing United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977)

(“As soon as First learned that its interests would no longer be protected by the 

Trustee, it moved to intervene. Accordingly, the motion to intervene was timely. 

Indeed, an earlier motion would have been premature.”).

The Fifth Circuit’s words of caution should be persuasive here. There is not 

enough reliable information, at this point, to evaluate the motion. The Defendants

have not even filed an answer in this case.10 While the Putative Intervenors have 

filed a proposed answer, there is nothing to compare it to. There have been no 

motions—injunctive or otherwise. The Defendants have not filed an administrative 

record. There is simply no way to determine, at this early point, whether the 

Defendants will adequately represent the interests of the Putative Intervenors or if 

10 The Defendants’ Answer is due on May 8, 2022.

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they have the same ultimate objective. The Putative Intervenors carry the burden of 

proving that their interests diverge from the Defendants’ interests. Without knowing 

the position of the Defendants, they cannot carry that burden. This is because their 

Motion to Intervene has been prematurely filed.11

C. The Putative Intervenors Interests Are Adequately Represented by 

the Defendants

To meet the fourth requirement of mandatory intervention, the Putative 

Intervenors must do more than identify a purported harm to their interests that 

would be inflicted by the remedies sought in this suit. Instead, they bear the burden

to demonstrate “that the representation of [their] interest [by the existing parties] 

may be inadequate.” Texas v. United States, 805 F.3d 653, 661 (5th Cir. 2015) 

(citations and quotations omitted); Brumfield, 749 F.3d at 341 (citation and 

quotations omitted). The Putative Intervenors must overcome two presumptions of 

adequate representation. The first presumption arises where “the would-be 

intervenor has the same ultimate objective as a party to the lawsuit.” Texas, 805 F.3d 

at 662-63 (citation omitted). If the first presumption applies, “the applicant for 

intervention must show adversity of interest, collusion, or nonfeasance on the part of 

the existing party to overcome the presumption.” Id. 

The second presumption arises “when the putative representative is a 

governmental body or officer charged by law with representing the interests of the 

11 The Putative Intervenors can always file a motion to intervene once it becomes evident that their 

interests are not being adequately represented. Davis v. Lifetime Capital, Inc., 3:04-CV-00059, 2014 

WL 1271149, at *2 (S.D. Ohio Mar. 27, 2014) (“A court cannot squeeze a proposed intervenor from both 

ends by first ruling a motion to intervene premature and then ruling a second motion to intervene too 

late.”).

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[intervenor].” Id. If the second presumption applies, the Putative Intervenors must 

show “that [their] interest is in fact different from that of the [governmental entity] 

and that the interest will not be represented by [it].” Texas, 805 F.3d at 662 (citations 

and internal quotation marks omitted). In either case, the Putative Intervenors must 

carry the burden to prove to the Court that their interest is adverse to or different 

from that of the Defendants. Edwards v. City of Houston, 78 F.3d 983, 1005 (5th Cir. 

1996) (en banc) (citation omitted). 

The Fifth Circuit has emphasized that the burden to show inadequate 

representation “cannot be treated as so minimal as to write the requirement 

completely out of the rule.” Texas, 805 F.3d at 661 (citations and quotations omitted). 

The inadequate representation requirement “must have some teeth.” Veasey, 577 F. 

App’x at 263 (affirming denial of motion to intervene). The proper inquiry focuses not 

on whether there is any variation in the interests of the Putative Intervenors 

compared to the Defendants, but on whether the same outcome would serve those 

alleged interests. 

In their intervention request, the Putative Intervenors point to harms to them 

if the parole aspect of the CAM Program is enjoined. In their affidavits, the Putative 

Intervenors mention a desire to reunite with their family and, in some instances, fear 

for the safety of their family member(s). They each state that the reason they want 

to participate in this case is “to defend the CAM program.” Putative Intervenors

Appendix of Authorities, ECF 21 (Affidavit of Jesus, ECF 21, p. 14; Affidavit of Rosa, 

ECF 21, p. 28; Affidavit of Timoteo, ECF 21, p. 40; Affidavit of Uzias, ECF 21, p. 52.).

