No. In the Supreme Court of the United States UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL. ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT NOEL J. FRANCISCO Solicitor General Counsel of Record CHAD A. READLER Acting Assistant Attorney General JEFFREY B. WALL Deputy Solicitor General HASHIM M. MOOPPAN Deputy Assistant Attorney General JONATHAN Y. ELLIS Assistant to the Solicitor General MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217 QUESTIONS PRESENTED This dispute concerns the policy of immigration enforcement discretion known as Deferred Action for Childhood Arrivals (DACA). In 2016, this Court affirmed, by an equally divided Court, a decision of the Fifth Circuit holding that two related Department of Homeland Security (DHS) enforcement policies, including an expansion of the DACA policy, were likely unlawful and should be enjoined. See United States v. Texas, 136 S. Ct. 2271 (per curiam). In September 2017, the former Acting Secretary of Homeland Security determined that the original DACA policy would likely be struck down by the courts on the same grounds and that the policy was unlawful. Accordingly, she instituted an orderly wind-down of the DACA policy. The district court here concluded that respondents are likely to succeed in proving that the Acting Secretary’s decision to rescind the DACA policy was arbitrary and capricious, and it enjoined DHS from rescinding it on a nationwide basis while this litigation proceeds. The questions presented are as follows: 1. Whether the Acting Secretary’s decision to wind down the DACA policy is judicially reviewable. 2. Whether the Acting Secretary’s decision to wind down the DACA policy is lawful. (I) PARTIES TO THE PROCEEDING Petitioners are the United States Department of Homeland Security; Donald J. Trump, President of the United States; Kirstjen M. Nielsen, Secretary of Homeland Security; Jefferson B. Sessions III, Attorney General of the United States; and the United States of America. Respondents are the Regents of the University of California; Janet Napolitano, President of the University of California; the State of California; the State of Maine; the State of Maryland; the State of Minnesota; the City of San Jose; Dulce Garcia; Miriam Gonzalez Avila; Saul Jimenez Suarez; Viridiana Chabolla Mendoza; Norma Ramirez; Jirayut Latthivongskorn; the County of Santa Clara; and Service Employees International Union Local 521. (II) TABLE OF CONTENTS Page Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 2 Statutory provisions involved ...................................................... 2 Statement ...................................................................................... 2 Reasons for granting the petition ............................................. 12 I. The decision below is in need of immediate review.... 13 II. The decision below is wrong ......................................... 15 A. The Rescission Memo is not reviewable ............... 16 B. The Rescission Memo is lawful .............................. 24 1. The rescission was reasonable in light of the Fifth Circuit’s decision and the impending litigation.......................................... 24 2. The rescission was reasonable in light of the Acting Secretary’s determination that DACA is unlawful ............................................. 31 Conclusion ................................................................................... 33 Appendix A — District court order (Jan. 9, 2018)................. 1a Appendix B — District court notice of appeal (Jan. 16, 2018) ............................................ 71a Appendix C — District court order granting in part defendants’ motion to dismiss under FRCP 12(b)(6) (Jan. 12, 2018) .................. 76a Appendix D — Memorandum on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) .......... 95a Appendix E — Memorandum on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014) ....................... 100a (III) IV Table of Contents—Continued:    Page Appendix F — Memorandum on Rescission of Deferred Action for Childhood Arrivals (Sept. 5, 2017)........................................... 109a Appendix G — Statutory provisions ................................... 118a TABLE OF AUTHORITIES Cases: Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ........ 29 Arizona v. United States, 567 U.S. 387 (2012) ........... 2, 3, 18 Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999), cert. denied, 531 U.S. 811 (2000) ....................................... 22 Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (1974) ..................................... 24, 25 Dames & Moore v. Regan, 453 U.S. 654 (1981) .................. 14 Elgin v. Department of Treasury, 567 U.S. 1 (2012) ......... 23 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) .................................................................................... 24 Green v. Napolitano, 627 F.3d 1341 (10th Cir. 2010) ........ 23 Heckler v. Chaney, 470 U.S. 821 (1985) ...................... passim I.C.C. v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987).......................................16, 18, 19, 20, 21 Lewis v. Casey, 518 U.S. 343 (1996) ..................................... 33 Lincoln v. Vigil, 508 U.S. 182 (1993) ....................... 16, 19, 20 Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) .................................................................................... 33 Massachusetts v. EPA, 549 U.S. 497 (2007) ................. 31, 32 Mistretta v. United States, 488 U.S. 361 (1989) ................. 15 Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .......................... 24, 29, 31 Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ..........................3, 18, 21, 22, 24 V Cases—Continued: Page Texas v. United States: 86 F. Supp. 3d 591 (S.D. Tex.), aff ’d, 809 F.3d 134 (5th Cir. 2015), aff ’d, 136 S. Ct. 2271 (2016) .............. 5 809 F.3d 134 (5th Cir. 2015), aff ’d, 136 S. Ct. 2271 (2016) ............................................... 5, 26, 27, 28, 29, 32 Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) .................................................................................... 23 United States v. Armstrong, 517 U.S. 456 (1996) .............. 17 United States v. Nixon, 418 U.S. 683 (1974)....................... 14 United States v. Texas, 136 S. Ct. 2271 (2016) ..................... 5 Vasquez v. Aviles, 639 Fed. Appx. 898 (3d Cir. 2016) ........ 22 Wayte v. United States, 470 U.S. 598 (1985) ...................... 19 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).............................................................. 14 Constitution, statutes, and rules: U.S. Const. Amend. V (Due Process Clause) ..................... 11 Administrative Procedure Act, 5 U.S.C. 551 et seq............ 14 5 U.S.C. 701(a)(2).............................. 8, 15, 16, 18, 20, 118a 5 U.S.C. 706(2)(A) .................................................. 24, 119a Clean Air Act, 42 U.S.C. 7401 et seq. ................................... 32 42 U.S.C. 7521(a)(1) ......................................................... 32 Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq. ............................................................ 19 21 U.S.C. 352(f )................................................................ 19 Immigration and Nationality Act, 8 U.S.C. 1101 et seq. .............................................................. 2 8 U.S.C. 1103(a)(1)....................................................... 2, 26 8 U.S.C. 1158(b)(1)(A) ....................................................... 3 8 U.S.C. 1182(a) (2012 & Supp. IV 2016) ........................ 3 8 U.S.C. 1182(d)(5)(A) ....................................................... 3 VI Statutes and rules—Continued: Page 8 U.S.C. 1182(h) ............................................................... 23 8 U.S.C. 1182(i) ................................................................ 23 8 U.S.C. 1227(a) ................................................................. 3 8 U.S.C. 1229b.............................................................. 3, 23 8 U.S.C. 1229c .................................................................. 23 8 U.S.C. 1252 .................................................... 16, 21, 120a 8 U.S.C. 1252(a)(1)................................................. 22, 120a 8 U.S.C. 1252(a)(2)(B) ........................................... 23, 121a 8 U.S.C. 1252(a)(2)(B)(i) ....................................... 23, 122a 8 U.S.C. 1252(a)(2)(D) ........................................... 23, 122a 8 U.S.C. 1252(b)(9) ................................................ 22, 129a 8 U.S.C. 1252(g) ......................................8, 21, 22, 23, 134a 8 U.S.C. 1255 .................................................................... 23 Railway Labor Act, 45 U.S.C. 151 et seq. ............................ 21 Regulatory Flexibility Act, 5 U.S.C. 601 et seq. ................... 7 6 U.S.C. 202(5) ..................................................3, 18, 26, 30, 32 28 U.S.C. 1254 ........................................................................ 13 28 U.S.C. 1254(1) ................................................................... 13 28 U.S.C. 1292(a)(1) ............................................................... 11 28 U.S.C. 1292(b) ....................................................... 11, 12, 13 28 U.S.C. 2101(e) ................................................................... 13 Fed. R. App. P. 5(a) ............................................................... 12 Fed. R. Civ. P.: Rule 12(b)(1) ............................................................ 7, 8, 12 Rule 12(b)(6) .......................................................... 7, 11, 12 Sup. Ct. R. 11 ......................................................................... 14 Miscellaneous: The White House, Remarks by the President on Immigration (June 15, 2012), https://go.usa.gov/ xnZFY .................................................................................. 30 VII Miscellaneous—Continued: Page Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) ............................................................... 13, 14 U.S. Citizenship & Immigration Servs., Deferred Action for Childhood Arrivals: Response to January 2018 Preliminary Injunction (Jan. 13, 2018), https://www.uscis.gov/humanitarian/deferredaction-childhood-arrivals-response-january-2018preliminary-injunction. ...................................................... 10 In the Supreme Court of the United States No. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL. ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT The Solicitor General, on behalf of the United States Department of Homeland Security and other federal parties, respectfully petitions for a writ of certiorari before judgment to the United States Court of Appeals for the Ninth Circuit. OPINIONS BELOW The order of the district court granting respondents’ motion for a preliminary injunction and denying the government’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) (App., infra, 1a-70a) is not yet published in the Federal Supplement but is available at 2018 WL 339144. A separate order of the district court granting in part, and denying in part, the government’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (App., infra, 76a-94a) is not yet published (1) 2 in the Federal Supplement but is available at 2018 WL 401177. JURISDICTION On January 9, 2018, the district court denied the government’s Rule 12(b)(1) motion, entered a preliminary injunction, and certified its Rule 12(b)(1) decision for interlocutory appeal. On January 12, 2018, the district court granted in part and denied in part the government’s Rule 12(b)(6) motion and certified several of its rulings for interlocutory appeal. The government filed a notice of appeal of the order granting a preliminary injunction on January 16, 2018 (App., infra, 71a-75a). The same day, the government filed a petition for permission to appeal both the January 9 and January 12 orders that the district court had certified for interlocutory appeal. The court of appeals’ jurisdiction over the appeal of the preliminary injunction rests on 28 U.S.C. 1292(a)(1). The court of appeals’ jurisdiction over the appeal of the certified rulings would rest on 28 U.S.C. 1292(b). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) and 28 U.S.C. 2101(e). STATUTORY PROVISIONS INVOLVED Pertinent statutory provisions are set forth in the appendix to this petition. App., infra, 118a-134a. STATEMENT 1. a. The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., charges the Secretary of Homeland Security “with the administration and enforcement” of the Act. 8 U.S.C. 1103(a)(1). Individual aliens are subject to removal if, inter alia, “they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United States, 567 U.S. 387, 396 (2012); see 3 8 U.S.C. 1182(a) (2012 & Supp. IV 2016); see also 8 U.S.C. 1227(a). As a practical matter, however, the federal government cannot remove every removable alien, and a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 567 U.S. at 396. For any alien subject to removal, Department of Homeland Security (DHS) officials must first “decide whether it makes sense to pursue removal at all.” Arizona, 567 U.S. at 396. After removal proceedings begin, government officials may decide to grant discretionary relief, such as asylum, parole, or cancellation of removal. See 8 U.S.C. 1158(b)(1)(A), 1182(d)(5)(A), 1229b. And, “[a]t each stage” of the process, “the Executive has discretion to abandon the endeavor.” Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 483 (1999) (AADC). In making these decisions, like other agencies exercising enforcement discretion, DHS must engage in “a complicated balancing of a number of factors which are peculiarly within its expertise.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). Recognizing the need for such balancing, Congress has provided that the “Secretary [of Homeland Security] shall be responsible for * * * [e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. 202(5). b. In 2012, DHS announced the policy known as Deferred Action for Childhood Arrivals (DACA). See App., infra, 95a-99a (June 15, 2012 memorandum). Deferred action is a practice in which the Secretary exercises discretion, “for humanitarian reasons or simply for [her] own convenience,” to notify an alien of her decision to forbear from seeking his removal for a designated period. AADC, 525 U.S. at 484. A grant of deferred action does not confer lawful immigration status 4 or provide any defense to removal. DHS retains discretion to revoke deferred action unilaterally, and the alien remains removable at any time. DACA made deferred action available to “certain young people who were brought to this country as children.” App., infra, 95a. Under the original DACA policy, following successful completion of a background check and other review, an alien would receive deferred action for a period of two years, subject to renewal. Id. at 97a-98a. The DACA policy made clear that it “confer[red] no substantive right, immigration status or pathway to citizenship,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” Id. at 99a. In 2014, DHS created a new policy referred to as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). See App., infra, 100a-108a. Through a process expressly designed to be “similar to DACA,” DAPA made deferred action available for certain individuals who had a child who was a U.S. citizen or lawful permanent resident. Id. at 105a. At the same time, DHS also expanded DACA by extending the deferred-action period from two to three years and by loosening the age and residency criteria. Id. at 104a-105a. c. Soon thereafter, Texas and 25 other States brought suit in the Southern District of Texas to enjoin DAPA and the expansion of DACA. The district court issued a nationwide preliminary injunction, finding a likelihood of success on the claim that the DAPA and expanded DACA memorandum was a “ ‘substantive’ rule that should have undergone the notice-andcomment rule making procedure” required by the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. 5 Texas v. United States, 86 F. Supp. 3d 591, 671 (2015); see id. at 607, 647, 665-678. The Fifth Circuit affirmed the preliminary injunction, holding that the DAPA and expanded DACA policies likely violated both the APA and the INA. Texas v. United States, 809 F.3d 134, 146, 170-186 (2015). The court of appeals concluded that plaintiffs had “established a substantial likelihood of success on the merits of their procedural claim” that DAPA and expanded DACA were invalidly promulgated without notice and comment. Id. at 178. The court also concluded, “as an alternate and additional ground,” that the policies were substantively contrary to law. Ibid. The court observed that the INA contains an “intricate system of immigration classifications and employment eligibility,” and “flatly does not permit the reclassification of millions of illegal aliens as lawfully present” and eligible for “federal and state benefits, including work authorization.” Id. at 184. And it noted that Congress had repeatedly declined to enact legislation “closely resembl[ing] DACA and DAPA.” Id. at 185. After briefing and argument, this Court affirmed the Fifth Circuit’s judgment by an equally divided Court, United States v. Texas, 136 S. Ct. 2271, 2272 (2016) (per curiam), leaving in place the nationwide injunction against DAPA and the expansion of DACA. d. In June 2017, Texas and other plaintiff States in the Texas case announced their intention to amend their complaint to challenge the original DACA policy. App., infra, 17a. They asserted that “[f ]or the same reasons that DAPA and Expanded DACA’s unilateral Executive Branch conferral of eligibility for lawful presence and work authorization was unlawful, the original June 15, 6 2012 DACA memorandum is also unlawful.” D. Ct. Doc. 64-1, at 239. On September 5, 2017, rather than engage in litigation in which DACA would be challenged on essentially the same grounds that succeeded in Texas before the same court, DHS decided to wind down the original DACA policy in an orderly fashion. See App., infra, 109a-117a (Rescission Memo). In the Rescission Memo, the Acting Secretary of Homeland Security explained that, “[t]aking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation,” as well as advice from the Attorney General that the original DACA policy was unlawful and that the “potentially imminent” challenge to DACA would “likely * * * yield similar results” to the Texas litigation, “it is clear that the June 15, 2012 DACA program should be terminated.” Id. at 114a-115a. The Acting Secretary accordingly announced that, “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,” the June 15, 2012 memorandum was “rescind[ed].” Id. at 115a. In light of the “complexities associated with winding down the program,” however, the Rescission Memo explained that DHS would “provide a limited window in which it w[ould] adjudicate certain requests for DACA.” App., infra, 115a. Specifically, DHS would “adjudicate— on an individual, case-by-case basis—properly filed pending DACA renewal requests * * * from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.” Id. at 115a-116a. The Rescission Memo further 7 provided that the government “[w]ill not terminate the grants of previously issued deferred action * * * solely based on the directives in this memorandum” for the remaining two-year periods. Id. at 116a. 2. Shortly after the Acting Secretary’s decision, respondents brought these five related suits in the Northern District of California challenging the rescission of DACA. App., infra, 19a-21a. Collectively, they allege that the termination of DACA is unlawful because it violates the APA’s requirement for notice-and-comment rulemaking; is arbitrary and capricious; violates the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.; denies respondents equal protection and due process; and permits the government to use information obtained through DACA in a manner inconsistent with principles of equitable estoppel. See App., infra, 21a-22a. Similar challenges have been brought in district courts in New York, Maryland, Virginia, Florida, and the District of Columbia. In November 2017, the government filed a motion to dismiss all five suits under Federal Rule of Civil Procedure 12(b)(1) and (b)(6). 1 At the threshold, the govern- The government filed the administrative record in October 2017. Litigation ensued in which respondents sought and obtained orders from the district court directing a vast expansion of the administration record, in addition to immediate discovery. See, e.g., D. Ct. Doc. 79 (Oct. 17, 2017). The government sought review of those orders in a petition for a writ of mandamus in the court of appeals, which the Ninth Circuit denied. See 875 F.3d 1200 (2017). After granting a stay of the district court’s orders, see 138 S. Ct. 371 (2017), this Court granted the government’s petition for a writ of certiorari, vacated the Ninth Circuit’s judgment, and remanded for further proceedings. See 138 S. Ct. 443 (2017). On remand, the district court stayed its orders requiring expansion of the administrative record and authorizing 1 8 ment argued that respondents’ claims are not reviewable because the Acting Secretary’s decision to rescind DACA is committed to agency discretion by law, see 5 U.S.C. 701(a)(2); and because judicial review of the denial of deferred action, if available at all, is barred under the INA prior to the issuance of a final removal order, see 8 U.S.C. 1252(g). The government further argued that respondents’ substantive APA claims fail because the Acting Secretary rationally explained her decision to wind down the discretionary DACA policy given the imminent risk of a nationwide injunction and her reasonable conclusion that the policy is unlawful. Finally, the government argued that respondents’ other claims are without merit because the rescission of DACA is exempt from notice-and-comment requirements; does not violate principles of equal protection or due process; and does not change the policies governing the use of aliens’ personal information at all. Respondents opposed the government’s motion to dismiss and filed a motion for a preliminary injunction, seeking to prevent the government from rescinding the DACA policy. 3. On January 9, 2018, the district court denied the motion to dismiss to the extent it was based on Rule 12(b)(1), and entered a preliminary injunction requiring the government to “maintain the DACA program on a nationwide basis.” App., infra, 66a; see id. at 1a-70a. discovery “pending further order.” See D. Ct. Doc. 225 (Dec. 21, 2017). The court recently announced its view that “the order to complete the administrative record should be re-issued” and certified for interlocutory appeal. D. Ct. Doc. 240, at 1 (Jan. 12, 2018). It has directed the parties to brief by January 19 “whether some narrowing of the order is necessary or appropriate” before the order is reissued and “the extent to which * * * discovery should resume.” Id. at 1-2. 9 The district court first ruled that the Acting Secretary’s rescission of DACA was not committed to agency discretion by law. The court acknowledged that an agency’s decisions “not to prosecute or initiate enforcement actions are generally not reviewable as they are ‘committed to an agency’s absolute discretion.’ ” App., infra, 27a (quoting Chaney, 470 U.S. at 831). But it concluded that the rescission of DACA was different because it involved a “broad enforcement polic[y]” rather than an “ ‘individual enforcement decision’ ”; it rescinded a policy of enforcement discretion, instead of announcing a new one; and the “main” rationale for rescinding the prior policy was its “supposed illegality,” which the court concluded it was authorized to decide. Id. at 28a-30a (citation omitted). The court also concluded that the INA did not preclude review because “plaintiffs do not challenge any particular removal but, rather, challenge the abrupt end to a nationwide deferred-action and work-authorization program.” Id. at 30a-31a. The district court then ruled that respondents were entitled to a preliminary injunction, concluding that they had demonstrated a likelihood of success on claims that the rescission of DACA was arbitrary and capricious. App., infra, 41a-62a. The court acknowledged that “a new administration is entitled to replace old policies with new policies so long as they comply with the law,” id. at 2a, and the court did not dispute that DACA was a discretionary non-enforcement policy that was neither mandated nor specifically authorized by statute. The court nonetheless concluded that respondents were likely to succeed on their claims both because “the agency’s decision to rescind DACA was based on a flawed legal premise” and because the government’s 10 “supposed ‘litigation risk’ rationale” was an invalid “post hoc rationalization” and, “in any event, arbitrary and capricious.” Id. at 42a. Finding that respondents had satisfied the remaining equitable requirements for an injunction, see App., infra, 62a-66a, the district court ordered the government, “pending final judgment” or other order, “to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017.” Id. at 66a. The court specifically directed that the government must “allow[] DACA enrollees to renew their enrollments.” Ibid. 2 The court also required DHS to post “reasonable public notice that it will resume receiving DACA renewal applications” and to provide “summary reports to the Court (and counsel)” every three months about “its actions on all DACA-related applications.” Id. at 67a. 3 The district court identified certain “exceptions” to its injunction. The court specified “(1) that new applications from applicants who have never before received deferred action need not be processed; (2) that the advance parole feature need not be continued for the time being for anyone; and (3) that defendants may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.” App., infra, 66a-67a. The court also specified that “[n]othing in [its] order” would prohibit DHS from “remov[ing] any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed.” Id. at 67a. 3 Consistent with the district court’s order, DHS has issued guidance announcing that it has “resumed accepting requests to renew a grant of deferred action under DACA.” U.S. Citizenship & Immigration Servs., Deferred Action for Childhood Arrivals: Response to January 2018 Preliminary Injunction (Jan. 13, 2018), https:// www.uscis.gov/humanitarian/deferred-action-childhood-arrivalsresponse-january-2018-preliminary-injunction. 2 11 The district court certified its order for interlocutory appeal under 28 U.S.C. 1292(b), to the extent it denied the “questions interposed by the government in its motion to dismiss under [Rule] 12(b)(1).” App., infra, 70a. 4. On January 12, 2018, the district court issued a further order granting in part and denying in part the government’s motion to dismiss to the extent it was based on Rule 12(b)(6). App., infra, 76a-94a. The court declined to dismiss respondents’ substantive APA claims “[f ]or the same reasons” stated in its January 9 order. Id. at 77a. The court also declined to dismiss respondents’ claims that the rescission of DACA violated principles of equal protection based on race, id. at 88a-92a, and that DHS had violated the Due Process Clause by allegedly “chang[ing] its policy” on the use of personal information “provided by DACA recipients,” id. at 84a-86a. The court dismissed respondents’ remaining claims, including with respect to procedural notice-and-comment, the Regulatory Flexibility Act, procedural due process, equitable estoppel, and equal protection based on a fundamental right to a job. Id. at 77a-84a, 86a-88a, 92a. The court certified various of its holdings—including those adverse to the government— for interlocutory appeal pursuant to 28 U.S.C. 1292(b). See id. at 94a. 5. The government filed timely notices of appeal of the district court’s January 9 preliminary-injunction order in each of the five suits. App., infra, 71a-75a; cf. 28 U.S.C. 1292(a)(1). The appeals have been consolidated and docketed as No. 18-15068, and remain pending before the court of appeals. The government also has filed a timely petition for permission to appeal from the district court’s January 9 and January 12 orders granting in part and denying in part the government’s 12 motion to dismiss under Rule 12(b)(1) and (b)(6); that petition has been docketed as No. 18-80004. See 28 U.S.C. 1292(b); Fed. R. App. P. 5(a). REASONS FOR GRANTING THE PETITION This Court’s immediate review is warranted. The district court has entered a nationwide injunction that requires DHS to keep in place a policy of non-enforcement that no one contends is required by federal law and that DHS has determined is, in fact, unlawful and should be discontinued. The district court’s unprecedented order requires the government to sanction indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens—and, indeed, to confer on them affirmative benefits (including work authorization)— pursuant to the DACA policy. That policy is materially indistinguishable from the DAPA and expanded DACA policies that the Fifth Circuit held were contrary to federal immigration law in a decision that four Justices of this Court voted to affirm. Without this Court’s immediate intervention, the court’s injunction will persist at least for months while an appeal is resolved and, if the court of appeals does not reverse the injunction, it could continue for more than a year given the Court’s calendar. To be sure, some of these harms could be avoided by a stay of the district court’s order. But a primary purpose of the Acting Secretary’s orderly wind-down of the DACA policy was to avoid the disruptive effects on all parties of abrupt shifts in the enforcement of the Nation’s immigration laws. Inviting more changes before final resolution of this litigation would not further that interest. Moreover, a stay would not address the institutional injury suffered by the United States of being embroiled in protracted litigation over an agency decision that falls squarely within DHS’s broad discretion 13 over federal immigration policy and that is not even judicially reviewable. A stay also would not address the risk that the onerous discovery and administrativerecord orders that already justified this Court’s intervention will be reinstated and create the need for additional rounds of interlocutory appellate review. Accordingly, the government respectfully submits that the most suitable and efficient way to vindicate the law in these unique circumstances is to grant certiorari before judgment and resolve the dispute this Term. I. THE DECISION BELOW IS IN NEED OF IMMEDIATE REVIEW Congress has vested this Court with jurisdiction to review “[c]ases in the courts of appeals * * * [b]y writ of certiorari * * * before or after rendition of judgment or decree.” 