State of Texas v. United States

Case: 21-40680 Document: 00516498357 Page: 1 Date Filed: 10/05/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

October 5, 2022

No. 21-40680 Lyle W. Cayce

Clerk

State of Texas; State of Alabama; State of Arkansas;

State of Louisiana; State of Nebraska; State of South

Carolina; State of West Virginia; State of Kansas;

State of Mississippi,

Plaintiffs—Appellees,

versus

United States of America; Alejandro Mayorkas, Secretary,

U.S. Department of Homeland Security; Troy Miller, Acting

Commissioner, U.S. Customs and Border Protection; Tae D. Johnson,

Acting Director of U.S. Immigration and Customs Enforcement; Ur M.

Jaddou, Director of U.S. Citizenship and Immigration Services,

Defendants—Appellants,

Elizabeth Diaz; Jose Magana-Salgado; Karina Ruiz De

Diaz; Jin Park; Denise Romero; Angel Silva; Moses

Kamau Chege; Hyo-Won Jeon; Blanca Gonzalez; Maria

Rocha; Maria Diaz; Elly Marisol Estrada; Darwin

Velasquez; Oscar Alvarez; Luis A. Rafael; Nanci J.

Palacios Godinez; Jung Woo Kim; Carlos Aguilar

Gonzalez; State of New Jersey,

Intervenor Defendants—Appellants.

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No. 21-40680

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:18-CV-68

Before Richman, Chief Judge, and Ho and Engelhardt, Circuit

Judges.

Priscilla Richman, Chief Judge:

In 2012 the Secretary of the Department of Homeland Security

(DHS) announced the Deferred Action for Childhood Arrivals (DACA)

program. The program was set forth in a three-page memorandum (to which

we will refer as the DACA Memorandum or the memorandum). 1 Among

other provisions, the DACA Memorandum directed that removal of certain

aliens who entered the United States unlawfully as children should be

deferred and that these immigrants should receive certain benefits. Eight

states and the Governors of two states, led by Texas, have challenged

DACA’s validity. 2 In ruling on competing motions for summary judgment,

the district court held that the DACA Memorandum violates procedural and

substantive requirements of the Administrative Procedure Act (APA). 3 The

district court vacated the DACA Memorandum and remanded to DHS for

further consideration but temporarily stayed that vacatur as it applies to

1

Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David

Aguilar, Acting Comm’r, U.S. Customs and Border Prot., et al. (June 15, 2012) (DACA

Memorandum) (ROA.350-52), https://www.dhs.gov/xlibrary/assets/s1-exercising-

prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.

2

The Plaintiffs are the States of Texas, Alabama, Arkansas, Louisiana, Nebraska,

South Carolina, West Virginia, and Kansas, and the Governors of Mississippi and Maine.

ROA.4175 (Amended Complaint).

3

5 U.S.C. § 500 et. seq.; Texas v. United States, 549 F. Supp. 3d 572, 624 (S.D. Tex.

2021). We cite the district court’s opinion as “Dist. Ct. Op., 549 F. Supp. 3d at —.”

2

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current DACA recipients. 4 The district court further ruled that DHS may

continue to accept new and renewal DACA applications but enjoined DHS

from approving any new DACA applications. 5 We affirm the district court’s

judgment in part, but remand to the district court rather than DHS in light of

a final rule promulgated by DHS in August 2022. 6

I

The 2012 DACA Memorandum applies to “certain young people who

were brought to this country as children” unlawfully and would otherwise be

removable. 7 The DACA Memorandum provides that an illegal alien qualifies

for relief from removal and specified benefits if that person

• came to the United States under the age of sixteen;

• has continuously resided in the United States for at least five years

preceding the date of the memorandum and was present in the

United States on the date of the 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 does not

otherwise pose a threat to national security or public safety;

4

Dist. Ct. Op., 549 F. Supp. 3d at 624.

5

Id.

6

Deferred Action for Childhood Arrivals, 87 Fed. Reg. 53,152 (Aug. 30, 2022) (to

be codified at 8 C.F.R. pts 106, 236, and 274a).

7

Id.

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• is not above the age of thirty as of the date of the memorandum;

and

• passes a background check. 8

Under these criteria, the district court concluded that about 1.5

million aliens were covered by the DACA Memorandum. 9

The memorandum instructs immigration agencies to “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 . . . .” 10 United States Citizenship and Immigration Services

(USCIS) was directed to “establish a clear and efficient process” to that

end. 11

Those granted deferred action became eligible for other benefits. By

virtue of deferred action, recipients were deemed “lawfully present” under

pre-existing federal regulations and could seek work authorization, and were

eligible for Social Security and Medicare. 12 The memorandum expressly

8

Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David

Aguilar, Acting Comm’r, U.S. Customs and Border Prot., et al. (June 15, 2012) (DACA

Memorandum) (ROA.350-52), https://www.dhs.gov/xlibrary/assets/s1-exercising-

prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.

9

Texas v. United States, 549 F. Supp. 3d 572, 578 n.10 (S.D. Tex. 2021) (“Estimates

provided to the Court differ in the total number of DACA-eligible individuals. . . . Rather

than relying on extrinsic sources, arguments from counsel, or government statistics that

frequently change, the Court instead will use a midrange number of approximately 1.5

million eligible individuals.”).

10

DACA Memorandum at 2.

11

Id.

12

See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1902 (2020) (explaining

that work authorization for deferred action recipients is “permitted under regulations long

predating DACA’s creation” and that “[p]ursuant to other regulations, deferred action

recipients are considered ‘lawfully present’ for purposes of, and therefore eligible to

receive, Social Security and Medicare benefits”); see also 8 C.F.R. § 274a.12(c)(14) (2022)

4

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stated that “USCIS shall accept applications to determine whether these

individuals qualify for work authorization during this period of deferred

action.” 13

The memorandum contained several disclaimers. “DHS cannot

provide any assurance that relief will be granted in all cases.” 14 The

memorandum says that it “confers no substantive right, immigration status

or pathway to citizenship.” 15 It purports to “set forth policy for the exercise

of discretion within the framework of existing law.” 16

Two years later, in November 2014, DHS issued a memorandum to

expand DACA and institute a related program called Deferred Action for

Parents of Americans and Lawful Permanent Residents (DAPA). 17 The

DACA expansion would have removed the age limit, extended the entry date

from 2007 to 2010, and extended the renewable deferred action period from

two years to three years. 18 Up to 4.3 million parents of United States citizens

or lawful permanent residents would have been eligible under the DAPA

program. 19

(work authorization); 8 C.F.R. § 1.3(a)(4)(vi) (Social Security); 42 C.F.R. § 417.422(h)

(Medicare).

13

DACA Memorandum at 3.

14

Id. at 2.

15

Id. at 3.

16

Id.

17

Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to León

Rodríguez, Dir., U.S. Citizenship & Immigr. Servs., et al. (Nov. 20, 2014) (ROA.354-58),

https://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action

_2.pdf.

18

Id. at 3-4.

19

DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1902 (2020).

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Twenty-six states filed suit in the Southern District of Texas to

prevent DAPA’s implementation. 20 The district court entered a nationwide

preliminary injunction. 21 In Texas v. United States (DAPA), 22 this court

affirmed the grant of injunctive relief. 23 We held that DAPA likely violated

procedural APA requirements because it was a substantive rule that required

notice and comment. 24 We also held that DAPA likely violated substantive

APA requirements because it was “manifestly contrary” to the Immigration

and Naturalization Act (INA). 25 The Supreme Court affirmed this court’s

judgment without an opinion by an equally divided vote. 26

After a change in Presidential administrations, the new Attorney

General determined that DACA was likewise unlawful. 27 DHS then issued a

memorandum attempting to rescind DACA. 28 In Department of Homeland

Security v. Regents of the University of California, 29 the Supreme Court held

that DACA’s rescission violated the APA. The Court first determined that

the rescission decision was reviewable. 30 DACA “conferr[ed] affirmative

immigration relief,” granting both forbearance from removal and other

20

Texas v. United States, 86 F. Supp. 3d 591, 604 (S.D. Tex. 2015).

21

Id. at 677-78.

22

809 F.3d 134 (5th Cir. 2015).

23

Id. at 146.

24

Id. at 177-78.

25

Id. at 182 (quoting Mayo Found. for Med. Educ. & Rsch. v. United States, 562 U.S.

44, 53 (2011)).

26

United States v. Texas, 579 U.S. 547 (2016) (per curiam).

27

DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1903 (2020).

28

ROA.366-71.

29

140 S. Ct. 1891 (2020).

30

Id. at 1907.

