Petition for Writ of Certiorari — Department of Homeland Security, et al., Petitioners v. Regents of the University of California, et al.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Nos. C 17-05211 WHA, C 17-05235 WHA, C 17-05329

WHA, C 17-05380 WHA, C 17-05813 WHA

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

AND JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS

PRESIDENT OF THE UNIVERSITY OF CALIFORNIA,

PLAINTIFFS

v.

UNITED STATES DEPARTMENT OF HOMELAND

SECURITY AND KIRSTJEN NIELSEN, IN HER OFFICIAL

CAPACITY AS SECRETARY OF THE DEPARTMENT OF

HOMELAND SECURITY, DEFENDANTS

Filed: Jan. 9, 2018

ORDER DENYING FRCP 12(b)(1) DISMISSAL AND

GRANTING PROVISIONAL RELIEF

INTRODUCTION

In these challenges to the government’s rescission

of the Deferred Action for Childhood Arrivals program,

plaintiffs move for provisional relief while the government moves to dismiss for lack of jurisdiction. For

the reasons below, dismissal is DENIED and some provisional relief is GRANTED.

(1a)

2a

STATEMENT

In 2012, the United States Department of Homeland Security adopted a program to postpone deportation of undocumented immigrants brought to America

as children and, pending action in their cases, to assign

them work permits allowing them to obtain social security numbers, pay taxes, and become part of the mainstream economy. This program received the title

“Deferred Action for Childhood Arrivals”—DACA for

short. In 2017, however, after the national election

and change in administrations, the agency eventually

reversed itself and began a phase-out of DACA. All

agree that a new administration is entitled to replace

old policies with new policies so long as they comply

with the law. One question presented in these related

actions is whether the new administration terminated

DACA based on a mistake of law rather than in compliance with the law.

1.

HISTORY OF DEFERRED ACTION.

At the core of these cases is an administrative practice known as “deferred action.” A primary question

presented concerns the extent to which the Department of Homeland Security could lawfully use deferred

action to implement DACA, and so it is important to review the history of deferred action as well as of other

features of the DACA program.

Congress has the constitutional power to “establish

an uniform Rule of Naturalization.” Art. I, § 8, cl. 4.

Pursuant thereto, Congress has established a comprehensive scheme governing immigration and naturalization through the Immigration and Nationality Act.

8 U.S.C. §§ 1101, et seq. The Secretary of Homeland

Security is “charged with the administration and en-

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forcement of [the INA] and all other laws relating

to the immigration and naturalization of aliens.”

8 U.S.C. § 1103(a)(1).

The Secretary is further

charged with “establishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5).

One of the key enforcement tools under the INA is

removal, i.e., deportation. In turn, “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona v. United

States, 567 U.S. 387, 396 (2012). As an initial matter,

in any given case, immigration officials “must decide

whether it makes sense to pursue removal at all.”

Ibid. At each stage of the removal process, they have

“discretion to abandon the endeavor.” Reno v. Am.Arab Anti-Discrimination Comm., 525 U.S. 471, 483

(1999) (“AADC”).

Beginning as early as 1975, one way to exercise this

discretion became “deferred action.” By deferred action, immigration officials could postpone, seemingly

indefinitely, the removal of individuals unlawfully present in the United States “for humanitarian reasons or

simply for [the Executive’s] own convenience.” Id. at

483-84. Immigration officials could also grant parole,

temporary protected status, deferred enforced departure, or extended voluntary departure.

Some of these discretionary powers have flowed

from statute. Parole, for example, has allowed otherwise inadmissible aliens to temporarily enter the United States “for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Temporary protected status, also created by statute, has

been available to nationals of designated foreign states

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affected by armed conflicts, environmental disasters,

and other extraordinary conditions. 8 U.S.C. § 1254a.