28 U.S.C. 1254(1) (emphasis added). “An application * * * for a writ of certiorari to review a case before judgment has been rendered in the court of appeals may be made at any time before judgment.” 28 U.S.C. 2101(e). 4 This Court will grant certiorari before judgment “only upon a showing that the case is of such imperative public importance as to justify devia- By virtue of the government’s notice of appeal, the district court’s preliminary-injunction order is already “in the court[] of appeals” within the meaning of 28 U.S.C. 1254 and 2101(e). See Stephen M. Shapiro et al., Supreme Court Practice § 2.4, at 85-86 (10th ed. 2013). Accordingly, this petition is focused on the validity of that order. If the court of appeals grants the government’s pending petition for interlocutory appeal, however, both the January 9 and January 12 orders will be “in the court[] of appeals” in their entirety, 28 U.S.C. 1254; see 28 U.S.C. 1292(b), and could therefore be reviewed by this Court. 4 14 tion from normal appellate practice and to require immediate determination in this Court.” Sup. Ct. R. 11. This case satisfies that standard. An immediate grant of certiorari is necessary in order to obtain an appropriately prompt resolution of this important dispute. Absent certiorari before judgment, it is likely that even expedited proceedings in the Ninth Circuit would entail many months of delay, during which time the district-court injunction would require the government to retain in place a discretionary policy that sanctions the ongoing violation of federal law by more than half a million people. Even if the losing party were to seek certiorari immediately following the Ninth Circuit’s decision, this Court would not be able to review the decision in the ordinary course until next Term at the earliest. From the start of these suits, all parties involved have agreed that time is of the essence. Respondents, the government, and the district court alike all have repeatedly asserted that a speedy resolution is critical. 5 This Court has granted certiorari before judgment in order to promptly resolve other time-sensitive disputes, and it should follow the same course here. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); United States v. Nixon, 418 U.S. 683, 686-687 (1974); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584 (1952); cf. Stephen M. Shapiro et al., Supreme Court Practice § 4.20, at 287-288 (10th ed. 2013) (collecting See, e.g., D. Ct. Doc. 87, at 1 (Oct. 23, 2017) (district-court response to mandamus petition) (declaring that “[t]ime is of the essence”); 17-801 Regents Br. in Opp. 30 (emphasizing “the timesensitive nature of this case”); 9/21/2017 Tr. 18 (statement of government counsel) (“We think your suggestion to get to final judgment quickly makes a lot of sense in this case.”). 5 15 cases where “[t]he public interest in a speedy determination” warranted certiorari before judgment). Challenges to the rescission of the DACA policy are currently pending before courts in the Second, Fourth, Ninth, Eleventh, and District of Columbia Circuits, and the plaintiffs in nearly all of them are seeking similar nationwide injunctions. There can be no reasonable question that, as in Texas, this Court’s review will be warranted. The Court is already familiar with the relevant issues in light of its consideration of the Texas case. Additional burdensome discovery, vast expansions of the administrative record, and privilege disputes would only burden the courts and parties without bringing any additional clarity to those issues. And given that the Fifth Circuit’s decision in Texas held DAPA and the DACA expansion unlawful, and (as explained below) that court’s reasoning applies to DACA as well, only this Court can resolve the conflict in the lower courts and provide much-needed clarity to the government and DACA recipients alike. See Mistretta v. United States, 488 U.S. 361, 371 (1989) (granting certiorari before judgment where constitutionality of sentencing guidelines presented question of “ ‘imperative public importance’ ” and had resulted in “disarray among the Federal District Courts”) (citation omitted). II. THE DECISION BELOW IS WRONG Review is further warranted because the decision below is incorrect. The Acting Secretary’s decision to rescind DACA—which is simply a policy of enforcement discretion—is a classic determination that is “committed to agency discretion by law,” 5 U.S.C. 701(a)(2), and therefore unreviewable under the APA. Even if DHS’s prospective denial of deferred action were reviewable, the individual respondents could not obtain such review 16 unless and until a final order of removal were entered against them. See 8 U.S.C. 1252. And even if it were reviewable now under the APA, the decision to rescind the DACA policy was not arbitrary and capricious. The Acting Secretary opted to wind down DACA after reasonably concluding that the policy was likely to be struck down by courts and indeed was unlawful. A. The Rescission Memo Is Not Reviewable 1. a. The APA precludes review of agency actions that are “committed to agency discretion by law.” 5 U.S.C. 701(a)(2). “Over the years,” this Court has interpreted that provision to apply to various types of agency decisions that “traditionally” have been regarded as unsuitable for judicial review. Lincoln v. Vigil, 508 U.S. 182, 191 (1993). Section 701(a)(2) precludes review, for example, of an agency’s decision not to institute enforcement actions, Heckler v. Chaney, 470 U.S. 821, 831 (1985); an agency’s refusal to reconsider a prior decision based on an alleged “material error,” I.C.C. v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 282 (1987); and an agency’s allocation of funds from a lump-sum appropriation, Lincoln, 508 U.S. at 192. Such exercises of discretion, the Court has explained, often require “a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Chaney, 470 U.S. at 831. With respect to an agency’s enforcement discretion in particular, an agency may “not only assess whether a violation has occurred,” but “whether agency resources are best spent on this violation or another”; whether enforcement in a particular scenario “best fits the agency’s overall policies”; and whether the agency “has enough resources to undertake the action at all.” Chaney, 470 U.S. at 831. In addition, the Court has 17 noted that when an agency declines to enforce, it “generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect.” Id. at 832. In this way and others, agency enforcement discretion “shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch.” Ibid. b. The Acting Secretary’s decision to discontinue an existing policy of enforcement discretion falls well within the types of agency decisions that traditionally have been understood as “committed to agency discretion.” Like the decision to adopt a policy of selective nonenforcement, the decision whether to retain such a policy can “involve[] a complicated balancing” of factors that are “peculiarly within the expertise” of the agency, including determining how the agency’s resources are best spent and how the non-enforcement policy fits with the agency’s overall policies. Chaney, 470 U.S. at 831. Likewise, a decision to abandon an existing nonenforcement policy will not, in itself, bring to bear the agency’s coercive power over any individual. Indeed, an agency’s decision to reverse a prior policy of civil nonenforcement is akin to changes in policy as to criminal prosecutorial discretion, which regularly occur within the U.S. Department of Justice both within and between presidential administrations, and which have never been considered amenable to judicial review. See United States v. Armstrong, 517 U.S. 456, 464 (1996) (“[T]he decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally 18 rests entirely in [the prosecutor’s] discretion.”) (emphasis added) (citation omitted). This presumption of nonreviewability applies with particular force when it comes to immigration. On top of the general concerns implicated in any enforcement decision, in the immigration context a decision not to enforce tolerates not merely past misconduct but a “continuing violation of United States law.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 490 (1999). In addition, the “dynamic nature of relations with other countries requires the Executive Branch to ensure that [immigration] enforcement policies are consistent with this Nation’s foreign policy.” Arizona v. United States, 567 U.S. 387, 396-397 (2012). Given these realities, the “broad discretion exercised by immigration officials” has become a “principal feature of the removal system.” Id. at 396. In the absence of a statutory directive establishing “substantive priorities” or “otherwise circumscribing” the agency’s discretion, Chaney, 470 U.S. at 833, the Court has found it “impossib[le]” to “devis[e] an adequate standard of review for such agency action,” Brotherhood of Locomotive Eng’rs, 482 U.S. at 282. Respondents have not identified any such statutory directive here. To the contrary, Congress has specifically empowered the Secretary of Homeland Security to “[e]stablish[] national immigration enforcement policies and priorities.” 6 U.S.C. 202(5). The revocation of an existing policy establishing such enforcement policies and priorities is therefore a decision that is “committed to agency discretion by law,” 5 U.S.C. 701(a)(2), and not subject to arbitraryand-capricious review. 19 c. The district court’s reasons for rejecting that conclusion are both flatly inconsistent with this Court’s precedents and unpersuasive on their own terms. First, the district court reasoned that the rescission of the DACA policy was reviewable because it addressed “broad enforcement policies,” instead of an individual enforcement decision. App., infra, 28a. That is irrelevant. Agency decisions about how its “resources are best spent” or how certain enforcement activity “best fits the agency’s overall policies,” Chaney, 470 U.S. at 831, are at least as susceptible to implementation through broad guidance as through case-by-case enforcement decisions. See, e.g., Wayte v. United States, 470 U.S. 598, 601-603 (1985). Conversely, individual enforcement decisions are regularly informed by interpretations of the agency’s substantive statute to determine “whether a violation has occurred.” Ibid.; see Brotherhood of Locomotive Eng’rs, 482 U.S. at 283 (“[A] common reason for failure to prosecute an alleged criminal violation is the prosecutor’s belief (sometimes publicly stated) that the law will not sustain a conviction.”). The non-enforcement decision in Chaney was not an individualized decision by the Food and Drug Administration (FDA) to forgo enforcement of the Federal Food, Drug, and Cosmetic Act (FDCA) against a particular alleged violator. Rather, the FDA concluded that, as a matter of the agency’s discretion, it would categorically not enforce the FDCA’s misbranding prohibition, 21 U.S.C. 352(f ), against the use of certain drugs for capital punishment when those drugs had been approved by the FDA only for other medical purposes. 470 U.S. at 824-825. And, in Lincoln, the Indian Health Service’s unreviewable decision reallocated funds from an entire regional treatment program in the Southwest 20 to other nationwide Service programs, not from an individual’s treatment plan. 508 U.S. at 184, 188. The question for purposes of Section 701(a)(2) is whether the agency’s decision is inherently discretionary in nature, not the number of people to whom it applies. Second, the district court reasoned that the rescission of the DACA policy was reviewable because, rather than adopting a policy of non-enforcement, it rescinded one. App., infra, 29a-30a. The DACA policy, the court determined, had “become an important program for DACA recipients and their families” and others, ibid., and “[a]n agency action to terminate [an existing policy] bears no resemblance to an agency decision not to regulate something never before regulated.” Id. at 30a. That is not so. As explained above, a decision whether to retain an enforcement policy implicates all of the same considerations about agency priorities and resources that inform the decision to adopt such a policy in the first instance. In Lincoln, for example, the Indian Health Service had operated its regional service for seven years, providing important medical treatment to disabled Indian children on which the recipients had undoubtedly come to rely. See 508 U.S. at 185-188. But notwithstanding that reliance, because nothing in the relevant statutes constrained the Service’s discretion, this Court held that the Service’s decision to discontinue the program was “committed to agency discretion by law.” The same is true here. Third, the district court concluded that the Acting Secretary’s decision was reviewable because it was based in substantial part on her view of the legality of the original DACA policy. App., infra, 30a. In the court’s view, “[t]he main, if not exclusive, rationale for 21 ending DACA was its supposed illegality,” and “determining illegality is a quintessential role of the courts.” Ibid. As the court itself recognized, however, that reasoning cannot suffice: “[A] presumptively unreviewable agency action does not become reviewable simply because ‘the agency gives a reviewable reason for otherwise unreviewable action.’ ” Id. at 30a n.7 (quoting Brotherhood of Locomotive Eng’rs, 482 U.S. at 283). Thus, in Brotherhood of Locomotive Engineers, the ICC’s decision not to reconsider a prior decision was unreviewable, even though the agency based that denial on an interpretation of its legal obligations under the Railway Labor Act, 45 U.S.C. 151 et seq. 482 U.S. at 276, 283. And in Chaney, the FDA’s decision not to enforce the misbranding prohibition did not become reviewable even though it was based, in part, on the agency’s understanding of its authority to initiate such proceedings. 470 U.S. at 824. 2. At a minimum, Congress has foreclosed district courts from adjudicating collateral attacks on the Acting Secretary’s discretionary enforcement decisions and policies in the manner pursued by respondents here. a. Under 8 U.S.C. 1252, judicial review of DHS enforcement decisions is generally available, if at all, only through the review procedures of removal orders set forth in that section. In particular, Section 1252(g) states that “[e]xcept as provided in this section * * * no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this subchapter.” In AADC, this Court explained that Section 1252(g) is “de- 22 signed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.” 525 U.S. at 485. The Acting Secretary’s rescission of the DACA policy is such a “ ‘no deferred action’ decision[],” AADC, 525 U.S. at 485, and is an ingredient in the agency’s “commence[ment] [of ] proceedings” against aliens who are unlawfully in the country, 8 U.S.C. 1252(g). Thus, to the extent the rescission of the DACA policy is reviewable at all, it is reviewable only as otherwise “provided in [Section 1252],” ibid.—that is, through “[ j]udicial review of a final order of removal,” 8 U.S.C. 1252(a)(1). See, e.g., Vasquez v. Aviles, 639 Fed. Appx. 898, 901 (3d Cir. 2016) (concluding that, under Section 1252(g), “[t]he District Court therefore lacked jurisdiction to consider [plaintiff ’s] challenge to his denial of DACA relief ”); Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999) (“Review of refusal to grant deferred action is * * * excluded from the jurisdiction of the district court.”), cert. denied, 531 U.S. 811 (2000). That conclusion is also reflected in 8 U.S.C. 1252(b)(9), which channels into the review of final removal orders all questions of fact or law arising from any action taken to remove an alien from the United States. See AADC, 525 U.S. at 483 (characterizing Section 1252(b)(9) as an “unmistakable ‘zipper’ clause”). 6 Even in instances where the statutory text less clearly precludes review, this Court has held that, where it is fairly discernible that Congress intends a particular review scheme to be exclusive, a plaintiff is not permitted to circumvent that exclusive scheme by filing a preemptive district-court action, but must instead present its 6 23 The conclusion that Congress intended to foreclose collateral review of the Acting Secretary’s prospective rescission of a discretionary deferred-action policy is consistent with Congress’s treatment of other kinds of discretionary DHS actions. For example, in 8 U.S.C. 1252(a)(2)(B), Congress provided that “no court shall have jurisdiction to review” judgments regarding the grant or denial of specified forms of discretionary relief—including cancellation of removal, voluntary departure, certain waivers of inadmissibility, and adjustment of status. See 8 U.S.C. 1252(a)(2)(B)(i) (citing 8 U.S.C. 1182(h), 1182(i), 1229b, 1229c, 1255). Congress provided a limited exception to that jurisdictional bar for “review of constitutional claims or questions of law,” 8 U.S.C. 1252(a)(2)(D), but it mandated that any such review occur only “upon a petition for review [of a final order of removal] filed with an appropriate court of appeals in accordance with this section,” ibid. See, e.g., Green v. Napolitano, 627 F.3d 1341, 1347 (10th Cir. 2010). b. The district court concluded that Section 1252(g) does not apply because respondents challenged “the across-the-board cancellation of a nationwide program,” and did so “prior to the commencement of any removal proceedings” against respondents. App., infra, 31a-32a. But none of that matters. The denial of deferred action is a step toward the commencement of removal proceedings against an alien. Respondents cannot escape the INA’s careful scheme for such proceedings simply by filing suit before the agency has officially initiated an enforcement proceeding against them. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-208 claims or defenses through the review scheme established by Congress. See Elgin v. Department of Treasury, 567 U.S. 1, 8-10 (2012); Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-209 (1994). 24 (1994). Respondents’ claims, “if they are reviewable at all,” must be litigated in removal proceedings, not through “separate rounds of judicial intervention” in federal district court. AADC, 525 U.S. at 485. B. The Rescission Memo Is Lawful Even if the Acting Secretary’s decision is reviewable under the APA, it is plainly valid. Under the APA, the Acting Secretary’s decision must be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 706(2)(A). That standard of review is “narrow,” Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), and requires only that the “agency ‘examine the relevant data and articulate a satisfactory explanation for its action,’ ” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (citation omitted). “[A] court is not to substitute its judgment for that of the agency,” State Farm, 463 U.S. at 43, and should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974). The Acting Secretary’s decision to begin an orderly wind-down of a policy of enforcement discretion that indisputably was not required by law—based on her grave concerns about the legality of that policy, and her knowledge that an impending lawsuit likely would have brought the policy to an immediate and disruptive end—easily passes that test. 1. The rescission was reasonable in light of the Fifth Circuit’s decision and the impending litigation The Acting Secretary reasonably rested her decision on her assessment of the risks presented by maintain- 25 ing a policy (original DACA) that was materially indistinguishable to ones (expanded DACA and DAPA) that had been struck down by the Fifth Circuit in a decision affirmed by this Court—and she did so in the face of the threat by Texas and other States to challenge DACA on the same grounds. That rationale alone provides a permissible reason for initiating an orderly wind-down of the policy. a. The district court improperly rejected this rationale as a “post hoc rationalization[]” for the Acting Secretary’s decision. App., infra, 55a. In the court’s view, “[t]he Attorney General’s letter and the Acting Secretary’s memorandum can only be reasonably read as stating DACA was illegal and that, given that DACA must, therefore, be ended, the best course was ‘an orderly and efficient wind-down process,’ rather than a potentially harsh shutdown in the Fifth Circuit.” Id. at 56a. But that is plainly not the only rationale that “may reasonably be discerned” from the Rescission Memo. Bowman, 419 U.S. at 286. In that memorandum, the Acting Secretary recounted in significant detail the litigation surrounding the DAPA and expanded DACA policies. See App., infra, 111a-114a. The memorandum noted that the agency’s prior June 2017 decision to discontinue DAPA and expanded DACA was made after “considering the [government’s] likelihood of success on the merits of th[at] ongoing litigation.” Id. at 114a. It described the subsequent letter from Texas and other States to the Attorney General notifying him of those States’ intention to amend the existing lawsuit to challenge the original DACA policy. Ibid. It quoted the Attorney General’s statement that “it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Ibid. And it stated that, in light 26 of the foregoing, and “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,” the Acting Secretary had decided that the DACA policy “should” be terminated and wound down in “an efficient and orderly fashion.” Id. at 115a; cf. 6 U.S.C. 202(5). A reasonable reading of the Rescission Memo is that the Acting Secretary’s decision was informed by the risk that the government was not “likel[y]” to “succe[ed]” on the merits of the “imminent litigation.” App., infra, 114a. The district court also posited that litigation risk could not have been a rationale for the Acting Secretary’s decision because, “once the Attorney General had determined that DACA was illegal, the Acting Secretary had to accept his ruling as ‘controlling.’ ” App., infra, 56a (citing 8 U.S.C. 1103(a)(1)). But even if the Acting Secretary were bound by the Attorney General’s legal determination as to DACA’s unlawfulness, that is not inconsistent with the Acting Secretary’s assertion of an additional, independent litigation-risk rationale for winding down the policy. b. The Acting Secretary’s rationale was eminently reasonable. In Texas v. United States, the Fifth Circuit concluded that DAPA and expanded DACA were unlawful on both procedural and substantive grounds. 809 F.3d at 178 (2015); see id. at 147 n.11 (including the “DACA expansions” within the opinion’s references to “DAPA”). The entirety of the Fifth Circuit’s reasoning applies equally to the original DACA policy. With respect to procedure, the Fifth Circuit concluded that the memorandum expanding DACA and creating DAPA was not exempt from notice and comment as a statement of policy because of how the original DACA policy had been implemented. See id. at 171-178. The court found that, 27 “[a]lthough the DAPA Memo facially purports to confer discretion,” in fact it would operate as a binding statement of eligibility for deferred action because that is how the original DACA policy had been implemented. Id. at 171; see id. at 174 n.139. As a matter of substance, the Fifth Circuit held that DAPA and expanded DACA were contrary to the INA because (1) “[i]n specific and detailed provisions,” the INA already “confers eligibility for ‘discretionary relief,’ ” including “narrow classes of aliens eligible for deferred action,” 809 F.3d at 179 (citation omitted); (2) the INA’s otherwise “broad grants of authority” could not reasonably be construed to assign to the Secretary the authority to create additional categories of aliens of “vast ‘economic and political significance,’ ” id. at 182183 (citations omitted); (3) DAPA and expanded DACA were inconsistent with historical deferred-action policies because they were not undertaken on a “countryspecific basis * * * in response to war, civil unrest, or natural disasters” nor served as a “bridge[] from one legal status to another,” id. at 184 (citation omitted); and (4) “Congress ha[d] repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (‘DREAM Act’), features of which closely resemble DACA and DAPA.” Id. at 185 (footnote omitted). Every one of those factors also applies to the original DACA policy. c. The district court here nevertheless faulted the Acting Secretary for failing to address perceived distinctions between DACA and the DAPA and expanded DACA policies. App., infra, 57a-58a; see id. at 51a-54a. It is true enough that the Fifth Circuit noted that “any extrapolation from DACA [to DAPA] must be done carefully.” Texas, 809 F.3d at 173. The differences it 28 noted, however, were reasons why DAPA might be lawful even if DACA were not, rather than the other way around. See id. at 174 (noting that the “DAPA Memo contain[ed] additional discretionary criteria”). And, in any event, the Fifth Circuit went on to affirm, “under any standard of review,” the district court’s comparison of the policies. Id. at 174 n.139. The district court suggested that DAPA might have been more vulnerable to challenge because “Congress had already established a pathway to lawful presence for alien parents of citizens,” while “no such analogue” exists for DACA recipients. App., infra, 54a. That reasoning is entirely backward. If Congress’s creation of pathways to lawful presence is relevant at all, then the fact that Congress has done so only for DAPA recipients—and not DACA recipients—surely must render DACA more inconsistent with the INA. In any event, the basis of the Fifth Circuit’s Texas decision was not the existence of a particular statutory pathway to lawful presence, but the “specific and intricate provisions” of the INA as a whole addressing discretionary relief. 809 F.3d at 186. Those provisions no more include DACA recipients than those of DAPA. As confirmation of that fact, the Fifth Circuit also affirmed the injunction with respect to expanded DACA—which differed from the original DACA policy only in the length of the deferred-action period and in its modified age and duration-of-residence requirements. The district court also reasoned that DACA might be distinguishable from DAPA because 689,800 aliens are recipients of DACA, whereas 4.3 million aliens potentially qualified for DAPA. App., infra, 54a. But whatever the ultimate number of individuals that might be affected, there can be no debate that DACA is, like DAPA and expanded DACA, a policy of “vast ‘economic 29 and political significance,’ ” to which the Fifth Circuit’s reasoning would apply. Texas, 809 F.3d at 183 (citations omitted). By contrast, the type of historical deferredaction practices that the Fifth Circuit suggested might be permissible were much more “limited in time and extent, affecting only a few thousand aliens for months or, at most, a few years.” Id. at 185 n.197. The Acting Secretary did not act arbitrarily in failing to credit a distinction between DACA and DAPA that the Fifth Circuit had expressly rejected. Finally, the district court erred in suggesting that, whether or not the original DACA policy was unlawful as it had been implemented, it could have been fixed “by simply insisting on exercise of discretion” in individual cases. App., infra, 54a. The Fifth Circuit relied on the lack of individual discretion only for its conclusion that the DAPA Memorandum was procedurally unlawful, not substantively so. Thus, even if the Acting Secretary could have altered the DACA policy sufficiently to overcome that concern, there is no indication that it would have changed the Fifth Circuit’s substantive conclusion— at least unless the change were so drastic as to return to a practice of “single, ad hoc grants of deferred action made on a genuinely case-by-case basis,” Texas, 809 F.3d at 186 n.202, which is precisely what the rescission of the DACA policy achieves. 7 Nor did the Acting Secretary “fail[] to consider an important aspect of the problem,” State Farm, 463 U.S. at 43, by not discussing the possibility of defending DACA on the basis of laches. App., infra, 57a. That doctrine may provide a defense in an APA action against the government where a plaintiff ’s unreasonable delay in bringing suit prejudiced the government. See Abbott Laboratories v. Gardner, 387 U.S. 136, 155 (1967). The district court did not explain what prejudice the government might have established from Texas’s failure to bring suit earlier. 