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benefits attendant to deferred action: eligibility for work authorization, Social

Security, and Medicare. 31 “Because the DACA program is more than a non-

enforcement policy, its rescission is subject to review under the APA,” the

Court explained. 32

The Court then held that the decision to rescind DACA was arbitrary

and capricious. 33 DHS did not explain why it was terminating “the

forbearance policy at the heart of DACA,” instead of the benefits alone. 34

“[G]iven DHS’s earlier judgment that forbearance is ‘especially justified’

for ‘productive young people’ who were brought here as children and ‘know

only this country as home,’ the DACA Memorandum could not be rescinded

in full ‘without any consideration whatsoever’ of a forbearance-only policy,”

the Court concluded. 35 The rescission was also arbitrary and capricious

because DHS “failed to address whether there was ‘legitimate reliance’ on

the DACA Memorandum.” 36

In May 2018, while litigation over DACA’s rescission was ongoing,

several states filed this lawsuit against the Government challenging DACA’s

implementation in the first instance. 37 A group of twenty-two DACA

recipients and the State of New Jersey intervened as codefendants. 38 The

31

Id. at 1906.

32

Id. at 1907.

33

Id. at 1913.

34

Id. at 1912.

35

Id. (internal citation omitted) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 51 (1983)).

36

Id. at 1913 (quoting Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742

(1996)).

37

ROA.135.

38

ROA.15354.

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plaintiff States and Governors, to whom we will hereafter refer as “the

States” for simplicity, requested a preliminary injunction. Although the

district court held that the States would likely succeed on the merits of their

procedural and substantive APA claims, the court declined to issue a

preliminary injunction 39 because of the States’ delay in raising the challenge

and the relative hardship enjoining DACA would cause to the defendants and

the public. 40

After the Supreme Court’s decision in Regents, the States and the

DACA Recipients filed cross-motions for summary judgment. 41 The district

court granted summary judgment in favor of the States. 42 It concluded that

DACA violated the procedural and substantive requirements of the APA. 43

The court held that DACA was procedurally deficient because it failed to

undergo notice and comment. 44 DACA was not a general policy statement

exempt from notice and comment because it involved “significant rights and

obligations” and imposed “fixed criteria.” 45 The district court further held

that DACA was substantively unlawful because it violated the INA and other

immigration statutes. 46 The district court concluded that DACA was “‘in

excess of statutory jurisdiction’ and ‘short of statutory right’ . . . .” because

“Congress’s clear articulation of laws for removal, lawful presence, and work

39

Texas v. United States, 328 F. Supp.3d 662, 743 (S.D. Tex. 2018).

40

Id. at 742.

41

ROA.22370, 23891.

42

Texas v. United States, 549 F. Supp. 3d 572, 624 (S.D. Tex. 2021).

43

Id. at 603, 621.

44

Id. at 602-03.

45

Id. at 602.

46

Id. at 615-17.

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authorization illustrates a manifest intent to reserve for itself the authority to

determine the framework of the nation’s immigration system.” 47

The district court vacated the DACA Memorandum and remanded

the proceedings to DHS. 48 However, the district court temporarily stayed

the vacatur as to the approximately 600,000 existing DACA recipients. 49

The court’s judgment also permitted DHS to accept new and renewal DACA

applications but enjoined the DHS from approving any new applications and

granting any attendant status. 50 The defendants appealed to this court. 51

The DHS also issued a notice of proposed rulemaking with the stated intent

to “preserve and fortify DHS’s DACA policy” 52 in response to the district

court’s remand.

After we heard oral argument on July 6, 2022, the agency promulgated

a final rule on August 30, 2022 (“Final Rule”). 53 DHS urges us to review the

substantive challenges to the Final Rule, asserting that we have jurisdiction

to do so and that none of the changes in the Final Rule are material. The

States (other than New Jersey) contend that if we do not decide this appeal

until October 31, 2022, or thereafter, we should treat the Final Rule as the

47

Id. at 614.

48

Id. at 624.

49

Id.; see also Count of Active DACA Recipients by Month of Current DACA

Expiration as of June 30, 2021, U.S. Citizenship & Immigr. Servs.,

https://go.usa.gov/xMwtK.

50

Dist. Ct. Op., 549 F. Supp. 3d at 624.

51

ROA.25313, 25317, 25320.

52

Deferred Action for Childhood Arrivals, 86 Fed. Reg. 53,736, 53,773 (proposed

Sept. 28, 2021) (to be codified in scattered sections of 8 C.F.R).

53

Deferred Action for Childhood Arrivals, 87 Fed. Reg. 53,152 (Aug. 30, 2022) (to

be codified at 8 C.F.R. pts 106, 236, and 274a).

9

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agency action under consideration because, they assert, the Final Rule is

substantially similar to the 2012 DACA Memorandum. DACA recipients

contend that in light of the Final Rule, this court should remand the case to

the district court to consider that rule in the first instance because “it is far

from clear how the District Court here will address the DACA [Final] Rule”

and this court does not have the administrative record regarding the Final

Rule before it. New Jersey essentially agrees with the DACA recipients.

For the reasons discussed below, we affirm the district court’s

judgment with regard to the procedural and substantive provisions of the

DACA memorandum. Assuming without deciding that we presently have

jurisdiction to review the Final Rule, we decline to do so at this juncture. We

do not have the administrative record before us. We cannot determine

whether there are material differences in that record and the record before

the district court regarding the 2012 DACA Memorandum. The DACA

Memorandum remains in effect until October 31, 2022. To the extent our

determinations about questions of law in the present appeal would also apply

to the Final Rule, those issues of law should be resolved sooner rather than

later to move this case forward as expeditiously as possible. A district court

is in the best position to review the administrative record in the rulemaking

proceeding and determine whether our holdings as to the 2012 DACA

Memorandum fully resolve issues concerning the Final Rule.

The district court’s remand to DHS pending the issuance of a Final

Rule has been rendered unnecessary by supervening events. That portion of

the district court’s judgment is accordingly vacated, and we remand to the

district court for further proceedings that the parties may pursue regarding

the Final Rule. That does not, of course, foreclose remanding to DHS upon

review of the Final Rule in any future proceedings. Today, we consider only

the challenges to the 2012 DACA Memorandum.

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II

We first consider the relief that the States sought in the district court.

Among many other allegations, the States assert in their Amended Complaint

that “[b]ut for the Executive’s implementation of DACA, aliens covered by

that program would not be eligible for lawful presence, and would be

removable under the INA.” 54 They further contend that because of the

unlawful DACA program, aliens covered by it are eligible for work

authorization, lawful-permanent-resident status by obtaining advance parole,

and United States citizenship by obtaining advance parole. 55 The remedy the

States ultimately seek is to “phase out the DACA program within two

years.” 56 They do not seek to “require the Executive to immediately rescind

any existing DACA permits that confer lawful presence or work

authorization.” 57 They assert that though a court would have the power to

immediately rescind all DACA permits that confer lawful presence and work

authorizations, the “Plaintiff States are amenable to an injunction that

prospectively enjoins Defendants in the future from renewing or issuing any

new DACA permits.” 58 Without DACA permits, current and prospective

DACA recipients would be subject to removal under the same conditions and

terms as other similarly situated immigrants who are illegally present in the

United States. Throughout the Amended Complaint and briefing, the States

contend that the special treatment afforded by the DACA Memorandum, not

just the benefits conferred, have encouraged those eligible for DACA to

54

Amended Complaint ¶ 211. ROA.4225.

55

Amended Complaint ¶¶ 212-214. ROA.4225.

56

Amended Complaint ¶ 339. ROA.4244.

57

Amended Complaint ¶ 339. ROA.4244.

58

Amended Complaint ¶ 339. ROA.4244.

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remain in this country. A key component for obtaining relief, the States say,

is that at least some DACA recipients would be motivated to leave the States

if the DACA program is ended. Deferring removal for DACA recipients, that

is, special treatment under the immigration laws governing removal, is an

integral part of the causation of the States’ injuries, according to their

Amended Complaint and briefing. For example, the States assert in the

Appellees’ Brief in our court that “[t]he district court’s injunction redresses

the States’ injuries because many of those aliens would and will return to

their countries of origin without DACA.”

In sum, the States seek an end to the DACA program in its entirety at

some point in the future. They seek to end both forbearance of removal and

the conferral of benefits to existing DACA recipients as existing permits

expire. The States make clear in their filings and briefing that once the

DACA program has ended, former DACA recipients should be removable on

the same basis as any other similarly situated illegal alien.

III

Before considering the merits of the appeals from the district court’s

judgment, we must resolve whether any Plaintiff has standing to assert the

claims at issue. Article III of the Constitution restricts the federal judicial

power to the resolution of “Cases” or “Controversies.” 59 “For there to be

a case or controversy under Article III, the plaintiff must have a ‘personal

59

U.S. Const. art. III, § 2.

