Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 1 of 24 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________________ ) STATE OF TEXAS, et al. ) ) Plaintiffs, ) ) No. 1:14-cv-254 v. ) ) UNITED STATES OF AMERICA, et al. ) ) Defendants. ) __________________________________________) DEFENDANTS’ EMERGENCY EXPEDITED MOTION TO STAY THE COURT’S FEBRUARY 16, 2015 ORDER PENDING APPEAL AND SUPPORTING MEMORANDUM Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 2 of 24 TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF THE ARGUMENT .................................................... 1 NATURE AND STATE OF THE PROCEEDING ........................................................................ 3 STATEMENT OF THE ISSUES AND STANDARD OF REVIEW ............................................ 4 ARGUMENT .................................................................................................................................. 5 I. DEFENDANTS HAVE A SUBSTANTIAL LIKELIHOOD OF PREVAILING ON THEIR APPEAL FROM THE PRELIMINARY INJUNCTION, AND AT A MINIMUM, A SUBSTANTIAL CASE ON APPEAL ...................................................... 5 II. THE GOVERNMENT WILL BE IRREPARABLY HARMED ABSENT A STAY ................................................................................................................................ 10 III. THE PUBLIC INTEREST FAVORS A STAY................................................................ 14 IV. PLAINTIFFS WILL NOT BE HARMED BY A STAY .................................................. 16 V. IN THE ALTERNATIVE, THE COURT SHOULD STAY THE PRELIMINARY INJUNCTION TO THE EXTENT THAT IT PURPORTS TO APPLY OUTSIDE OF TEXAS........................................................................................................................ 18 CONCLUSION ............................................................................................................................. 19 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 3 of 24 TABLE OF AUTHORITIES CASES Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014) .................................................................................................... 7 Arizona v. United States, 132 S. Ct. 2492 (2012) .............................................................................................. 9, 10, 14, 15 Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014) .................................................................................... 8, 9, 14 C.F.T.C. v. Hudgins, No. 6:08-CV-187, 2009 WL 3645053 (E.D. Tex. Nov. 2, 2009) .......................................... 4, 6 Canal Authority of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974) .................................................................................................... 12 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .................................................................................................................. 10 Crane v. Napolitano, 920 F. Supp. 2d 724 (N.D. Tex. 2013) ....................................................................................... 8 Heckler v. Chaney, 470 U.S. 821 (1985) .................................................................................................................... 9 Lincoln v. Vigil, 508 U.S 182 (1993) ................................................................................................................... 10 Lion Health Servs., Inc. v. Sebelius, 635 F.3d 693 (5th Cir. 2011) .................................................................................................... 18 Louisiana Envtl. Soc'y, Inc. v. Coleman, 524 F.2d 930 (5th Cir. 1975) .................................................................................................... 17 Mathews v. Diaz, 426 U.S. 67 (1976) .................................................................................................................... 10 Munaf v. Geren, 553 U.S. 674 (2008) .................................................................................................................... 7 Nken v. Holder, 556 U.S. 418 (2009) .............................................................................................................. 5, 14 ii Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 4 of 24 Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406 (5th Cir. 2013) ...................................................................................................... 4 Reno v. Am.-Arab Anti-Discrimination Comm. ("AAADC"), 525 U.S. 471 (1999) ............................................................................................................ 10, 11 Ruiz v. Estelle, 650 F.2d 555 (5th Cir. 1981) ................................................................................................ 5, 13 State of Tex. v. United States, 106 F.3d 661 (5th Cir. 1997) ...................................................................................................... 8 Stieberger v. Bowen, 801 F.2d 29 (2d Cir. 1986)........................................................................................................ 11 United States v. Baylor Univ. Med. Ctr., 711 F.2d 38 (5th Cir. 1983) .................................................................................................... 5, 6 United States v. Mendoza, 464 U.S. 154 (1984) .................................................................................................................. 18 Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977) .................................................................................................... 6 CONSTITUTION U.S. Const. art. II, § 3 ..................................................................................................................... 3 STATUTES 5 U.S.C. § 553 ................................................................................................................................. 3 5 U.S.C. § 706 ................................................................................................................................. 3 6 U.S.C. § 202(5) .......................................................................................................................... 10 RULES Fed. R. Civ. P. 62 ............................................................................................................................ 4 EXHIBITS Decl. of Sarah R. Saldaña, Director of ICE ............................................................................. Ex. A Decl. of R. Gil Kerlikowske, Commissioner of CBP .............................................................. Ex. B iii Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 5 of 24 INTRODUCTION AND SUMMARY OF THE ARGUMENT Defendants respectfully move for a stay, pending appeal, of the preliminary injunction entered in this case on February 16, 2015 [ECF No. 144], concerning the November 20, 2014, memorandum issued by the Secretary of Homeland Security (“Secretary”), setting forth guidelines for the consideration of deferred action for the parents of U.S. citizens or lawful permanent residents (“DAPA”) and modifying existing guidelines for the consideration of deferred action for certain individuals who came to the United States as children (“modified DACA”) (collectively, “Deferred Action Guidance” or “Guidance”). Defendants have filed a Notice of Appeal [ECF No. 149] from the Court’s February 16, 2015 Opinion and Orders granting Plaintiffs’ Motion for Preliminary Injunction [ECF Nos. 144 & 145]. A stay pending appeal is necessary to ensure that the Department of Homeland Security (“DHS” or “Department”) is able to most effectively protect national security, public safety, and the integrity of the border. Specifically, the Deferred Action Guidance enjoined by this Court is an integral part of the Department’s comprehensive effort to set and effectuate immigration enforcement priorities that focus on the removal of threats to public safety, national security risks, and recent border crossers, thereby best securing the Homeland in the face of limited resources. Absent a stay, DHS will sustain irreparable harm—harm that would not be cured, even if Defendants ultimately prevail on that appeal. Allowing the preliminary injunction to remain in place pending appeal would also harm the interests of the public and of third parties, who will be deprived of the significant law enforcement and humanitarian benefits of prompt implementation of the Guidance. When these harms are weighed against the financial injuries claimed by Plaintiffs (and found by the Court only as to Texas), the balance of hardships tips 1 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 6 of 24 decidedly in favor of a stay; the harms claimed by Plaintiffs are not imminent and are fully within their power to avoid. A stay is also warranted in view of Defendant’s substantial case that the preliminary injunction was issued in error—all that Defendants must establish concerning a likelihood of success in order to warrant the requested stay. Defendants’ case is substantial indeed: the Court lacked