Some of these discretionary powers, however, have

flowed from nonstatutory powers. Deferred enforced

departure had no statutory basis but, instead, grew out

of “the President’s constitutional powers to conduct

foreign relations.” USCIS, Adjudicator’s Field Manual § 38.2(a) (2014). Nor has extended voluntary departure been anchored in any statute. Rather, it has

been recognized as part of the discretion of the Attorney General. Hotel & Restaurant Employees Union,

Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988)

(en banc).

Deferred action, originally known as “nonpriority”

status, also began “without express statutory authorization” but has since been recognized by the Supreme

Court as a “regular practice.” AADC, 525 U.S. at 484.

Congress has also acknowledged deferred action by explicit reference to it in the INA (8 U.S.C. § 1227(d)(2)):

The denial of a request for an administrative stay of

removal under this subsection shall not preclude the

alien from applying for a stay of removal, deferred

action, or a continuance or abeyance of removal

proceedings under any other provision of the immigration laws of the United States.

Another federal statute, the REAL ID Act, also acknowledged deferred action. REAL ID Act of 2005,

Pub. L. No. 109-13, div. B, 119 Stat. 231. This law

provided that states could issue a temporary driver’s

license or identification card to persons who can demonstrate an “authorized stay in the United States.”

Id. §§ 202(c)(2)(C)(i)-(ii). Persons with “approved de-

5a

ferred action status” were expressly identified as being

present in the United States during a “period of authorized stay,” for the purpose of issuing state identification cards. Id. §§ 202(c)(2)(B)(viii), (C)(ii).

Congress has also given the Executive Branch broad

discretion to determine when noncitizens may work in

the United States.

Arizona Dream Act Coal. v.

Brewer, 757 F.3d 1053, 1062 (9th Cir. 2014) (“Brewer

I”); see 8 U.S.C. § 1324a(h)(3) (defining an “unauthorized alien” not entitled to work in the United States as

an alien who is neither a legal permanent resident nor

“authorized to be . . . employed by [the INA] or by

the [Secretary of Homeland Security]”). Pursuant to

this statutory authority, regulations promulgated in

the 1980s allowed recipients of deferred action to apply

for work authorization if they could demonstrate an

“economic necessity for employment.”

8 C.F.R.

§ 274a.12(c)(14).

The George W. Bush Administration began to use

deferred action to mitigate a harsh statutory provision

involving “unlawful presence.” The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

created three- and ten-year bars on the admission of

aliens who departed or were removed from the United

States after periods of “unlawful presence” of between

180 days and one year, or more than one year, respectively. 8 U.S.C. § 1182(a)(9)(B)(i). It also imposed a

permanent bar on the admission of any alien who,

without being admitted, entered or attempted to reenter the United States after having been unlawfully

present for an aggregate period of more than one year.

8 U.S.C. § 1182(a)(9)(C)(i). Beginning in 2007, however, DHS regulations and policy guidance provided

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that deferred action recipients did not accrue “unlawful

presence” for purposes of the INA’s bars on re-entry.

8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2);

Memorandum for Field Leadership, from Donald

Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS, Re:

Consolidation of

Guidance Concerning Unlawful Presence for Purposes

of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the

Act at 42 (May 6, 2009). DHS excluded recipients of

deferred action from being “unlawfully present” because their deferred action is a period of stay authorized by the government. Brewer I, 757 F.3d at 1059

(citing 8 U.S.C. § 1182(a)(9)(B)(ii)). This nonaccrual

practice arose well before DACA. 1

DACA grew out of a long agency history of discretionary relief programs. In 1956, the Eisenhower Administration paroled roughly one thousand foreignborn orphans who had been adopted by American citizens but were precluded from entering the United

States because of statutory quotas. That same administration later granted parole to tens of thousands of

Hungarian refugees after the unsuccessful Hungarian

revolution. Both programs flowed from presidential

statements, and the programs later ended (in 1959 and

1958, respectively) when Congress passed laws enabling the paroled individuals to become lawful permanent residents (App. 1602-03, 1948-57; AR 33). 2

1

Undocumented aliens do not begin to accrue “unlawful presence” for purposes of Section 1182(a)(9)(B)(i) until they reach the

age of eighteen. 8 U.S.C. § 1182(a)(9)(B)(iii).