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stake’ in the case—in other words, standing.” 60 “Standing is a question of

law that we review de novo.” 61

As the parties invoking federal jurisdiction, the States bear the burden

of establishing standing. 62 To do so, they “must show (i) that [they] suffered

an injury in fact that is concrete, particularized, and actual or imminent;

(ii) that the injury was likely caused by the defendant; and (iii) that the injury

would likely be redressed by judicial relief.” 63 The States must make this

showing “with the manner and degree of evidence required at the successive

stages of the litigation.” 64 At summary judgment, they “can no longer rest

on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence

‘specific facts.’” 65

The presence of one party with standing is sufficient to authorize our

review. 66 Texas is the only state that has attempted to demonstrate standing.

A

Texas contends that it warrants special solicitude in the standing

analysis. “States are not normal litigants for the purposes of invoking federal

jurisdiction” and may be “entitled to special solicitude.” 67 When special

60

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (quoting Raines v.

Byrd, 521 U.S. 811, 819 (1997)).

61

N. Cypress Med. Ctr. Op. Co. v. Cigna Healthcare, 781 F.3d 182, 191 (5th Cir. 2015)

(quoting Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315, 319 (5th Cir. 2002)).

62

TransUnion, 141 S. Ct. at 2207.

63

Id. at 2203.

64

Id. at 2208 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).

65

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 412 (2013) (quoting Lujan, 504 U.S.

at 561).

66

Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006).

67

Massachusetts v. EPA, 549 U.S. 497, 518, 520 (2007).

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solicitude is appropriate, a state can establish standing “without meeting all

the normal standards for redressability and immediacy.” 68 Standing will

exist “if there is some possibility that the requested relief will prompt the

injury-causing party to reconsider the decision that allegedly harmed the

litigant.” 69

Special solicitude has two requirements: (1) the State must have a

procedural right to challenge the action in question, and (2) the challenged

action must affect one of the State’s quasi-sovereign interests. 70 Texas

satisfies the first requirement. As in DAPA, Texas asserts a procedural right

under the APA to challenge agency action. 71 “In enacting the APA, Congress

intended for those ‘suffering legal wrong because of agency action’ to have

judicial recourse, and the states fall well within that definition.” 72 Once

again, now with DACA, Texas “challenges DHS’s affirmative decision to set

guidelines for granting lawful presence to a broad class of illegal aliens.” 73

To satisfy the second requirement, DACA must affect a quasi-

sovereign interest. The leading Supreme Court decision regarding this

concept is Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez. 74 A quasi-

sovereign interest is “a judicial construct that does not lend itself to a simple

or exact definition.” 75 Quasi-sovereign interests are “not sovereign

68

Id. at 517-18 (quoting Lujan, 504 U.S. at 572 n.7).

69

Id. at 518.

70

DAPA, 809 F.3d 134, 151-52 (5th Cir. 2015).

71

See id. at 152.

72

Id. (footnote omitted) (quoting 5 U.S.C. § 702).

73

Id. at 152.

74

458 U.S. 592 (1982).

75

Id. at 601.

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interests, proprietary interests, or private interests pursued by the State as a

nominal party.” 76 Rather, they “consist of a set of interests that the State

has in the well-being of its populace.” 77 These include interests in “the

health and well-being—both physical and economic—of its residents” and

in “not being discriminatorily denied its rightful status in the federal

system.” 78 “One helpful indication” of a quasi-sovereign interest is

“whether the injury is one that the State, if it could, would likely attempt to

address through its sovereign lawmaking powers.” 79

An agency action may affect a quasi-sovereign interest if it is alleged

to damage certain “sovereign prerogatives [that] are now lodged in the

Federal Government.” 80 In DAPA, we observed that “[w]hen the states

joined the union, they surrendered some of their sovereign prerogatives over

immigration,” including their power to “establish their own classifications

of aliens.” 81 We concluded that this interest in classifying aliens was

analogous to the interest in regulating emissions that the Supreme Court

deemed a quasi-sovereign interest in Massachusetts v. EPA. 82 “Both these

plaintiff states and Massachusetts now rely on the federal government to

protect their interests,” so DAPA affected the states’ quasi-sovereign

76

Id. at 602.

77

Id.

78

Id. at 607.

79

Massachusetts v. EPA, 549 U.S. 497, 519 (2007) (quoting Snapp, 458 U.S. at 607).

80

Id.

81

DAPA, 809 F.3d 134, 153 (5th Cir. 2015).

82

549 U.S. 497 (2007); DAPA, 809 F.3d at 155.

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interests. 83 DACA does the same. Like DAPA, DACA implicates Texas’s

quasi-sovereign interest in classifying aliens.

The DACA Recipients claim that this case is different. In DAPA, they

point out, we recognized a quasi-sovereign interest on two grounds: “the

direct, substantial pressure directed at the states [to change their laws] and

the fact that they have surrendered some of their control over immigration to

the federal government.” 84 Here, the Recipients suggest, there is only the

surrender of control over immigration; there is no pressure on Texas to

change specific laws.

The DAPA decision considered a Texas law that required issuance of

a driver’s license to a noncitizen who presented proper documentation

authorizing the alien to be present in the United States. 85 DAPA granted

lawful permanent status to those eligible for that program, and there was

evidence that a substantial number of DAPA beneficiaries would apply for a

driver’s license. 86 Texas subsidizes its licenses, and the record reflected that

the State would lose $130.89 on each license it issued to a DAPA

beneficiary. 87 We concluded that the economic incentive Texas had to

change its laws subsidizing driver’s licenses for authorized noncitizens gave

83

DAPA, 809 F.3d at 154.

84

Id. at 154-55.

85

Id. at 155.

86

Id. (“If permitted to go into effect, DAPA would enable at least 500,000 illegal

aliens in Texas to satisfy that requirement with proof of lawful presence or employment

authorization. Texas subsidizes its licenses and would lose a minimum of $130.89 on each

one it issued to a DAPA beneficiary. Even a modest estimate would put the loss at ‘several

million dollars.’”) (footnotes omitted).

87

Id.

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rise to a quasi-sovereign interest. 88 But we also noted Texas might not be

able to change its laws if challenges based on federal preemption or violations

of the Equal Protection Clause were mounted. 89 We recognized that a State’s

inability to legislate around DACA can create a quasi-sovereign interest. 90 In

Massachusetts, the State had a quasi-sovereign interest because it could not

regulate greenhouse gases. 91 The Court explained that “Massachusetts

cannot invade Rhode Island to force reductions in greenhouse gas emissions,

it cannot negotiate an emissions treaty with China or India, and in some

circumstances the exercises of its police powers to reduce in-state motor-

vehicle emissions might well be pre-empted.” 92 The Court did not identify

any law that Massachusetts would be moved to change. Rather, its holding

depended on the constraints on the State’s ability to respond. Similarly, in

DAPA, we indicated that a quasi-sovereign interest could arise based on

“federal preemption of state law.” 93

DACA implicates preemption concerns. It classifies aliens and their

status while in this country. “The federal government alone, however, has

the power to classify non-citizens.” 94 “Policies pertaining to the entry of

aliens and their right to remain here are . . . entrusted exclusively to

88

Id.

89

Id. at 153.

90

Id. at 154 (“So too are the states asserting institutional injury to their lawmaking

authority.”).

91

Massachusetts v. EPA, 549 U.S. 497, 519 (2007).

92

Id.

93

DAPA, 809 F.3d at 153; see also Wyoming ex rel. Crank v. United States, 539 F.3d

1236, 1242 (10th Cir. 2008) (“Federal regulatory action that preempts state law creates a

sufficient injury-in-fact to satisfy this prong.”)

94

Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 536 (5th Cir.

2013) (en banc).

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Congress. . . .” 95 An attempt by Texas to establish an alternative

classification system or work authorizations would be preempted, despite the

State’s likely interest in doing so. 96 “‘The pervasiveness of federal

regulation does not diminish the importance of immigration policy to the

States,’ which ‘bear[] many of the consequences of unlawful

immigration.’” 97 The importance of immigration policy and its

consequences to Texas, coupled with the restraints on Texas’ power to make

it, create a quasi-sovereign interest. 98

The Recipients argue that DACA does not affect quasi-sovereign

interests because it regulates private actors rather than the States. They cite

the Supreme Court’s decision in Murphy v. NCAA, 99 which invalidated a

federal law that prohibited states from authorizing sports gambling

schemes. 100 The law violated the anticommandeering doctrine because it

“unequivocally dictate[d] what a state legislature may and may not do.” 101

DACA does not operate as a direct command to the states, the Recipients

argue, so it does not infringe upon states’ sovereignty.

The DACA Memorandum may not commandeer the states, but that

does not mean it is unrelated to state sovereignty. As Murphy itself explains,

anticommandeering and preemption are separate doctrines. In contrast to

95

Galvan v. Press, 347 U.S. 522, 531 (1954).

96

See Arizona v. United States, 567 U.S. 387, 409 (2012).