authority to issue the preliminary injunction, both because Plaintiffs lack standing and because the Deferred Action Guidance is an exercise of prosecutorial discretion by the Secretary that is neither subject to challenge by the States, nor required to be issued through notice-andcomment rulemaking. That the Court’s reasoning on standing and the merits has been rejected by other district courts further underscores the fact that Defendants have a substantial case on appeal. Finally, Defendants request in the alternative a partial stay of the injunction to the extent that it purports to apply nationwide. The injunction vastly exceeds the relief necessary to redress the limited alleged harms the Court credited in its Opinion. Specifically, the injunction purports to extend beyond implementation of the Guidance in Texas (the only State whose claims of harm the Court credited) to States the Court did not find to have established any injury, and even to States that have informed this Court that they desire and expect to benefit from implementation of the Deferred Action Guidance. Thus, although a full stay is warranted, at the very least, the injunction should be stayed so that it applies only to the implementation of the Guidance in Texas. In light of the immediacy of the harm to Defendants and the public in the absence of a stay of the Court’s Order, which prevents Defendants from complying with the timeline set forth in the Guidance for U.S. Citizenship and Immigration Services (“USCIS”) to begin accepting 2 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 7 of 24 requests for deferred action, Defendants respectfully request expedited consideration of their motion and a ruling as soon as possible. Absent a ruling by the close of business on Wednesday, February 25, Defendants may seek relief from the Court of Appeals in order to protect their interests. NATURE AND STATE OF THE PROCEEDING On December 3, 2014, Plaintiffs filed this suit, challenging the Secretary’s authority to issue the Deferred Action Guidance. Plaintiffs’ Complaint includes three causes of action: that the Guidance allegedly (1) violates the Take Care Clause of the Constitution, art. II, § 3; (2) violates the substantive requirements of the Administrative Procedure Act (“APA”), see 5 U.S.C. § 706; and (3) violates the APA’s notice-and-comment requirement, see 5 U.S.C. § 553. Plaintiffs moved for a preliminary injunction on all counts on December 4, 2014, seeking to enjoin implementation of the Deferred Action Guidance. See Pls.’ Mot. for Prelim. Inj. [ECF No. 5]; see also Proposed Order [ECF No. 5-1]. DHS was to begin accepting requests for modified DACA on February 18, 2015. On February 16, 2015, the Court granted Plaintiffs’ Motion and preliminarily enjoined Defendants from “implementing any and all aspects or phases” of DAPA and modified DACA, as set forth in the Guidance. Order of Temporary Inj. (“Order”) at 1-2 [ECF No. 144]. The Court found that “at least” Texas has standing to sue, stating that Texas would be required under the existing terms of state law to expend funds to provide driver’s licenses to individuals who receive DAPA and modified DACA at some point in the future. Mem. Op. & Order (“Op.”) at 22-36 [ECF No. 145]. The Court also indicated that “at least” Texas has standing based on what it termed an “abdication” theory, acknowledging that no other court has based standing on this novel theory. Id. at 67 & n.48. The Court then held that the States are likely to succeed on the merits of one of 3 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 8 of 24 their claims: that the challenged guidance was a substantive rule that, under the APA, could have been issued only through notice-and-comment rulemaking. Finally, the Court concluded that the alleged financial injury to Texas based on the provision of driver’s licenses amounts to irreparable harm and that the balance of the equities favored a preliminary injunction. The Court did not purport to limit its relief, however, to Texas—much less to the particular injury to Texas that the Court identified concerning the issuance of driver’s licenses. Nor did the Court even purport to limit its relief to the States joined as Plaintiffs in this action. Instead, it purported to enjoin the Government’s implementation of the Deferred Action Guidance nationwide, notwithstanding the fact that twelve States and the District of Columbia filed an amicus brief in this case in support of the Guidance, explaining that they expect to benefit from it. See Amicus Br. of State of Washington, et al. [ECF No. 81]. Defendants have appealed the Court’s Order and Opinion to the Fifth Circuit. [ECF No. 149]. STATEMENT OF THE ISSUES AND STANDARD OF REVIEW Defendants request a stay pending appeal of the Court’s preliminary injunction. Federal Rule of Civil Procedure 62 permits the trial court, in its discretion, to suspend an injunction during the pendency of an appeal. Courts typically consider four factors in evaluating a request for a stay pending appeal: (1) whether the movant has made a showing of likelihood of success on the merits; (2) whether the movant will be irreparably harmed if the stay is not granted; (3) whether issuance of a stay will substantially harm the other parties; and (4) whether the granting of the stay serves the public interest. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410 (5th Cir. 2013); see also C.F.T.C. v. Hudgins, No. 6:08-CV-187, 2009 WL 4 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 9 of 24 3645053, at *2 (E.D. Tex. Nov. 2, 2009). Where the Government is a party, its interests and the public interest overlap in the balancing of harms. See Nken v. Holder, 556 U.S. 418, 420 (2009). Moreover, a party seeking such a stay need only present a “substantial case on the merits,” as opposed to a likelihood of success on the merits, where—as here—“a serious legal question is involved and . . . the balance of equities weighs heavily in favor of granting the stay.” United States v. Baylor Univ. Med. Ctr., 711 F.2d 38, 39 (5th Cir. 1983) (quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981)). ARGUMENT I. DEFENDANTS HAVE A SUBSTANTIAL LIKELIHOOD OF PREVAILING ON THEIR APPEAL FROM THE PRELIMINARY INJUNCTION, AND AT A MINIMUM, HAVE A SUBSTANTIAL CASE ON APPEAL The Court is already familiar with the Government’s arguments regarding Plaintiffs’ challenge to the Deferred Action Guidance, and, in particular, the lack of any basis for a preliminary injunction. Although Defendants recognize that the Court has already rejected several of these arguments, Defendants respectfully submit that they are likely to prevail on appeal from the preliminary injunction for all of the reasons set forth in their Opposition to Plaintiffs’ Motion for Preliminary Injunction (“Defs.’ Opp.”) [ECF No. 38], and their Sur-Reply in further opposition thereto [ECF No. 130]. Defendants’ appeal presents multiple independent bases on which the Fifth Circuit could find that Plaintiffs are not entitled to the extraordinary relief of the preliminary injunction that this Court granted, including: that Plaintiffs lack Article III standing; that Plaintiffs lack prudential zone-of-interest standing; that the exercise of enforcement discretion through DACA and DAPA is unreviewable under the APA; and that the Guidance falls within the well-established exception to the APA’s notice-and-comment requirements for general statements of policy to be applied prospectively. 5 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 10 of 24 This Court need not agree that Defendants are likely to prevail on appeal from the preliminary injunction in order to conclude that Defendants are entitled to the relief sought. See Baylor, 711 F.2d at 39. Indeed, “[p]rior recourse to the [district court] would hardly be required as a general matter if it could properly grant interim relief only on a prediction that it has rendered an erroneous decision.” Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977). Where a “serious legal question” is involved, the movant can satisfy this first prong of the four-part test by demonstrating a “substantial case on the merits.” Baylor, 711 F.2d at 39. This less-exacting standard applies where – as here – “there are legal issues having far-reaching effects, involving significant public concerns . . . .” Hudgins, 2009 WL 3645053, at *3. Plaintiffs’ challenge to the lawfulness of the Secretary’s enforcement of the immigration laws, an area of exclusive federal control, unquestionably presents “serious legal question[s].” These questions include the role, if any, of the States and the federal judiciary in countermanding discretionary decisions by the Secretary about the best way to prioritize scarce enforcement resources and to allow those resources to be deployed most effectively. Plaintiffs have essentially acknowledged as much. See Pls. Mot. to Exceed Page Limits at 2 [ECF No. 6] (“Plaintiffs’ motion raises complex issues in a case of national importance.”). Thus, the applicable standard for evaluating this stay request is whether Defendants have a “substantial case” for prevailing on appeal. Defendants clearly have a substantial case on appeal (and, indeed, are likely to prevail on one or more of the dispositive bases noted above). First, the States lack Article III standing, as a matter of law, to bring this suit to enjoin the Secretary from implementing federal immigration policy, for all the reasons previously articulated in Defendants’ papers. The Court’s 6 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 11 of 24 unprecedented conclusion to the contrary would mark a significant expansion of the powers of the federal judiciary and the States. At a minimum, the Court’s standing ruling is subject to serious question; the existence of a substantial jurisdictional issue undermines Plaintiffs’ likelihood of success on the merits and thus their entitlement to a preliminary injunction. See Munaf v. Geren, 553 U.S. 674, 690-91 (2008). With respect to standing, Defendants’ appeal will present a substantial challenge to the notion that a State may establish standing to challenge an immigration policy simply because that policy has the incidental effect of making individuals eligible under state law for benefits that a State has chosen to make available by reference to federal law or policy. Such an unprecedented theory of standing would apparently permit States to challenge a federal law or policy simply because they have borrowed some concept of federal law or policy and incorporated it into state law. It also would appear to allow standing by States to challenge countless individual decisions to grant immigration relief or status, every one of which could potentially subject a State to a modest additional burden. Such a basis for standing would drastically expand standing beyond the doctrine’s well-settled limits, a particularly unwarranted result in the context of immigration, where federal power is exclusive. There is also a substantial argument that this Court erred in reading the Government’s amicus brief in Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014), to establish that “any move by a plaintiff state to limit the issuance of driver’s licenses would be viewed as illegal” by the Government, Op. at 25. The Court’s speculation about the position the Government would take in the future on such issues ignores not only the actual, much more limited argument advanced by the Government in the Arizona Dream Act case, but also the representations made by Defendants in this litigation. See, e.g., Defs.’ Sur-Reply at 6-7. It is the Government’s position that Texas is free to implement a 7 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 12 of 24 scheme that does not offer driver’s licenses to DAPA and DACA recipients, so long as it does not employ any new, non-federal immigration classification. See id. Defendants also will mount a substantial and compelling challenge to this Court’s alternative and decidedly novel “abdication” theory of standing—a theory that this Court acknowledged has never been found sufficient to justify an exercise of Article III jurisdiction, Op. at 67 n.48. This theory of standing erroneously conflates the merits of the States’ APA claim with the threshold question of standing. It also turns the well-recognized bar to the exercise of authority by States in the field of immigration into a justification for allowing the States to interfere with federal enforcement discretion in the federal courts. And in any event, the Deferred Action Guidance is not an abdication in any respect: it reflects the Secretary’s determination about how best to deploy limited enforcement resources in furtherance of discretionary enforcement priorities. See Defs.’ Opp. at 37-44; Defs.’ Sur-Reply at 25-30. Finally, the existence of a substantial case as to the lack of Article III jurisdiction is confirmed by the fact that the only other district courts to have considered a state or local entity’s standing to challenge federal immigration policies have dismissed those claims for lack of standing. Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014), appeal pending, No. 14-05325 (D.C. Cir.); Crane v. Napolitano, 920 F. Supp. 2d 724, 745-46 (N.D. Tex. 2013), appeal pending, No. 14-10049 (5th Cir.) (argued Feb. 3, 2015); Texas v. United States, No. B-94-228, at *7 (S.D. Tex. Aug. 7, 1995), aff’d on other grounds, 106 F.3d 661 (5th Cir. 1997). Plaintiffs would not be entitled to review of their claims even if they had Article III standing. As Defendants have amply demonstrated in their prior papers, and as they will demonstrate on appeal, Plaintiffs are not within the zone of interests sought to be protected by the relevant provisions of the Immigration and Nationality Act (“INA”). The Court’s conclusion 8 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 13 of 24 that States may invoke the aid of federal courts to police the Federal Government’s implementation of immigration laws conflicts with the well-established and fundamental allocation of responsibilities between the Federal Government and the States in the field of immigration. See Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). Defendants also have a “substantial case” regarding the legal errors that underlie the Court’s evaluation of the merits of Plaintiffs’ claim. Defendants will present substantial arguments that Plaintiffs cannot challenge the Secretary’s exercise of discretion in issuing the Deferred Action Guidance. See Heckler v. Chaney, 470 U.S. 821, 832 (1985) (agency’s decision not to exercise its enforcement authority, or to exercise it in a particular way, is “presumed” to be “immune from judicial review” under the APA); see also Arizona, 132 S. Ct. at 2499. (“[A] principal feature of the removal system is the broad discretion exercised by immigration officials.”). That Defendants’ arguments are substantial is again confirmed by the fact that another district court has confronted this same issue and has agreed with Defendants’ arguments. In Arpaio, the district court rejected a similar challenge to the Deferred Action Guidance, concluding that even if the plaintiff were able to establish standing, he had failed to establish a likelihood of success on the merits, because the Guidance is “consistent with, rather than contrary to, congressional policy” and is a “valid exercise of prosecutorial discretion” that “merely provide[s] guidance to immigration officials in the exercise of their official duties.” 27 F. Supp. 3d at 208-210. Defendants also have a substantial case on appeal concerning the Court’s specific merits holding with respect to notice-and-comment procedures. The Supreme Court has made clear that notice-and-comment procedures are not required for precisely the type of agency guidance at issue here: “statements issued by an agency to advise the public prospectively of the manner in 9 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 14 of 24 which the agency proposes to exercise a discretionary power.” Lincoln v. Vigil, 508 U.S 182, 197 (1993) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)). The challenged policy creates no binding legal duty on any regulated person or entity, and, at the same time, imposes no binding legal restriction on DHS’s discretion to enforce the immigration laws against any individual. It therefore falls squarely within the APA exception for statements of policy. Defendants respectfully submit that they are likely to succeed on the merits of this argument on appeal, consistent with well-established precedent and the express terms of the Guidance. And at a minimum, Defendants’ appeal presents a “substantial case” that notice-and-comment procedures were not required in this instance, thus warranting a stay. II. THE GOVERNMENT WILL BE IRREPARABLY HARMED ABSENT A STAY The Government will suffer irreparable harm absent a stay. The preliminary injunction blocks DHS from exercising its authority, conferred by Congress, to establish “policies and priorities” to enforce the Nation’s immigration laws. See 6 U.S.C. § 202(5); see also Reno v. Am.-Arab Anti-Discrimination Comm. (“AAADC”), 525 U.S. 471, 483-84 (1999). The preliminary injunction was entered at the urging of States that unquestionably lack any authority over the Nation’s immigration policies, which the Constitution and the INA commit exclusively to the Federal Government. See Arizona, 132 S. Ct. at 2499. An injunction interfering with federal immigration enforcement, issued at the behest of the States, is directly contrary to the allocation of powers between the federal and state governments. The injunction also offends basic separation-of-powers principles, impinging on core Executive functions concerning the exercise of discretion in the complex task of enforcing the immigration laws, and is contrary to the preclusion of judicial review of discretionary matters under the INA. Cf. Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“For reasons long recognized as valid, the responsibility for regulating 10 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 15 of 24 the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government”). As such, the preliminary injunction necessarily causes an irreparable harm to the Defendants that will not be cured even if the Guidance is later upheld. Cf. Stieberger v. Bowen, 801 F.2d 29, 33-34 (2d Cir. 1986) (finding that injunction poses significant harm where it “has the potential for bringing the Judicial Branch into protracted involvement with the Executive Branch in the administration of a complex regulatory scheme affecting hundreds of thousands of persons”). A stay of the preliminary injunction pending appeal is also necessary to prevent practical impairment to the Department’s ability to most effectively and efficiently protect the Homeland and secure our borders. The Guidance is part of a comprehensive and integrated effort by the Department to prioritize immigration enforcement efforts so as to best protect the Nation, and results from its considered judgment as to the best means to order and effectuate its enforcement priorities. As the Court appropriately recognized, “[t]he law is clear that the Secretary’s ordering of DHS priorities is not subject to judicial second-guessing.” Op. at 69. As a result, the Court indicated that its Order “does not enjoin or impair the Secretary’s ability to marshal his assets or deploy [DHS’s] resources,” and it “does not enjoin the Secretary’s ability to set priorities for . . . DHS.” Id. at 123. The Court’s assumption that DAPA and modified DACA are somehow separate from these exclusive and discretionary authorities of the Secretary was simply incorrect. See AAADC, 525 U.S. at 483-84 (recognizing the Government’s “regular practice” of granting “deferred action” as an exercise of agency discretion). By encouraging certain aliens to come forward, identify themselves to USCIS, and pay for their own background checks, the Deferred Action Guidance advances the objectives of the Secretary’s comprehensive prioritization efforts. 11 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 16 of 24 Specifically, grants of deferred action pursuant to the Guidance allow U.S. Immigration and Customs Enforcement (“ICE”) and U.S. Customs and Border Protection (“CBP”)—which conduct enforcement actions and inspect aliens near the border—to quickly and efficiently distinguish between criminals and other enforcement priorities (who may be removed quickly under existing statutory authority) from aliens who do not fall within the Department’s priorities for removal and whose cases may impose additional burdens on already backlogged immigrations courts. See Decl. of Sarah R. Saldaña, Director of ICE (“Saldaña Decl.”) (Ex. A) ¶¶ 15-17; Decl. of R. Gil Kerlikowske, Commissioner of CBP (“Kerlikowske Decl.”) (Ex. B) ¶¶ 7-9; see also Decl. of Donald W. Neufeld (“Neufeld Decl.”) ¶¶ 5, 26 [ECF No. 130-11]. Instead of spending valuable, limited resources to determine whether encountered individuals are enforcement priorities, DHS and its component agencies (as well as state and local law enforcement officers) can rely on proof of deferred action to quickly and efficiently confirm that they are not. This, in turn, allows the Department to focus its limited resources on aliens who are a high priority for removal—including aliens who pose national security risks, serious criminals, and recent border crossers—rather than on aliens with significant ties to the community and no serious criminal records. See id. DAPA and modified DACA will thus support DHS’s overall mission to secure the border and protect the public, while also recognizing important humanitarian considerations. See id. The Court’s assertion that the preliminary injunction merely preserves the status quo, Op. at 119, is not a sound basis for concluding that Defendants will not be irreparably harmed absent a stay pending appeal. The focus of the irreparable harm inquiry “must be on prevention of injury by a proper order, not merely on preservation of the status quo.” Canal Authority of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). By enjoining Defendants’ ability to 12 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 17 of 24 implement guidance that the Secretary has determined is necessary in the exercise of authority vested in him by Congress to administer the immigration laws, the Order jeopardizes the efficiencies to immigration enforcement (and thus the protection of the Homeland) that the Guidance would otherwise be expected to provide, “making it more difficult [for the Department] to efficiently and effectively carry out its mission.” Saldaña Decl. ¶ 19. Defendants would thus unquestionably suffer irreparable harm if a stay is denied, regardless of whether the injunction is characterized as preserving or altering the status quo. Moreover, the Court’s assertion that its Order does not affect the status quo is at odds with the Court’s recognition that DHS had already begun preparing to effectuate the Deferred Action Guidance. See Op. at 76. The Court issued its injunction one business day before USCIS was scheduled to begin accepting requests for deferred action under the modified DACA guidelines. USCIS had spent the prior 90 days—the time period established by the Guidance for implementation—preparing to receive such requests. The injunction sets back substantial preparatory work that has already been undertaken. Among other things, the Court acknowledged that DHS had leased space, initiated the hiring process for employees, and taken other preparatory steps concerning the Guidance. Id. at 76 & n.55; see also Neufeld Decl. ¶ 28. Ceasing these efforts now would jeopardize full implementation of the policy itself, as well as require DHS to incur considerable administrative costs in the future to repeat the preparatory work necessary for full implementation. Cf. Ruiz, 650 F.2d at 571 (granting stay to relieve state agency of “burden . . . in terms of time, expense, and administrative red tape” of complying with order). Overall, for the Deferred Action Guidance to work, DHS needs to have the appropriate infrastructure set up and ready before the first request is submitted (including significant preparatory work to implement the new DAPA guidelines, under which applications were 13 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 18 of 24 expected to be accepted by mid-May). This means that, absent a stay of the injunction, implementation of the Guidance will not merely be paused, but will suffer a significant and irreparable setback, to the detriment of the agency and the potential requestors, as well as the national security, border security, and public safety interests promoted by the Deferred Action Guidance and interrelated policies. III. THE PUBLIC INTEREST FAVORS A STAY For many of the reasons that Defendants will experience irreparable harm absent a stay, the interests of the public and of third parties also strongly counsel in favor of a stay pending appeal of the preliminary injunction. 1 It is the Department’s considered judgment that the Deferred Action Guidance—part of DHS’s integrated efforts to maximize border security—will advance important public safety and national security goals in the public interest. DHS, not the Court, is properly positioned to make this discretionary judgment. See Arizona, 132 S. Ct. at 2499. By preventing the Secretary of Homeland Security from implementing his considered policy determinations for best achieving these important goals, the preliminary injunction harms not only Defendants but also the public. See Nken, 556 U.S. at 420 (recognizing the public interest and interest of Federal Government may merge). The preliminary injunction entered by the Court also harms the public by halting policies that respond to humanitarian concerns and promote family unification. The Supreme Court recognized in Arizona that “[d]iscretion in the enforcement of immigration law embraces immediate human concerns.” 132 S. Ct. at 2499. Such discretion may properly recognize the 1 In analyzing the public interest prong and denying a similar request for preliminary injunction, the district court in Arpaio explained: “[h]alting these deferred action programs would inhibit the ability of DHS to focus on its statutorily proscribed enforcement priorities (national security, border security, and public safety) and would upset the expectations of the DACA program’s participants and the potentially eligible participants in the other challenged programs when none of those participants are currently before this Court.” 27 F. Supp. 3d at 210-211. 