7 30 d. The district court also ruled that the Acting Secretary’s decision was arbitrary and capricious because she “should have—but did not—weigh DACA’s programmatic objectives as well as the reliance interests of DACA recipients.” App., infra, 58a. By its own terms, however, DACA made deferred action available for only two-year periods, which could “be terminated at any time at the agency’s discretion.” Id. at 102a. When he announced DACA in 2012, President Obama explained that it was a “temporary stopgap measure,” not a “permanent fix.” The White House, Remarks by the President on Immigration (June 15, 2012), https://go.usa. gov/xnZFY. And he urged Congress to act “because these kids deserve to plan their lives in more than twoyear increments.” Ibid. Even assuming DACA was lawful, a discretionary policy that can be revoked at any time cannot create legally cognizable reliance interests —and certainly not beyond the stated duration (generally two years) of deferred-action grants. Nothing in the INA prevents the Secretary of Homeland Security from changing her “national immigration enforcement policies and priorities.” 6 U.S.C. 202(5). 8 In any event, the Acting Secretary’s decision was respectful of the interests of existing DACA recipients. Based on her reasonable evaluation of the litigation risk posed by the imminent lawsuit against the DACA policy, the choice she faced was between a gradual, orderly, and administrative wind-down of the policy, and the risk of an immediate, disruptive, and court-imposed one. Her decision to phase out the policy over a two-and-a-half-year period, permitting a period of additional renewals and permitting renewed and existing grants of deferred action to expire by their terms was, by far, the more humane choice. 8 31 2. The rescission was reasonable in light of the Acting Secretary’s determination that DACA is unlawful The Acting Secretary’s decision is independently supported by her reasonable conclusion, informed by the Attorney General’s advice, that indefinitely continuing the DACA policy would itself have been unlawful. As detailed above, the Fifth Circuit had already concluded that the DAPA and expanded DACA policies were procedurally and substantively invalid in a decision that four Justices of this Court voted to affirm. See pp. 26-27, supra. The Attorney General expressed his agreement with the conclusion reached by the Fifth Circuit in a decision that applies equally to the original DACA policy. See App., infra, 114a (concluding that the DACA policy was “effectuated * * * without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result”). It cannot be that the Acting Secretary’s decision to rescind DACA on the basis of the Fifth Circuit’s decision, this Court’s equally divided affirmance, and the Attorney General’s opinion was the type of “clear error of judgment,” State Farm, 463 U.S. at 43 (citation omitted), that would make it arbitrary and capricious under the APA. The district court concluded that the Acting Secretary could not rely on an assessment of DACA’s legality unless it was correct as a matter of law. See App., infra, 42a (“When agency action is based on a flawed legal premise, it may be set aside as ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ”) (citing Massachusetts v. EPA, 549 U.S. 497, 532 (2007)). Relying on the Secretary’s broad discretion in 32 “[e]stablishing national immigration enforcement policies and priorities,” 6 U.S.C. 202(5), and DHS’s “long and recognized practice” of granting deferred action (along with work authorization and other benefits) on a programmatic basis, the court concluded that, in its view, DACA was lawful. App., infra, 45a; see id. at 42a48a. But the Fifth Circuit rejected those precise considerations when offered in support of the DAPA and expanded DACA policies. See Texas, 809 F.3d at 183. More fundamentally, the district court was wrong to conclude that the Acting Secretary’s discretionary decision to end a particular enforcement policy of doubtful legality must automatically be set aside if a court subsequently decides that the policy was lawful. App., infra, 42a. The court relied on this Court’s decision in Massachusetts v. EPA, supra, for that proposition. But in that case a provision of the Clean Air Act spoke directly to the agency decision at issue, and required EPA to regulate any air pollutant which the agency concluded endangered public health or welfare. See 42 U.S.C. 7521(a)(1) (mandating that the EPA Administrator “shall” prescribe standards). The agency had “refused to comply with this clear statutory command” in part because it misunderstood its authority. 549 U.S. at 533. By contrast here, no one contends that the INA requires DHS to continue the DACA policy of deferred action. Rather, the DACA policy was created as a matter of the Acting Secretary’s broad discretion to set enforcement priorities. After careful review, she determined to rescind that discretionary policy, and nothing in either the APA or INA demands setting aside her lawful determination. 9 The district court also erred in enjoining the rescission of DACA on a “nationwide basis.” App., infra, 66a. As the government has 9 33 CONCLUSION The petition for a writ of certiorari before judgment should be granted. Respectfully submitted. NOEL J. FRANCISCO Solicitor General CHAD A. READLER Acting Assistant Attorney General JEFFREY B. WALL Deputy Solicitor General HASHIM M. MOOPPAN Deputy Assistant Attorney General JONATHAN Y. ELLIS Assistant to the Solicitor General MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM Attorneys JANUARY 2018 explained in its pending petition for a writ of certiorari in Trump v. Hawaii, No. 17-965 (filed Jan. 5, 2018), both constitutional and equitable principles require that injunctive relief be limited to a plaintiff ’s own cognizable injuries. See Lewis v. Casey, 518 U.S. 343, 357 (1996); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). The district court’s injunction contravenes that settled rule by sweeping far more broadly than redressing the harms of the specific respondents in this case. APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NORTHERN DISTRICT OF CALIFORNIA Nos. C 17-05211 WHA, C 17-05235 WHA, C 17-05329 WHA, C 17-05380 WHA, C 17-05813 WHA THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AND JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF CALIFORNIA, PLAINTIFFS v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, DEFENDANTS Filed: Jan. 9, 2018 ORDER DENYING FRCP 12(b)(1) DISMISSAL AND GRANTING PROVISIONAL RELIEF INTRODUCTION In these challenges to the government’s rescission of the Deferred Action for Childhood Arrivals program, plaintiffs move for provisional relief while the government moves to dismiss for lack of jurisdiction. For the reasons below, dismissal is DENIED and some provisional relief is GRANTED. (1a) 2a STATEMENT In 2012, the United States Department of Homeland Security adopted a program to postpone deportation of undocumented immigrants brought to America as children and, pending action in their cases, to assign them work permits allowing them to obtain social security numbers, pay taxes, and become part of the mainstream economy. This program received the title “Deferred Action for Childhood Arrivals”—DACA for short. In 2017, however, after the national election and change in administrations, the agency eventually reversed itself and began a phase-out of DACA. All agree that a new administration is entitled to replace old policies with new policies so long as they comply with the law. One question presented in these related actions is whether the new administration terminated DACA based on a mistake of law rather than in compliance with the law. 1. HISTORY OF DEFERRED ACTION. At the core of these cases is an administrative practice known as “deferred action.” A primary question presented concerns the extent to which the Department of Homeland Security could lawfully use deferred action to implement DACA, and so it is important to review the history of deferred action as well as of other features of the DACA program. Congress has the constitutional power to “establish an uniform Rule of Naturalization.” Art. I, § 8, cl. 4. Pursuant thereto, Congress has established a comprehensive scheme governing immigration and naturalization through the Immigration and Nationality Act. 8 U.S.C. §§ 1101, et seq. The Secretary of Homeland Security is “charged with the administration and en- 3a forcement of [the INA] and all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1). The Secretary is further charged with “establishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). One of the key enforcement tools under the INA is removal, i.e., deportation. In turn, “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona v. United States, 567 U.S. 387, 396 (2012). As an initial matter, in any given case, immigration officials “must decide whether it makes sense to pursue removal at all.” Ibid. At each stage of the removal process, they have “discretion to abandon the endeavor.” Reno v. Am.Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999) (“AADC”). Beginning as early as 1975, one way to exercise this discretion became “deferred action.” By deferred action, immigration officials could postpone, seemingly indefinitely, the removal of individuals unlawfully present in the United States “for humanitarian reasons or simply for [the Executive’s] own convenience.” Id. at 483-84. Immigration officials could also grant parole, temporary protected status, deferred enforced departure, or extended voluntary departure. Some of these discretionary powers have flowed from statute. Parole, for example, has allowed otherwise inadmissible aliens to temporarily enter the United States “for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Temporary protected status, also created by statute, has been available to nationals of designated foreign states 4a affected by armed conflicts, environmental disasters, and other extraordinary conditions. 8 U.S.C. § 1254a. Some of these discretionary powers, however, have flowed from nonstatutory powers. Deferred enforced departure had no statutory basis but, instead, grew out of “the President’s constitutional powers to conduct foreign relations.” USCIS, Adjudicator’s Field Manual § 38.2(a) (2014). Nor has extended voluntary departure been anchored in any statute. Rather, it has been recognized as part of the discretion of the Attorney General. Hotel & Restaurant Employees Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc). Deferred action, originally known as “nonpriority” status, also began “without express statutory authorization” but has since been recognized by the Supreme Court as a “regular practice.” AADC, 525 U.S. at 484. Congress has also acknowledged deferred action by explicit reference to it in the INA (8 U.S.C. § 1227(d)(2)): The denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for a stay of removal, deferred action, or a continuance or abeyance of removal proceedings under any other provision of the immigration laws of the United States. Another federal statute, the REAL ID Act, also acknowledged deferred action. REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231. This law provided that states could issue a temporary driver’s license or identification card to persons who can demonstrate an “authorized stay in the United States.” Id. §§ 202(c)(2)(C)(i)-(ii). Persons with “approved de- 5a ferred action status” were expressly identified as being present in the United States during a “period of authorized stay,” for the purpose of issuing state identification cards. Id. §§ 202(c)(2)(B)(viii), (C)(ii). Congress has also given the Executive Branch broad discretion to determine when noncitizens may work in the United States. Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062 (9th Cir. 2014) (“Brewer I”); see 8 U.S.C. § 1324a(h)(3) (defining an “unauthorized alien” not entitled to work in the United States as an alien who is neither a legal permanent resident nor “authorized to be . . . employed by [the INA] or by the [Secretary of Homeland Security]”). Pursuant to this statutory authority, regulations promulgated in the 1980s allowed recipients of deferred action to apply for work authorization if they could demonstrate an “economic necessity for employment.” 8 C.F.R. § 274a.12(c)(14). The George W. Bush Administration began to use deferred action to mitigate a harsh statutory provision involving “unlawful presence.” The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created three- and ten-year bars on the admission of aliens who departed or were removed from the United States after periods of “unlawful presence” of between 180 days and one year, or more than one year, respectively. 8 U.S.C. § 1182(a)(9)(B)(i). It also imposed a permanent bar on the admission of any alien who, without being admitted, entered or attempted to reenter the United States after having been unlawfully present for an aggregate period of more than one year. 8 U.S.C. § 1182(a)(9)(C)(i). Beginning in 2007, however, DHS regulations and policy guidance provided 6a that deferred action recipients did not accrue “unlawful presence” for purposes of the INA’s bars on re-entry. 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); Memorandum for Field Leadership, from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42 (May 6, 2009). DHS excluded recipients of deferred action from being “unlawfully present” because their deferred action is a period of stay authorized by the government. Brewer I, 757 F.3d at 1059 (citing 8 U.S.C. § 1182(a)(9)(B)(ii)). This nonaccrual practice arose well before DACA. 1 DACA grew out of a long agency history of discretionary relief programs. In 1956, the Eisenhower Administration paroled roughly one thousand foreignborn orphans who had been adopted by American citizens but were precluded from entering the United States because of statutory quotas. That same administration later granted parole to tens of thousands of Hungarian refugees after the unsuccessful Hungarian revolution. Both programs flowed from presidential statements, and the programs later ended (in 1959 and 1958, respectively) when Congress passed laws enabling the paroled individuals to become lawful permanent residents (App. 1602-03, 1948-57; AR 33). 2 1 Undocumented aliens do not begin to accrue “unlawful presence” for purposes of Section 1182(a)(9)(B)(i) until they reach the age of eighteen. 8 U.S.C. § 1182(a)(9)(B)(iii). 2 “App.” refers to the appendix submitted in support of plaintiffs’ motion for provisional relief (Dkt. Nos. 113, 117-19, 121, 124). In connection with their motion for provisional relief, plaintiffs seek 7a In 1987, President Ronald Reagan instituted the Family Fairness Program, a non-statutory program that provided extended voluntary departure to children whose parents were in the process of legalizing their immigration status under the Immigration Reform and Control Act of 1986. President George H.W. Bush extended the non-statutory program in 1990 to cover spouses of such legalized aliens, and the program ultimately provided immigration relief to approximately 1.5 million people. The need for the program ended with the passage of the Immigration Act of 1990 (App. 1607, 1612-13, 1703). On at least four occasions prior to the creation of DACA, immigration officials have extended deferred action programs to certain classes of aliens, none of which programs was expressly authorized by statute: • In 1997, INS established a deferred action program for individuals self-petitioning for relief under the Violence Against Women Act of 1994. This program is still in place today. As originally enacted, the Act did not mention deferred action, but instead provided a pathway to lawful permanent residency. Deferred action allowed applicants to remain in the country pending a decision on their applications. Congress later expanded the deferred action program in the 2000 VAWA reauthorization legislation (App. at 1640-46). judicial notice of thirty-nine exhibits submitted with the appendix (Dkt. No. 111-2). The request is unopposed. These exhibits consist of congressional testimony and government publications, memoranda, and press releases. Plaintiffs’ request for judicial notice is GRANTED. 8a • In 2002 and 2003, INS issued memoranda instructing officers to make deferred action assessments for T visa applicants (victims of human trafficking) and U visa applicants (victims of crimes such as domestic violence) (App. 1650-58). These programs have since been codified in regulations promulgated by INS and DHS. 8 C.F.R. §§ 214.11(k)(1), (k)(4), (m)(2); 8 C.F.R. § 214.14(d)(2). • After Hurricane Katrina in 2005, USCIS announced a deferred action program for certain foreign students (F-1 visa holders) who, because of the hurricane, could not satisfy the requirements of their student visas. In announcing the program, USCIS stated that “[t]he interim relief [would] remain in effect until February 1, 2006” (App. 1661-62). • In 2009, to fill a gap under the law, USCIS established a deferred action program for widowed spouses who had been married to United States citizens for less than two years. Congress later eliminated the statutory requirement that an alien be married to a United States citizen for at least two years at the time of the citizen’s death to retain eligibility for lawful immigration status, and USCIS accordingly withdrew the deferred action program as “obsolete” (App. 1664-82). In sum, by the time DACA arrived in 2012, deferred action programs had become a well-accepted feature of the executive’s enforcement of our immigration laws, recognized as such by Congress and the Supreme Court. 9a 2. DACA. On June 15, 2012, Secretary of Homeland Security Janet Napolitano issued a memorandum establishing Deferred Action for Childhood Arrivals. Under DACA, immigrants brought to the United States as children could apply for deferred action for a two-year period, subject to renewal. To qualify for DACA, an individual must: (1) have come to the United States before the age of sixteen and been under the age of thirty-one on June 15, 2012; (2) have been present in the United States on June 15, 2012; (3) have been continuously residing in the United States for at least the prior five years; (4) have been enrolled in school, graduated from high school, obtained a GED, or been honorably discharged from the United States military or Coast Guard; and (5) not pose a threat to national security or public safety (AR 1). The 2012 DACA memo described the program as an exercise of “prosecutorial discretion.” Secretary Napolitano found leniency “especially justified” for the DACA-eligible, whom she described as “productive young people” who “have already contributed to our country in significant ways.” The memo further stated that these individuals “lacked the intent to violate the law” and were low priority cases for deportation (AR 1-2). DACA applicants had to pass a DHS background check and applications had to be “decided on a case by case basis.” To apply for DACA, eligible individuals completed USCIS Form I-821D. The application called for substantial personal information, such as biographical information, date of entry into the United States, immigration status or lack thereof, educational 10a history, and all prior residential addresses since entering the United States. Form I-821D also required substantial documentary support, including proof of identity and proof of continuous residence in the United States through rent receipts, utility bills, employment documents, or similar records. Applicants also appeared at a USCIS field office to provide fingerprints, photographs, and signatures. The form’s instructions stated (App. 1820): Information provided in this request is protected from disclosure to ICE and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www. uscis.gov/NTA). The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals request itself, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing clause covers family members and guardians, in addition to the requestor. The form’s instructions also stated (App. 1808): Individuals who receive deferred action will not be placed into removal proceedings or removed from the United States for a specified period of time, un- 11a less the Department of Homeland Security (DHS) chooses to terminate the deferral. DACA applicants also submitted a Form I-765, Application for Employment Authorization, a Form I-765WS, Worksheet, and the accompanying fees. To determine an applicant’s eligibility for work authorization, USCIS reviewed the applicant’s current annual income, current annual expenses, and the total current value of his or her assets (App. 1762, 1801-21, 2067-87). If approved, the recipient received a Form I-797, Notice of Action, stating (App. 585): USCIS, in the exercise of its prosecutorial discretion, has decided to defer action in your case. Deferred action is an exercise of prosecutorial discretion by USCIS not to pursue the removal of an individual from the United States for a specific period. Deferred action does not confer or alter any immigration status. Significantly, DHS could terminate a recipient’s deferred action at any time, at the agency’s discretion, and DACA paved no pathway to lawful permanent residency, much less citizenship (App. 1774, 1808). Secretary Napolitano concluded her DACA memorandum (AR 1-3): This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here. 12a But DACA did provide important benefits. First, under pre-existing regulations, DACA recipients became eligible to receive employment authorization for the period of deferred action, thereby allowing them to obtain social security numbers and to become legitimate taxpayers and contributing members of our open economy. 8 C.F.R. § 274a.12(c)(14). Second, deferred action provided a measure of safety for a period of two years from detention and removal, albeit always subject to termination at any time in any individual case. Third, DACA recipients could apply for “advance parole” to obtain permission to travel overseas and be paroled back into the United States. 8 C.F.R. § 212.5(f ). Fourth, also pursuant to pre-existing regulations, DACA recipients avoided accrual of time for “unlawful presence” under the INA’s bar on re-entry. 8 U.S.C. § 1182(a)(9)(B)-(C) (establishing three-year, ten-year, and permanent bars on the admission of aliens after specified periods of “unlawful presence”). USCIS “strongly encourage[d]” DACA recipients to submit renewal requests between 120 and 150 days before the expiration date-stamped on the recipient’s Form I-797. According to the “Frequently Asked Questions” posted on the agency’s website, recipients were eligible for renewal under DACA so long as they: (1) did not depart the United States on or after August 15, 2012, without advance parole; (2) continuously resided in the United States since submitting their most recent DACA request; and (3) had not received criminal convictions (with minor exceptions). Renewal requests did not require additional documentary support (App. 1756-57). 13a The agency adopted DACA without any notice or opportunity for public comment. According to data published by USCIS, 793,026 applicants received deferred action under DACA since its inception. As of September 2017, there remained approximately 689,800 active DACA recipients. Their average age was 23.8. Based on a survey completed by Associate Professor Tom K. Wong in August 2017, 91 percent of DACA recipients had jobs, and 45 percent of DACA recipients were enrolled in school (App. 1494-1522, 1533-52). 3. THE DAPA LITIGATION. In 2014, DHS announced a different deferred action program for parents of United States citizens or lawful permanent residents, titled “Deferred Action for Parents of Americans and Lawful Permanent Residents” —shortened to the confusingly-similar acronym DAPA. For our purposes, DAPA is important because the United States Court of Appeals for the Fifth Circuit promptly held that DAPA exceeded the statutory authority of DHS, a holding that eventually moved Attorney General Jeff Sessions to rule that DACA too had exceeded the agency’s authority. Texas v. United States, 809 F.3d 134 (5th Cir. 2015). The 2014 DAPA memo directed USCIS “to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” for aliens who had a son or daughter who was a United States citizen or lawful permanent resident and: (1) were not an enforcement priority under DHS policy; (2) had continuously resided in the United States since before January 1, 2010; (3) had 14a been physically present in the United States both when DHS announced DAPA and at the time of application to the program; and (4) presented “no other factors that, in the exercise of discretion, [made] the grant of deferred action inappropriate” (AR 37-41). That same 2014 announcement also expanded DACA in three minor ways: (1) allowing otherwise eligible immigrants to apply for DACA even if they were older than 31 on the day DACA was earlier announced; (2) extending DACA renewals and work authorizations from two- to three-year periods; and (3) adjusting DACA’s date-of-entry requirement from June 15, 2007, to January 1, 2010 (AR 37-41). DAPA was also adopted without notice or opportunity for public comment. A coalition of twenty-six states immediately filed suit in the United States District Court for the Southern District of Texas to challenge DAPA. The district court preliminarily enjoined its implementation on the ground that DHS had failed to comply with the APA’s notice-and-comment requirements. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015). The district court’s order stated that “with three minor exceptions,” the case did not involve DACA (id. at 606): The Complaint in this matter does not include the actions taken by Secretary Napolitano, which have to date formalized the status of approximately 700,000 teenagers and young adults. Therefore, those actions are not before the Court and will not be addressed by this opinion. Having said that, DACA will necessarily be discussed in this opinion as it is relevant to many legal issues in the present case. 15a For example, the States maintain that the DAPA applications will undergo a process identical to that used for DACA applications and, therefore, DACA’s policies and procedures will be instructive for the Court as to DAPA’s implementation. In holding that DAPA violated notice-and-comment procedures, the district court held that it constituted “a new rule that substantially change[d] both the status and employability of millions” and inflicted “major costs on both states and federal government.” It therefore should have been issued, the district court held, after notice and opportunity for public comment. Id. at 671. Though the order focused on DAPA, it also preliminarily enjoined everything in the 2014 memorandum, including the three minor ways in which DACA had been modified (but left alone the 2012 DACA program). The Fifth Circuit affirmed in a split decision but added a further ground for affirmance. Texas, 809 F.3d at 178. Over a dissent, the appellate panel added the ground that DAPA was substantively foreclosed by statute because the INA contained “an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status,” and that DAPA, by providing “the benefits of lawful presence” to undocumented immigrants “solely on account of their children’s immigration status,” was inconsistent with this statutory scheme, which provided its own pathway for lawful presence to parents of children lawfully in the United States. Id. at 179-80, 186. The Fifth Circuit’s holding was also based on its observation that “the INA does not grant the Secretary discretion to grant deferred action and lawful presence 16a on a class-wide basis to 4.3 million otherwise removable aliens.” Id. at 186 n.202. The decision was later affirmed without opinion by an equally divided Supreme Court. United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). 3 In February 2017, DHS Secretary John Kelly issued guidance regarding the Trump Administration’s immigration enforcement priorities. Although the guidance rescinded “all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal,” the 2012 DACA memo and 2014 DAPA memo were explicitly left in place. The guidance also said that the 2014 DAPA memo would “be addressed in future guidance” (AR 229-34). In June 2017, Secretary Kelly rescinded the 2014 DAPA memo, which rescission included the 2014 expansions of DACA. He explained: I have considered a number of factors, including the preliminary injunction in this matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities. After consulting with the Attorney General, and in the exercise of my discretion in establishing national immigration enforcement policies and priorities, I hereby rescind the November 20, 2014, memorandum. Again, however, Secretary Kelly declared that the 2012 DACA memo would remain in effect (AR 235-37). Such an affirmance has no precedential value. 409 U.S. 188, 192 (1972). 