97

DAPA, 809 F.3d at 163 (quoting Arizona, 567 U.S. at 397).

98

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)

(observing that a state’s desire to legislate suggests a quasi-sovereign interest).

99

138 S. Ct. 1461 (2018).

100

Id. at 1485.

101

Id. at 1478.

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anticommandeering, “every form of preemption is based on a federal law that

regulates the conduct of private actors, not the States.” 102 Both

commandeering and preemption pertain to states’ “sovereign interest in ‘the

power to create and enforce a legal code.’” 103 DACA is a program for alien

classification, and it relates to preemption. That DACA addresses

classification and rights of individual aliens does not extinguish the quasi-

sovereign interests at stake.

The Government asserts there is a presumption against standing by

plaintiffs who are not the objects of the government action they challenge.

Our decision in DAPA rejected the applicability of this presumption. 104

There, as here, the cases that the Government cites “concerned only

nonprosecution (as distinguished from both nonprosecution and the

conferral of benefits)” 105 or “merely reaffirmed that a plaintiff must satisfy

the standing requirements.” 106 None of the cited cases concern state

plaintiffs, who the Supreme Court has recognized “are not normal litigants”

in the standing analysis. 107 The Government has not offered any reason why

the presumption would apply here when it did not in DAPA.

102

Murphy, 138 S. Ct. at 1481.

103

DAPA, 809 F.3d 134, 153 (5th Cir. 2015) (quoting Tex. Off. of Pub. Util. Counsel

v. FCC, 183 F.3d 393, 449 (5th Cir. 1999)).

104

DAPA, 809 F.3d at 154.

105

Id. (citing Linda R.S. v. Richard D., 410 U.S. 614, 615-16 (1973)); see also Sure-

Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984).

106

Id.

107

Massachusetts v. EPA, 549 U.S. 497, 518 (2007); cf. Sure-Tan, 467 U.S. at 897

(observing that “private persons such as petitioners have no judicially cognizable interest

in procuring enforcement of the immigration laws”).

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Texas warrants special solicitude because of its procedural right under

the APA to challenge DACA and Texas’ quasi-sovereign interest in alien

classification, an area in which the State would like to, but cannot, regulate.

B

Texas asserts standing based on direct injury. It claims that DACA

inflicts pocketbook injuries on the State in the form of healthcare, education,

and social services costs.

Texas has satisfied the first standing requirement by demonstrating

injury in fact. 108 Federal law requires the State to provide emergency

Medicaid to noncitizens and public education to all children, regardless of

their immigration status. 109 Texas presented evidence that it spends millions

of dollars providing these services to unauthorized aliens each year. 110 As the

district court’s opinion reflects, the estimated cost to Texas of providing

Emergency Medicaid services to undocumented immigrants residing in

Texas was $90 million in fiscal year 2013 and $73 million for 2015. 111 The

Texas Health and Human Services Commission estimated that the state’s

public hospital district facilities incurred approximately $596.8 million in

uncompensated care for undocumented immigrants in fiscal year 2006 and

$716.8 million in fiscal year 2008. 112 The record does not indicate precisely

what portion of all costs for illegal aliens is spent on DACA recipients, but no

108

See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).

109

See 42 C.F.R. § 435.406(b) (2022) (emergency Medicaid); Plyler v. Doe, 457

U.S. 202, 230 (1982) (public education).

110

ROA.22959-61, 23020-21.

111

Dist. Ct. Op., 549 F. Supp. 3d at 593.

112

ROA.22960.

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one disputes that some are. 113 An expert for defendants estimated that

DACA recipients overall impose a cost of more than $250,000,000 on Texas

per year and another $533,000,000 annually in costs to local Texas

communities. 114 “For standing purposes, a loss of even a small amount of

money is ordinarily an ‘injury.’” 115

The Government cites estimates that if the DACA program were to

be terminated, the State’s healthcare costs would increase for aliens who

remain in Texas, because they would lose their jobs and employer-based

health insurance and would rely more on emergency Medicaid. 116 That may

be, but these estimates do not account for the cost savings—healthcare and

educational—from others’ departure. 117 Texas would no longer be required

to educate those who depart or the children who depart with them. In any

event, this court held with regard to standing in the DAPA case that “[o]nce

injury is shown, no attempt is made to ask whether the injury is outweighed

by benefits the plaintiff has enjoyed from the relationship with the

defendant.” 118 In resolving standing, courts do not engage in such an

“accounting exercise.” 119

113

See DAPA, 809 F.3d 134, 155 (5th Cir. 2015) (holding that Texas established

injury in fact without precisely quantifying the costs of issuing driver’s licenses to DAPA

beneficiaries).

114

ROA.23026.

115

Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017).

116

ROA.18005.

117

ROA.18004 (“These estimates are based on the loss of employment-based

health insurance coverage and the need to rely on public sources of care.”).

118

DAPA, 809 F.3d 134, 155-56 (5th Cir. 2015) (quoting 13A Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure

§ 3531.4, at 147 (3d ed. 2015) (footnote omitted)).

119

Id. at 156 (quoting NCAA v. Gov. of N.J., 730 F.3d 208, 223 (3d Cir. 2013)).

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The defendants claim that this theory of injury lacks a limiting

principle. If social services costs qualify as injury, they argue, states could

routinely call on federal courts to broker complex debates over immigration

policy. They liken this case to El Paso County v. Trump, 120 in which the

county alleged injury because the Department of Defense canceled a

construction project, thereby reducing economic activity and tax revenues. 121

We held the county did not have standing, holding that a “loss of general tax

revenues as an indirect result of federal policy is not a cognizable injury in

fact.” 122 We recognized courts’ reluctance to recognize general tax injuries,

which could result from virtually any federal action. 123

This case is different. Texas does not allege a tax injury, let alone a

generic one. It identifies expenditures in providing emergency medical

services, social services and public education for illegal aliens. In El Paso, we

expressly noted that “the loss of a specific tax revenue” could establish

standing. 124 Specific social services costs likewise suffice. In other cases

regarding DHS programs, we have specifically recognized a state’s

“obligation to subsidize . . . additional aliens’ healthcare and education

costs” as injury in fact. 125

It may be true that standing theories based on social services costs

could spur policy-oriented litigation. However, our precedent rejects the

120

982 F.3d 332 (5th Cir. 2020).

121

Id. at 338-39.

122

Id. at 339.

123

Id. at 339-41.

124

Id. at 341.

125

Texas v. United States, 40 F.4th 205, 217 (5th Cir. 2022), cert. granted, __ S. Ct.

__, 2022 WL 2841804; see also Texas v. Biden, 20 F.4th 928, 971 (5th Cir. 2021), rev’d on

other grounds, 142 S. Ct. 2528 (2022).

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significance of this risk. As we explained in DAPA, the Supreme Court

considered similar arguments in Massachusetts and deemed them

unpersuasive. 126 After Massachusetts, “the answer to those criticisms is that

there are other ways to cabin policy disagreements masquerading as legal

claims.” 127 Restrictions on standing, special solicitude, and causes of action

serve this purpose. 128

Texas has satisfied the second requirement for standing by showing

that its costs are “fairly traceable” to DACA. 129 Texas contends that the

rescission of DACA would cause some recipients to leave, thereby reducing

the financial burdens on the State. It cites a survey of over three thousand

DACA recipients in which twenty-two percent of respondents said they were

likely or very likely to leave the country if DACA ended. 130 The Government

presents evidence that many recipients would remain without DACA, but

that does not controvert Texas’s showing that some would leave. 131

The Government argues that DACA did not cause the injury because

the State must pay for emergency Medicaid and education under preexisting

federal law. 132 DACA is not the sole cause of the State’s injury, but DACA

has exacerbated it. That is sufficient. In Massachusetts, the Court held that

the State’s injury was traceable to EPA’s decision not to regulate greenhouse

126

DAPA, 809 F.3d 134, 161 (5th Cir. 2015).

127

Id.

128

Id.

129

Id. at 150 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)).

130

ROA.23060.

131

ROA.17968, 18075-76.

132

See 42 C.F.R. § 440.255(c) (2022); Plyler v. Doe, 457 U.S. 202, 230 (1982).

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gas emissions. 133 Of course, the refusal to regulate was not the sole cause of

the emissions. It was enough that EPA’s decision “contribute[d] to

Massachusetts’ injuries.” 134 Similarly, DACA has contributed to an injury,

saddling the State with additional healthcare and education costs each year.

The causal chain is much more direct than the one the Court accepted in

Massachusetts. 135

The third element of standing requires Texas to show that rescinding

DACA will redress its injury. Normally, “[t]o satisfy redressability, a

plaintiff must show that ‘it is likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.’” 136 With special

solicitude, however, a state can establish redressability “without meeting all

the normal standards.” 137 The standard is met “if there is some possibility

that the requested relief” will reduce the harm. 138

Texas has made the requisite showing. Those presently subject to

DACA would be removable if the DACA program were ended, providing

133

Massachusetts v. EPA, 549 U.S. 497, 523 (2007).