14 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 19 of 24 difference between “unauthorized workers trying to support their families” and “alien smugglers” or those “who commit a serious crime” id., as does the Guidance at issue here. Leaving the injunction in place would work immense harm to the public interest by undermining the Department’s efforts to encourage illegal aliens with significant ties to the community and no serious criminal record to come out of the shadows and to request the ability to work legally. It also prevents the Secretary from implementing deferred action policies where the use of such discretion is not only appropriate, but beneficial to a large number of individuals, including U.S. citizens. See, e.g., Amicus Br. of Am. Immigration Council, et al. at 9-15 [ECF No. 39-1] (describing harm to eleven individuals and their families from the Court’s potential injunction). Moreover, there are a number of other public and third-party interests that will be harmed in the absence of a stay, including the interests of local law enforcement and of city and state governments. Local law enforcement and city governments will be deprived of the significant (and undisputed) benefits of those policies, which will encourage individuals who are not enforcement priorities and who are granted temporary relief under the Guidelines to cooperate with federal, state, and local law enforcement officers where they might otherwise fear coming forward. See Kerlikowske Decl. ¶ 13; Saldaña Decl. ¶ 18; see also Amicus Br. of Major Cities Chiefs Ass’n, et al. at 6, 8 [ECF No. 83-1]; Amicus Br. of the Mayors of New York and Los Angeles, et al. at 10-11 [ECF No. 121]. State and local governments will likewise be injured in the absence of a stay, because without deferred action, these same individuals who are not enforcement priorities cannot apply for federal work authorization, thereby depriving state governments of significant payroll tax revenue. See Amicus Br. of State of Washington, et al. at 6, 8; Amicus Br. of the Mayors of New York and Los Angeles, et al. at 8-9. 15 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 20 of 24 IV. PLAINTIFFS WILL NOT BE HARMED BY A STAY In contrast to the clear and imminent harm to Defendants, to third parties, and to the public interest, Plaintiffs will not face an imminent threat of irreparable harm if the Court stays its preliminary injunction pending appeal. For the reasons articulated above and in Defendants’ prior papers, the injuries the States claim they will suffer during the pendency of proceedings are not imminent and, at most, stem from policy choices the States themselves have made. See Ltr. from Rick Perry to Greg Abbott (Aug. 16, 2012) [ECF No. 130-1] (“In Texas, the legislature has passed laws that reflect the policy choices that they believe are right for Texas,” and the Government’s deferred action policy “does not undermine or change our state laws” or “change our obligations . . . to determine a person’s eligibility for state and local public benefits”). Defendants recognize that this Court has credited Texas’s claim that it will spend “millions of dollars” to provide driver’s licenses to future recipients of DAPA and modified DACA if the guidance is allowed to be implemented, and that the Court has also found these costs attributable to the Guidance. See Op. at 115. However, it is Texas state law that makes licenses available to such individuals. 2 Texas is under no obligation to structure its licensing scheme this way as a result of any federal statute, let alone the challenged Guidance. Texas’s alleged expenditure of funds to provide licenses is also hardly immediate, as it is tied to predicted future grants of deferred action under the Guidance, rather than to predicate stages of implementation, and the magnitude of the alleged expenditure bears no relation to the number of requests for DAPA and modified DACA that could even plausibly be granted during the 2 Texas likewise sets (and is thus free to alter) the price at which individuals may obtain a driver’s license—a price that presumably reflects its view that the public safety benefits gained by providing licenses outweigh the cost. Cf. Amicus Br. of Major Cities Chiefs Ass’n et al. at 7-9 (explaining that driver’s licenses promote road safety and assist law enforcement efforts). 16 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 21 of 24 pendency of the appeal. 3 See La. Envtl. Soc’y, Inc. v. Coleman, 524 F.2d 930, 933 (5th Cir. 1975) (preliminary injunction not warranted where district court had sufficient time to decide the merits or devise other relief before any harm occurred). Furthermore, any such ultimate expenditure by Texas likely will be outweighed by the increase in state tax revenues obtained from aliens who may become eligible for work authorization as a result of the grant of deferred action. See Amicus Br. of Washington, et al. at 6 (noting that grant of work authorization to individuals who may receive DACA or DAPA in Texas will lead to estimated $338 million increase in the state tax base over five years). The Court itself recognized that the future net economic effect of the Deferred Action Guidance is at best indeterminate, in light of the potential that the “economic benefits that States will reap by virtue of” the issuance of work authorizations will offset any increase in costs. Op. at 54-55. A speculative or indeterminate future financial injury does not constitute irreparable injury to Plaintiffs justifying denial of the requested stay. 3 While it is conceivable that, in the absence of the injunction, some small number of requests for modified DACA could be acted on after March 4—the date that Defendants previously provided as the earliest that USCIS could act on any (not all) such requests—it takes considerable time to process a request for deferred action, given the multi-stage process, including background checks, and case-by-case review, and given the adjudication capacity of USCIS and the volume of requests (of all types) that it processes. See Neufeld Decl. ¶ 13 (discussing multi-stage process for reviewing requests under existing DACA). The average processing time for DACA requests, which is publicly available on USCIS websites, is 5-6 months from receipt to adjudication, https://egov.uscis.gov/cris/processTimesDisplay.do, although DHS anticipates that it may have been able to act more quickly on a small number of requests previously submitted under the 2012 DACA Guidelines but which USCIS could have considered under the revised DACA guidelines after February 18, absent the preliminary injunction. Moreover, the Guidance does not require USCIS even to begin accepting requests for DAPA until mid-May; and as this Court has recognized, DAPA is a new policy, requiring further implementation steps before any requests could be entertained and acted upon. Furthermore, grants of deferred action can be revoked at any time, and thus could readily be reversed in the unlikely event that the States ultimately prevail. In short, there is little to no immediate injury to the Texas even under its theory of harm, and any such injury could be unwound if Plaintiffs ultimately prevail on appeal. 17 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 22 of 24 V. IN THE ALTERNATIVE, THE COURT SHOULD STAY THE PRELIMINARY INJUNCTION TO THE EXTENT THAT IT PURPORTS TO APPLY OUTSIDE OF TEXAS For all the foregoing reasons, the preliminary injunction should be stayed in its entirety pending appeal. In the alternative, the Court should grant a more limited stay of the injunction to the extent that it purports to reach implementation of the Guidance outside of Texas, including in States that have not made any effort to demonstrate irreparable harm and, indeed, in States not even joined as plaintiffs in this action. Injunctive relief must be tailored to the parties properly before the court and to the harm that those parties are able to demonstrate. See Defs.’ Opp. at 50 n.40; see also Lion Health Servs., Inc. v. Sebelius, 635 F.3d 693, 703 (5th Cir. 2011). Nationwide injunctive relief is particularly inappropriate in the context of government programs. See United States v. Mendoza, 464 U.S. 154, 159 (1984). The only specific harm the Court found here was the potential cost that Texas would allegedly incur from having to issue driver’s licenses to future recipients of DAPA and modified DACA by operation of state law. A nationwide preliminary injunction barring the implementation of the Secretary’s Guidance for the exercise of discretion in the administration and enforcement of federal law is plainly not necessary to provide Texas with relief from this alleged harm. At the same time, a nationwide injunction trenches on the authority and discretion of the Secretary in the administration and enforcement of the immigration laws. It also impairs the interests of individuals who may benefit from DAPA and modified DACA and the interests of nonparty States in having DAPA and modified DACA implemented—including the interests of those twelve States and the District of Columbia that filed an amicus brief in support of the Deferred Action Guidance, on the ground that it will “substantially benefit,” rather than harm, them and their residents. See Amicus Br. of Washington, et al. at 2. Without at least a partial 18 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 23 of 24 stay, the Court’s Order would needlessly deprive those States of the anticipated benefits of DAPA and modified DACA during the pendency of any appeal. Thus, at a minimum, Defendants are entitled to a stay of that portion of the Order that applies to the Government’s implementation of the Deferred Action Guidance in States other than Texas, or, at