2

“App.” refers to the appendix submitted in support of plaintiffs’

motion for provisional relief (Dkt. Nos. 113, 117-19, 121, 124). In

connection with their motion for provisional relief, plaintiffs seek

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In 1987, President Ronald Reagan instituted the

Family Fairness Program, a non-statutory program

that provided extended voluntary departure to children

whose parents were in the process of legalizing their

immigration status under the Immigration Reform and

Control Act of 1986. President George H.W. Bush extended the non-statutory program in 1990 to cover

spouses of such legalized aliens, and the program ultimately provided immigration relief to approximately

1.5 million people. The need for the program ended

with the passage of the Immigration Act of 1990 (App.

1607, 1612-13, 1703).

On at least four occasions prior to the creation of

DACA, immigration officials have extended deferred

action programs to certain classes of aliens, none of

which programs was expressly authorized by statute:

• In 1997, INS established a deferred action program for individuals self-petitioning for relief

under the Violence Against Women Act of 1994.

This program is still in place today. As originally enacted, the Act did not mention deferred

action, but instead provided a pathway to lawful

permanent residency. Deferred action allowed

applicants to remain in the country pending a decision on their applications. Congress later expanded the deferred action program in the 2000

VAWA reauthorization legislation (App. at

1640-46).

judicial notice of thirty-nine exhibits submitted with the appendix

(Dkt. No. 111-2). The request is unopposed. These exhibits consist of congressional testimony and government publications, memoranda, and press releases. Plaintiffs’ request for judicial notice is

GRANTED.

8a

• In 2002 and 2003, INS issued memoranda instructing officers to make deferred action assessments for T visa applicants (victims of human

trafficking) and U visa applicants (victims of

crimes such as domestic violence) (App. 1650-58).

These programs have since been codified in regulations promulgated by INS and DHS.

8 C.F.R. §§ 214.11(k)(1), (k)(4), (m)(2); 8 C.F.R.

§ 214.14(d)(2).

• After Hurricane Katrina in 2005, USCIS announced a deferred action program for certain

foreign students (F-1 visa holders) who, because

of the hurricane, could not satisfy the requirements of their student visas. In announcing the

program, USCIS stated that “[t]he interim relief

[would] remain in effect until February 1, 2006”

(App. 1661-62).

• In 2009, to fill a gap under the law, USCIS established a deferred action program for widowed

spouses who had been married to United States

citizens for less than two years. Congress later

eliminated the statutory requirement that an alien be married to a United States citizen for at

least two years at the time of the citizen’s death

to retain eligibility for lawful immigration status,

and USCIS accordingly withdrew the deferred

action program as “obsolete” (App. 1664-82).

In sum, by the time DACA arrived in 2012, deferred

action programs had become a well-accepted feature of

the executive’s enforcement of our immigration laws,

recognized as such by Congress and the Supreme

Court.

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2.

DACA.

On June 15, 2012, Secretary of Homeland Security

Janet Napolitano issued a memorandum establishing

Deferred Action for Childhood Arrivals.

Under

DACA, immigrants brought to the United States as

children could apply for deferred action for a two-year

period, subject to renewal. To qualify for DACA, an

individual must: (1) have come to the United States

before the age of sixteen and been under the age of

thirty-one on June 15, 2012; (2) have been present in

the United States on June 15, 2012; (3) have been continuously residing in the United States for at least the

prior five years; (4) have been enrolled in school, graduated from high school, obtained a GED, or been honorably discharged from the United States military or

Coast Guard; and (5) not pose a threat to national security or public safety (AR 1).

The 2012 DACA memo described the program as an

exercise of “prosecutorial discretion.”