134

Id.; see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

134 n.6 (2014) (“Proximate causation is not a requirement of Article III standing, which

requires only that the plaintiff’s injury be fairly traceable to the defendant’s conduct.”).

135

See Massachusetts, 549 U.S. at 521-23 (holding that traceability was satisfied

because EPA’s refusal to regulate contributed to motor-vehicle emissions, which may in

turn contribute to a rise in sea levels, which may in turn erode state coastal property).

136

Inclusive Cmtys. Project, Inc. v. Dep’t of Treasury, 946 F.3d 649, 655 (5th Cir.

2019) (emphasis omitted) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),

Inc., 528 U.S. 167, 181 (2000)).

137

Massachusetts, 549 U.S. at 517-18 (quoting Lujan v. Defs. of Wildlife, 504 U.S.

555, 572 n.7 (1992)).

138

Id. at 518; see also id. at 526 (holding that Massachusetts satisfied redressability

because the risk of harm “would be reduced to some extent if petitioners received the relief

they seek”).

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incentives for some if not many to leave the United States, including Texas.

There is evidence that if DACA were no longer in effect, at least some

recipients would leave, and their departure would reduce the State’s

Medicaid, social services and education costs for those individuals and their

families who depart with them. Especially with the benefit of special

solicitude, Texas has established that rescinding DACA would redress its

harm. Accordingly, Texas has demonstrated standing based on its direct

injury.

IV

As discussed above, while this appeal was pending, DHS concluded

its rulemaking proceeding regarding DACA and issued a Final Rule.

However, the Final Rule does not become effective until October 31, 2022. 139

The issuance of the Final Rule does not moot the present appeal. The 2012

DACA Memorandum would continue in full effect but for the district court’s

judgment. Were we to reverse the district court’s judgment and conclude

that the DACA Memorandum did not violate substantive law, its provisions

would once again have full effect until October 31, 2022. Among other

effects, such a ruling would permit DHS to grant DACA status to applicants

before October 31, 2022, which it is not now permitted to do under the

district court’s judgment. Whether the DACA Memorandum is inconsistent

with the INA is ripe for decision and not moot.

V

For the first time on appeal, the Government argues that the States’

claims fall outside the INA’s zone of interests. We need not consider zone-

of-interests objections that were not raised below, but at times we have

139

Deferred Action for Childhood Arrivals, 87 Fed. Reg. 53,152 (Aug. 30, 2022) (to

be codified at 8 C.F.R. pts 106, 236, and 274a).

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exercised our discretion to do so. 140 Even if we exercised that discretion here,

we would conclude that the States’ claims fall within the zone of interests.

The test here is “not ‘especially demanding.’” 141 We assess the zone

of interests “in keeping with Congress’s ‘evident intent’ when enacting the

APA ‘to make agency action presumptively reviewable.’” 142 The test is

satisfied if the claims are “arguably within the zone of interests to be

protected or regulated by the statute.” 143 The Supreme Court has “always

conspicuously included the word ‘arguably’ in the test to indicate that the

benefit of any doubt goes to the plaintiff.” 144 Review is foreclosed “only

when a plaintiff’s ‘interests are so marginally related to or inconsistent with

the purposes implicit in the statute that it cannot reasonably be assumed that

Congress intended to permit the suit.’” 145

With the INA, Congress “established a ‘comprehensive federal

statutory scheme for regulation of immigration and naturalization’ and set

‘the terms and conditions of admission to the country and the subsequent

treatment of aliens lawfully in the country.’” 146 The States argue that DACA

140

See Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 474 n.4 (5th Cir. 2013)

(citing cases).

141

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 130 (2014)

(quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209,

224 (2012)).

142

Patchak, 567 U.S. at 225 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399

(1987)).

143

Id. at 224 (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S.

150, 153 (1970)).

144

Id. at 225.

145

Id. (quoting Clarke, 479 U.S. at 399).

146

Chamber of Com. v. Whiting, 563 U.S. 582, 587 (2011) (quoting DeCanas v. Bica,

424 U.S. 351, 353 (1976)).

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violates that scheme. They have an interest in seeing the INA enforced, and

in participating in notice and comment to voice their concerns. 147

In DAPA, we held that the states’ challenge fell within the INA’s zone

of interests. 148 The Government argues that this case is different because of

the different harms alleged. The driver’s license costs in DAPA fell within

the INA, the Government says, because Congress permitted states to deny

those benefits to unauthorized aliens. Not so, the Government argues, with

emergency medical and public education costs, which federal law requires

states to provide.

This argument misunderstands the States’ claims. The States do not

contest their obligation to pay these costs. Rather, they seek to reduce them.

The INA encompasses their concerns about the financial burdens of illegal

immigration. “It’s clear that the INA aimed, at least in part, to protect States

from just those kinds of [fiscal] harms.” 149 The States’ objectives are

consistent with the INA’s, so they pass the lenient zone-of-interests test.

VI

We now turn to the merits. On summary judgment, the district court

held that DACA violates the APA’s procedural and substantive

requirements. 150 We review a grant of summary judgment de novo, applying

the same standards as the district court. 151 Summary judgment is appropriate

147

See Arizona v. United States, 567 U.S. 387, 397 (2012); DAPA, 809 F.3d 134, 163

(5th Cir. 2015).

148

DAPA, 809 F.3d at 163.

149

Texas v. Biden, 20 F.4th 928, 971 (5th Cir. 2021), rev’d on other grounds, 142 S.

Ct. 2528 (2022).

150

Texas v. United States, 549 F. Supp. 3d 572, 603, 621 (S.D. Tex. 2021).

151

Johnson v. World All. Fin. Corp., 830 F.3d 192, 195 (5th Cir. 2016).

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“if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” 152 When there

are cross-motions for summary judgment, “we review each party’s motion

independently, viewing the evidence and inferences in the light most

favorable to the nonmoving party.” 153

A

Procedurally, the States argue that DACA failed to undergo necessary

notice and comment. The Government maintains that DACA is a general

statement of policy exempt from notice and comment.

The APA requires substantive rules to undergo notice and comment,

whereas policy statements need not. 154 Substantive rules “create law.” 155

They typically “grant rights, impose obligations, or produce other significant

effects on private interests.” 156 By contrast, policy statements “announc[e]

motivating factors the agency will consider, or tentative goals toward which

it will aim, in determining the resolution of a substantive question of

regulation.” 157 The notice-and-comment exemption for policy statements

“must be narrowly construed.” 158

152

Fed. R. Civ. P. 56(a).

153

Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 329 (5th Cir. 2014) (quoting Duval

v. N. Assur. Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013)).

154

Pros. & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995)

(citing 5 U.S.C. § 553(b)(3)(A), (d)(2)).

155

W&T Offshore, Inc. v. Bernhardt, 946 F.3d 227, 237 (5th Cir. 2019) (quoting

Phillips Petrol. Co. v. Johnson, 22 F.3d 616, 619 (5th Cir. 1994)).

156

Id. (quoting Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 908 (5th

Cir. 1983)).

157

Shalala, 56 F.3d at 601 (quoting Phillips, 22 F.3d at 620).

158

Id. at 595 (quoting United States v. Picciotto, 875 F.2d 345, 347 (D.C. Cir. 1989)).

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We distinguish policy statements from substantive rules based on two

criteria: whether the pronouncement “(1) ‘impose[s] any rights and

obligations’ and (2) ‘genuinely leaves the agency and its decision-makers free

to exercise discretion.’” 159 We are “mindful but suspicious of the agency’s

own characterization” of what it has done. 160 “[C]ourts have long looked to

the contents of the agency’s action, not the agency’s self-serving label, when

deciding whether statutory notice-and-comment demands apply.” 161 Our

primary focus is “whether the rule has binding effect on agency discretion or

severely restricts it.” 162

Under the first factor, DACA imposes rights and obligations. In

Regents, 163 the Supreme Court explained that “the DACA Memorandum

does not announce a passive non-enforcement policy; it created a program

for conferring affirmative immigration relief.” 164 This relief is granted

following extensive proceedings that are “effectively ‘adjudications.’” 165 At

the memorandum’s direction, “USCIS solicited applications from eligible

aliens, instituted a standardized review process, and sent formal notices

indicating whether the alien would receive the two-year forbearance.” 166

Over 800,000 individuals have obtained forbearance under these

159

DAPA, 809 F.3d 134, 171 (5th Cir. 2015) (quoting Shalala, 56 F.3d at 595).

160

Shalala, 56 F.3d at 595.

161

Azar v. Allina Health Servs., 139 S. Ct. 1804, 1812 (2019).