the very least, in States not joined in this action. CONCLUSION Defendants request that this Court stay, pending appeal, its February 16, 2015 Order, or in the alternative, stay its Order beyond application in Texas. Given the exigencies, Defendants respectfully request expedited consideration of their motion and a ruling as soon as possible. Absent a ruling by the close of business on Wednesday, February 25, Defendants may seek relief from the Court of Appeals in order to protect their interests. Dated: February 23, 2015 Respectfully submitted, KENNETH MAGIDSON United States Attorney JOYCE R. BRANDA Acting Assistant Attorney General DANIEL DAVID HU Assistant United States Attorney Deputy Chief, Civil Division KATHLEEN R. HARTNETT Deputy Assistant Attorney General DIANE KELLEHER Assistant Branch Director /s/ Kyle R. Freeny KYLE R. FREENY (Cal. Bar No. 247857) Attorney-in-Charge HECTOR G. BLADUELL BRADLEY H. COHEN ADAM D. KIRSCHNER JULIE S. SALTMAN Civil Division, Federal Programs Branch U.S. Department of Justice P.O. Box 883, Washington, D.C. 20044 Tel.: (202) 514-5108 / Fax: (202) 616-8470 Kyle.Freeny@usdoj.gov Counsel for Defendants 19 Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 24 of 24 CERTIFICATE OF CONFERRAL Pursuant to Local Civil Rule 7.1.D, undersigned counsel hereby certifies that she contacted counsel for Plaintiffs, Angela Colmanero, who indicated that Plaintiffs oppose all forms relief sought in the foregoing Emergency Expedited Motion to Stay. /s/ Kyle R. Freeny Counsel for Defendants CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Emergency Motion to Stay has been delivered electronically on February 23, 2015, to counsel of record via the District’s ECF system. /s/ Kyle R. Freeny Counsel for Defendants 20 Case 1:14-cv-00254 Document 150-1 Filed in TXSD on 02/23/15 Page 1 of 9 EXHIBIT A Case 1:14-cv-00254 Document 150-1 Filed in TXSD on 02/23/15 Page 2 of 9 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION STATE OF TEXAS, et al. Plaintiffs, No. 1:14-cv-254 v. UNITED STATES OF AMERICA, et al. Defendants. DECLARATION OF SARAH R. SALDANA 1, Sarah R. Salda?a, hereby make the following declaration with respect to the above- captioned matter. 1. I am the Director of US Immigration and Customs Enforcement (ICE), a component of the Department of Homeland Security (DHS or Department). I have held this position since December 23, 2014. My current work address is: 500 12th Street Southwest, Washington, DC. I am a graduate of Texas University, currently Texas University, and hold a Bachelor of Science degree. I also hold a Juris Doctorate from Southern Methodist University. 2. Before becoming ICE Director, I served as United States Attorney for the Northern District of Texas for more than three years. I was previously an Assistant United States Attorney in the Northern District of Texas and a partner in the trial department of a law ?rm in Dallas, Texas. 3. In my current position as ICE Director, I lead the largest investigative agency within DHS, overseeing nearly 20,000 employees in 400 of?ces across the country. Case 1:14-cv-00254 Document 150-1 Filed in TXSD on 02/23/15 Page 3 of 9 4. I make this declaration on the basis of my personal knowledge and information made available to me in the course of my of?cial duties. The DHS and ICE Immigration Enforcement Mission 5. ICE is one of the three DHS components with responsibilities over the administration and enforcement of the nation?s immigration laws. The other two agencies are: US. Customs and Border Protection (CBP) and US. Citizenship and Immigration Services (USCIS). primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws goveming border control, customs, trade, and immigration. In working to achieve its mission, ICE coordinates closely with CBP, which includes the Of?ces of Border Patrol, Field Operations, and Air and Marine Operations, and employs the uniformed corps of of?cers and agents charged with patrolling our nation?s ports and borders. ICE also partners with USCIS immigration adjudicators who decide eligibility for immigration bene?ts and certain other forms of immigration relief. 6. Within ICE, the Of?ce of Enforcement and Removal Operations (BRO) is responsible for identifying, apprehending, detaining, and removing inadmissible or deportable aliens from the United States, as appropriate. ERO also removes aliens transferred to ICE by CBP of?cers and agents, and aliens against whom removal proceedings are initiated by USCIS. Based on limited resources, DHS does not have the capacity to investigate, detain, and remove all individuals who violate our immigration laws. For the last several years, ERO has consistently removed between 300,000 and 400,000 aliens annually from the United States. In light of limited resources and statutory mandates, ICE prioritizes the apprehension and removal of persons who pose a threat to national security, persons apprehended while attempting to illegally cross the border or who recently did so (?recent border crossers?), and persons convicted of serious crimes or who Case 1:14-cv-00254 Document 150-1 Filed in TXSD on 02/23/15 Page 4 of 9 otherwise threaten public safety. The vast majority of individuals removed by ICE fall into one of these categories. ICE Enforcement Challenges 7. Besides limited resources, ICE faces several challenges in accomplishing its enforcement mission. One challenge requiring ICE to spend more resources conducting removals is the changing demographics of the immigrant population entering the country. Since FY 2010, the number of Mexican nationals apprehended by the Border Patrol has fallen by 43 percent, while the number of apprehensions of nationals from El Salvador, Guatemala, and Honduras has increased by 423 percent, in FY 2014. In general, removing Central Americans is more resource-intensive than removing Mexican nationals. While a Mexican national apprehended by CBP may, in many cases, be removed in a matter of hours, often without entering ICE custody, a national of a non-contiguous country apprehended at the border must generally be transferred to ICE and may need to remain in ICE custody for weeks or months until travel documents can be obtained from that country and removal arrangements via aircraft can be arranged.1 S. Another important demographic change impacting Department operations was the unprecedented surge of children and families from El Salvador, Guatemala, and Honduras intercepted at the border during FY 2014. Such cases present unique challenges for ICE given the special care needed and the legal obligations imposed by applicable laws and court orders Although inadmissible aliens apprehended at the border are often subject to the ?expedited removal? process, those who demonstrate a ?credible fear? of persecution or torture if returned to their countries are legally entitled to formal removal proceedings before an immigration judge, which can take many months, if not years, to complete. Because nationals of some Central American countries are more likely than Mexican nationals to claim a fear of return, the increased percentage of Central American apprehensions increases costs in managing and deterring border violations. Case 1:14-cv-00254 Document 150-1 Filed in TXSD on 02/23/15 Page 5 of 9 with regard to providing housing for alien children in immigration proceedings,2 as well as the stringent standards applicable to ICE family residential centers.3 In order to respond to these developments, ICE has signi?cantly expanded its family-appropriate housing, which must be designed and operated in a manner appropriate for the unique needs of this population and compliant with applicable legal requirements and residential standards, which are far more expensive to satisfy than those applicable to adult detention facilities. 9. As mentioned above, mission includes both the removal of aliens from the interior of the country and the removal of aliens apprehended by CBP while attempting to illegally enter the United States. To address the demographic changes in illegal immigration increases in Central Americans and families requiring ICE involvement), and to do our part to ensure border integrity, ICE has detailed resources from the interior of the country to the border. This, in turn, results in fewer resources available to identify, detain, and remove individuals in the interior of the country. For instance, over the course of FY 2014, ERO detailed over 800 of its of?cers and support personnel (over 10 percent of the BRO workforce) to support southwest border operations. ICE also reallocated increased detention capacity, transportation resources, and other assets to support those operations. 10. Additionally, the fact that many state and local jurisdictions have restricted or prohibited their law enforcement of?cers from cooperating with immigration detainers, which are used by ICE to facilitate the transfer of a removable alien from criminal custody, has also required ICE to expend additional resources in attempting to gain custody of these individuals before they are released or shortly thereafter. 