Secretary

Napolitano found leniency “especially justified” for the

DACA-eligible, whom she described as “productive

young people” who “have already contributed to our

country in significant ways.” The memo further stated that these individuals “lacked the intent to violate

the law” and were low priority cases for deportation

(AR 1-2).

DACA applicants had to pass a DHS background

check and applications had to be “decided on a case by

case basis.” To apply for DACA, eligible individuals

completed USCIS Form I-821D.

The application

called for substantial personal information, such as biographical information, date of entry into the United

States, immigration status or lack thereof, educational

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history, and all prior residential addresses since entering the United States.

Form I-821D also required substantial documentary

support, including proof of identity and proof of continuous residence in the United States through rent

receipts, utility bills, employment documents, or similar records. Applicants also appeared at a USCIS

field office to provide fingerprints, photographs, and

signatures.

The form’s instructions stated (App.

1820):

Information provided in this request is protected

from disclosure to ICE and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor

meets the criteria for the issuance of a Notice To

Appear or a referral to ICE under the criteria set

forth in USCIS’ Notice to Appear guidance (www.

uscis.gov/NTA). The information may be shared

with national security and law enforcement agencies, including ICE and CBP, for purposes other

than removal, including for assistance in the consideration of deferred action for childhood arrivals

request itself, to identify or prevent fraudulent

claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

The above information sharing clause covers family

members and guardians, in addition to the requestor.

The form’s instructions also stated (App. 1808):

Individuals who receive deferred action will not be

placed into removal proceedings or removed from

the United States for a specified period of time, un-

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less the Department of Homeland Security (DHS)

chooses to terminate the deferral.

DACA applicants also submitted a Form I-765, Application for Employment Authorization, a Form

I-765WS, Worksheet, and the accompanying fees. To

determine an applicant’s eligibility for work authorization, USCIS reviewed the applicant’s current annual

income, current annual expenses, and the total current

value of his or her assets (App. 1762, 1801-21, 2067-87).

If approved, the recipient received a Form I-797,

Notice of Action, stating (App. 585):

USCIS, in the exercise of its prosecutorial discretion, has decided to defer action in your case. Deferred action is an exercise of prosecutorial discretion by USCIS not to pursue the removal of an individual from the United States for a specific period.

Deferred action does not confer or alter any immigration status.

Significantly, DHS could terminate a recipient’s deferred action at any time, at the agency’s discretion,

and DACA paved no pathway to lawful permanent residency, much less citizenship (App. 1774, 1808). Secretary Napolitano concluded her DACA memorandum

(AR 1-3):

This memorandum confers no substantive right, immigration status or pathway to citizenship. Only

the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the

exercise of discretion within the framework of the

existing law. I have done so here.

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But DACA did provide important benefits. First,

under pre-existing regulations, DACA recipients became eligible to receive employment authorization for

the period of deferred action, thereby allowing them to

obtain social security numbers and to become legitimate taxpayers and contributing members of our open

economy. 8 C.F.R. § 274a.12(c)(14). Second, deferred action provided a measure of safety for a period

of two years from detention and removal, albeit always

subject to termination at any time in any individual

case. Third, DACA recipients could apply for “advance parole” to obtain permission to travel overseas

and be paroled back into the United States. 8 C.F.R.

§ 212.5(f ). Fourth, also pursuant to pre-existing regulations, DACA recipients avoided accrual of time for

“unlawful presence” under the INA’s bar on re-entry.

8 U.S.C. § 1182(a)(9)(B)-(C) (establishing three-year,

ten-year, and permanent bars on the admission of aliens after specified periods of “unlawful presence”).

USCIS “strongly encourage[d]” DACA recipients to

submit renewal requests between 120 and 150 days

before the expiration date-stamped on the recipient’s

Form I-797. According to the “Frequently Asked

Questions” posted on the agency’s website, recipients

were eligible for renewal under DACA so long as they:

(1) did not depart the United States on or after August

15, 2012, without advance parole; (2) continuously resided in the United States since submitting their most

recent DACA request; and (3) had not received criminal convictions (with minor exceptions). Renewal requests did not require additional documentary support

(App. 1756-57).

