Petition for Writ of Certiorari — Department of Homeland Security, et al., Petitioners v. Regents of the University of California, et al.
Supreme Court briefJan 18, 2018
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No.
In the Supreme Court of the United States
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
ET AL., PETITIONERS
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
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.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.