2 See William Wilberforce Trafficking Victim Protection Reauthorization Act of 2008, Pub. L. No. 110? 457 (Dec. 23, 2008); Flores settlement agreement, Flores v. Reno, Case No. CV 85-4544 (CD. Cal. Jan. 17, 1997). Case 1:14-cv-00254 Document 150-1 Filed in TXSD on 02/23/15 Page 6 of 9 11. Another factor signi?cantly impacting the ability of ICE to remove individuals from the United States is the backlog of the nation?s immigration courts, which are under the jurisdiction of the Department of Justice. At the end of FY 2014, there were 418,861 cases pending before the immigration courts, up from 262,622 at the end of FY 2010. In particular, cases on the non- detained immigration court dockets now routinely take years or more to complete. Establishment of Department-Wide, Coordinated Enforcement Efforts 12. Given DHS ?nite resources, Secretary Johnson issued Department-wide immigration enforcement priorities on November 20, 2014. Under the Secretary?s November 20, 2014 guidance, all DHS immigration components operate under the same three enforcement priorities: Priority 1, for aliens who pose a threat to national security, are apprehended at the border, are members of organized criminal gangs, or have been convicted of felony offenses; Priority 2, for aliens who have been convicted of certain misdemeanors, have recently entered the country, or have signi?cantly abused the visa or visa waiver programs; and Priority 3, for certain aliens with ?nal orders of removal. To further ensure that limited resources are available to pursue such aliens, the memorandum directs that resources ?be dedicated, to the greatest degree possible, to the removal ofaliens described in the priorities set forth above, commensurate with the level of prioritization identi?ed.? This memorandum ensures that the three DHS immigration components have the same removal priorities, which enhances coordination and ef?ciency. 13. In conjunction with this prioritization memo, the Secretary also issued on November 20, 2014, the memorandum that has now been enjoined that provides guidelines for the use of a form of prosecutorial discretion known as ?deferred action,? on a case-by?case basis, for certain aliens. The memorandum generally provides guidelines for two types of undocumented aliens who have 3 See ICE Family Residential Standards, at Case 1:14-cv-00254 Document 150-1 Filed in TXSD on 02/23/15 Page 7 of 9 been living in the United States since before January 1, 2010, who have signi?cant ties to the country, who submit ?ngerprints and pass background checks, and who otherwise pose no danger to the country. First, the memorandum expands the 2012 ?Deferred Action for Childhood Arrivals? (DACA) policy, which established guidelines concerning the availability of deferred action for such individuals who were brought to the country as children before the age of 16). Second, the memorandum establishes ?Deferred Action for Parents of Americans or Lawful Permanent Residents? (DAPA), which provides guidelines on the availability of deferred action for those who are parents of US. citizens or lawful permanent residents. Effects of the Injunction 14. The expansion of DACA and the implementation of DAPA represent an effort by DHS to better prioritize its limited resources against individuals who pose threats to national security, public safety, or the integrity of the border. Among other things, the policies are intended to: incentivize certain non-priority aliens to present themselves to DHS, submit biographic and biometric information, and undergo background checks; and provide temporary relief from removal, which is expected to assist state and local law enforcement agencies with community- policing efforts, as explained in the amicus brief submitted in this case by numerous sheriffs and police chiefs. These policies are intended to complement and support effective, priority- based use of its resources. 15. Enjoining the policies would prevent ICE from bene?tting ?om the ef?ciencies that such policies are intended to create. For instance, when state and local law enforcement agencies encounter an alien who has received deferred action under these policies, ICE personnel would be able to quickly con?rm the alien?s identity through a biometric match. This is because USCIS collects ?ngerprints and conducts background checks for DACA and DAPA requestors. Case 1:14-cv-00254 Document 150-1 Filed in TXSD on 02/23/15 Page 8 of 9 The availability of such information allows ICE to more ef?ciently work with our law enforcement partners to promote public safety. 16. Similarly, when ICE of?cers are engaged in at-large enforcement operations, such as to locate criminal and fugitive alien targets, they often encounter non-target aliens who may also be removable from the United States. If such aliens have received deferred action under these guidelines and have documentary proof of this on their persons, ICE of?cers would be able to ascertain more quickly whether enforcement resources should be expended to detain and initiate removal proceedings against the individuals. This would also allow ICE to further focus its resources on priority aliens. 17. The DACA and DAPA policies are also intended to assist with the ef?cient processing of high-priority cases in the immigration courts. While ICE attorneys who represent DHS in removal proceedings before the immigration courts can and do exercise prosecutorial discretion to promote ef?cient handling of dockets by immigration judges, DAPA and expanded DACA, once implemented, can potentially ?irther assist ICE attorneys and immigration judges in identifying non-priority cases. And, when an alien in removal proceedings receives deferred action from USCIS under DAPA or expanded DACA, the immigration judge may administratively close the case, thereby making additional docket time available for high-priority cases. Once the cases of aliens with deferred action under DAPA and expanded DACA are taken off the immigration dockets, immigration judges should be able to focus more time and effort on the adjudication of cases involving recent border entrants and national security and public safety threats. 18. Enjoining the DAPA and expanded DACA policies is also likely to limit, in certain circumstances, the ability of law enforcement of?cials to protect public safety. As I recently Case 1:14-cv-00254 Document 150-1 Filed in TXSD on 02/23/15 Page 9 of 9 wrote in an opinion editorial for the Dallas Morning News, ?cooperation between police and community members is a cornerstone of modern law enforcement.?4 While ICE has long taken steps to ensure that prosecutorial discretion is appropriately used when the agency encounters individuals who are crime victims and witnesses,5 I believe that DAPA and expanded DACA will further enhance the willingness of undocumented crime victims and witnesses to come forward and cooperate with their local law enforcement agencies, thereby bolstering efforts by police to address crimes that affect our communities, including domestic violence, human traf?cking, and gang activity. 19. In sum, preventing the deferred action policies from going into effect interferes with the Federal Govemment?s comprehensive strategy for enforcing our immigration laws. The halting of DAPA and expanded DACA jeopardizes the ef?ciencies that such policies can provide to ICE, making it more dif?cult to ef?ciently and effectively carry out its mission. The injunction also undermines the effectiveness of community policing in various jurisdictions, impedes the identi?cation of non-priority aliens, and leaves in place a barrier to more ef?cient proceedings to remove threats from our country. I declare under penalty of perjury that the foregoing is true and correct. We, Safah R. Salda?a Director US. Immigration and Customs Enforcement Executed this 23rd day of February, 2015. 4 Sarah Salda?a and Gil Kerlikowske, Obamals? immigration initiative will make nation safer, The Dallas Morning News, Jan. 20, 2015, 5 See, ICE Policy No. 10076.1, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011), available at Case 1:14-cv-00254 Document 150-2 Filed in TXSD on 02/23/15 Page 1 of 7 EXHIBIT Case 1:14-cv-00254 Document 150-2 Filed in TXSD on 02/23/15 Page 2 of 7 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION STATE OF TEXAS, er al. Plaintiffs, No. 1:14-cv-254 v. UNITED STATES OF AMERICA, 91? al. Defendants. DECLARATION OF R. GIL KERLIKOWSKE I, R. Gil Kerlikowske, hereby make the following declaration with respect to the above- captioned matter. 1. I am the Commissioner of US. Customs and Border Protection (CBP). I have held this position since March 7, 2014. My current work address is 1300 Ave, N.W., Washington, DC. I hold a B.A. and an MA. in criminal justice from the University of South Florida. 