13a

The agency adopted DACA without any notice or

opportunity for public comment.

According to data published by USCIS, 793,026 applicants received deferred action under DACA since its

inception. As of September 2017, there remained approximately 689,800 active DACA recipients. Their

average age was 23.8. Based on a survey completed

by Associate Professor Tom K. Wong in August 2017,

91 percent of DACA recipients had jobs, and 45 percent

of DACA recipients were enrolled in school (App.

1494-1522, 1533-52).

3.

THE DAPA LITIGATION.

In 2014, DHS announced a different deferred action

program for parents of United States citizens or lawful

permanent residents, titled “Deferred Action for Parents of Americans and Lawful Permanent Residents”

—shortened to the confusingly-similar acronym DAPA.

For our purposes, DAPA is important because the

United States Court of Appeals for the Fifth Circuit

promptly held that DAPA exceeded the statutory authority of DHS, a holding that eventually moved Attorney General Jeff Sessions to rule that DACA too

had exceeded the agency’s authority. Texas v. United

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

The 2014 DAPA memo directed USCIS “to establish

a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a

case-by-case basis,” for aliens who had a son or daughter who was a United States citizen or lawful permanent resident and: (1) were not an enforcement priority under DHS policy; (2) had continuously resided in

the United States since before January 1, 2010; (3) had

14a

been physically present in the United States both when

DHS announced DAPA and at the time of application

to the program; and (4) presented “no other factors

that, in the exercise of discretion, [made] the grant of

deferred action inappropriate” (AR 37-41).

That same 2014 announcement also expanded DACA

in three minor ways: (1) allowing otherwise eligible

immigrants to apply for DACA even if they were older

than 31 on the day DACA was earlier announced; (2)

extending DACA renewals and work authorizations

from two- to three-year periods; and (3) adjusting

DACA’s date-of-entry requirement from June 15, 2007,

to January 1, 2010 (AR 37-41).

DAPA was also adopted without notice or opportunity for public comment.

A coalition of twenty-six states immediately filed

suit in the United States District Court for the Southern District of Texas to challenge DAPA. The district

court preliminarily enjoined its implementation on the

ground that DHS had failed to comply with the APA’s

notice-and-comment requirements. Texas v. United

States, 86 F. Supp. 3d 591 (S.D. Tex. 2015). The district court’s order stated that “with three minor exceptions,” the case did not involve DACA (id. at 606):

The Complaint in this matter does not include the

actions taken by Secretary Napolitano, which have

to date formalized the status of approximately 700,000

teenagers and young adults. Therefore, those actions are not before the Court and will not be addressed by this opinion. Having said that, DACA

will necessarily be discussed in this opinion as it is

relevant to many legal issues in the present case.

15a

For example, the States maintain that the DAPA

applications will undergo a process identical to that

used for DACA applications and, therefore, DACA’s

policies and procedures will be instructive for the

Court as to DAPA’s implementation.

In holding that DAPA violated notice-and-comment

procedures, the district court held that it constituted “a

new rule that substantially change[d] both the status

and employability of millions” and inflicted “major

costs on both states and federal government.” It

therefore should have been issued, the district court

held, after notice and opportunity for public comment.

Id. at 671. Though the order focused on DAPA, it also

preliminarily enjoined everything in the 2014 memorandum, including the three minor ways in which

DACA had been modified (but left alone the 2012

DACA program).

The Fifth Circuit affirmed in a split decision but

added a further ground for affirmance. Texas, 809

F.3d at 178. Over a dissent, the appellate panel added

the ground that DAPA was substantively foreclosed by

statute because the INA contained “an intricate process for illegal aliens to derive a lawful immigration

classification from their children’s immigration status,”

and that DAPA, by providing “the benefits of lawful

presence” to undocumented immigrants “solely on account of their children’s immigration status,” was inconsistent with this statutory scheme, which provided

its own pathway for lawful presence to parents of children lawfully in the United States. Id. at 179-80, 186.