3 Neil v. Biggers, 17a 4. RESCISSION OF DACA. Also in June 2017, ten of the twenty-six plaintiffs from the DAPA litigation wrote to Attorney General Jeff Sessions to demand rescission of the 2012 DACA memo. Their letter stated that if DACA was rescinded by September 5, they would dismiss the stillpending DAPA litigation. Otherwise, the letter threatened to try to amend their complaint to additionally challenge the legality of DACA (AR 238-40). A day before the deadline, the Attorney General advised Acting Secretary of Homeland Security Elaine Duke via a short letter that the Obama Administration had created DACA “without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result,” and that therefore the program was an “unconstitutional exercise of authority by the Executive Branch.” The Attorney General’s letter also referenced the preliminary injunction against DAPA, then stated that “[b]ecause the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA” (AR 251). The following day, without prior notice, the Acting Secretary rescinded DACA. The rescission was not based on any policy criticism. Instead, it was based on the legal determination by the Attorney General. The Acting Secretary explained that after “[t]aking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017, letter from the Attorney General, it is clear that the June 15, 2012, DACA program should be 18a terminated.” She said that “[r]ecognizing the complexities associated with winding down the program,” DHS would “provide a limited window” in which it would adjudicate certain requests, but that new DACA requests and applications for employment authorization would be rejected starting immediately. DHS would adjudicate, on a case-by-case basis, DACA renewal requests received within thirty days from beneficiaries whose DACA status would expire before March 5, 2018. She also instructed DHS to immediately stop approving new applications for advance parole. The rescission left in place all extant grants of deferred action and work authorizations for the remainder of their validity periods (AR 252-56). Consequently, starting in March 2018, the DACA population will, over two years, dwindle down to zero. On the night of the rescission, President Trump called upon Congress specifically to enact DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!” During an interview earlier in 2017, President Trump had stated “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy” (App. 1852-53, 1958). In sum, the new administration didn’t terminate DACA on policy grounds. It terminated DACA over a point of law, a pithy conclusion that the agency had exceeded its statutory and constitutional authority. An important question now presented is whether that conclusion was a mistake of law. 19a 5. THE INSTANT LITIGATION. Plaintiffs herein filed five related non-class lawsuits in this district, all now before the undersigned judge. The first commenced on September 8, brought by The Regents of the University of California, on its own behalf and on behalf of its students, and Janet Napolitano, in her official capacity as President of the University. UC Plaintiffs allege they have invested considerable resources in recruiting students and staff who are DACA recipients, and that these individuals make important contributions to the University. As DACA recipients lose their work authorizations, UC Plaintiffs allege that the University will lose significant intellectual capital and productivity. They further allege that students who lose DACA protections will be unable “to plan for the future, apply for and obtain internships and certain financial aid and scholarships, study abroad, or work to pay their tuition and other expenses,” and as a result may withdraw from the University altogether (UC Compl. ¶¶ 4-6, 34-37, 48-49). 4 On September 11, the States of California, Maine, Maryland, and Minnesota filed suit. Plaintiff States allege that they are home to more than 238,000 DACA recipients, and that the loss of their residents’ DACA status and work authorizations will injure their public colleges and universities, upset the States’ workforces, disrupt the States’ statutory and regulatory interests, cause harm to hundreds of thousands of their resi- Two additional DACA lawsuits proceed in the Eastern District of New York before Judge Nicholas Garaufis, State of New York v. Trump, Case No. 17-cv-05228 NGG, and Vidal v. Baran, Case No. 16-cv-04756 NGG. 4 20a dents, damage their economies, and hurt companies based in Plaintiff States (States Compl. ¶¶ 1-10). The City of San Jose, on its own behalf and on behalf of its employees who are DACA recipients, filed its action on September 14. San Jose alleges that it has hired DACA recipients into vital City jobs, that substantial resources were invested in training these employees, and that the City will be harmed when these employees are forced to leave the workforce (when they lose their work authorizations). San Jose further alleges that it will continue to lose tax revenue as DACA recipients lose work authorizations and can no longer contribute to the City’s tax base (San Jose Compl. ¶¶ 10, 28, 49-51). On September 18, Individual DACA recipients Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and Jirayut Latthivongskorn brought suit to challenge the termination of DACA. Individual Plaintiffs work and study in the fields of law, medicine, education, and psychology. They allege that the loss of DACA will frustrate their professional goals and accomplishments. They further allege that as a result of the rescission, they will lose access to numerous federal and state benefits, and may not be able to reside in the United States with their families. They applied for DACA in reliance on the government’s representations that information provided under the program would not be used for purposes of immigration enforcement (Garcia Compl. ¶¶ 4-9, 55, 59, 72, 78, 85, 95, 128). Finally, the County of Santa Clara and the Service Employees International Union Local 521 filed their complaint on October 10. The County alleges that it 21a employs DACA recipients, including union members, in key positions, such as in its In-Home Supportive Services Program and New Americans Fellowship Program. The County alleges that it has expended time and money in training these employees, and that it relies on them to provide important services. As DACA recipients leave the workforce, the County will lose important employees, will incur harm to its economy and suffer decreased tax revenue, and will incur the costs of increased dependency on subsidized health care and other County services. Local 521 sues as an associational plaintiff on behalf of its members who are DACA recipients, and alleges that the Union’s organizational mission is to organize, represent, and empower employees, as well as mobilize immigration reform (Santa Clara Compl. ¶¶ 1, 15-20, 32, 37, 43-52). Collectively, plaintiffs assert the following claims: • The rescission violated the Administrative Procedure Act because it was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law (UC Compl. ¶¶ 50-58; State Compl. ¶¶ 152-55; Garcia Compl. ¶¶ 165-84; Santa Clara Compl. ¶¶ 67-73). • The rescission violated the APA because it was a substantive rule that did not comply with the APA’s notice-and-comment requirements or the Regulatory Flexibility Act’s mandate under 5 U.S.C. § 604 that an agency publish analysis of a rule’s impact on small businesses (UC Compl. ¶¶ 59-66; State Compl. ¶¶ 146-63; San Jose Compl. ¶¶ 59-63; Garcia Compl. ¶¶ 177-84). 22a • The rescission deprived DACA recipients of constitutionally-protected property and liberty interests without due process of law. Plaintiffs also allege that the rescission violated due process because the government changed its policy regarding agency use of DACA-related information (UC Compl. ¶¶ 67-73; State Compl. ¶¶ 141-45; Garcia Compl. ¶¶ 133-47; Santa Clara Compl. ¶¶ 59-66). • The rescission violates equal protection of the law because it was motivated by discriminatory animus and because it deprived DACA grantees of their substantial interests in supporting themselves and furthering their education (State Compl. ¶¶ 172-77; San Jose Compl. ¶¶ 52-58; Garcia Compl. ¶¶ 148-59; Santa Clara Compl. ¶¶ 74-78). • The rescission violates equitable estoppel. DACA recipients provided detailed personal information to the government and rearranged their lives based on the government’s representations, but now face the possibility of removal. Plaintiffs argue that the government should therefore be equitably estopped from terminating DACA or from using their DACA information for immigration enforcement purposes (State Compl. ¶¶ 164-71; Garcia Compl. ¶¶ 192-99; Santa Clara Compl. ¶¶ 79-86). • Plaintiffs seek a declaration that the rescission was unlawful and an order restoring DACA (UC Compl. at 16, State Compl. at 35-36; San Jose Compl. at 15-16; Garcia Compl. at 43; Santa Clara Compl. at 26-27). 23a On September 21, an initial case management conference occurred for all DACA actions in our district. At the conference, all counsel, including government counsel, presented a joint proposal whereby the government would file the administrative record by October 13. Significantly, although the government argued that discovery would be premature, it agreed to submit the administrative record without any condition that it be done before any decision on its threshold jurisdictional motion (presumably because it knew its jurisdictional motion would be premised on the administrative record) (see Dkt. No. 114 at 16; Tr. at 17:3, 22:2). The Court made only slight revisions to the joint proposal, all in aid of a stated goal of providing a full record and final decision for our court of appeals prior to the March 5 expiration date. Pursuant to FRCP 26, a case management order then set a October 6 deadline for the government to file the administrative record, set a briefing schedule for the parties’ motions to dismiss, for provisional relief, or for summary judgment, and permitted the parties to proceed with reasonable, limited, and narrowly-directed discovery (Dkt. No. 49). The government filed an administrative record on October 6. It was merely, however, fourteen documents comprising 256 pages of which 187 consisted of published opinions from the DAPA litigation, and all of which already resided in the public domain. All nonpublic materials, some eighty-four documents, actually reviewed by the Acting Secretary remained withheld as privileged (Dkt. No. 71). In other words, of the ninetyeight DACA-related documents personally considered by the decisionmaker, all but the fourteen already known to the public were withheld as privileged. Although 24a government counsel further indicated, upon inquiry by the district judge, that the decisionmaker had also likely received verbal input, nothing was included in the administrative record to capture this input. Nor were there any materials regarding the agency’s earlier, recent decisions to leave DACA in place. On October 9, plaintiffs moved to require the government to complete the administrative record, seeking all materials considered directly or indirectly by the Acting Secretary in reaching her decision to rescind DACA, which motion was granted in part and denied in part. The government, having earlier consented to filing the administrative record, was ordered to keep its word and to file a complete administrative record (Dkt. Nos. 65, 79-80). Instead, the government filed a petition for writ of mandamus with our court of appeals, seeking relief from having to complete the administrative record until after its jurisdictional arguments were determined, a turnabout from its earlier voluntary proposal and stipulation to file the administrative record as part of an agreed-upon schedule. After full briefing and oral argument, our court of appeals denied the government’s mandamus petition and vacated the stay (over one dissent). 5 Recently, the United States Court of Appeals for the Second Circuit denied the government’s petition for a writ of mandamus to stay an order to supplement the same administrative record. The court of appeals found that there was “a strong suggestion that the record before the District Court was not complete” and, noting that nearly 200 pages of the record consisted of published opinions from various federal courts, “[i]t is difficult to imagine that a decision as important as whether to repeal DACA would be made based upon a 5 25a The government was again ordered to complete the administrative record, this time by November 22, later extended to December 22 to accommodate the government’s claim of burden. On December 1, however, the government filed a petition for writ of mandamus and application for a stay in the United States Supreme Court. Ultimately, the Supreme Court did not reach the merits of the government’s petition but required that defendants’ jurisdictional defenses be adjudicated prior to consideration of discovery or completing the administrative record (Dkt. Nos. 86, 188, 197, 214, 224), a decision the district judge himself might have made at the outset save for the government’s own proposal and agreement to file the administrative record in October. Consequently, this action has proceeded on the incomplete administrative record initially filed by the government. Plaintiffs have been forced to draw on other materials. Ironically, even the government in these motions relies on material outside of the administrative record to defend the agency decision (Dkt. No. 204 at 10, 12, 19-20). The parties have now fully briefed motions to dismiss and a motion for provisional relief, all argued on December 20 (Dkt. Nos. 111, 114). This order now follows. factual record of little more than 56 pages, even accepting that litigation risk was the reason for repeal.” In Re: Kirstjen M. Nielsen, No. 17-3345 (2d. Cir. Dec. 27, 2017). 26a ANALYSIS 1. MOTION TO DISMISS. Defendants raise three jurisdictional arguments under FRCP 12(b)(1). First, they argue that the decision to rescind DACA was a discretionary act barred from judicial review under the APA. Second, they contend that the INA bars judicial review. Third, although defendants concede that Individual Plaintiffs have standing, they contend that no others do. Each is now addressed in turn. A separate order will consider defendants’ motion to dismiss under FRCP 12(b)(6). A. The DACA Rescission Was Not Committed To Agency Discretion by Law. Congress has instructed our district courts to review and set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under the APA, however, our district courts lack subjectmatter jurisdiction to review agency action that is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), the Supreme Court explained that the jurisdictional bar of Section 701(a)(2) is “very narrow” and “applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.” The Supreme Court held that because the statute there at issue contained “clear and specific directives” guiding the agency’s decision, there was “ ‘law to apply,’ so the exemption for action ‘committed to agency discretion’ [was] inappli- 27a cable.” ted). Id. at 411-13 (quotations and citations omit- When it next revisited the exception in Heckler v. Chaney, 470 U.S. 821, 830 (1985), the Supreme Court reiterated that the exception applies only where “the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” There, condemned inmates asked the FDA to bring an enforcement action to prevent purported violations of the Federal Food, Drug, and Cosmetic Act through the administration of deathpenalty drugs. The FDA Commissioner, however, refused to do so on the ground that the FDA lacked jurisdiction and otherwise should not interfere with the state criminal justice system. Skipping over the agency jurisdiction issue, the Supreme Court held that such decisions not to prosecute or initiate enforcement actions are generally not reviewable as they are “committed to an agency’s absolute discretion.” Id. at 824-25, 831. Chaney identified several characteristics of nonenforcement decisions as key to its holding. First, nonenforcement decisions require a complicated balancing of factors “peculiarly within [the agency’s] expertise,” including whether “resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and . . . whether the agency has enough resources to undertake the action at all.” Id. at 831. Second, in refusing to act, an agency “does not exercise its coercive power over an individual’s liberty” and accordingly “does not infringe upon areas that courts often are 28a called upon to protect.” Id. at 832. When an agency does act to enforce, however, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. Third, a refusal to institute enforcement proceedings is similar to a prosecutor’s decision not to indict, which decision “has long been regarded as the special province of the Executive Branch.” Ibid. Our case is different from Chaney. There, the agency simply refused to initiate an enforcement proceeding. Here, by contrast, the agency has ended a program which has existed for five years affecting 689,800 enrollees. Importantly, major policy decisions are “quite different from day-to-day agency nonenforcement decisions.” National Treasury Employees Union v. Horner, 854 F.2d 490, 496 (D.C. Cir. 1988). Rather, broad enforcement policies “are more likely to be direct interpretations of the commands of the substantive statute rather than the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision.” Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 677 (D.C. Cir. 1994). Even defendants concede that where “the agency’s interpretation of a statute is embedded in a non-reviewable enforcement policy, the former may be reviewable as such” (Dkt. No. 218 at 3 n.4). Although they contend that the rescission memorandum “does not contain an embedded interpretation of the INA,” that assertion is incompatible with the Acting Secretary’s explicit references to the INA and the Attorney General’s determination that DACA was effectuated without “statuto- 29a ry authority.” The first and third Chaney factors, accordingly, do not apply to the instant case. 6 Chaney is also distinguishable because, unlike there, here the government reversed course after five years of inviting DACA recipients out of the shadows. In contrast to nonenforcement decisions, “rescissions of commitments, whether or not they technically implicate liberty and property interests as defined under the fifth and fourteenth amendments, exert much more direct influence on the individuals or entities to whom the repudiated commitments were made.” Robbins v. Reagan, 780 F.2d 37, 47 (D.C. Cir. 1985). Through DACA, the government has invited undocumented aliens who meet threshold criteria to step forward, disclose substantial personal information, pay a hefty fee, and comply with ongoing conditions, all in expectation of (though not a right to) continued deferred action. DACA allows enrollees to better plan their careers and lives with a reduced fear of removal. DACA work authorizations, for example, allow recipients to join in the mainstream economy (and pay taxes). DACA covers a class of immigrants whose presence, seemingly all agree, pose the least, if any, threat and allows them to sign up for honest labor on the condition of continued good behavior. This has become an important proContrary to defendants, Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir. 1990), is distinguishable on its facts. There, the Fifth Circuit addressed a class action stemming from the Immigration and Naturalization Service’s failure to adjudicate requests for voluntary departure. The court of appeals determined that the district court had improperly issued an injunction directing INS to consider particular grounds in deciding individual requests for voluntary departure and employment authorization. Id. at 1046. 6 30a gram for DACA recipients and their families, for the employers who hire them, for our tax treasuries, and for our economy. An agency action to terminate it bears no resemblance to an agency decision not to regulate something never before regulated. Finally, there is law to apply. The main, if not exclusive, rationale for ending DACA was its supposed illegality. But determining illegality is a quintessential role of the courts. 7 B. The INA Does Not Bar Review. The principle that courts owe substantial deference to the immigration determinations of the political branches is important and undisputed. Washington v. Trump, 847 F.3d 1151, 1162 (9th Cir. 2017). That deference, however, does not remove the decision to rescind DACA from the ambit of judicial review. Rather, the Supreme Court has applied the “strong presumption in favor of judicial review of administration action” in the immigration context. See INS v. St. Cyr, 533 U.S. 289, 298-99 (2001). In this connection, defendants raise two arguments. First, they contend that review of discretionary enforcement decisions results in the inappropriate delay of removal, and accordingly prolongs violations of our immigration laws. This argument, however, again ignores that plaintiffs do not challenge any particular Defendants are correct, of course, that a presumptively unreviewable agency action does not become reviewable simply because “the agency gives a reviewable reason for otherwise unreviewable action.” ICC v. Bhd. of Locomotive Eng’s, 482 U.S. 270, 283 (1987). As discussed above, however, the rescission of DACA was not such an unreviewable decision. 7 31a removal but, rather, challenge the abrupt end to a nationwide deferred-action and work-authorization program. In any individual case, DACA allows DHS to revoke deferred status and to deport. Second, defendants assert that review of such decisions may involve disclosure of law enforcement priorities and foreignpolicy objectives. Neither concern is implicated here, as defendants’ stated reasons for the rescission all relate to the across-the-board cancellation of DACA based on supposed illegality, not to the facts particular to any proposed removal. Nor does Section 1252(g) bar judicial review of the agency action in question. 8 U.S.C. § 1252(g) provides: Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory) . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. As explained by the Supreme Court, this provision applies only to the three discrete decisions or actions named in Section 1252(g). AADC, 525 U.S. at 482. Plaintiffs’ claims do not involve such decisions, but rather the challenge here is to the across-the-board cancellation of a nationwide program. 8 The district court in Batalla Vidal also concluded that Section 1252(g) did not bar judicial review of challenges to the DACA rescission. Batalla Vidal v. Duke, 2017 WL 5201116, at *13. 8 32a Defendants recognize that these actions were brought prior to the commencement of any removal proceedings. Nevertheless, they argue that Section 1252(g) precludes review of plaintiffs’ claims because the decision to discontinue deferred action is “an ingredient to the commencement of enforcement proceedings.” It is true that eliminating DACA draws its enrollees one step closer to deportation, but the Supreme Court rejected the argument that Section 1252(g) somehow precludes review of the “many other decisions or actions that may be part of the deportation process.” As AADC emphasized, “[i]t is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.” Ibid. Defendants cite two decisions. Importantly, however, both stemmed from already-commenced deportation or removal proceedings. See Botezatu v. I.N.S., 195 F.3d 311, 312 (7th Cir. 1999) (declining to review a decision to deny deferred action after plaintiff had been found deportable); Vasquez v. Aviles, 639 F. App’x 898, 899-900 (3d Cir. 2016) (district court lacked jurisdiction to hear habeas corpus petition that claimed plaintiff was improperly denied DACA relief). By comparison, our court of appeals has held, following AADC, that Section 1252(g) does not bar review of actions that occur “prior to any decision to ‘comKwai Fun Wong v. United mence proceedings.’ ” States, 373 F.3d 952, 965 (9th Cir. 2004). The claims in Kwai Fun Wong challenged the revocation of the plaintiff ’s parole without first deciding her application for immigration relief, conduct which “resulted in the 33a INS’s decision to commence removal proceedings and ultimately to remove” the plaintiff from the United States. Id. at 959, 964. Contrary to defendants, it is immaterial that Kwai Fun Wong did not involve deferred action, as both the revocation of parole and the revocation of deferred action are “an ingredient” to the commencement of enforcement proceedings. The jurisdictional limits of Section 1252(g) were instead “directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings.” AADC, 525 U.S. at 482. C. Most Plaintiffs Have Standing. To establish standing, Article III of the United States Constitution requires plaintiffs to show “(1) they suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The standing inquiry is focused on whether the plaintiff has a sufficient personal stake in the outcome of the controversy to ensure that the parties will be truly adverse and their legal presentations sharpened. Massachusetts v. EPA, 549 U.S. 497 (2007). Standing must be assessed on a claim-by-claim basis. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). Defendants do not dispute that the Individual Plaintiffs have standing. Rather, they argue in brief that the entity plaintiffs (the state and local governments, UC Plaintiffs, and SEIU Local 521) lack Article III standing because the rescission does not regulate or restrict them in any way. Defendants therefore posit 34a that the entity plaintiffs’ claimed injuries are due only to “incidental effects” of the rescission, which defendants contend are insufficient to establish injury-in-fact. As set forth below, these arguments lack merit. First, California, Maryland, the City of San Jose, and the County of Santa Clara each employ DACA recipients, in connection with whom they have invested substantial resources in hiring and training. Plaintiffs allege that they will not only lose these employees as work authorizations expire, but that they will also need to expend additional resources to hire and train replacements. San Jose further alleges that as a result of the rescission, the City has had decreased productivity, and that it has had to expend time and resources to deal with decreased employee morale (States Compl. ¶¶ 26-27, 32, 53; San Jose Compl. ¶¶ 49-50; Santa Clara Compl. ¶¶ 32-37; App. 11, 95-97, 706-07, 798, 1575-76). Second, Plaintiff States, including Maine and Maryland, stand to lose significant tax revenue as a result of the rescission (States Compl. ¶¶ 28-30, 37, 49-50, 70-71). Although general allegations of injury to a state’s economy and the associated decline in general tax revenues may not be sufficient to establish standing, here, Plaintiff States sufficiently allege a “direct injury in the form of a loss of specific tax revenues.” Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992). They allege, for example, that Maine stands to lose $96,000 in annual state and local taxes as DACA recipients leave the workforce (States Compl. ¶¶ 30, 38). Evidence submitted by plaintiffs supports these allegations, and demonstrates that DACA’s rescission would reduce state and local tax contributions by DACAeligible individuals by at least half (App. 68-74, 218-30). 35a Third, the University of California has also established that it will suffer injury to its proprietary interests. As declarations submitted by the University demonstrate, the rescission has harmed the University in multiple ways. Because DACA recipients can no longer seek advance parole, these students are unable to travel outside of the United States for research and educational conferences. DACA recipients have also decided to cancel their enrollment in the University, and additional recipients are at risk of dropping out, because they would not be able to pay the cost of attendance without work authorizations. The University has also invested resources in recruiting and retaining DACA recipients as employees in various roles, including as teaching assistants and health care providers. Such investments would be lost should these employees lose their ability to work in the United States. California, Maryland, and Minnesota also allege injury to their public universities through harm to their educational missions and the loss of students and teachers. According to the declarations filed by plaintiffs, the rescission, and the resulting loss of work authorization and potential for deportation, will adversely impact the diversity of the talent pool of potential students, which will make it more difficult for the universities to fulfill their missions of increasing diversity (States Compl. ¶¶ 27, 55, 64-66; App. 12-16, 496-514, 884-90). Our court of appeals recently affirmed the standing of two state governments to challenge an immigration policy that similarly harmed the plaintiffs’ public universities. Washington v. Trump, 847 F.3d 1151, 1160-01 (9th Cir. 2017). These injuries accordingly give the University of California and the 36a States of California, Maryland, and Minnesota Article III standing. Ibid. (citing Singleton v. Wulff, 428 U.S. 106, 114-16 (1976)). 9 Fourth, State Plaintiffs Maryland and Minnesota further allege that the rescission will negatively impact their public health programs. In particular, Maryland and Minnesota allege that rescinding DACA will cause many DACA grantees to lose their employer-based health insurance, imposing higher healthcare costs on the state (State Compl. ¶¶ 51, 62). These injuries are also sufficient to confer Article III standing. 10 The public universities of California, Maryland, and Minnesota are branches of the states under state law. Campbell v. Regents of Univ. of California, 35 Cal. 4th 311, 321 (2005); Hanauer v. Elkins, 217 Md. 213, 219, 141 A.2d 903, 906 (Md. 1958); Univ. of Minn. v. Raygor, 620 N.W.2d 680, 683 (Minn. 2001). 10 Although not discussed by the parties, the District of Columbia Circuit held that Joe Arpaio, Sheriff of Maricopa County, Arizona, lacked Article III standing to challenge DACA. Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015). While the court of appeals found that the plaintiff’s alleged harm—increased spending on criminal investigation, apprehension, and incarceration—was sufficiently concrete, his theory that DACA would lead to an increased number of undocumented immigrants committing crimes in his jurisdiction was too speculative. Id. at 19-20. Here, by contrast, plaintiffs allege that the rescission will cause DACA recipients to lose their work authorizations, and that plaintiffs will lose employees and students, suffer decreased tax revenue, and otherwise incur increased costs as a direct result. This case is also different from Crane v. Johnson, 783 F.3d 244, 252 (5th Cir. 2015), where the Fifth Circuit held that Mississippi lacked standing to challenge DACA because it failed to submit evidence that DACA eligible immigrants resided in the state. Defendants do not dispute State Plaintiffs’ allegations that hundreds of thousands of DACA recipients live in Plaintiff States. 9 37a Finally, SEIU Local 521 has associational standing to bring its claims on behalf of its members who are DACA recipients. An association has standing to bring suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 282 (1986) (quoting Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977)). SEIU has established all three elements here. SEIU has members who are DACA recipients. Its constitution states that part of its mission is to provide its members with a voice in the larger community, and that its members should be treated equally with dignity regardless of immigration status or national origin. SEIU has also formed a Committee on Comprehensive Immigration Reform, a member-based committee that engages in organizing, advocacy, and education to help undocumented workers. Its members’ interests in these actions are therefore germane to SEIU’s stated purpose (App. 801-09). Furthermore, this action does not require the participation of SEIU’s individual members. Defendants, in arguing that the entity plaintiffs lack standing, rely solely on Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). There, the plaintiff lacked standing to challenge a Texas state court’s interpretation of a child support statute. Ibid. The Supreme Court held that, although the plaintiff had alleged an injury, she had not shown “a direct nexus between the vindication of her interest and the enforcement of the State’s 38a criminal laws” because the relationship between the state’s decision not to prosecute and the father’s decision not to pay under the statute could “at best, be termed only speculative.” Id. at 618-19. Linda R.S. has no application here. As explained above, the entity plaintiffs have alleged harm to their proprietary interests as a direct result of defendants’ decision to terminate the DACA program, most notably through its termination of work authorizations. Accordingly, the entity plaintiffs have sufficiently alleged injury-infact traceable to the termination of DACA, and have demonstrated that these harms are redressable by their requested relief. 11 Turning to prudential standing under the APA, a plaintiff must show that it has suffered or will suffer sufficient injury-in-fact, and that “the interest[s] sought to be protected by the complainant [are] arguably within the zone of interests to be protected or regulated by the statute . . . in question.” Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 488 (1998). A plaintiff that is not itself the subject of the contested regulatory action lacks prudential standing only where its interests “are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987). This test is “not meant to be especially demanding,” and must be applied “in keepBecause defendants’ conduct imposes direct injury on the State Plaintiffs’ proprietary interests, this order need not reach defendants’ argument that the State Plaintiffs lack standing as parens patriae. 11 39a ing with Congress’s evident intent when enacting the APA to make agency action presumably reviewable.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quotations and citations omitted). The parties’ briefs include only a cursory discussion of plaintiffs’ prudential standing under the APA. Again, defendants do not dispute that the Individual Plaintiffs also have statutory standing. SEIU, which asserts the rights of its members who are DACA recipients, likewise seeks the protection of interests regulated by the INA. Not all of the entity plaintiffs, however, have established prudential standing to proceed on their APA claims. Plaintiffs primarily rely on our court of appeals’ recent decision in Hawaii v. Trump, 859 F.3d 741, 765 (9th Cir. 2017), as well as on various provisions of the INA which provide for student- and employmentrelated immigrant visas. Plaintiffs do not contend, however, that their DACA-recipient students or employees qualify for such visas. Nor do plaintiffs point to any provisions of the INA which indicate a protected interest in enrolling students with deferred action in their schools or universities. Plaintiffs are also unable to point to any provision of the INA indicating that Congress intend to protected Plaintiff States’ interests in maintaining income tax revenue or avoiding increased healthcare costs. By contrast, local and state governments San Jose, Santa Clara, California, and Maryland, as well as the University of California, have all identified injuries resulting from their status as employers, and allege harm caused by their employees’ future loss of deferred 40a action and associated work authorization. The INA gives the Executive Branch broad discretion to determine when noncitizens may work in the United States, 8 U.S.C. § 1324a(h)(3), and regulations promulgated pursuant to this authority allow recipients of deferred action to apply for work authorization if they can demonstrate an “economic necessity for employment.” 8 C.F.R. § 274a.12(c)(14). Moreover, the INA contains detailed provisions which subject employers to criminal and civil liability for knowingly hiring unauthorized aliens, see 8 U.S.C. § 1324a(a)(1)(A), and for “continu[ing] to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment,” id. § 1324a(a)(2). The work authorization document that the agency issues to DACA recipients is one of the documents that is acceptable for Form I-9, Employment Eligibility Verification, which employers must complete and retain for each individual they hire for employment in the United States (App. 2061-62). Plaintiffs’ interest in their employees’ continued authorization to work in the United States is therefore “arguably within the zone of interests” that the INA protects. Hawaii, 859 F.3d at 765; Nat’l Credit Union Admin., 522 U.S. at 488. 12 Defendants’ sole argument against the entity plaintiffs’ prudential standing is that no provision of the INA protects the entity plaintiffs from “bearing the incidental effects” of a denial of deferred action. The case on which defendants rely, however, dealt with a private anti-immigration organization whose members were not impacted by the immigration policy at issue. See Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897, 899 (D.C. Cir. 1996). 12 41a Accordingly, even though the zone of interests inquiry is not demanding, this order concludes that Maine and Minnesota’s interests are “so marginally related” to the purposes implicit in the INA that it cannot reasonably be assumed that Congress intended to permit the suit. Maine and Minnesota’s APA claims are accordingly DISMISSED WITH LEAVE TO AMEND. The remaining entity plaintiffs, however, have established that their interests that support Article III standing also satisfy the APA’s zone of interests test. * * * Apart from the holding that Maine and Minnesota do not have statutory standing, the foregoing rejects all of the government’s jurisdictional arguments to dismiss plaintiffs’ challenges under the Administrative Procedure Act. 2. PROVISIONAL RELIEF. Plaintiffs seek a preliminary injunction to restore DACA. To support a preliminary injunction, plaintiffs must establish four elements: (1) likelihood of success on the merits; (2) irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in their favor; and (4) that the injunction is in the public interest. Winter v. Natural Resources Defense Council Inc., 555 U.S. 7, 20 (2008). As now explained, the record warrants most of the provisional relief requested. A. Likelihood of Success on the Merits. Plaintiffs have shown a likelihood of success on their claim that the rescission was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with 42a law. Specifically, plaintiffs are likely to succeed on their claims that: (1) the agency’s decision to rescind DACA was based on a flawed legal premise; and (2) government counsel’s supposed “litigation risk” rationale is a post hoc rationalization and would be, in any event, arbitrary and capricious. (1) The Rescission was Based on a Flawed Legal Premise. The agency action was “not in accordance with law” because it was based on the flawed legal premise that the agency lacked authority to implement DACA. When agency action is based on a flawed legal premise, it may be set as aside as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Massachusetts, 549 U.S. at 532 (setting aside the EPA’s denial of a petition for rulemaking under the Clean Air Act for supposed lack of authority); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007). This order holds that DACA fell within the agency’s enforcement authority. The contrary conclusion was flawed and should be set aside. The administrative record includes the 2014 determination of the Office of Legal Counsel of the United States Department of Justice that programmatic deferred action is a permissible exercise of DHS’s enforcement discretion. OLC noted that deferred action programs such as DACA are permissible so long as immigration officials retain discretion to evaluate each application on an individualized basis and so long as the concerns animating the program were consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion. OLC recognized that the “practice of granting deferred ac- 43a tion date[d] back several decades,” and that “Congress has long been aware of the practice of granting deferred action, including in its categorical variety, and of its salient features; and it has never acted to disapprove or limit the practice.” Indeed, not only has Congress not limited the practice, but it has “enacted several pieces of legislation that have either assumed that deferred action would be available in certain circumstances, or expressly directed that deferred action be extended to certain categories of aliens” (AR 15-27). As explained in OLC’s opinion, each feature of the DACA program is anchored in authority granted or recognized by Congress or the Supreme Court. Because this is the heart of the problem, and with apology for some repetition, this order will now examine each feature in turn. The Secretary of Homeland Security is responsible under the INA for “establishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). The Secretary is also charged with the administration and enforcement of the INA. 8 U.S.C. § 1103. In making immigration enforcement decisions, the executive “considers a variety of factors such as the danger posed to the United States of an individual’s unlawful presence, the impact of removal on the nation’s international relations, and the ‘human concerns’ of whether the individual ‘has children born in the United States, long ties to the community, or a record of distinguished military service.’ ” Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015) (citing Arizona v. United States, 132 S. Ct. 2492, 2499 (2012)). In instituting DACA, Secretary Napolitano explained that the program was “necessary to ensure that [DHS’s] enforce- 44a ment resources are not expended on [] low priority cases but are instead appropriately focused on people who meet our enforcement priorities” (AR 1). 13 As set forth above, deferred action originated without any statutory basis apart from the discretion vested by Congress in connection with the agency’s enforcement of the immigration laws. Over the decades, however, deferred action became such a fixture that Congress referred to it by name in several INA amendments. See, e.g., 8 U.S.C. § 1227(d)(2) (stating that U visa and T visa applicants who were denied an administrative stay of removal were not precluded from applying for “deferred action”); 8 U.S.C. § 1154(a)(1)(D)(i)(II) (stating that eligible derivatives of VAWA petitioners were eligible for “deferred action” and work authorization); 8 U.S.C. § 1151 note (stating that certain immediate family members of certain United States citizens “shall be eligible for deferred action”). Congress has also acknowledged deferred action in enactments outside of the INA. See, e.g., 49 U.S.C. § 30301 note (specifying that evidence of lawful status includes proof of “deferred action status”); USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361 (stating that immediate family members of legal permanent residents killed on September 11, 2001 “may be eligible for deferred action”). Congress has been free to constrain DHS’s discretion with respect to granting deferred action, but it has yet to do so. The United States Court of Appeals for the District of Columbia Circuit did not reach the merits of Sheriff Joe Arpaio’s challenges to DACA and DAPA but instead dismissed the case for lack of Article III standing. Arpaio, 797 F.3d at 15. 13 45a The Supreme Court has recognized the authority of DHS to grant relief from removal, Arizona, 567 U.S. at 396, and has specifically recognized deferred action as a way to exercise that discretion—“for humanitarian reasons or simply for [the Executive’s] own convenience.” AADC, 525 U.S. at 484. Notably, our court of appeals has said that “the exercise of prosecutorial discretion in deferred action flows from the authority conferred on the Secretary by the INA.” Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 968 (9th Cir. 2017) (“Brewer II”). 14 In extending programmatic deferred action to DACA enrollees, the agency acted within the scope of this long and recognized practice. In the exercise of its enforcement discretion and policy-making, the agency simply found that DACA enrollees represented low priority cases for removal and instituted DACA to manage that population while it redirected its resources elsewhere. Even for enrollees approved under the program, DHS expressly retained the authority to terminate their deferred action at any time, in the agency’s discretion. DACA provided no guarantee against removal. Nevertheless, DACA has provided recipients with a major benefit, namely work authorizations for the period of deferral upon a demonstration of economic need. This has allowed DACA recipients to become part of the mainstream workforce and contribute openIn Brewer II, our court of appeals denied a petition for rehearing en banc. Circuit Judge Kozinski, joined by five other Circuit Judges, filed a dissent to the denial of the petition, expressing the view that DACA did not preempt Arizona’s law refusing to issue drivers’ licenses to DACA recipients. 855 F.3d at 958-62. 14 46a ly to our economy. Significantly, Section 1324a(h)(3) defines an “unauthorized alien” not entitled to work in the United States as an alien who is neither a legal permanent resident nor “authorized to be . . . employed by [the INA] or by the [Secretary of Homeland Security].” In turn, the Secretary of Homeland Security has allowed work authorizations in cases of deferred action under 8 C.F.R. § 274a.12(c)(14). As our court of appeals has stated, “the Executive Branch has determined that deferred action recipients—including DACA recipients—are ordinarily authorized to work in the United States.” See Brewer I, 757 F.3d at 1062. It is also within the lawful authority of the agency to determine that DACA recipients do not accrue “unlawful presence” for purposes of the INA’s bars on reentry. Pursuant to pre-existent DHS regulations and policy guidance, deferred action recipients already avoided accrual of “unlawful presence.” 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); Memorandum for Field Leadership, from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42 (May 6, 2009). Importantly, DHS excludes recipients of deferred action from being “unlawfully present” because their deferred action is considered a period of stay authorized by the government. See 8 U.S.C. § 1182(a)(9)(B)(ii) (an alien is deemed to be unlawfully present if the alien is present “in the United States after the expiration of the period of stay authorized by the Attorney General [and now the Secretary of Homeland Security]”); Brewer I, 757 F.3d at 1059. 47a Allowing DACA recipients to apply for and obtain advance parole to travel overseas and return to the United States is also in accord with pre-existing regulations. 8 C.F.R. § 212.5(f ); 8 U.S.C. § 1182(d)(5)(A) (the Attorney General [and now the Secretary of Homeland Security] may “in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”). In short, what exactly is the part of DACA that oversteps the authority of the agency? Is it the granting of deferred action itself? No, deferred action has been blessed by both the Supreme Court and Congress as a means to exercise enforcement discretion. Is it the granting of deferred action via a program (as apposed to ad hoc individual grants)? No, programmatic deferred action has been in use since at least 1997, and other forms of programmatic discretionary relief date back to at least 1956. Is it granting work authorizations coextensive with the two-year period of deferred action? No, aliens receiving deferred action have been able to apply for work authorization for decades. Is it granting relief from accruing “unlawful presence” for purposes of the INA’s bars on reentry? No, such relief dates back to the George W. Bush Administration for those receiving deferred action. Is it allowing recipients to apply for and obtain advance parole? No, once again, granting advance parole has all been in accord with pre-existing law. Is it combining all these elements into a program? No, if each step is within the authority of the agency, then how can combining them in one program be outside its authority, so long as 48a the agency vets each applicant and exercises its discretion on a case-by-case basis? Significantly, the government makes no effort in its briefs to challenge any of the foregoing reasons why DACA was and remains within the authority of the agency. Nor does the government challenge any of the statutes and regulations under which deferred action recipients obtain the foregoing benefits. Instead, the administrative record shows that the Attorney General told the Acting Secretary that DACA was illegal. First, the Attorney General said that DACA had been improperly adopted by the Obama Administration after “Congress’ repeated rejection of proposed legislation that would have accomplished a similar result.” But the proposals rejected by Congress markedly differ from DACA. Importantly, while the proposed legislation would have offered Dreamers the ability to become lawful permanent residents, no comparable pathway was offered by DACA. Our court of appeals recognized this distinction, noting that “the DREAM Act and the DACA program are not interchangeable policies because they provided different forms of relief.” Brewer II, 855 F.3d at 976 n.10. In fact, the 2012 DACA memo made explicit that DACA offered no pathway to lawful permanent residency, much less citizenship. Secretary Napolitano concluded her memo by stating that DACA “confer[ed] no substantive right, immigration status or pathway to citizenship.” To claim that DACA was rejected by Congress, therefore, is unfair. 15 See, e.g., S. 1291, 107th Congress (2001); S. 1545, 108th Congress (2003); S. 2075, 109th Congress (2005); H.R. 5131, 109th 15 49a Second, another criticism of DACA was that applications received mechanical, routine approval without individualized consideration. In her rescission memorandum, the Acting Secretary indicated that “[United States Citizenship and Immigration Services] has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as outlined in the [original DACA] memorandum, but still had his or her application denied based solely upon discretion.” The simple answer to this, if true, would be for the agency to instruct its adjudicators to exercise discretion, on a individualized basis, to make sure applicants do not pose a threat to national security or public safety and are otherwise deserving of deferred action. It appears, moreover, that the Acting Secretary was in error when she said that USCIS has been unable to identify discretionary denials of DACA applications. She cited no evidence for this fact, and none is found in the administrative record. Possibly, the Acting Secretary relied on findings made in the DAPA litigation. There, the majority panel noted that USCIS could not produce any applications that satisfied the guidelines of the original DACA memorandum but were nonetheless refused through an exercise of discretion. Texas, 809 F.3d at 172. As the dissent pointed out, however, the district court may have conflated rejections of DACA applications with denials, and as a result suggested Congress (2006); H.R. 1275, 110th Congress (2007); S. 2205, Congress (2007); H.R. 1751, 111th Congress (2009); S. 3827, Congress (2010); S. 3962, 111th Congress (2010); S. 3992, Congress (2010); H.R. 6497, 111th Congress (2010); S. 952, Congress (2011). 110th 111th 111th 112th 50a that most denials were made for mechanical, administrative reasons. Id. at 210 (King, J., dissenting). A declaration submitted in that case by Donald Neufeld, then-Associate Director for Service Center Operations for USCIS, pointed to several instances of discretionary denials. Id. at 175. That same declaration explained that while a DACA application was rejected when it was “determined upon intake that the application [had] a fatal flaw,” an application was denied when a USCIS adjudicator, on a case-by-case basis, determined that the requestor either had not demonstrated that they satisfied the guidelines for DACA or when an adjudicator determined that deferred action should be denied even though the threshold guidelines were met. Id. at 210-11 (dissent). The United States District Court for the District of Columbia, in addressing nearly identical statistics, recognized the distinction. The district court noted that as of December 2014, 36,860 requests for deferred action under DACA were denied and another 42,632 applicants were rejected as not eligible, and concluded that such statistics “reflect that [] case-by-case review is in operation.” Arpaio, 27 F. Supp. 3d at 209 n.13. The administrative record tendered in our case completely fails to explain this apparent discrepancy. Third, the main ground given by the Attorney General for illegality was the Fifth Circuit’s decision in the DAPA litigation. DACA, the Attorney General said, suffered from the same “legal and constitutional defects” leveled against DAPA in Texas v. United States, 809 F.3d 134 (5th Cir. 2015). Upon consideration of the full history of that case, however, this was an overstatement. 51a In the DAPA litigation, the district court held that DAPA violated the APA’s notice-and-comment procedures because it constituted “a new rule that substantially change[d] both the status and employability of millions” and inflicted “major costs on both states and federal government.” The district court found that the discretionary aspects of DAPA were “merely pretext,” based on its finding that DACA had been implemented in such a mechanical way as to prevent the exercise of discretion on a case-by-case basis, and DAPA would therefore be implemented in the same manner. Notice and opportunity for public comment, it held, should have accordingly been given. Texas, 86 F. Supp. 3d at 671. Although the Fifth Circuit recognized that “there was conflicting evidence on the degree to which DACA allowed discretion,” because the government had failed to produce any applications that satisfied all of the criteria but were refused deferred action by an exercise of discretion, it was “not error—clear or otherwise—” for the district court to have concluded that DHS had only issued denials under mechanical formulae. The appellate court also pointed to DACA’s Operating Procedures, which contained “nearly 150 pages of specific instructions for granting or denying deferred action,” as supporting the conclusion that DACA did not leave the agency free to exercise discretion. It cautioned, however, that “[f]or a number of reasons, any extrapolation from DACA must be done carefully.” Texas, 809 F.3d at 173 (emphasis added). In particular, the appellate court recognized that DACA involved self-selecting applicants, and those who expected to be denied relief were unlikely to apply. 52a Id. at 174. The court also recognized that “DACA and DAPA are not identical” and that because eligibility for DACA was restricted to a younger and less numerous population, DACA applicants were less likely to have backgrounds that would warrant a discretionary denial. Ibid. In addition to affirming the notice-and-comment holding (over one dissent), two of the judges on the Fifth Circuit panel went a large step further and held that DAPA conflicted with the INA. The majority pointed out that the INA already had a specific provision through which aliens could derive lawful status from their children’s immigration status. Id. at 180 n.167 (citing 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255). DAPA, the majority said, circumvented this statutory pathway. The Fifth Circuit also pointed out that the INA had specific provisions through which aliens could be classified as “lawfully present,” could obtain discretionary relief from removal, or could obtain eligibility for work authorization. Because DAPA could make 4.3 million removable aliens eligible for lawful presence, employment authorization, and associated benefits, the Fifth Circuit concluded that DAPA implicated “questions of deep ‘economic and political significance’ that are central to [the INA’s] statutory scheme,” and therefore had Congress wished to assign that decision to an agency, “it surely would have done so expressly.” The Fifth Circuit rejected the argument that various provisions of the INA, such as the broad grant of authority to the agency in 6 U.S.C. § 202(5) (providing that the Secretary “shall be responsible for establishing national immigration enforcement policies and 53a priorities”), provided the authority to implement DAPA. Rather, it found that such grants of authority could not reasonably be construed as assigning the agency decisions of such massive “economic and political significance.” Such an interpretation, the majority said, would allow the agency to grant lawful presence and work authorization to any illegal alien in the United States. It concluded that “even with ‘special deference’ to the Secretary,” the INA did not permit the reclassification of 4.3 million aliens as “lawfully present,” thereby making them newly eligible for a host of federal and state benefits, including work authorization. The majority also rejected the argument that DAPA was moored in historical practice, finding that such historical practice “does not, by itself, create power,” and that in any event, previous deferred-action programs were not analogous to DAPA because most discretionary deferrals had been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters, or had been bridges from one legal status to another. It found that “[n]othing like DAPA, which alters the status of more than four million aliens, has ever been contemplated absent direct statutory authorization.” The majority concluded that Congress had “directly addressed the precise question at issue” in DAPA because the INA “prescribes how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.” Texas, 809 F.3d at 186. Because it found that DAPA was foreclosed by Congress’s “careful plan,” the majority 54a held that the program was “manifestly contrary to the statute.” While at least some of the majority’s reasons for holding DAPA illegal would apply to DACA, fairness requires saying that DACA and DAPA were different, as the panel opinion stated. An important criticism against DAPA would not apply against DACA, namely the fact that Congress had already established a pathway to lawful presence for alien parents of citizens (so that DAPA simply constituted a more lenient substitute route). DACA, by contrast, has no such analogue in the INA. And, there is a difference between 4.3 million and 689,800. Finally, the criticism that DACA had been mechanically administered without the exercise of discretion in individual cases, if true, could be fixed by simply insisting on exercise of discretion. In sum, the DAPA litigation was not a death knell for DACA. This order holds that, in light of our own court of appeals’ reasoning in Brewer I and Brewer II, in light of the analysis of the Office of Legal Counsel of the United States Department of Justice, and the reasoning set forth above, our court of appeals will likely hold that DACA was and remains a lawful exercise of authority by DHS. Plaintiffs are therefore likely to succeed on the merits of their claim that the rescission was based on a flawed legal premise and must be set aside as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Massachusetts, 549 U.S. at 528; Sec. & Exch. Comm’n v. Chenery 55a Corp., 318 U.S. 80, 94 (1943); Safe Air for Everyone, 488 F.3d at 1101. 