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The thrust of the Putative Intervenors’ argument is that they should be allowed to 

intervene for “humanitarian” reasons.

The Putative Intervenors “have not demonstrated any reason to think the 

federal government will not zealously defend its own laws,” including the 

requirement to consider “urgent humanitarian reasons” for granting parole. Brackeen 

v. Zinker, 2018 WL 10561984, *4 (N. D. Tex. 2018). As Vice President, “[President] 

Biden championed the creation and expansion of ... the Central American Minors 

program, which allowed parents with legal status in the U.S. to apply to bring their 

children up from Central America to live with them; and the creation of a White 

House task force to support new Americans and help them integrate into their new 

homes and communities.” He also “spearheaded the administration’s efforts in El 

Salvador, Guatemala, and Honduras—bringing high-level attention to these issues 

and securing bipartisan support for a $750 million aid package to help the Northern 

Triangle countries implement critical, concrete reforms.” The Biden Plan for Securing 

Our Values as a Nation of Immigrants, Joe Biden for President: Official Campaign 

Website, https://joebiden.com/immigration/. 

As President, Biden has listed immigration as one of his “immediate priorities.” 

The Biden-Harris Administration Immediate Priorities, Priorities/The White House, 

https://whitehouse.gov/priorities/. He has also promised to “order an immediate 

review of Temporary Protected Status (TPS) for vulnerable populations who cannot 

find safety in their countries ripped apart by violence or disaster” and to offer “holders 

who have been in the country for an extended period of time and built lives in the 

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U.S. ... a path to citizenship....” Id. He has appointed his vice-president, Kamala 

Harris, as his immigration “czar.” She has been tasked with finding the “root causes 

of migration in Central America” based on an executive order from the President. 

Fact Sheet: Strategy to Address the Root Causes of Migration I Central America, 

Statements and Releases, July 29, 2021, https://www.whitehouse.gov/briefingroom/statements-releases/2021/07/29/fact-sheet-strategy-to-address-the-root-causesof-migration-in-central-america/.

There is simply no reason to believe that President Biden and his 

administrative officials, while defending one of their own strongly supported 

initiatives, will not adequately represent humanitarian interests—including the 

desires of the Putative Intervenors to be reunited with their children and protect their 

safety. The Putative Intervenors and the Defendants share in the same ultimate 

objective: to have President Biden’s newly created Central American Minors Program 

upheld. See, e.g., Doe v. Duncanville Indep. Sch. Dist., 994 F. 2d 160, 168 (5th Cir. 

1993) (affirming denial of motion to intervene by class of schoolchildren who sought

“the same outcome” as defendant school district); Ingebretsen v. Jackson Pub. Sch. 

Dist., 88 F. 3d 274, 281 (5th Cir. 1996) (noting that the Attorney General, in defending 

the statute at issue, could assert the rights of all Mississippians affected by the law,

including the intervenors); Hopwood, 21 F. 3d at 605-606 (intervenors argued that 

the defendants’ interests were broader than the intervenors’ interests but the Court 

rejected that because the intervenors had not demonstrated that the defendant would 

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not strongly defend its program nor had they shown they had a separate defense of 

the program that the defendant was failing to assert.)

To answer that, the Putative Intervenors assert that the Federal Defendants 

may not “fully represent” their interests because “as government entities and 

officials, they must represent the broad public interest.” ECF No. 19 at 16. But both 

the Fifth and First Circuits have held that a putative intervenor must assert more 

than a general or abstract claim of a broader public interest. See, e.g., Texas, 805 F.3d 

at 663; Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 

104, 112 (1st Cir. 1999). The Putative Intervenors must “connect the allegedly 

divergent interests with any concrete effects on the litigation.” Texas, 805 F.3d at 662. 

They must “demonstrate[] that the [defendants] will not strongly defend its [CAM]

program” or that “they have a separate defense of the [CAM Program] that the 

[defendants] have failed to assert.” Id. They have not and cannot do this.