The Fifth Circuit’s holding was also based on its observation that “the INA does not grant the Secretary

discretion to grant deferred action and lawful presence

16a

on a class-wide basis to 4.3 million otherwise removable

aliens.” Id. at 186 n.202. The decision was later

affirmed without opinion by an equally divided Supreme Court. United States v. Texas, 136 S. Ct. 2271

(2016) (per curiam). 3

In February 2017, DHS Secretary John Kelly issued

guidance regarding the Trump Administration’s immigration enforcement priorities. Although the guidance rescinded “all existing conflicting directives,

memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal,” the 2012 DACA memo and 2014 DAPA memo were

explicitly left in place. The guidance also said that the

2014 DAPA memo would “be addressed in future guidance” (AR 229-34).

In June 2017, Secretary Kelly rescinded the 2014

DAPA memo, which rescission included the 2014 expansions of DACA. He explained:

I have considered a number of factors, including the

preliminary injunction in this matter, the ongoing

litigation, the fact that DAPA never took effect, and

our new immigration enforcement priorities. After

consulting with the Attorney General, and in the exercise of my discretion in establishing national immigration enforcement policies and priorities, I

hereby rescind the November 20, 2014, memorandum.

Again, however, Secretary Kelly declared that the 2012

DACA memo would remain in effect (AR 235-37).

Such an affirmance has no precedential value.

409 U.S. 188, 192 (1972).

3

Neil v. Biggers,

17a

4.

RESCISSION OF DACA.

Also in June 2017, ten of the twenty-six plaintiffs

from the DAPA litigation wrote to Attorney General

Jeff Sessions to demand rescission of the 2012 DACA

memo. Their letter stated that if DACA was rescinded by September 5, they would dismiss the stillpending DAPA litigation. Otherwise, the letter threatened to try to amend their complaint to additionally

challenge the legality of DACA (AR 238-40).

A day before the deadline, the Attorney General advised Acting Secretary of Homeland Security Elaine

Duke via a short letter that the Obama Administration

had created DACA “without proper statutory authority

and with no established end-date, after Congress’ repeated rejection of proposed legislation that would

have accomplished a similar result,” and that therefore

the program was an “unconstitutional exercise of authority by the Executive Branch.” The Attorney General’s letter also referenced the preliminary injunction

against DAPA, then stated that “[b]ecause the DACA

policy has the same legal and constitutional defects

that the courts recognized as to DAPA, it is likely that

potentially imminent litigation would yield similar results with respect to DACA” (AR 251).

The following day, without prior notice, the Acting

Secretary rescinded DACA. The rescission was not

based on any policy criticism. Instead, it was based

on the legal determination by the Attorney General.

The Acting Secretary explained that after “[t]aking

into consideration the Supreme Court’s and the Fifth

Circuit’s rulings in the ongoing litigation, and the September 4, 2017, letter from the Attorney General, it is

clear that the June 15, 2012, DACA program should be

18a

terminated.” She said that “[r]ecognizing the complexities associated with winding down the program,”

DHS would “provide a limited window” in which it

would adjudicate certain requests, but that new DACA

requests and applications for employment authorization would be rejected starting immediately. DHS

would adjudicate, on a case-by-case basis, DACA renewal requests received within thirty days from beneficiaries whose DACA status would expire before

March 5, 2018. She also instructed DHS to immediately stop approving new applications for advance

parole. The rescission left in place all extant grants of

deferred action and work authorizations for the remainder of their validity periods (AR 252-56). Consequently, starting in March 2018, the DACA population

will, over two years, dwindle down to zero.

On the night of the rescission, President Trump

called upon Congress specifically to enact DACA,

tweeting, “Congress now has 6 months to legalize

DACA (something the Obama Administration was

unable to do). If they can’t, I will revisit this issue!”