162

DAPA, 809 F.3d at 171 (quoting Shalala, 56 F.3d at 595).

163

140 S. Ct. 1891 (2020).

164

Id. at 1906.

165

Id. (alteration omitted).

166

Id.

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directives. 167 This expansive, organized process has none of the tentative

character of a policy statement. 168

The relief at stake is of vital importance to recipients. 169 The program

consists of two parts, a “forbearance component” and “eligibility for

benefits.” 170 The two-year forbearance grant is “an ‘affirmative act of

approval,’” 171 and “[t]he benefits attendant to deferred action provide

further confirmation that DACA is more than simply a non-enforcement

policy.” 172 “[B]y virtue of receiving deferred action,” recipients may seek

work authorization and become eligible for Social Security and Medicare. 173

“[A]ccess to these types of benefits is an interest ‘courts often are called

upon to protect.’” 174 There is no doubt that these rewards

“produce . . . significant effects on private interests.” 175

The Government argues that DACA confers no rights because the

memorandum says it does not. To be sure, the memorandum states that it

“confers no substantive right, immigration status, or pathway to

167

Dist. Ct. Op., 549 F. Supp. 3d at 599.

168

See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir. 1983);

Am. Bus Ass’n v. United States, 627 F.2d 525, 530 (D.C. Cir. 1980).

169

See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1914 (2020).

170

Id. at 1911.

171

Id. at 1906 (quoting Heckler v. Chaney, 470 U.S. 821, 831 (1985)).

172

Id.

173

Id.

174

Id. (quoting Heckler, 470 U.S. at 832).

175

Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir. 1983)

(quoting Batterton v. Marshall, 648 F.2d 694, 702 (D.C. Cir. 1980)).

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citizenship.” 176 But an agency’s characterization of its own action is only

“the starting point.” 177 Our ultimate concern is the “contents of the agency’s

action.” 178 Even on its face, the memorandum describes the significance of

what it does. The memorandum directs agencies to “defer[] action for a

period of two years, subject to renewal” for eligible individuals, and it says

that USCIS “shall accept applications to determine whether these

individuals qualify for work authorization during this period of deferred

action.” 179 The memorandum attests to the rights that DACA makes

available, and the reality goes beyond that.

Under the second factor, we assess whether DACA genuinely leaves

the agency and its decision-makers free to exercise discretion. An agency’s

pronouncement “will be considered binding as a practical matter if it either

appears on its face to be binding, or is applied by the agency in a way that

indicates it is binding.” 180

There is language in the memorandum that appears to confer

discretion. It instructs agencies to review applications “on a case by case

basis” and repeatedly refers to the program as an “exercise of prosecutorial

discretion.” 181 Importantly, however, the memorandum narrows and

176

Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David

Aguilar, Acting Comm’r, U.S. Customs and Border Prot., et al. (June 15, 2012) (DACA

Memorandum) (ROA.350-52), https://www.dhs.gov/xlibrary/assets/s1-exercising-

prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.

177

Pros. & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995).

178

Azar v. Allina Health Servs., 139 S. Ct. 1804, 1812 (2019).

179

DACA Memorandum at 2-3.

180

DAPA, 809 F.3d 134, 171 (5th Cir. 2015) (quoting Gen. Elec. Co. v. EPA, 290

F.3d 377, 383 (D.C. Cir. 2002)).

181

DACA Memorandum at 1-2.

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channels that discretion. That is its stated purpose. It “set[s] 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.” 182 It lists a fixed set of “criteria [that] should be

satisfied before an individual is considered for an exercise of prosecutorial

discretion.” 183 It dictates what that discretion should be used to do.

Agencies “should exercise prosecutorial discretion . . . by deferring action

for a period of two years, subject to renewal.” 184

There is a fact dispute over whether agents retain discretion to reject

applicants who meet the criteria. The States cite evidence that a USCIS

center in Texas never rejected an applicant who met the criteria. 185 But other

evidence in the record shows the criteria are not dispositive. DACA training

staff report that discretionary denials occur according to a totality of the

circumstances standard that boils down to “whether or not you would want

to live next door to the person.” 186

Viewing this evidence in the light most favorable to the defendants,

we assume that agents do have discretion to reject applicants who meet the

criteria. Even so, DACA is not a policy statement. “The mere existence of

some discretion is not sufficient, although it is necessary for a rule to be

classified as a general statement of policy.” 187 Here, little else suggests that

182

Id. at 1.

183

Id.

184

Id. at 2.

185

ROA.23080.

186

ROA.7705; see also ROA.935-36.

187

Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658,

667 (D.C. Cir. 1978).

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DACA would be a policy statement. DACA created a detailed, streamlined

process for granting enormously significant, predefined benefits to over

800,000 people. This constitutes a substantive rule. 188 Because DACA did

not undergo notice and comment, it violates the procedural requirements of

the APA.

B

The States contend, and the district court held, that DACA also

violates the APA’s substantive requirements. 189 The APA requires courts to

“hold unlawful and set aside agency action” that is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law,” or “in excess

of statutory jurisdiction, authority, or limitations, or short of statutory

right.” 190 We assume without deciding that the two-part Chevron 191

framework applies. 192

Under Chevron, we first “ask whether Congress has ‘directly

addressed the precise question at issue.’” 193 For many of the reasons we

explained in DAPA, Congress has. “Federal governance of immigration and

188

See Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1112-13 (D.C. Cir. 1974) (holding

that parole guidelines were “substantive agency action, for they define a fairly tight

framework to circumscribe the Board’s statutorily broad power” and “were of a kind

calculated to have a substantial effect on ultimate parole decisions”).

189

Dist. Ct. Op., 549 F. Supp. 3d at 624 (holding that “DHS violated the APA with

the creation of DACA and its continued operation”).

190

5 U.S.C. § 706(2)(A), (C).

191

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

192

See DAPA, 809 F.3d 134, 178 & n.160 (5th Cir. 2015).

193

Mayo Found. for Med. Educ. & Rsch. v. United States, 562 U.S. 44, 52 (2011)

(quoting Chevron, 467 U.S. at 843).

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alien status is extensive and complex.” 194 Congress created an intricate

statutory scheme for determining which classes of aliens may receive lawful

presence, 195 discretionary relief from removal, 196 deferred action, 197 and work

authorization. 198 As we said in DAPA:

In specific and detailed provisions, the INA expressly and

carefully provides legal designations allowing defined classes of

aliens to be lawfully present and confers eligibility for

“discretionary relief allowing [aliens in deportation

proceedings] to remain in the country.” Congress has also

194

DAPA, 809 F.3d 134, 178-79 (5th Cir. 2015) (quoting Arizona v. United States,

567 U.S. 387, 396 (2012)).

195

Id. at 179 & n.162 (citing 8 U.S.C. §§ 1101(a)(20), 1255 (lawful permanent

resident status); §§ 1101(a)(15), 1201(a)(1) (nonimmigrant status); §§ 1101(a)(42), 1157-

59, 1231(b)(3) (refugee and asylum status); § 1182(d)(5) (humanitarian parole); § 1254a

(temporary protected status)).

196

Id. & n.163 (citing 8 U.S.C. § 1158 (asylum); § 1227(d) (administrative stays of

removal for victims of human trafficking and other serious crimes who assist law

enforcement); § 1229b (cancellation of removal), § 1229c (voluntary departure)).

197

Id. at 179 & n.164-66 (citing 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (Violence

Against Women Act petitioners); § 1227(d)(2) (specifying that “[t]he denial of a request

for an administrative stay of removal [for visa applicants who are victims of human

trafficking and other serious crimes] shall not preclude the alien from applying

for . . . deferred action, or a continuance or abeyance of removal proceedings under any

other provision of the immigration laws”); USA PATRIOT Act of 2001, Pub. L. No. 107-

56, § 423(b), 115 Stat. 272, 361 (immediate family members of lawful permanent residents

killed by terrorism); National Defense Authorization Act for Fiscal Year 2004, Pub. L. No.

108-136, § 1703(c)-(d), 117 Stat. 1392, 1694-95 (immediate family members of lawful

permanent residents killed in combat and granted posthumous citizenship)).

198

Id. at 181 & n.172 (citing 8 U.S.C. § 1101(i)(2) (human-trafficking victims in

lawful-temporary-resident status pursuant to a T-visa); § 1105a(a) (nonimmigrant battered

spouses); § 1154(a)(1)(K) (grantees of self-petitions under the Violence Against Women

Act); § 1158(c)(1)(B), (d)(2) (asylum applicants and grantees); § 1160(a)(4) (certain

agricultural workers in lawful-temporary-resident status); § 1184(c)(2)(E), (e)(6) (spouses

of L- and E-visa holders); § 1184(p)(3)(B) (certain victims of criminal activity in lawful-

temporary-resident status pursuant to a U visa); § 1254a(a)(1)(B) (temporary-protected

status holders); § 1255a(b)(3)(B) (temporary-resident status holders)).