The result in Texas v. United States is distinguishable from this case. There, 

prospective DAPA recipients sought to intervene in defense of the challenged 

deferred-action program. Texas, 805 F.3d at 655. The Fifth Circuit allowed the 

intervention, holding that the Jane Does rebutted any presumption that the federal 

government adequately represented their interests. Id. At 661–63. The Jane Does did 

so by showing adversity of interest—i.e., that their “interests diverge[d] from the 

putative representative’s interests in a manner germane to the case.” Id. At 662. The

Fifth Circuit pointed to the federal government’s position “that the States may refuse 

to issue driver’s licenses to deferred action recipients.” Id. At 663. This position was 

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“directly adverse to the Jane Does,” whose “interest is in working and providing for 

their families, for which a driver’s license is beneficial.” Id. (emphasis added); see also 

Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562, 569 (5th Cir. 

2016) (private association seeking to intervene as defendant did not intend to defend 

all challenged statutory provisions, whereas the state agency did); Entergy Gulf 

States La., L.L.C. v. EPA, 817 F.3d 198, 204–05 (5th Cir. 2016) (parties’ divergent 

approach on issues germane to the case—whether to stay or bifurcate the 

proceeding—warranted intervention); Brumfield, 749 F.3d at 346 (“[T]he parents are 

staking out a position significantly different from that of the state, which apparently 

has conceded the continuing jurisdiction of the district court.”). 

As argued above, the Defendants have filed no pleadings in this case and, thus, 

have not evidenced–other than through their public statements and actions to 

recreate the CAM Program–what their positions in this case will be. Thus, the 

Putative Intervenors’ arguments are without any basis and fail to demonstrate any 

likelihood they would take any positions adverse to the Federal Defendants, much 

less that their interests may diverge “in a manner germane to the case.” Texas, 805 

F. 3d at 662–63; Entergy Gulf States La., 817 F.3d at 204–05. Nor have the Putative

Intervenors indicated that President Biden and his administration will defend only 

certain portions of the CAM Program. See Wal-Mart Stores, 834 F.3d at 569. Nor can 

the Putative Intervenors claim that they will more intensely push certain arguments. 

A review of the Putative Intervenors’ Proposed Answer shows no argument, including 

an affirmative defense, that President Biden and his administration would not be 

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expected to make. In fact, it indicates a lack of knowledge and information about the 

issues and facts in the case (a claim of lack of knowledge or information was made 26 

times in the Putative Intervenors Proposed Answer). The Putative Intervenors have

not shown that their defense of the CAM Program would be “significantly different”

on the substance than that of the Defendants in any meaningful way. See Brumfield,

749 F.3d at 346. Any speculation as to future contingencies, given that no pleadings 

have been filed, is not sufficient to overcome the presumption of adequate 

representation.

Moreover, to the extent that the Fifth Circuit has curtailed in any way the 

presumption of adequacy of representation when the government is defending a case, 

see Edwards, 78 F.3d at 1005, it has only done so in cases not involving a “sovereign 

interest.” But in no area is the “sovereign interest” presumption more relevant than 

in an immigration case—a subject that involves the apex of acts of sovereignty. This, 

alone, should result in a denial of the Purported Intervenors’ intervention as a matter 

of right. 

The Putative Intervenors have simply not rebutted the presumptions that the 

Defendants will adequately represent their interests in this suit; they are, therefore,

not entitled to intervene as a matter of right under Rule 24(a) of the Federal Rules of 

Civil Procedure. 

III. THE PUTATIVE INTERVENORS SHOULD NOT BE GRANTED PERMISSIVE 

INTERVENTION.

Likewise, the Putative Intervenors’ request for permissive intervention fails. 

Permissive intervention is “wholly discretionary” and can be denied even if there is a 

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common question of law or fact. New Orleans Pub. Serv., Inc. v. United Gas Pipe Line 

Co., 732 F.2d 452, 470–71 (5th Cir. 1984) (en banc) (“NOPSI”). The Fifth Circuit has 

“never reversed a denial of permissive intervention.” Ingebretsen, 88 F.3d at 281 

(citation and quotations omitted).12 At the same time, it has repeatedly affirmed the 

denial of a permissive-intervention request. See, e.g., Staley v. Harris Cnty., Tex., 160 

F. App’x 410, 414 (5th Cir. 2005) (per curiam); Pruett v. Harris Cnty. Bail Bond Bd., 

104 F. App’x 995, 997 (5th Cir. 2004) (per curiam).

Rule 24(b) provides that courts “must consider whether the intervention will 

unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. 