16 (2) Government Counsel’s Alternative Rationale Is Post Hoc and, in Any Event, Arbitrary, Capricious, and an Abuse of Discretion. Government counsel now advances an alternative rationale for the Secretary’s decision to rescind DACA. Counsel contends that DHS acted within its discretion in managing its litigation exposure in the Fifth Circuit, weighing its options, and deciding on an orderly wind down of the program so as to avoid a potentially disastrous injunction in the Fifth Circuit. This, they say, constituted a reasonable judgment call involving management of litigation risk and agency resources. Courts, of course, may not accept post hoc rationalizations for agency action, see Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962), nor may they “supply a reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp., Defendants argue that if the Acting Secretary had relied on DACA’s purported illegality in terminating the program, that reliance should be presumed to be a “reasonable policy judgment that immigration decisions of this magnitude should be left to Congress.” This argument finds no support in the administrative record. In Syracuse Peace Council v. F.C.C., upon which defendants rely, the agency explicitly based its decision on the independent grounds that a policy was both unconstitutional and contrary to the public interest. 867 F.2d 654, 656 (D.C. Cir. 1989). Although the court of appeals elected to review only the agency’s policy determination under the APA, it noted that “if the Commission had written its opinion in purely constitutional terms, we would have no choice but to address the constitutional issue.” Id. at 659. 16 56a Inc. v. Ark.-Best Freight Sys., 419 U.S. 281, 285-86 (1974); see also Cal. Pub. Util. Comm’n v. Fed. Energy Regulatory Comm’n, No. 16-70481 at 15 (9th Cir. Jan. 8, 2018). Rather, “an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor Vehicle Mfrs. Ass’n. of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983). The reason actually given in the administrative record for the rescission was DACA’s purported illegality. The Attorney General’s letter and the Acting Secretary’s memorandum can only be reasonably read as stating DACA was illegal and that, given that DACA must, therefore, be ended, the best course was “an orderly and efficient wind-down process,” rather than a potentially harsh shutdown in the Fifth Circuit. Nowhere in the administrative record did the Attorney General or the agency consider whether defending the program in court would (or would not) be worth the litigation risk. The new spin by government counsel is a classic post hoc rationalization. That alone is dispositive of the new “litigation risk” rationale. Significantly, the INA itself makes clear that once the Attorney General had determined that DACA was illegal, the Acting Secretary had to accept his ruling as “controlling.” Section 1103(a)(1) of Title 8, a provision that allocates immigration power and duties among the Secretary of Homeland Security, the Secretary of State, and the Attorney General, provides that “determinations and rulings by the Attorney General with respect to all questions of law shall be controlling.” Therefore, once the Attorney General advised the Acting Secretary that DACA was illegal, that ruling became “controlling” upon her. She had no choice other 57a than to end DACA. She had no room to push back with arguments for the program, to weigh litigation risks, or to consider whether DACA recipients warranted fighting for. The ruling of law by the Attorney General, controlling upon her, made all such considerations moot. Therefore, the new spin by government counsel that the decisionmaker here indulged in a litigation risk assessment and, out of caution, chose not to fight for the program in favor of an orderly wind-down is foreclosed by the INA itself. Her wind-down references plainly presuppose that DACA had to end and the only question was how. Nevertheless, this order now indulges government counsel’s new explanation and addresses whether it holds up even if taken as authentic. In that event, two major criticisms can and should be made of the “litigation risk management” rationale. First, even as to the risk in the Fifth Circuit, the administrative record mentions only similarities between DAPA and DACA (and even then only in an exceedingly conclusory way). No mention appears concerning the differences between DAPA and DACA that might have led to a different result. In addition to the distinctions made above, one powerful consideration should have been the doctrine of laches. Unlike the DAPA challenge filed immediately after DAPA was announced, the threatened DACA challenge by ten states would have come five years after the program began and after hundreds of thousands of young adults had enrolled and entered the workforce. See Abbott Labs., Inc. v. Gardner, 387 U.S. 136, 155 (1967) (adopting laches in APA context); see also Arpaio v. Obama, 27 F. Supp. 3d 185, 210 (D.D.C. 2014), aff ’d, 797 F.3d 11 58a (D.C. Cir. 2015) (noting that even if plaintiff did have standing he could not demonstrate irreparable harm since he waited two years to challenge DACA). Another difference was that DACA was precisely the kind of interstitial program of deferred action seemingly approved even by the Fifth Circuit, Texas, 809 F.3d at 185, given that both sides of the aisle and our two most recent presidents have called for Dreamer legislation. Nor was there any mention of our own circuit’s more recent decision in Brewer II that favored DACA, or of recognition by the district court in the District of Columbia that DACA had, contrary to the Fifth Circuit, involved discretionary denials of DACA relief. Second, if we are to indulge the spin that the decision to end DACA rested on a litigation-management assessment (rather than on a ruling of illegality), then the Acting Secretary committed a serious error. Against the litigation risk the Acting Secretary should have—but did not—weigh DACA’s programmatic objectives as well as the reliance interests of DACA recipients. Encino Motorcars, LLC v. Navarro, — U.S. —, 136 S. Ct. 2117, 2126-27 (2016). This responsibility lay with the Acting Secretary, not the Attorney General. That is, once the Acting Secretary was informed of the supposed litigation risk, it remained her responsibility to balance it against competing policy considerations. It remained her responsibility to recognize the litigation risk, yet still ask whether the program was worth fighting for. The administrative record is utterly silent in this regard. The agency reversed over five years of DHS policy, did so only one day after the Attorney General’s letter, and did so just three months after Secretary Kelly had 59a continued the program (despite the Fifth Circuit’s decision and affirmance). The Acting Secretary failed to provide a “reasoned explanation” as to why she was “disregarding facts and circumstances which underlay or were engendered by the prior policy.” See F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009). Encino Motorcars seems very close on point. There, the Supreme Court addressed the Department of Labor’s reversal of an interpretive regulation construing the Fair Labor Standard Act’s minimum wage and overtime provisions for car dealership employees. Our court of appeals gave Chevron deference to the new interpretation. The Supreme Court reversed. In determining whether the regulation was “procedurally defective”—and accordingly whether the agency’s regulation warranted Chevron deference—the Supreme Court evaluated whether the agency had given adequate reasons for its decision to reverse course. Encino Motorcars, 136 S. Ct. at 2125 (citing Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43). The Supreme Court explained (at page 2126) that while agencies are free to change their existing policies, they must provide a reasoned explanation for a change (quotes and citations omitted): In explaining its changed position, an agency must also be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy. It follows that an unexplained incon- 60a sistency in agency policy is a reason for holding an interpretation to be an arbitrary and capricious change from agency practice. Because the agency “gave almost no reason at all” for its change in position, the Supreme Court concluded that the agency had failed to provide the sort of reasoned explanation required in light of the “significant reliance issues involved.” Id. at 2126-27. So too here. As there, the agency here reversed its interpretation of its statutory authority. As there, the administrative record here includes no analysis of the “significant reliance issues involved.” The parallel is striking. In terminating DACA, the administrative record failed to address the 689,800 young people who had come to rely on DACA to live and to work in this country. These individuals had submitted substantial personal identifying information to the government, paid hefty fees, and planned their lives according to the dictates of DACA. The administrative record includes no consideration to the disruption a rescission would have on the lives of DACA recipients, let alone their families, employers and employees, schools and communities. 17 Ironically, government counsel now cite material outside of the administrative record in an attempt to show the Acting Secretary considered the plight of DACA recipients (Dkt. 204 at 10, 12, 19-20). This Here, perhaps in light of Encino Motors, the government does not argue that Chevron deference should be afforded to the Attorney General’s legal conclusion that DACA exceeded the agency’s authority. 17 61a press release came after the fact and was not part of the administrative record, and therefore cannot now rescue the agency. In that respect, Cal. Pub. Util. Comm’n, No. 16-70481 at 17 n.4 is analogous. There, our court appeals refused to consider an agency’s position which was not advanced in connection with the decision under review but, rather, was offered for the first time afterwards. Defendants next argue that because no statute here dictated the factors for an agency to consider in granting or rescinding deferred action, the agency need not have given weight to the benefits of the DACA program or the harm that would be caused to its recipients upon its rescission. The Supreme Court has recognized, however, that “[c]onsideration of cost reflects the understanding that reasonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decision.” Michigan v. EPA, — U.S. —, 135 S. Ct. 2699, 2707 (2015). While defendants attempt to distinguish Michigan on the ground that the text of the statute required regulation there to be “appropriate and necessary,” they ignore that a change in agency policy requires the agency to have “good reasons for it.” Fox TV Stations, Inc., 556 U.S. at 515. Defendants, of course, are correct that when an agency reverses policy it “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one.” Ibid. Where, however, an agency abruptly changes course and terminates a program on which so many people rely, the APA requires “a more detailed justification.” Ibid. Indeed, “[i]t would be arbitrary and capricious 62a to ignore such matters.” Ibid. In such cases, “it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Id. at 515-16. Defendants’ attempt to portray DACA as a program that did not generate reliance interests is unconvincing. As plaintiffs’ evidence shows, DACA recipients, their employers, their colleges, and their communities all developed expectations based on the possibility that DACA recipients could renew their deferred action and work authorizations for additional two-year periods. In sum, government counsel’s alternative spin on the administrative record is just a post hoc rationalization. But, even if it had been the actual rationale, it was arbitrary, capricious, and an abuse of discretion under Encino Motors. * * * Accordingly, plaintiffs have shown that they are likely to succeed on the merits of their claim that the rescission was arbitrary and capricious and must be set aside under the APA. B. Irreparable Harm. Plaintiffs have clearly demonstrated that they are likely to suffer serious irreparable harm absent an injunction. Before DACA, Individual Plaintiffs, brought to America as children, faced a tough set of life and career choices turning on the comparative probabilities of being deported versus remaining here. DACA gave them a more tolerable set of choices, including joining the mainstream workforce. Now, absent an injunc- 63a tion, they will slide back to the pre-DACA era and associated hardship. The University of California and other entity plaintiffs have also demonstrated that they face irreparable harm as they begin to lose valuable students and employees in whom they have invested, and that loss of DACA recipients from the workforce will have a detrimental impact on their organization interests, economic output, public health, and safety. Our court of appeals recently confirmed that “prolonged separation from family members” and “constraints to recruiting and retaining faculty members to foster diversity and quality within the University community” are harms which are not compensable with monetary damages and therefore weigh in favor of finding irreparable harm. Hawaii v. Trump, No. 17-17168, 2017 WL 6554184, at *22 (9th Cir. Dec. 22, 2017). These showings accordingly demonstrate that preliminary relief is appropriate. Ibid.; see also Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013). Defendants do not dispute that plaintiffs are likely to suffer such harms. Rather, they argue that these harms will not happen before the phase-out begins on March 5, 2018, the date by which the undersigned judge had wanted to present a final record and final decision for appellate review. Delays in this case, however, have made it impossible to send a final judgment to our court of appeals by March 5. To take only one example, it would be unfair to reach a conclusion without giving plaintiffs an opportunity to examine the complete administrative record. Government counsel, however, succeeded in ob- 64a taining an order from the Supreme Court postponing proceedings on completing the administrative record until after ruling on its FRCP 12(b)(1) motion to dismiss. As a result, we have yet to receive a complete administrative record. Although plaintiffs are likely to prevail on even the truncated administrative record, as set forth above, our appellate court might disagree with that conclusion or the agency might seek to cure the flaws in its process via a fresh agency action. Plaintiffs are entitled to learn of all flaws, if any more there be, lurking in the whole record. One such possibility suggested by plaintiffs is that the rescission was contrived to give the administration a bargaining chip to demand funding for a border wall in exchange for reviving DACA. A presidential tweet after our hearing gives credence to this claim. Another possibility raised by plaintiffs is racial animus. These theories deserve the benefit of the full administrative record. It will be impossible to litigate this case to a fair and final conclusion before March 5. 18 C. Balance of Equities and Public Interest. On provisional relief motions, district judges must consider whether (or not) such relief would be in the public interest. On this point, we seem to be in the On December 29, 2017, President Trump tweeted: “The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our Country at all cost!” (Dkt. No. 227-2). Plaintiffs separately request judicial notice of this tweet. Defendants object to judicial notice on various relevancy grounds, but do not argue that it is not properly subject to judicial notice under FRE 201 (Dkt. Nos. 227, 230). Plaintiffs’ request is accordingly GRANTED. 18 65a unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended. In September, President Trump stated his support for DACA, tweeting: “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really! . . . .” He has also called upon Congress to ratify DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!” (App. 1958). For the reasons DACA was instituted, and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation (on the conditions and exceptions set out below). Beginning March 5, absent an injunction, one thousand individuals per day, on average, will lose their DACA protection. The rescission will result in hundreds of thousands of individuals losing their work authorizations and deferred action status. This would tear authorized workers from our nation’s economy and would prejudice their being able to support themselves and their families, not to mention paying taxes to support our nation. Too, authorized workers will lose the benefit of their employer-provided healthcare plans and thus place a greater burden on emergency healthcare services. On provisional relief motions, district judges must also weigh the balance of hardships flowing from a grant versus denial of provisional relief. The hardship to plaintiffs need not be repeated. The only hardship raised by defendants is interference with the agency’s 66a judgment on how best to allocate its resources in keeping our homeland secure, as well as its judgment in phasing out DACA. Significantly, however, the agency’s judgment here was not based on a policy change. It was based on a mistake of law. If the instant order is correct that DACA fell within the statutory and constitutional powers of the Executive Branch, then a policy supported as high up as our Chief Executive has been the victim of a colossal blunder. A preliminary injunction will set that right without imposing any policy unwanted by the Executive Branch. 19 D. Scope of Provisional Relief. For the foregoing reasons, defendants ARE HEREBY pending final judgment herein or other order, to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments, with the exceptions (1) that new applications from applicants who have never before received deferred action need not be processed; (2) that the advance parole feature need not be continued for the time being for anyone; and (3) that defendants may take administrative steps to make sure fair discretion ORDERED AND ENJOINED, If a likelihood of irreparable injury is shown and an injunction is in the public interest, a preliminary injunction is also appropriate when a plaintiff demonstrates that serious questions going to the merits are raised and the balance of hardships tips sharply in the plaintiff’s favor. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). Because plaintiffs have clearly demonstrated a likelihood of irreparable injury and that the balance of hardships tips sharply in plaintiffs’ favor, preliminary relief would also be appropriate under this alternative standard of review. 19 67a is exercised on an individualized basis for each renewal application. Nothing in this order prohibits the agency from proceeding to remove any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed. Nor does this order bar the agency from granting advance parole in individual cases it finds deserving, or from granting deferred action to new individuals on an ad hoc basis. The agency shall post reasonable public notice that it will resume receiving DACA renewal applications and prescribe a process consistent with this order. The agency shall keep records of its actions on all DACA-related applications and provide summary reports to the Court (and counsel) on the first business day of each quarter. 20 By way of explanation, while plaintiffs have demonstrated that DACA recipients, as well as their families, schools, employers, and communities, are likely to suffer substantial, irreparable harm as a result of the rescission, they have not made a comparable showing as A mandatory injunction orders a responsible party to take action, while “[a] prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination of the action on the merits.” Brewer I, 757 F.3d at 1060. The relevant status quo is the legally relevant relationship between the parties before the controversy arose. Id. at 1061. Here, plaintiffs contest the validity of defendants’ rescission of DACA, the status quo before which was that DACA was fully implemented. Accordingly, plaintiffs’ requested preliminary injunction is not mandatory. But even if it were, plaintiffs have demonstrated that sufficiently serious irreparable harm would result to warrant even a mandatory injunction. 20 68a to individuals who have never applied for or obtained DACA. This order will not require advance parole. Unlike the widespread harm to plaintiffs and our economy that would result were the 689,800 DACA enrollees to lose their ability to work in this country, plaintiffs have not demonstrated that comparable harm will occur as a result of DACA recipients’ inability to travel abroad. True, Individual Plaintiffs Jirayut Latthivongskorn and Norma Ramirez describe professional disadvantages that may result if they are unable to travel internationally. These, however, do not amount to hardships justifying a provisional injunction requiring DHS to resume accepting applications for advance parole. However, as stated, nothing in this order would bar individuals from asking for such agency relief or bar the agency from granting it in deserving cases. With respect to geographical scope, this order finds a nationwide injunction is appropriate. Our country has a strong interest in the uniform application of immigration law and policy. Plaintiffs have established injury that reaches beyond the geographical bounds of the Northern District of California. The problem affects every state and territory of the United States. In February 2017, our court of appeals considered this very issue in Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017), and upheld a nationwide injunction imposed by a single district court, observing that limiting the geographic scope of an injunction on an immigration enforcement policy “would run afoul of the constitutional and statutory requirements for uniform immigration law and policy” and that, as here, “the government ha[d] not proposed a workable alterna- 69a tive.” Indeed, the Fifth Circuit reached the same conclusion in determining the appropriate scope of an injunction over DAPA, Texas, 809 F.3d at 187-88, holding that uniform application of the immigration laws justified a nationwide injunction. So too here. 21 Limiting relief to the States in suit or the Individual Plaintiffs would result in administrative confusion and simply provoke many thousands of individual lawsuits all over the country. The most practical relief is to maintain DACA in the same manner to which the agency and recipients are accustomed, subject to the exceptions above noted. CONCLUSION Defendants’ motion to dismiss under FRCP 12(b)(1) is GRANTED IN PART only to the limited extent stated above and is otherwise DENIED. Maine and Minnesota’s APA claims are hereby DISMISSED. Maine or Minnesota may seek leave to amend and will have 21 CALENDAR DAYS from the date of this order to file a motion, noticed on the normal 35-day track, for leave to file an amended complaint. A proposed amended Oddly, the government’s contrary authority is Bresgal v. Brock, 843 F.2d 1163, 1169-70 (9th Cir. 1987), a decision in which our court of appeals upheld a nationwide injunction and held, “[t]here is no general requirement that an injunction affect only the parties in the suit,” and “nationwide relief in federal district or circuit court [is permitted] when it is appropriate.” Bresgal merely observed that “[w]here relief can be structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown.” Id. at 1170. Here, it cannot be so structured. Nor are any of the government’s other authorities, which restate the general proposition that a remedy should match the injury alleged, see, e.g., Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017), to the contrary. 21 70a complaint must be appended to the motion and plaintiffs must plead their best case. Any such motion should clearly explain how the amendments to the complaint cure the deficiencies identified herein. To the extent stated above, plaintiffs’ motion for provisional relief is GRANTED. A separate order will address defendants’ motion to dismiss pursuant to FRCP 12(b)(6). CERTIFICATION UNDER 28 U.S.C. § 1292(b) Pursuant to our court of appeals’ order dated December 21, 2017, the district court hereby certifies for interlocutory appeal the issues decided herein (i) whether (or not) the rescission of DACA is unreviewable as committed to agency discretion or by reason of 8 U.S.C. § 1252(g), (ii) whether (or not) plaintiffs have standing, and (iii) all other questions interposed by the government in its motion to dismiss under FRCP 12(b)(1). This order finds that these are controlling questions of law as to which there is substantial ground for difference of opinion and that their resolution by the court of appeals will materially advance the litigation. This order realizes that the same issues are reviewable upon appeal of this injunction. Nevertheless, out of caution and to avoid any problem concerning scope of review, the district court so certifies. IT IS SO ORDERED. Dated: Jan. 9, 2018. /s/ WILLIAM ALSUP WILLIAM ASLUP UNITED STATES DISTRICT JUDGE 71a APPENDIX B UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. 3:17-cv-05211-WHA REGENTS OF UNIVERSITY OF CALIFORNIA AND JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF CALIFORNIA, PLAINTIFFS v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND KIRSTJEN M. NIELSEN, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF HOMELAND SECURITY, DEFENDANTS Filed: Jan. 16, 2018 NOTICE OF APPEAL Judge: Honorable William Alsup 72a No. 3:17-cv-05235-WHA STATE OF CALIFORNIA, STATE OF MAINE, STATE OF MARYLAND, AND STATE OF MINNESOTA, PLAINTIFFS v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND KIRSTJEN M. NIELSEN, IN HER OFFICIAL CAPACITY AS SECRETARY OF HOMELAND SECURITY, AND THE UNITED STATES OF AMERICA, DEFENDANTS No. 3:17-cv-05329-WHA CITY OF SAN JOSE, A MUNICIPAL CORPORATION, PLAINTIFF v. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, IN HIS OFFICIAL CAPACITY, KIRSTJEN M. NIELSEN, IN HER OFFICIAL CAPACITY AS SECRETARY OF HOMELAND SECURITY, AND THE UNITED STATES OF AMERICA, DEFENDANTS No. 3:17-cv-05380-WHA DULCE GARCIA, MIRIAM GONZALEZ AVILA, SAUL JIMENEZ SUAREZ, VIRIDIANA CHABOLLA MENDOZA, NORMA RAMIREZ, AND JIRAYUT LATTHIVONGSKORN, PLAINTIFFS v. UNITED STATES OF AMERICA, DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, U.S. DEPARTMENT OF HOMELAND SECURITY, AND KIRSTJEN M. NIELSEN, IN HER OFFICIAL CAPACITY AS SECRETARY OF HOMELAND SECURITY, DEFENDANTS 73a No. 3:17-cv-05813-WHA COUNTY OF SANTA CLARA AND SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521, PLAINTIFFS v. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, IN HIS OFFICIAL CAPACITY; JEFFERSON BEAUREGARD SESSIONS, ATTORNEY GENERAL OF THE UNITED STATES, IN HIS OFFICIAL CAPACITY; KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND SECURITY, IN HER OFFICIAL CAPACITY; AND THE U.S. DEPARTMENT OF HOMELAND SECURITY, DEFENDANTS NOTICE OF APPEAL PLEASE TAKE NOTICE that all Defendants in the above-captioned matters hereby appeal to the United States Court of Appeals for the Ninth Circuit from this Court’s January 9, 2018 Order Denying FRCP 12(b)(1) Dismissal and Granting Provisional Relief 1 and this Court’s January 12, 2018 Order Granting in Part Defendants’ Motion to Dismiss Under FRCP 12(b)(6). 2 Those Orders are docketed in each of these five cases as follows: • Regents of the University of California, et al. v. United States Department of Homeland Securi- While the January 9, 2018 Order is immediately appealable to the extent it grants provisional relief, all Defendants are also appealing the Order to the extent it denies Defendants’ motion to dismiss. That aspect of the appeal is being taken pursuant to 28 U.S.C. § 1292(b). 2 The January 12, 2018 Order is being appealed pursuant to 28 U.S.C. § 1292(b). 1 74a ty, et al., No. 3:17-cv-05211-WHA, ECF Nos. 234, 239. • State of California, et al. v. U.S. Department of Homeland Security, et al., No. 3:17-cv-05235WHA, ECF Nos. 83, 88. • City of San Jose v. Donald J. Trump, et al., No. 3:17-cv-05329-WHA, ECF Nos. 66, 71. • Dulce Garcia, et al. v. United States of America, et al., No. 3:17-cv-05380-WHA, ECF Nos. 60, 65. • County of Santa Clara, et al. v. Donald J. Trump, et al., No. 3:17-cv-05813-WHA, ECF Nos. 48, 53. This appeal includes all prior orders and decisions that merge into the Court’s January 9, 2018 and January 12, 2018 Orders. Dated: Jan. 16, 2018 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General ALEX G. TSE Acting United States Attorney BRETT A. SHUMATE Deputy Assistant Attorney General JENNIFER D. RICKETTS Branch Director JOHN R. TYLER Assistant Branch Director 75a /s/ BRAD P. ROSENBERG BRAD P. ROSENBERG (DC Bar #467513) Senior Trial Counsel STEPHEN M. PEZZI (DC Bar #995500) KATE BAILEY (MD Bar #1601270001) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20530 Phone: (202) 514-3374 Fax: (202) 616-8460 Email: brad.rosenberg@usdoj.gov Attorneys for Defendants 76a APPENDIX C UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Nos. C 17-05211 WHA, C 17-05235 WHA, C 17-05329 WHA, C 17-05380 WHA, C 17-05813 WHA THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AND JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF CALIFORNIA, PLAINTIFFS v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, DEFENDANTS Filed: Jan. 12, 2018 ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) INTRODUCTION In these challenges to the government’s rescission of the Deferred Action for Childhood Arrivals program, the government moves to dismiss plaintiffs’ complaints for failure to state a claim. For the reasons discussed below, the motion is GRANTED IN PART and DENIED IN PART . 