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identified narrow classes of aliens eligible for deferred action,

including certain petitioners for immigration status under the

Violence Against Woman Act of 1994, immediate family

members of lawful permanent residents (“LPRs”) killed by

terrorism, and immediate family members of LPRs killed in

combat and granted posthumous citizenship. . . .

The INA also specifies classes of aliens eligible and ineligible

for work authorization. . . . Congress “‘forcefully’ made

combating the employment of illegal aliens central to ‘[t]he

policy of immigration law,’” in part by “establishing an

extensive ‘employment verification system,’ designed to deny

employment to aliens who . . . are not lawfully present in the

United States.” 199

Congress’s rigorous classification scheme forecloses the contrary

scheme in the DACA Memorandum. “Entirely absent from those specific

classes” Congress defined is the group of 1.7 million aliens “who would be

eligible for lawful presence” under DACA. 200 DACA creates a new class of

otherwise removable aliens who may obtain lawful presence, work

authorization, and associated benefits. Congress determined which aliens

can receive these benefits, and it did not include DACA recipients among

them. We agree with the district court’s reasoning and its conclusions that

the DACA Memorandum contravenes comprehensive statutory schemes for

removal, allocation of lawful presence, and allocation of work

authorization. 201 DACA fails at step one of Chevron.

199

Id. at 179-81 (footnotes omitted) (first quoting Arizona, 567 U.S. at 396 (2012);

and then quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)

(alteration in original) (emphasis added) (quoting INS v. Nat’l Ctr. for Immigrants’ Rights,

Inc., 502 U.S. 183, 194 n.8 (1991))).

200

Id. at 179.

201

See Dist. Ct. Op., 549 F. Supp. 3d at 607-10.

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DHS asserts that the program set forth in the DACA Memorandum

is an exercise of its inherent prosecutorial discretion. The district court

cogently and thoroughly analyzed this argument and rejected it. 202 We agree

with the district court. As our court held in DAPA, “‘[a]lthough

prosecutorial discretion is broad, it is not “unfettered.”’ Declining to

prosecute does not transform presence deemed unlawful by Congress into

lawful presence and confer eligibility for otherwise unavailable benefits based

on that change.” 203

Even if the INA were ambiguous, DACA would fail at step two

because it is an unreasonable interpretation of the INA. 204 Like DAPA,

DACA “undoubtedly implicates ‘question[s] of deep “economic and

political significance” that [are] central to this statutory scheme; had

Congress wished to assign that decision to an agency, it surely would have

done so expressly.’” 205

There is no “clear congressional authorization” for the power that

DHS claims. 206 The Government cites provisions that authorize the

Secretary to “[e]stablish[] national immigration enforcement policies and

priorities” and to carry out the administration and enforcement of

immigration laws, including to “establish such regulations,” “issue such

instructions,” and “perform such other acts as he deems necessary for

202

See id. at 605-06.

203

DAPA, 809 F.3d 134, 167 (5th Cir. 2015) (footnote omitted) (quoting Wayte v.

United States, 470 U.S. 598, 608 (1985)).

204

See id. at 182.

205

Id. at 181 (quoting King v. Burwell, 576 U.S. 473, 486 (2015)).

206

West Virginia v. EPA, 142 S. Ct. 2587, 2614 (2022) (quoting Util. Air Regul. Grp.

v. EPA, 573 U.S. 302, 324 (2014)).

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carrying out his authority.” 207 Writing about these same provisions in

DAPA, we said that these “broad grants of authority . . . cannot reasonably

be construed as assigning ‘decisions of vast economic and political

significance’ . . . to an agency.” 208

The defendants’ attempts to distinguish DACA and DAPA are

unavailing. They argue that DACA is different because DAPA contravened

a statutory process for how parents can derive lawful classification from their

children. While the INA contains no such process for DACA recipients, that

does not reduce the conflict. It simply means that Congress made no

provision for DACA recipients to obtain lawful presence. In any case, that

contradiction was just one among the many that we identified. 209

The defendants also attempt to distinguish DACA based on its size.

About 4.3 million aliens would have been eligible for DAPA, whereas about

1.5 million aliens are eligible for DACA. 210 The Government likens DACA

to the Reagan Administration’s Family Fairness program, which deferred

deportation indefinitely for about 1.5 million family members of legalized

aliens. 211 This comparison is not revealing. As we explained in DAPA,

“historical practice . . . ‘does not, by itself, create power,’ and in any event,

previous deferred-action programs are not analogous.” 212 We specifically

207

See 6 U.S.C. § 202(5); 8 U.S.C. § 1103(a).

208

DAPA, 809 F.3d at 183 (internal quotations and citations omitted) (quoting Util.

Air Reg. Grp., 573 U.S. at 324); see also West Virginia, 142 S. Ct. at 2614 (“[A] vague

statutory grant is not close to the sort of clear authorization required by our precedents.”).

209

See DAPA, 809 F.3d at 179-81.

210

See DAPA, 809 F.3d at 148; ROA.25167.

211

ROA.573.

212

DAPA, 809 F.3d at 179, 184 (5th Cir. 2015) (footnote omitted) (quoting Medellin

v. Texas, 552 U.S. 491, 532 (2008)).

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distinguished the Family Fairness program for being “interstitial to a

statutory legalization scheme.” 213 By contrast, “Congress has repeatedly

declined to enact the Development, Relief, and Education for Alien Minors

Act (‘DREAM Act’), features of which closely resemble DACA and

DAPA.” 214

The relevant comparison is between DAPA and DACA. Any

difference in size does not meaningfully diminish the importance of the issues

at stake. As the parties and their amici attest, DACA is of enormous political

and economic significance to supporters and opponents alike. Amici

businesses report that national GDP may contract by as much as $460 billion

without DACA. 215 An expert for the Intervenors estimated that DACA

contributes over $3.5 billion in net fiscal benefits to federal, state, and local

entities. 216 Our concerns about the scale of DAPA apply with force here too.

Like DAPA, DACA “is foreclosed by Congress’s careful plan; the

program is ‘manifestly contrary to the statute.’” 217 DACA violates the

substantive requirements of the APA.

213

Id. at 185 (footnote omitted).

214

Id.

215

See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1914 (2020) (reporting

estimates that “excluding DACA recipients from the lawful labor force may . . . result in

the loss of $215 billion in economic activity and an associated $60 billion in federal tax

revenue over the next ten years”).

216

ROA.23026.

217

DAPA, 809 F.3d at 186 (quoting Mayo Found. for Med. Educ. & Rsch. v. United

States, 562 U.S. 44, 23 (2011)).

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VII

The district court vacated and remanded DACA to DHS, and it

granted a permanent injunction, which it stayed as to existing recipients. 218

The defendants raise several remedies issues. First, they suggest that the

district court lacked jurisdiction to vacate and enjoin DACA. Second, they

argue that vacatur was inappropriate. Third, they dispute the nationwide

scope of the injunction. Finally, they ask that this court retain the stay as to

existing recipients pending additional appeal.

A

After the conclusion of appellate briefing, in a Rule 28(j) 219 letter, the

Government suggested for the first time that 8 U.S.C. § 1252(f)(1) deprives

the district court of jurisdiction to vacate and enjoin DACA. 220 Section

1252(f)(1) reads:

(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 [8 U.S.C.

§§ 1221-32], other than with respect to the application of such

218

ROA.25240-44.

219

See Fed. R. App. P. 28(j) (“If pertinent and significant authorities come to a

party’s attention after the party’s brief has been filed—or after oral argument but before

decision—a party may promptly advise the circuit clerk by letter, with a copy to all other

parties, setting forth the citations. The letter must state the reasons for the supplemental

citations, referring either to the page of the brief or to a point argued orally.”).

220

Dkt. #222 (Rule 28(j) letter); see also Dkt. #223 (States’ response).

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provisions to an individual alien against whom proceedings

under such part have been initiated. 221

The Supreme Court recently explained that Ҥ 1252(f)(1) generally prohibits

lower courts from entering injunctions that order federal officials to take or

to refrain from taking actions to enforce, implement, or otherwise carry out

the specified statutory provisions.” 222

We assume without deciding that the § 1252(f)(1) argument the

Government has raised for the first time on appeal is not subject to

forfeiture. 223 The statute does not bar the relief ordered here.