P. 24(b)(3). And, in exercising their discretion, district courts can consider whether 

the Putative intervenor will “significantly contribute to full development of the 

underlying factual issues in the suit.” NOPSI, 732 F.2d at 472 (citations and 

quotations omitted). 

The Putative Intervenors should not be granted permissive intervention. As 

discussed earlier, they cannot rebut the presumption of adequate representation. 

That alone justifies denying their request as unnecessary and needlessly 

complicating this straightforward APA case. See, e.g., Staley, 160 F. App’x at 414 

(denial of permissive intervention was proper where another party “adequately 

represents [intervenor’s] interests in this case”); United States v. Tex. E. 

Transmission Corp., 923 F. 2d 410, 416 (5th Cir. 1991) (same).

12 Plaintiffs are aware of no Fifth Circuit case after Ingebretsen reversing a district court’s denial of a 

Rule 24(b) motion.

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What is more, the Putative Intervenors add absolutely nothing to this case 

except undue burden on the other parties and potential delay. See Ingebretsen, 88 

F.3d at 281 (finding that district court did not err in denying permissive intervention 

that brought no new issues and would have achieved no purpose aside from delay). 

Their intervention injects factual, collateral, unnecessary issues, including 

credibility, into this case and will require additional proceedings burdening Plaintiff 

States, the Defendants, and the Court. See United States v. S. Fla. Water Mgmt. Dist., 

922 F.2d 704, 711–12 (11th Cir. 1991) (affirming denial of permissive intervention 

that would have increased the number of witnesses and collateral issues).

In these circumstances, the Fifth Circuit recognized the proper role for such 

putative intervenors: 

Additional parties always take additional time. Even if they have no 

witnesses of their own, they are the source of additional questions, 

briefs, arguments, motions and the like which tend to make the 

proceeding a Donnybrook Fair. Where he presents no new questions, a 

third party can contribute usually most effectively and always most 

expeditiously by a brief amicus curiae and not by intervention. 

Bush v. Viterna, 740 F.2d 350, 359 (5th Cir. 1984) (per curiam) (citation and 

quotations omitted) (affirming denial of county association’s motion for permissive 

intervention as defendant in statewide challenge to county-jail conditions). That is 

precisely the situation that the Putative Intervenors’ request presents here. Plaintiff 

State of Texas has no objection to the Putative Intervenors’ participation as amicus 

curiae. See id.; NOPSI, 732 F. 2d at 473. But intervention is unwarranted. 

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IV. CONCLUSION

Two of the Putative Intervenors have claim preclusion and jurisdictional issues 

and none of the Putative Intervenors have shown the adversity of interest or differing 

ultimate objectives needed to overcome the presumptions of adequate representation

by President Biden and his administration in this case. Their presence at this point 

would only needlessly complicate the litigation and add nothing of any substance. 

The Motion for Intervention should be denied.

Respectfully submitted this the 11th day of April 2022,

GENE P. HAMILTON

Virginia Bar No. 80434

Vice-President

and General Counsel

America First Legal Foundation

300 Independence Avenue SE

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

AARON REITZ

Deputy Attorney General for Legal

 Strategy

RYAN D. WALTERS, 

 Tx. Bar No. 24105085

Attorney-in-charge

 Special Counsel, Special Litigation

/s/ Michelle Ward Ghetti 

___________________________________

MICHELLE W. GHETTI, 

 Tx. Bar No. 04342300

Special Counsel for Legal Strategy

Office of the Attorney General

PO Box 12548 (MC 009)

Austin, TX 78711-2548

Tel: (512) 463-4139

Fax: (512) 474-2697

Aaron.Reitz@oag.texas.gov

Ryan.Walters@oag.texas.gov

Michelle.Ghetti@oag.texas.gov

Counsel for the Plaintiff States

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CERTIFICATE OF SERVICE

I certify that a true and accurate copy of the foregoing document was filed 

electronically (via CM/ECF) on April 11, 2022. A courtesy copy was sent to the 

Putative Intervenors and Defendants on that same date.

/s/ Michelle W. Ghetti

_______________________________________

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