77a STATEMENT This order incorporates the statement set forth in the order dated January 9, 2018, largely denying dismissal under FRCP 12(b)(1) and largely granting plaintiffs’ motion for provisional relief (Dkt. No. 234). This order, however, addresses a separate motion by the government to dismiss all claims for failure to state a claim for relief under FRCP 12(b)(6). This order sustains three claims for relief but finds that the rest fall short. ANALYSIS 1. APA CLAIMS UNDER 5 U.S.C. § 706(2)(A). For the same reasons that plaintiffs are likely to succeed on their claim that the rescission of DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” in violation of the Administrative Procedure Act, as explained in the January 9 order, the government’s motion to dismiss plaintiffs’ APA claims under 5 U.S.C. § 706(2)(A) is DENIED. 2. APA CLAIMS UNDER 5 U.S.C. § 706(2)(D). The original DACA program began in 2012 without any notice or opportunity for public comment. Likewise, the rescission in question ended DACA without notice or opportunity for public comment. One issue now presented is whether the rescission is invalid for having been carried out without notice-and-comment procedures. Under the APA, an agency action must be set aside if it was done “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). An agency is required to follow prescribed notice-and-comment procedures before promulgating certain rules. 5 U.S.C. 78a § 553. The Regulatory Flexibility Act further requires that notice-and-comment rulemaking include an assessment of the impact on small entities. 5 U.S.C. § 604(a). These requirements do not apply, however, to general statements of policy. 5 U.S.C. § 553(b)(A). A general statement of policy “advis[es] the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1012-13 (9th Cir. 1987). Such policies also “serve to educate and provide direction to the agency’s personnel in the field, who are required to implement its policies and exercise its discretionary power in specific cases.” Id. at 1013 (quotes and citations omitted). “The critical factor” in determining whether a directive constitutes a general statement of policy is “the extent to which the challenged [directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” Ibid. Thus, to qualify as a statement of policy two requirements must be satisfied: (1) the policy operates only prospectively, and (2) the policy does “not establish a binding norm,” and is not “finally determinative of the issues or rights to which [it] address[es],” but instead leaves officials “free to consider the individual facts in the various cases that arise.” Id. at 1014 (quotes and citations omitted). Under this standard, the rescission memorandum is a general statement of policy. This order rejects plaintiffs’ contention that the rescission could only be done through notice and comment. For the same reasons that the promulgation of DACA needed no notice and comment, its rescission needed no notice and comment. 79a Almost this exact problem was addressed in MadaLuna. There, our court of appeals held that the repeal of an INS policy under which applicants could seek deferred action was not subject to notice and comment. It rejected the argument that the repeal could not constitute a general statement of policy because it diminished the likelihood of receiving deferred action for a class of individuals. Id. at 1016. Rather, because the original policy allowed for discretion and failed to establish a “binding norm,” the repeal of that policy also did not require notice and comment. Id. at 1017. So too here. The DACA program allowed but did not require the agency to grant deferred action, and upon separate application, travel authorization, on a case-bycase basis at the agency’s discretion. Therefore, neither its promulgation nor its rescission required notice and comment. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), on which plaintiffs heavily rely, does not warrant the conclusion that the rescission policy is a substantive rule. Parco also addressed whether the rescission of an INS policy required notice and comment. Notably, the government in Parco stipulated that the policy’s precipitous rescission was the sole reason for denial of the plaintiff’s application for immigration relief. Id. at 984. The district court determined that the repeal therefore left no discretion, explaining that “discretion” was stripped of all meaning where “one contends that under a certain regulation ‘discretion’ was exercised favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in each such case.” Ibid. Here, by contrast, plaintiffs do not allege that all deferred action applications under DACA 80a were approved but now, after the rescission, all requests for deferred action will be denied. Plaintiffs argue that the rescission memorandum is more than a policy because it creates a blanket prohibition against granting deferred action to DACA applicants. Plaintiffs are correct that the rescission policy contains mandatory language on its face. It is also true that the rescission memorandum categorically eliminates advance parole for DACA recipients. This comes closer to resembling a substantive rule. However, it remains the case that because the original promulgation of the discretionary program did not require notice and comment, a return to the status quo ante also does not require notice and comment. Mada-Luna, 813 F.2d at 1017. Defendants’ motion to dismiss plaintiffs’ claims pursuant to Section 706(2)(D) of the APA and the Regulatory Flexibility Act is accordingly GRANTED. 3. DUE PROCESS CLAIMS. To assert a due process claim, a plaintiff must first show that he or she has an interest in liberty or property protected by the Constitution. See Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Plaintiffs fail to make the threshold showing that they have a protected interest in the continuation of DACA and, accordingly, their due process claims based on the rescission must be dismissed. Plaintiffs have adequately alleged, however, that the agency’s changes to its information-sharing policy are “fundamentally unfair.” A. Deferred Action. Because discretionary immigration relief “is a privilege created by Congress, denial of such relief cannot 81a violate a substantive interest protected by the Due Process clause.” Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (citing INS v. Yang, 519 U.S. 26, 30 (1996)). Moreover, “aliens have no fundamental right to discretionary relief from removal” for purposes of due process. Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004). Our court of appeals has accordingly held there is no protected interest in temporary parole, since such relief is “entirely within the discretion of the Attorney General.” Kwai Fun Wong v. United States, 373 F.3d 952, 967-68 (9th Cir. 2004). Nor did an INS policy which allowed the agency to recommend deferred action as “an act of administrative choice” create substantive liberty interests. Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985). These authorities foreclose any argument that plaintiffs have a protected interest in continued deferred action or advance parole under DACA. 1 Plaintiffs reply that even absent a protected interest in the initial, discretionary grant of deferred action, there is a protected interest in the renewal of DACA and its associated benefits. Yet a benefit is not a “protected entitlement” where “government officials may grant or deny it in their discretion.” Castle Rock, 545 U.S. 748, 756 (2005). Rather, an individual has a protected property right in public benefits where the rules conferring those benefits “greatly restrict the discretion” of the people who administer them. Nozzi v. Hous. Auth. of City of Los Angeles, 806 F.3d 1178, Plaintiffs’ attempt to distinguish Romeiro de Silva on the ground that the INS policy there involved “unfettered discretion,” whereas the exercise of prosecutorial discretion under DACA was guided by standard operating procedures, is unconvincing. 1 82a 1191 (9th Cir. 2015). Plaintiffs’ authorities confirm that the same principle applies in the context of renewing or retaining existing benefits. Wedges/Ledges of California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 64 (9th Cir. 1994); Stauch v. City of Columbia Heights, 212 F.3d 425, 430 (8th Cir. 2000). No such limitations on agency discretion are alleged to have applied under DACA. Rather, the USCIS DACA FAQs referenced by plaintiffs in their complaints make clear that “USCIS retain[ed] the ultimate discretion to determine whether deferred action [was] appropriate in any given case even if the guidelines [were] met” (Garcia Compl. ¶ 24 n.16; Santa Clara Compl. ¶ 58; UC Compl., Exh. B; State Compl., Exh. E). Next, plaintiffs argue that once DACA status was conferred, and recipients organized their lives in reliance on the program’s protections and benefits, they developed interests protected by the Constitution. Plaintiffs’ authorities, however, stand only for the uncontroversial proposition that once in possession of a particular benefit, the alteration, revocation or suspension of that benefit may implicate due process. 2 Such a principle has no application where, as here, extant benefits are not impacted by a change in policy. Indeed, there is no dispute that the rescission acts only prospectively. That is, all existing DACA recipients will receive deferred action through the end of their two-year terms. What they will not receive, if the rescission endures, will be DACA renewal, thereafter. See Bell v. Burson, 402 U.S. 535, 539 (1971); Gallo v. U.S. Dist. Court For Dist. of Arizona, 349 F.3d 1169, 1179 (9th Cir. 2003); Medina v. U.S. Dep’t of Homeland Sec., 2017 WL 5176720, at *9 (W.D. Wash. Nov. 8, 2017). 2 83a For this reason, Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011), and Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003), which addressed whether amendments to the INA were impermissibly retroactive, do not compel a different result. Plaintiffs contend that the government’s communications with plaintiffs regarding renewals, its operation of the program, and the public promises of government officials “together created an understanding that DACA recipients were entitled to the continued benefits of the program so long as they met the renewal criteria” (Dkt. No. 205 at 29). Plaintiffs are correct, of course, that claims of entitlement can be defined by “rules or mutually explicit understandings.” Perry v. Sindermann, 408 U.S. 593, 601 (1972). Importantly, however, a person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a protected right if that belief is not mutually held by the government. Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1020 (9th Cir. 2011). An agency’s past practice of generally granting a government benefit is also insufficient to establish a legal entitlement. Ibid. This order empathizes with those DACA recipients who have built their lives around the expectation that DACA, and its associated benefits, would continue to be available to them if they played by the rules. That expectation, however, remains insufficient to give rise to a constitutional claim under the Fifth Amendment. Because plaintiffs have failed to allege facts demonstrating a protected interest in DACA’s continuation or the renewal of benefits thereunder, defendants’ motion 84a to dismiss plaintiffs’ due process claims based on the rescission must be GRANTED. B. Information-Sharing Policy. Plaintiffs fare better with their substantive due process claim that DHS allegedly changed its policy with respect to the personal information provided by DACA recipients during the application process. Plaintiffs allege that the government repeatedly represented that information provided by DACA applicants would not be used for immigration enforcement purposes absent special circumstances, and that DACA recipients relied on these promises in submitting the extensive personal information needed to meet the program’s requirements. Defendants insist that the agency’s informationsharing policy remains unchanged. On a motion to dismiss, however, the well-pled factual allegations in a complaint must be accepted as true. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Plaintiffs have clearly alleged that DHS changed its information-sharing policy such that now, rather than affirmatively protecting DACA recipients’ information from disclosure, the government will only refrain from “proactively” providing their information for purposes of immigration enforcement proceedings (Garcia Compl. ¶ 126; Santa Clara Compl. ¶ 58; State Compl. ¶ 122). Plaintiffs have also adequately alleged a “mutually explicit understanding” giving rise to a protected interest in the confidentiality of DACA recipients’ personal information. They allege that throughout DACA’s existence, DHS made affirmative representations as to how this information would (and would not) be used. The 85a policy stated (Garcia Compl. ¶ 126; Santa Clara Compl. ¶ 58; State Compl. ¶ 121 (citing USCIS DACA FAQs)): Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter. The language contained in the policy’s caveat, that it could “be modified, superseded, or rescinded at any time,” is ambiguous. One reading advanced by the government is that this caveat allows the agency to change how it treats information already received from DACA applicants. Another reading, however, is that it simply allows the government to change its policy in connection with future applicants. Secretary of 86a Homeland Security Jeh Johnson’s December 2016 letter to United States Representative Judy Chu supports the later reading. He stated that, “[s]ince DACA was announced in 2012, DHS has consistently made clear that information provided by applicants . . . will not later be used for immigration enforcement purposes except where it is independently determined that a case involves a national security or public safety threat, criminal activity, fraud, or limited other circumstances where issuance of a notice to appear is required by law” (Garcia Compl. ¶¶ 36-37; State Compl. ¶ 98, Exh. F). This ambiguity presents a question of fact that cannot be resolved on the pleadings. Taken as true at this stage, as must be done on a FRCP 12(b)(6) motion, plaintiffs’ allegations regarding the government’s broken promise as to how DACA recipients’ personal information will be used—and its potentially profound consequences—“shock[s] the conscience and offend[s] the community’s sense of fair play and decency.” Marsh v. County of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (quotes and citations omitted). Defendants’ motion to dismiss plaintiffs’ due process claims based on changes to the government’s information-use policy is DENIED. 4. EQUITABLE ESTOPPEL. Plaintiffs bring claims for equitable estoppel, arguing that the government should not be permitted to terminate DACA or use the information collected from applicants for immigration enforcement purposes. Defendants first contend that plaintiffs’ equitable estoppel claims fail because there is no recognized claim for relief based on estoppel. The Supreme Court has 87a refused to adopt, however, “a flat rule that estoppel may not in any circumstances run against the Government,” noting that “the public interest in ensuring that the Government can enforce the law free from estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government.” Heckler v. Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 60-61 (1984). Moreover, our court of appeals has addressed such claims on the merits, and has held that the government may be subject to equitable estoppel if it has engaged in “affirmative misconduct.” Watkins v. U.S. Army, 875 F.2d 699, 706-07 (9th Cir. 1989). To state an equitable estoppel claim against the government, a party must show (1) that the government engaged in “affirmative conduct going beyond mere negligence”; and (2) “the government’s wrongful act will cause a serious injustice, and the public’s interest will not suffer undue damage” if the requested relief is granted. Id. at 707. “Neither the failure to inform an individual of his or her legal rights nor the negligent provision of misinformation constitute affirmative misconduct.” Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000). Moreover, our court of appeals has defined “affirmative misconduct” to mean a “deliberate lie” or “a pattern of false promises.” Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001). The allegations in the complaints fail to meet this standard, inasmuch as no affirmative instances of misrepresentation or concealment have been plausibly alleged. Plaintiffs are correct that estoppel “does not require that the government intend to mislead a party,” Wat- 88a kins, 875 F.2d 707, but plaintiffs fail to explain how contradictory policies under two different administrations add up to “affirmative misconduct beyond mere negligence.” Plaintiffs fail to allege, for example, that the government’s past statements regarding DACA’s legality were a “deliberate lie” or more than mere negligence. Nor have plaintiffs pleaded that the alleged change in the agency’s information-use policy was the result of an affirmative misrepresentation. Rather, they have merely alleged a change in policy. Under plaintiffs’ theory new administrations would almost never be able to change prior policies because someone could always assert reliance upon the old policy. Defendants’ motion to dismiss plaintiffs’ equitable estoppel claims is GRANTED. 5. EQUAL PROTECTION CLAIMS. To state an equal protection claim plaintiffs must show that the rescission was motivated by a discriminatory purpose. Arce v. Douglas, 793 F.3d 968, 977 (2015) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977)). Determining whether discrimination is a motivating factor “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at 266. A plaintiff need not show that the discriminatory purpose was the sole purpose of the challenged action, but only that it was a “motivating factor.” Ibid. In analyzing whether a facially-neutral policy was motivated by a discriminatory purpose, district courts must consider factors such as whether the policy creates a disparate impact, the historical background and sequence of events leading 89a up to the decision, and any relevant legislative or administrative history. Id. at 266-68. 3 First, Individual Plaintiffs and Santa Clara clearly allege that the rescission had a disproportionate impact on Latinos and Mexican nationals. Indeed, such individuals account for 93 percent of DACA recipients (Garcia Compl. ¶¶ 100, 151; Santa Clara Compl. ¶¶ 9, 75). Defendants reply that this disparate impact is an accident of geography, not evidence of discrimination. True, a disparate impact of a facially-neutral rule, standing alone, cannot establish discriminatory intent. See Washington v. Davis, 426 U.S. 229, 242 (1976). Individual Plaintiffs and Santa Clara, however, have alleged a discriminatory impact only as a starting point. They also allege a history of bias leading up to the rescission of DACA in the form of campaign statements and other public comments by President Trump, as next discussed. 4 The Supreme Court’s decision in United States v. Armstrong, 517 U.S. 456 (1996), which addressed the showing necessary for a defendant to be entitled to discovery on a selective-prosecution claim, has no application here. Plaintiffs’ claims cannot fairly be characterized as selective-prosecution claims because they do not “implicate the Attorney General’s prosecutorial discretion—that is, in this context, his discretion to choose to deport one person rather than another among those who are illegally in the country.” Kwai Fun Wong, 373 F.3d at 970. Rather, plaintiffs allege that the agency’s decision to end a nationwide deferred action program was motivated by racial animus towards a protected class. 4 The City of San Jose’s equal protection claim falls a little short. Rather than alleging a disparate impact on a protected class, it alleges only that “[d]efendants’ actions target individuals for discriminatory treatment based on their national origin, without lawful justification” (San Jose Compl. ¶ 54). For this reason, defendants’ motion to dismiss San Jose’s equal protection claim is GRANTED. 3 90a Second, plaintiffs allege that President Trump has, on multiple occasions since he announced his presidential campaign, expressed racial animus towards Latinos and Mexicans. When President Trump announced his candidacy on June 16, 2015, for example, he characterized Mexicans as criminals, rapists, and “people that have lots of problems.” Three days later, President Trump tweeted that “[d]ruggies, drug dealers, rapists and killers are coming across the southern border,” and asked, “When will the U.S. get smart and stop this travesty?” During the first Republican presidential debate, President Trump claimed that the Mexican government “send[s] the bad ones over because they don’t want to pay for them.” And in August 2017, he referred to undocumented immigrants as “animals” who are responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, MS 13” (Garcia Compl. ¶¶ 102-13, 124; Santa Clara Compl. ¶¶ 75-76). Circumstantial evidence of intent, including statements by a decisionmaker, may be considered in evaluating whether government action was motivated by a discriminatory purpose. Arlington Heights, 429 U.S. at 266-68. These statements were not about the rescission (which came later) but they still have relevance to show racial animus against people south of our border. Should campaign rhetoric be admissible to undermine later agency action by the victors? This order recognizes that such admissibility can readily lead to mischief in challenging the policies of a new administration. We should proceed with caution and give wide berth to the democratic process. Yet are clear 91a cut indications of racial prejudice on the campaign trail to be forgotten altogether? Our court of appeals recently confirmed that “evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017). Washington found that President Trump’s statements regarding a “Muslim ban” raised “serious allegations and presented significant constitutional questions,” although it ultimately reserved consideration of plaintiffs’ equal protection claim. Id. at 1167-68. Citing to Washington, at least two district courts have since considered President Trump’s campaign statements in finding a likelihood of success on Establishment Clause claims. See, e.g., Aziz v. Trump, 234 F. Supp. 3d 724, 736 (E.D. Va. 2017) (Judge Leonie Brinkema); Hawai’i v. Trump, 245 F. Supp. 3d 1227, 1236 (D. Haw. 2017) (Judge Derrick Watson). This order will follow these decisions and hold that, at least at the pleading stage, campaign rhetoric so closely tied to the challenged executive action is admissible to show racial animus. Third, a final consideration is the unusual history behind the rescission. DACA received reaffirmation by the agency as recently as three months before the rescission, only to be hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality). This strange about-face, done at lightning speed, suggests that the normal care and consideration within the agency was bypassed (Garcia Compl. ¶ 154; Santa Clara Compl. ¶¶ 8, 77). That President Trump has at other times shown support for DACA recipients cannot wipe the slate 92a clean as a matter of law at the pleading stage. Although the government argues that these allegations fail to suggest that the Acting Secretary (as the purported decisionmaker) terminated DACA due to racial animus, plaintiffs have alleged that it was President Trump himself who, in line with his campaign rhetoric, directed the decision to end the program (Garcia Compl. ¶¶ 11, 124; Santa Clara Compl. ¶ 21). Construed in the light most favorable to plaintiffs, as must be done at the pleading stage, these allegations raise a plausible inference that racial animus towards Mexicans and Latinos was a motivating factor in the decision to end DACA. The fact-intensive inquiry needed to determine whether defendants acted with discriminatory intent cannot be made on the pleadings. Accordingly, defendants’ motion to dismiss Santa Clara’s and Individual Plaintiffs’ equal protection claims must be DENIED. State Plaintiffs allege an equal protection claim on the alternative theory that the rescission “violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and further their education” (State Compl. ¶¶ 172-77). Plaintiffs do not respond to the government’s arguments that this theory fails to state a claim under FRCP 12(b)(6). Defendants’ motion to dismiss State Plaintiffs’ equal protection claim is accordingly GRANTED. 6. DECLARATORY RELIEF. Defendants move to dismiss the Individual Plaintiffs’ claim for declaratory relief. Individual Plaintiffs’ request for declaratory relief is also contained in their prayer for relief and, accordingly, the standalone claim 93a is superfluous. Defendants’ motion to dismiss this claim is GRANTED. CONCLUSION Consistent with the foregoing, defendants’ motion to dismiss is GRANTED IN PART and DENIED IN PART as follows: • Plaintiffs’ APA claims are sustained, except for the following: Garcia Complaint—Fifth Claim for Relief; UC Complaint—Second Claim for Relief; State Complaint—Second Claim for Relief; San Jose Complaint—Second Claim for Relief. • Plaintiffs’ Regulatory Flexibility Act claims are dismissed. • Plaintiffs’ due process claims are sustained, except for the following: UC Complaint—Third Claim for Relief; Garcia Complaint—First Claim for Relief (to the extent based on the rescission); Santa Clara Complaint—First Claim for Relief (to the extent based on the rescission). • Plaintiffs’ equal protection claims are sustained, except for the following: State Complaint— Sixth Claim for Relief; San Jose Complaint— First Claim for Relief. • Plaintiffs’ equitable estoppel claims are dismissed. • Individual Plaintiffs’ declaratory relief claim is dismissed. Plaintiffs may seek leave to amend and will have 21 from the date of this order to file motions, noticed on the normal 35-day track, seeking leave CALENDAR DAYS 94a to amend solely as to the claims dismissed above. Proposed amended complaints must be appended to each motion and plaintiffs must plead their best case. Any such motion should clearly explain how the amendments to the complaints cure the deficiencies identified herein and should include as an exhibit a redlined or highlighted version of the complaints identifying all changes. CERTIFICATION UNDER 28 U.S.C. § 1292(b) The district court hereby certifies for interlocutory appeal the issues of whether (i) President Trump’s campaign statements are properly considered in evaluating plaintiffs’ equal protection claims, (ii) whether the Individual Plaintiffs’ and County of Santa Clara’s allegations as pleaded state an equal protection claim, (iii) whether plaintiffs’ allegations concerning changes to the government’s information-sharing policy state a due process claim; (iv) whether plaintiffs have failed to state a claim under 5 U.S.C. § 553; and (v) whether plaintiffs have failed to state a due process claim based on the rescission of DACA. This order finds that these are controlling questions of law as to which there is substantial ground for difference of opinion and that their resolution by the court of appeals will materially advance the litigation. IT IS SO ORDERED. Dated: Jan. 12, 2018. /s/ WILLIAM ALSUP WILLIAM ASLUP UNITED STATES DISTRICT JUDGE 95a APPENDIX D June 15, 2012 MEMORANDUM FOR: David V. Aguilar Acting Commissioner, U.S. Customs and Border Protection Alejandro Mayorkas Director, U.S. Citizenship and Immigration Services John Morton Director, U.S. Immigration and Customs Enforcement FROM: /s/ SUBJECT: Janet Napolitano JANET NAPOLITANO Secretary of Homeland Security Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation’s immigration laws against certain young people who were brought to this country as children and 96a know only this country as home. As a general matter, these individuals lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities. The following criteria should be satisfied before an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum: • came to the United States under the age of sixteen; • has continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum; • is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; • has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and • is not above the age of thirty. Our Nation’s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they 97a designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here. As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases. 1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS): • With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States. • USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear. 2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria: 98a • ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal, in order to prevent low priority individuals from being removed from the United States. • ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process. • ICE is directed to begin implementing this process within 60 days of the date of this memorandum. • ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review. 3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check: • USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the above criteria and are at least 15 years old, for a period of two years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States. 