As an initial matter, § 1252(f)(1) does not apply to vacatur. The

Supreme Court has cautioned that, “[b]y its plain terms, and even by its title,

[§ 1252(f)(1)] is nothing more or less than a limit on injunctive relief.” 224 We

have declined to extend the statutory bar to vacatur because of this

admonition and the “meaningful differences” between injunctions and

vacatur.225 Vacatur is “a less drastic remedy.” 226 “Apart from the

constitutional or statutory basis on which the court invalidated an agency

action, vacatur neither compels nor restrains further agency decision-

making.” 227

221

8 U.S.C. § 1252(f)(1).

222

Garland v. Aleman Gonzalez, 142 S. Ct. 2057, 2065 (2022).

223

See Biden v. Texas, 142 S. Ct. 2528, 2540 n.4 (2022) (expressing no view on

whether § 1252(f)(1) is “subject to forfeiture”).

224

Id. at 2540 (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

481 (1999)).

225

Texas v. United States, 40 F.4th 205, 219 (5th Cir. 2022), cert. granted, __S. Ct.

__, 2022 WL 2841804.

226

Id. (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010)).

227

Id. at 220.

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Nor does § 1252(f)(1) apply to the injunction in this case. The district

court’s judgment vacates the DACA Memorandum but stays the vacatur as

to those who have been granted DACA status. No present DACA recipient

is subject to removal under the district court’s existing judgment.

As to those seeking admission to the DACA program, as noted,

§ 1252(f)(1) prohibits injunctions only as to §§ 1221-1232. Nothing in

§§ 1221-1232 authorizes DHS to broaden the categories of aliens who are

entitled to lawful presence in the United States, and the district court

correctly so held. The district court’s judgment does prohibit the grant of

DACA status to those who were not presently DACA recipients at the time

of the district court’s judgment. However, that judgment does not require

the removal of any DACA applicant. It bears repeating: the district court’s

judgment does not require DHS to remove anyone.

B

We next consider the propriety of vacatur. We review the district

court’s vacatur decision for abuse of discretion. 228 Two factors determine

whether vacatur is warranted: “(1) the seriousness of the deficiencies of the

action, that is, how likely the agency will be able to justify its decision on

remand; and (2) the disruptive consequences of the vacatur.” 229 Remand

without vacatur of the agency action is “generally appropriate when there is

228

Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1051

(D.C. Cir. 2021).

229

United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir.

2019) (quoting Heartland Reg’l Med. Ctr. v. Sebelius, 556 F.3d 193, 197 (D.C. Cir. 2009)).

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at least a serious possibility that the agency will be able to substantiate its

decision given an opportunity to do so.” 230

Under the first factor, DACA’s deficiencies are severe. The district

court’s excellent opinion correctly identified fundamental substantive

defects in the program. The DACA Memorandum contradicts significant

portions of the INA. There is no possibility that DHS could obviate these

conflicts on remand.

New Jersey suggests DACA’s deficiencies are not severe and remand

without vacatur is appropriate because “even assuming DACA is unlawful”

“the Supreme Court itself has recognized that significant policy choices

remain available to DHS.” New Jersey asserts DHS is engaged in

promulgating a new regulation and “some form of forbearance explicitly

‘remain[s] squarely within [DHS’s] discretion.’” The Supreme Court has

recognized that the DACA Memorandum has two components, forbearance

and benefits. 231 But in order to determine whether the district court abused

its discretion in ordering vacatur of the DACA Memorandum, we need not

and do not decide, in light of our holdings today that the DACA

Memorandum was contrary to provisions of the INA, what the bounds of

DHS’s discretion with regard to “forbearance without benefits” might be.

First, the district court stayed vacatur as to existing DACA

recipients. 232 Second, the district court’s decision not to stay vacatur as to

the grant of new DACA permits implicitly and reasonably recognized that the

230

Tex. Ass’n of Mfrs. v. U.S. Consumer Prod. Safety Comm’n, 989 F.3d 368, 389-90

(5th Cir. 2021).

231

DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020) (“[D]eferred

action coupled with the associated benefits are the two legs upon which the DACA policy

stands.”).

232

Dist. Ct. Op., 549 F. Supp. 3d at 624; ROA.25243.

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pool of DACA recipients who might come to rely on DACA’s forbearance as

to removal should not be enlarged pending appeal. Third, the district court

explicitly left open how DHS might address “forbearance without the award

of benefits” in the then-ongoing rulemaking. 233

The second factor in considering the propriety of vacatur is the

disruptive consequences. New Jersey argues that the district court neglected

the weighty reliance interests that have developed. On the contrary, the

district court recognized that “[h]undreds of thousands of individual DACA

recipients, along with their employers, states, and loved ones, have come to

rely on the DACA program.” 234 Because DACA has created “such

significant reliance,” the district court decided to stay the effects of vacatur

as to the existing recipients, who could both retain current benefits and seek

to renew them, pending the outcome of a rulemaking proceeding. 235

Especially in light of DACA’s critical substantive failings, the district

court was well within its discretion to order vacatur. 236 The district court

further exhibited restraint by partially and temporarily staying the application

of its vacatur order.

C

The defendants also contest the nationwide scope of the district

court’s judgment. We review the grant of a permanent injunction for abuse

233

Dist. Ct. Op., 549 F. Supp. 3d at 622.

234

ROA.25242.

235

ROA.25242-43.

236

See Am. Bankers Ass’n v. Nat’l Credit Union Ass’n, 934 F.3d 649, 673 (D.C. Cir.

2019) (quoting United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir.

2019)) (“When a rule is contrary to law, the ‘ordinary practice is to vacate’ it.”).

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of discretion. 237 “A district court abuses its discretion if it (1) relies on clearly

erroneous factual findings or erroneous conclusions of law when deciding to

grant the injunction, or (2) misapplies the factual or legal conclusions when

fashioning its injunctive relief.” 238

The district court explained that a nationwide injunction was

appropriate because the “public interest of the nation is always served by the

cessation of a program that was created in violation of law and whose

existence violates the law.” 239 It considered the “reliance interests of the

Plaintiff States on the duly enacted immigration laws of this country, the

interests of the public in having the Government and its agencies comply with

the law, and the significant reliance interests that DACA has engendered

since its inception” and concluded that nationwide relief with a partial stay

was appropriate. 240

This reasoning was not an abuse of discretion. Our decision to uphold

the nationwide injunction, rather than more narrowly tailored relief, is based

on our reading of circuit precedent. “In the context of immigration law,

broad relief is appropriate to ensure uniformity and consistency in

enforcement.” 241 A more limited remedy would “detract[] from the

‘integrated scheme of regulation’ created by Congress.’” 242

237

Valentine v. Collier, 993 F.3d 270, 280 (5th Cir. 2021).

238

Id. (internal quotations omitted).

239

ROA.25241.

240

ROA.25244.

241

Texas v. United States, 40 F.4th 205, 229 n.18 (5th Cir. 2022), cert. granted, __

S. Ct. __, 2022 WL 2841804.

242

DAPA, 809 F.3d 134, 187 (5th Cir. 2015) (quoting Arizona v. United States, 567

U.S. 387, 402 (2012)).

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D

Finally, New Jersey requests that we retain the stay of the injunction

as to current DACA recipients pending further appeal. The plaintiff States

do not indicate any opposition to this request.

A stay is “an exercise of judicial discretion,” and “[t]he propriety of

its issue is dependent upon the circumstances of the particular case.” 243 Our

stay inquiry considers four factors: “(1) whether the stay applicant has made

a strong showing that he is likely to succeed on the merits; (2) whether the

applicant will be irreparably injured absent a stay; (3) whether issuance of the

stay will substantially injure the other parties interested in the proceeding;

and (4) where the public interest lies.” 244 We do not apply the factors “in a

rigid, mechanical fashion.” 245 Our stay authority permits responsible action

when we are “faced with serious legal questions that merit careful scrutiny

and judicious review.” 246

The legal questions that DACA presents are serious, both to the

parties and to the public. In our view, the defendants have not shown that

there is a likelihood that they will succeed on the merits. But we are mindful

that, in the similar DAPA case, the Supreme Court was equally divided over

our judgment. 247 We also recognize that DACA has had profound

significance to recipients and many others in the ten years since its

243

Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United

States, 272 U.S. 658, 672-73 (1926)).

244

Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014).

245

United States v. Baylor Univ. Med. Ctr., 711 F.2d 38, 39 (5th Cir. 1983).

246

Campaign for S. Equality v. Bryant, 773 F.3d 55, 57 (5th Cir. 2014).

247

United States v. Texas, 579 U.S. 547, 548 (2016) (per curiam).

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adoption. 248 Given the “uncertainty of final disposition” 249 and the

“inevitable disruption that would arise from a lack of continuity and

stability,” 250 we preserve the stay as to existing recipients.

* * *

The judgment of the district court is AFFIRMED in part. This case

is REMANDED to the district court, rather than DHS. The motion for a

partial stay is GRANTED pending a further order of this court or the

Supreme Court.

248

See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913-15 (2020).

249

Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981).

250

Campaign for S. Equality, 773 F.3d at 58.

46