2. Prior to my tenure as CBP Commissioner, I had approximately four decades of experience with law enforcement and drug policy. From 2000 to 2009, I served as the Chief of Police for Seattle, Washington. From 2009 to 2014, I served as the Director of the Of?ce of National Drug Control Policy, and from 1998 to 2000, I served as Deputy Director for the US. Department of Justice, Of?ce of Community Oriented Policing Services. In addition, I served as the Police Commissioner for Buffalo, New York, from 1994 to 1998. I began my law enforcement career as a police of?cer in St. Petersburg, Florida, in 1972. Case 1:14-cv-00254 Document 150-2 Filed in TXSD on 02/23/15 Page 3 of 7 3. In my position as CBP Commissioner, I oversee approximately 60,000 employees. CBP of?cers protect our nation?s borders and safeguard national security by keeping criminal organizations, terrorists, and their weapons out of the United States while facilitating lawful international travel and trade. 4. I make this declaration on the basis of my personal knowledge as well as information made available to me in the course of my of?cial duties. The DHS and CBP Immigration Enforcement Mission 5. DHS has three components with responsibilities over the administration and enforcement of the nation?s immigration laws: CBP, US. Immigration and Customs Enforcement (ICE), and US. Citizenship and Immigration Services (USCIS). CBP secures the borders at and between ports of entry, preventing the admission of inadmissible aliens and the entry of illicit goods. CBP works closely with ICE, which is responsible for identifying, apprehending, detaining and removing inadmissible and deportable aliens from the United States, including many such aliens apprehended by of?cers and agents of CBP. CBP also works closely with USCIS, which, among other duties, determines on a case-by-case basis whether deferred action is appropriate under certain circumstances. 6. CBP Of?cers and Agents regularly encounter individuals who lack lawful status to enter or remain in the United States. For instance, in ?scal year (FY) 2014, Border Patrol apprehended 486,651 individuals who lacked lawful presence in the United States. While the vast majority of these individuals were apprehended while attempting to illegally cross the border, or after recently crossing the border into the United States, the Border Patrol also encounters individuals who are unlawfully in the country, often at checkpoints located at places of strategic importance, furthering the broader work of border security throughout the area. Case 1:14-cv-00254 Document 150-2 Filed in TXSD on 02/23/15 Page 4 of 7 Bene?ts of Deferred Action for CBP Immigration Enforcement Efforts 7. When a Border Patrol Agent at a checkpoint or other location encounters an individual whose lawful status is not apparent after initial questioning, that alien is taken to the nearest location where the Agent can more fully question and process the alien. During processing, an alien?s biographic information and biometrics ?ngerprints) are collected. Records checks are run through CBP and other law enforcement systems. Agents review all of the pertinent facts and circumstances to detennine whether or not the alien is a priority for removal, consistent with Secretary Johnson?s memorandum of November 20, 2014, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, including whether the alien poses a threat to national security, border security (including those who recently unlawfully entered the United States), or public safety. Processing individuals (which involves questioning the individuals, collecting bio graphic and biometric information, and conducting background checks) takes Border Patrol Agent time that could otherwise be spent at the checkpoint or on other enforcement duties. 8. Individuals who were granted deferred action under the 2012 Deferred Action for Childhood Arrivals (DACA) guidelines are, at times, encountered by Border Patrol Agents at checkpoints or other locations. When a DACA recipient is encountered at a checkpoint or other location and is able to provide DACA documentation or a work authorization document, a Border Patrol Agent can more ef?ciently verify the identity of the individual, as well as the authenticity of the documentation provided. Absent other facts and circumstances meriting further inquiry, upon verifying the information provided, Border Patrol Agents normally take no further action with respect to that individual. Instead, Border Patrol Agents rely on the determination made by another component of DHS, USCIS, that the encountered individual is not a priority for an Case 1:14-cv-00254 Document 150-2 Filed in TXSD on 02/23/15 Page 5 of 7 immigration enforcement action. Thus, DACA facilitates CBP more ef?ciently identifying those individuals who are not a priority for removal and better concentrate its limited enforcement efforts on those who pose a threat to national security, border security, and public safety. 9. I expect that the Deferred Action for Parents of Americans or Lawful Permanent Residents (DAPA) guidelines, as well as the guidelines that expanded DACA, announced by Secretary Johnson in November 2014, would create the same resource ef?ciencies that DACA, as announced in 2012, created, as they involve conducting background checks and providing similar documentation to certain aliens who have strong ties to the United States and are not enforcement priorities. Because policies like DACA and DAPA encourage certain aliens to come forward and identify themselves to USCIS, these policies create an ef?cient mechanism for CBP to quickly identify aliens who are not priorities for removal and thus focus limited resources on high priority aliens. DACA and DAPA thus support overall mission to secure the border. 10. I am aware that this Court has temporarily enjoined implementation of DAPA and the 2014 modi?cations to DACA. By preventing certain aliens who are not a priority for deportation from obtaining DAPA documents (or DACA documents under the expanded guidelines), the temporary injunction interferes with the agency?s ability to obtain the enforcement ef?ciencies that DAPA and the expansion of DACA are anticipated to create, for the time that the injunction remains in place. The injunction is thus expected to impair ability to ensure that its limited enforcement resources are spent in the most effective and ef?cient way to safeguard national security, border security and public safety. Case 1:14-cv-00254 Document 150-2 Filed in TXSD on 02/23/15 Page 6 of 7 Effects of Iniunction 11. Based on my years of experience in law enforcement, I believe that DACA and DAPA substantially bene?t the overall safety of our communities, and that the temporary injunction the Court has entered detracts from those bene?ts. 12. As a former police chief and now the Commissioner of one of the world?s largest law enforcement organizations, I understand the critical need to prioritize law enforcement resources. If law enforcement organizations do not ensure that their limited resources are directed to their highest priorities, overall public safety might be compromised. Focusing limited immigration enforcement resources on aliens who are eligible for DACA and DAPA is anticipated to divert resources from recent border crossers and real national security and public safety threats, such as those who may be terrorists, smugglers, drug traf?ckers, 01' engaged in transnational organized crime. 13. Another anticipated law enforcement bene?t of DACA and DAPA is that, by temporarily eliminating the immediate fear of detention and deportation, recipients might be more inclined to cooperate with federal, state, and local law enforcement in reporting crimes or serving as witnesses in criminal cases. As the numerous law enforcement of?cials have made clear in an amicus brief ?led in this case, DAPA and DACA are expected to support community policing efforts and help law enforcement agencies safeguard their communities. 14. DAPA and the expansion of DACA would allow a signi?cant number of otherwise law- abiding aliens with strong ties to the country to step forward and request deferred action. By halting implementation of DAPA and the expansion of DACA, the temporary injunction undermines these potential law enforcement bene?ts for the duration of time that the injunction remains in place. Case 1:14-cv-00254 Document 150-2 Filed in TXSD on 02/23/15 Page 7 of 7 I declare under penalty of perjury that the foregoing is true and correct. 7 2 Executed this 3 day of February of 2015. R. Gil Kerlikowske? Commissioner Case 1:14-cv-00254 Document 150-3 Filed in TXSD on 02/23/15 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________________ ) STATE OF TEXAS, et al. ) ) Plaintiffs, ) ) No. 1:14-cv-254 v. ) ) UNITED STATES OF AMERICA, et al. ) ) Defendants. ) __________________________________________) ORDER Upon consideration of Defendants’ Emergency Motion to Stay the Court’s February 16, 2015 Order Pending Appeal, any memoranda filed in support thereof or opposition thereto, and the entire record herein, it is hereby ORDERED that Defendants’ Motion is GRANTED; and it is FURTHER ORDERED that the Court’s Order of February 16, 2015 [ECF No. 144 & 145] is hereby stayed in its entirety pending resolution of Defendants’ appeal. Signed on February _____, 2015. ___________________________________ The Honorable Andrew S. Hanen United States District Judge -1-