99a • The USCIS process shall also be available to individuals subject to a final order of removal regardless of their age. • USCIS is directed to begin implementing this process within 60 days of the date of this memorandum. For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action. This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here. /s/ JANET NAPOLITANO JANET NAPOLITANO 100a APPENDIX E Nov. 20, 2014 MEMORANDUM FOR: León Rodríguez Director U.S. Citizenship and Immigration Services Thomas S. Winkowski Acting Director U.S. Immigration and Customs Enforcement R. Gil Kerlikowske Commissioner U.S. Customs and Border Protection FROM: /s/ SUBJECT: Jeh Charles Johnson JEH CHARLES JOHNSON Secretary Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents 101a This memorandum is intended to reflect new policies for the use of deferred action. By memorandum dated June 15, 2012, Secretary Napolitano issued guidance entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children. The following supplements and amends that guidance. The Department of Homeland Security (DHS) and its immigration components are responsible for enforcing the Nation’s immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. Secretary Napolitano noted two years ago, when she issued her prosecutorial discretion guidance regarding children, that “[o]ur Nation’s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case.” Deferred action is a long-standing administrative mechanism dating back decades, by which the Secretary of Homeland Security may defer the removal of an undocumented immigrant for a period of time. 1 A form of administrative relief similar to deferred action, known then as “indefinite voluntary departure,” was originally authorized by the Reagan and Bush Administrations to defer the deportations of an estimated Deferred action, in one form or another, dates back to at least the 1960s. “Deferred action” per se dates back at least as far as 1975. See, Immigration and Naturalization Service, Operation Instructions § 103.1(a)(1)(ii) (1975). 1 102a 1.5 million undocumented spouses and minor children who did not qualify for legalization under the Immigration Reform and Control Act of 1986. Known as the “Family Fairness” program, the policy was specifically implemented to promote the humane enforcement of the law and ensure family unity. Deferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission. As an act of prosecutorial discretion, deferred action is legally available so long as it is granted on a case-by-case basis, and it may be terminated at any time at the agency’s discretion. Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States. Nor can deferred action itself lead to a green card. Although deferred action is not expressly conferred by statute, the practice is referenced and therefore endorsed by implication in several federal statutes. 2 INA § 204(a)(1)(D)(i)(II), (IV) (Violence Against Women Act (VAWA) self-petitioners not in removal proceedings are “eligible for deferred action and employment authorization”); INA § 237(d)(2) (DHS may grant stay of removal to applicants for T or U visas but that denial of a stay request “shall not preclude the alien from applying for . . . deferred action”); REAL ID Act of 2005 § 202(c)(2)(B)(viii), Pub. L. 109-13 (requiring states to examine documentary evidence of lawfal status for driver’s license eligibility purposes, including “approved deferred action status”); National Defense Authorization Act for Fiscal Year 2004 § 1703(c) (d) Pub. L. 108-136 (spouse, parent or child of certain US. citizen who died as a result of honorable service may self-petition for 2 103a Historically, deferred action has been used on behalf of particular individuals, and on a case-by-case basis, for classes of unlawfully present individuals, such as the spouses and minor children of certain legalized immigrants, widows of U.S. citizens, or victims of trafficking and domestic violence. 3 Most recently, beginning in 2012, Secretary Napolitano issued guidance for case-by-case deferred action with respect to those who came to the United States as children, commonly referred to as “DACA.” By this memorandum, I am now expanding certain parameters of DACA and issuing guidance for case-bycase use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities, as set forth in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum. The reality is that most individuals in the categories set forth below are hard-working people who have become integrated members of American society. Propermanent residence and “shall be eligible for deferred action, advance parole, and work authorization”). 3 In August 2001, the former-Immigration and Naturalization Service issued guidance providing deferred action to individuals who were eligible for the recently created U and T visas. Two years later, USCIS issued subsequent guidance, instructing its officers to use existing mechanisms like deferred action for certain U visa applicants facing potential removal. More recently, in June 2009, USCIS issued a memorandum providing deferred action to certain surviving spouses of deceased U.S. citizens and their children while Congress considered legislation to allow these individuals to qualify for permanent residence status. 104a vided they do not commit serious crimes or otherwise become enforcement priorities, these people are extremely unlikely to be deported given this Department’s limited enforcement resources—which must continue to be focused on those who represent threats to national security, public safety, and border security. Case-bycase exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation’s security and economic interests and make common sense, because they encourage these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization (which by separate authority I may grant), and be counted. A. Expanding DACA DACA provides that those who were under the age of 31 on June 15, 2012, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria, are eligible for deferred action on a case-by-case basis. The initial DACA announcement of June 15, 2012 provided deferred action for a period of two years. On June 5, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that DACA recipients could request to renew their deferred action for an additional two years. In order to further effectuate this program, I hereby direct USCIS to expand DACA as follows: Remove the age cap. DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 105a 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i.e., those who were born before June 15, 1981). That restriction will no longer apply. Extend DACA renewal and work authorization to three-years. The period for which DACA and the ac- companying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years. Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010. USCIS should begin accepting applications under the new criteria from applicants no later than ninety (90) days from the date of this announcement. B. Expanding Deferred Action I hereby direct USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals who: 106a • have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident; • have continuously resided in the United States since before January 1, 2010; • are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS; • have no lawful status on the date of this memorandum; • are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and • present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate. Applicants must file the requisite applications for deferred action pursuant to the new criteria described above. Applicants must also submit biometrics for USCIS to conduct background checks similar to the background check that is required for DACA applicants. Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of the Immigration and Nationality Act. 4 Deferred action granted INA § 274A(h)(3), 8 U.S.C. § 1324a(h)(3) (“As used in this section, the term ‘unauthorized alien’ means, with respect to the em4 107a pursuant to the program shall be for a period of three years. Applicants will pay the work authorization and biometrics fees, which currently amount to $465. There will be no fee waivers and, like DACA, very limited fee exemptions. USCIS should begin accepting applications from eligible applicants no later than one hundred and eighty (180) days after the date of this announcement. As with DACA, the above criteria are to be considered for all individuals encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or USCIS, whether or not the individual is already in removal proceedings or subject to a final order of removal. Specifically: • ICE and CBP are instructed to immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the above criteria and may thus be eligible for deferred action to prevent the further expenditure of enforcement resources with regard to these individuals. • ICE is further instructed to review pending removal cases, and seek administrative closure or termination of the cases of individuals identified who meet the above criteria, and to refer such individuals to USCIS for case-by-case determinations. ICE should also establish a process ployment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the [Secretary].”); 8 C.F.R. § 274a.12 (regulations establishing classes of aliens eligible for work authorization). 108a to allow individuals in removal proceedings to identify themselves as candidates for deferred action. • USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear. The USCIS process shall also be available to individuals subject to final orders of removal who otherwise meet the above criteria. Under any of the proposals outlined above, immigration officers will be provided with specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis. This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights. It remains within the authority of the Executive Branch, however, to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law. This memorandum is an exercise of that authority. 109a APPENDIX F Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA) Release Date: Sept. 5, 2017 MEMORANDUM FOR: James W. McCament Acting Director U.S. Citizenship and Immigration Services Thomas D. Homan Acting Director U.S. Immigration and Customs Enforcement Kevin K. McAleenan Acting Commissioner U.S. Customs and Border Protection Joseph B. Maher Acting General Counsel Ambassador James D. Nealon Assistant Secretary, International Engagement Julie M. Kirchner Citizenship and Immigration Services Ombudsman 110a FROM: Elaine C. Duke Acting Secretary SUBJECT: Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” This memorandum rescinds the June 15, 2012 memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which established the program known as Deferred Action for Childhood Arrivals (“DACA”). For the reasons and in the manner outlined below, Department of Homeland Security personnel shall take all appropriate actions to execute a wind-down of the program, consistent with the parameters established in this memorandum. Background The Department of Homeland Security established DACA through the issuance of a memorandum on June 15, 2012. The program purported to use deferred action—an act of prosecutorial discretion meant to be applied only on an individualized case-by-case basis— to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law. 1 Specifi- Significantly, while the DACA denial notice indicates the decision to deny is made in the unreviewable discretion of USCIS, USCIS has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria 1 111a cally, DACA provided certain illegal aliens who entered the United States before the age of sixteen a period of deferred action and eligibility to request employment authorization. On November 20, 2014, the Department issued a new memorandum, expanding the parameters of DACA and creating a new policy called Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). Among other things—such as the expansion of the coverage criteria under the 2012 DACA policy to encompass aliens with a wider range of ages and arrival dates, and lengthening the period of deferred action and work authorization from two years to three—the November 20, 2014 memorandum directed USCIS “to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” to certain aliens who have “a son or daughter who is a U.S. citizen or lawful permanent resident.” Prior to the implementation of DAPA, twenty-six states—led by Texas—challenged the policies announced in the November 20, 2014 memorandum in the U.S. District Court for the Southern District of Texas. In an order issued on February 16, 2015, the district court preliminarily enjoined the policies nationwide. 2 The district court held that the plaintiff states were likely to succeed on their claim that the DAPA program did not comply with relevant authorities. as outlined in the June 15, 2012 memorandum, but still had his or her application denied based solely upon discretion. 2 Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015). 112a The United States Court of Appeals for the Fifth Circuit affirmed, holding that Texas and the other states had demonstrated a substantial likelihood of success on the merits and satisfied the other requirements for a preliminary injunction. 3 The Fifth Circuit concluded that the Department’s DAPA policy conflicted with the discretion authorized by Congress. In considering the DAPA program, the court noted that the Immigration and Nationality Act “flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.” According to the court, “DAPA is foreclosed by Congress’s careful plan; the program is ‘manifestly contrary to the statute’ and therefore was properly enjoined.” Although the original DACA policy was not challenged in the lawsuit, both the district and appellate court decisions relied on factual findings about the implementation of the 2012 DACA memorandum. The Fifth Circuit agreed with the lower court that DACA decisions were not truly discretionary, 4 and that DAPA and expanded DACA would be substantially similar in execution. Both the district court and the Fifth Circuit concluded that implementation of the program did not comply with the Administrative Procedure Act because the Department did not implement it through notice-and-comment rulemaking. 3 4 Texas v. United States, 809 F.3d 134 (5th Cir. 2015). Id. 113a The Supreme Court affirmed the Fifth Circuit’s ruling by equally divided vote (4-4). 5 The evenly divided ruling resulted in the Fifth Circuit order being affirmed. The preliminary injunction therefore remains in place today. In October 2016, the Supreme Court denied a request from DHS to rehear the case upon the appointment of a new Justice. After the 2016 election, both parties agreed to a stay in litigation to allow the new administration to review these issues. On January 25, 2017, President Trump issued Executive Order No. 13,768, “Enhancing Public Safety in the Interior of the United States.” In that Order, the President directed federal agencies to “[e]nsure the faithful execution of the immigration laws . . . against all removable aliens,” and established new immigration enforcement priorities. On February 20, 2017, then Secretary of Homeland Security John F. Kelly issued an implementing memorandum, stating “the Department no longer will exempt classes or categories of removable aliens from potential enforcement,” except as provided in the Department’s June 15, 2012 memorandum establishing DACA, 6 and the November 20, 2014 memorandum establishing DAPA and expanding DACA. 7 United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). Memorandum from Janet Napolitano, Secretary, DHS to David Aguilar, Acting Comm’r, CBP, et al., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (June 15, 2012). 7 Memorandum from Jeh Johnson, Secretary, DHS, to Leon Rodriguez, Dir., USCIS, et al., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as 5 6 114a On June 15, 2017, after consulting with the Attorney General, and considering the likelihood of success on the merits of the ongoing litigation, then Secretary John F. Kelly issued a memorandum rescinding DAPA and the expansion of DACA—but temporarily left in place the June 15, 2012 memorandum that initially created the DACA program. Then, on June 29, 2017, Texas, along with several other states, sent a letter to Attorney General Sessions asserting that the original 2012 DACA memorandum is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA. The Attorney General sent a letter to the Department on September 4, 2017, articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” The letter further stated that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Nevertheless, in light of the administrative complexities associated Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents” (Nov. 20, 2014). 115a with ending the program, he recommended that the Department wind it down in an efficient and orderly fashion, and his office has reviewed the terms on which our Department will do so. Rescission of the June 15, 2012 DACA Memorandum Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum. Recognizing the complexities associated with winding down the program, the Department will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters specified below. Accordingly, effective immediately, the Department: • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum. • Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum. • Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries 116a that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017. • Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above. • Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods. • Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course— retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course— retain the authority to revoke or terminate an advance parole document at any time. • Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees. 117a • Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate. This document is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS. 118a APPENDIX G 1. 5 U.S.C. 701 provides: Application; definitions (a) This chapter applies, according to the provisions thereof, except to the extent that— (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. (b) For the purpose of this chapter— (1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include— (A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia; (E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them; (F) courts martial and military commissions; (G) military authority exercised in the field in time of war or in occupied territory; or 119a (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; subchapter II of chapter 471 of title 49; or sections 1884, 18911902, and former section 1641(b)(2), of title 50, appendix; and (2) “person”, “rule”, “order”, “license”, “sanction”, “relief ”, and “agency action” have the meanings given them by section 551 of this title. 2. 5 U.S.C. 706 provides: Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; 120a (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. 3. 8 U.S.C. 1252 provides: Judicial review of orders of removal (a) Applicable provisions (1) General orders of removal Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed only by chapter 158 of title 28, except as provided in subsection (b) of this section and except that the court may not order the taking of additional evidence under section 2347(c) of such title. (2) Matters not subject to judicial review (A) Review relating to section 1225(b)(1) Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus pro- 121a vision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review— (i) except as provided in subsection (e) of this section, any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) of this title, (ii) except as provided in subsection (e) of this section, a decision by the Attorney General to invoke the provisions of such section, (iii) the application of such section to individual aliens, including the determination made under section 1225(b)(1)(B) of this title, or (iv) except as provided in subsection (e) of this section, procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of this title. (B) Denials of discretionary relief Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review— 122a (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. (C) Orders against criminal aliens Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title. (D) Judicial review of certain legal claims Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of 123a constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. (3) Treatment of certain decisions No alien shall have a right to appeal from a decision of an immigration judge which is based solely on a certification described in section 1229a(c)(1)(B) of this title. (4) Claims under the United Nations Convention Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, except as provided in subsection (e) of this section. (5) Exclusive means of review Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e) of this section. For purposes of this chapter, in every 124a provision that limits or eliminates judicial review or jurisdiction to review, the terms “judicial review” and “jurisdiction to review” include habeas corpus review pursuant to section 2241 of title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory). (b) Requirements for review of orders of removal With respect to review of an order of removal under subsection (a)(1) of this section, the following requirements apply: (1) Deadline The petition for review must be filed not later than 30 days after the date of the final order of removal. (2) Venue and forms The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. The record and briefs do not have to be printed. The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs. (3) Service (A) In general The respondent is the Attorney General. The petition shall be served on the Attorney General and on the officer or employee of the Service in charge of the Service district in which the final order of removal under section 1229a of this title was entered. 125a (B) Stay of order Service of the petition on the officer or employee does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise. (C) Alien’s brief The alien shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available, and may serve and file a reply brief not later than 14 days after service of the brief of the Attorney General, and the court may not extend these deadlines except upon motion for good cause shown. If an alien fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result. (4) Scope and standard for review Except as provided in paragraph (5)(B)— (A) the court of appeals shall decide the petition only on the administrative record on which the order of removal is based, (B) the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary, (C) a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law, and 126a (D) the Attorney General’s discretionary judgment whether to grant relief under section 1158(a) of this title shall be conclusive unless manifestly contrary to the law and an abuse of discretion. No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 1158(b)(1)(B), 1229a(c)(4)(B), or 1231(b)(3)(C) of this title, unless the court finds, pursuant to subsection (b)(4)(B) of this section, that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable. (5) Treatment of nationality claims (A) Court determination if no issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner’s nationality is presented, the court shall decide the nationality claim. (B) Transfer if issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner’s nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of title 28. 127a (C) Limitation on determination The petitioner may have such nationality claim decided only as provided in this paragraph. (6) Consolidation with review of motions to reopen or reconsider When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order. (7) Challenge to validity of orders in certain criminal proceedings (A) In general If the validity of an order of removal has not been judicially decided, a defendant in a criminal proceeding charged with violating section 1253(a) of this title may challenge the validity of the order in the criminal proceeding only by filing a separate motion before trial. The district court, without a jury, shall decide the motion before trial. (B) Claims of United States nationality If the defendant claims in the motion to be a national of the United States and the district court finds that— (i) no genuine issue of material fact about the defendant’s nationality is presented, the court shall decide the motion only on the administrative record on which the removal order is based and the administrative find- 128a ings of fact are conclusive if supported by reasonable, substantial, and probative evidence on the record considered as a whole; or (ii) a genuine issue of material fact about the defendant’s nationality is presented, the court shall hold a new hearing on the nationality claim and decide that claim as if an action had been brought under section 2201 of title 28. The defendant may have such nationality claim decided only as provided in this subparagraph. (C) Consequence of invalidation If the district court rules that the removal order is invalid, the court shall dismiss the indictment for violation of section 1253(a) of this title. The United States Government may appeal the dismissal to the court of appeals for the appropriate circuit within 30 days after the date of the dismissal. (D) Limitation on filing petitions for review The defendant in a criminal proceeding under section 1253(a) of this title may not file a petition for review under subsection (a) of this section during the criminal proceeding. (8) Construction This subsection— (A) does not prevent the Attorney General, after a final order of removal has been issued, from detaining the alien under section 1231(a) of this title; 129a (B) does not relieve the alien from complying with section 1231(a)(4) of this title and section 1253(g)1 of this title; and (C) does not require the Attorney General to defer removal of the alien. (9) Consolidation of questions for judicial review Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. (c) Requirements for petition A petition for review or for habeas corpus of an order of removal— (1) shall attach a copy of such order, and (2) shall state whether a court has upheld the validity of the order, and, if so, shall state the name of the court, the date of the court’s ruling, and the kind of proceeding. 1 See References in Text note below. 130a (d) Review of final orders A court may review a final order of removal only if— (1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order. (e) Judicial review of orders under section 1225(b)(1) (1) Limitations on relief Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may— (A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection, or (B) certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized under a subsequent paragraph of this subsection. (2) Habeas corpus proceedings Judicial review of any determination made under section 1225(b)(1) of this title is available in habeas 131a corpus proceedings, but shall be limited to determinations of— (A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title, such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 1225(b)(1)(C) of this title. (3) Challenges on validity of the system (A) In general Judicial review of determinations under section 1225(b) of this title and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of— (i) whether such section, or any regulation issued to implement such section, is constitutional; or (ii) whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with ap- 132a plicable provisions of this subchapter or is otherwise in violation of law. (B) Deadlines for bringing actions Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of subparagraph (A) is first implemented. (C) Notice of appeal A notice of appeal of an order issued by the District Court under this paragraph may be filed not later than 30 days after the date of issuance of such order. (D) Expeditious consideration of cases It shall be the duty of the District Court, the Court of Appeals, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any case considered under this paragraph. (4) Decision In any case where the court determines that the petitioner— (A) is an alien who was not ordered removed under section 1225(b)(1) of this title, or (B) has demonstrated by a preponderance of the evidence that the alien is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of 133a this title, the court may order no remedy or relief other than to require that the petitioner be provided a hearing in accordance with section 1229a of this title. Any alien who is provided a hearing under section 1229a of this title pursuant to this paragraph may thereafter obtain judicial review of any resulting final order of removal pursuant to subsection (a)(1) of this section. (5) Scope of inquiry In determining whether an alien has been ordered removed under section 1225(b)(1) of this title, the court’s inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal. (f ) Limit on injunctive relief (1) In general Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. 134a (2) Particular cases Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law. (g) Exclusive jurisdiction Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.