During an interview earlier in 2017, President Trump

had stated “we are not after the dreamers, we are after

the criminals” and that “the dreamers should rest

easy” (App. 1852-53, 1958).

In sum, the new administration didn’t terminate

DACA on policy grounds. It terminated DACA over a

point of law, a pithy conclusion that the agency had exceeded its statutory and constitutional authority. An

important question now presented is whether that conclusion was a mistake of law.

19a

5.

THE INSTANT LITIGATION.

Plaintiffs herein filed five related non-class lawsuits

in this district, all now before the undersigned judge.

The first commenced on September 8, brought by The

Regents of the University of California, on its own

behalf and on behalf of its students, and Janet Napolitano, in her official capacity as President of the University. UC Plaintiffs allege they have invested considerable resources in recruiting students and staff

who are DACA recipients, and that these individuals

make important contributions to the University. As

DACA recipients lose their work authorizations, UC

Plaintiffs allege that the University will lose significant

intellectual capital and productivity. They further

allege that students who lose DACA protections will be

unable “to plan for the future, apply for and obtain internships and certain financial aid and scholarships,

study abroad, or work to pay their tuition and other

expenses,” and as a result may withdraw from the University altogether (UC Compl. ¶¶ 4-6, 34-37, 48-49). 4

On September 11, the States of California, Maine,

Maryland, and Minnesota filed suit. Plaintiff States

allege that they are home to more than 238,000 DACA

recipients, and that the loss of their residents’ DACA

status and work authorizations will injure their public

colleges and universities, upset the States’ workforces,

disrupt the States’ statutory and regulatory interests,

cause harm to hundreds of thousands of their resi-

Two additional DACA lawsuits proceed in the Eastern District

of New York before Judge Nicholas Garaufis, State of New York v.

Trump, Case No. 17-cv-05228 NGG, and Vidal v. Baran, Case No.

16-cv-04756 NGG.

4

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dents, damage their economies, and hurt companies

based in Plaintiff States (States Compl. ¶¶ 1-10).

The City of San Jose, on its own behalf and on behalf of its employees who are DACA recipients, filed its

action on September 14. San Jose alleges that it has

hired DACA recipients into vital City jobs, that substantial resources were invested in training these employees, and that the City will be harmed when these

employees are forced to leave the workforce (when

they lose their work authorizations). San Jose further

alleges that it will continue to lose tax revenue as

DACA recipients lose work authorizations and can no

longer contribute to the City’s tax base (San Jose

Compl. ¶¶ 10, 28, 49-51).

On September 18, Individual DACA recipients Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez,

Viridiana Chabolla Mendoza, Norma Ramirez, and

Jirayut Latthivongskorn brought suit to challenge the

termination of DACA. Individual Plaintiffs work and

study in the fields of law, medicine, education, and

psychology. They allege that the loss of DACA will

frustrate their professional goals and accomplishments.

They further allege that as a result of the rescission,

they will lose access to numerous federal and state benefits, and may not be able to reside in the United States

with their families. They applied for DACA in reliance on the government’s representations that information provided under the program would not be used

for purposes of immigration enforcement (Garcia

Compl. ¶¶ 4-9, 55, 59, 72, 78, 85, 95, 128).

Finally, the County of Santa Clara and the Service

Employees International Union Local 521 filed their

complaint on October 10. The County alleges that it

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employs DACA recipients, including union members, in

key positions, such as in its In-Home Supportive Services Program and New Americans Fellowship Program. The County alleges that it has expended time

and money in training these employees, and that it relies on them to provide important services. As DACA

recipients leave the workforce, the County will lose important employees, will incur harm to its economy and

suffer decreased tax revenue, and will incur the costs of

increased dependency on subsidized health care and

other County services. Local 521 sues as an associational plaintiff on behalf of its members who are DACA

recipients, and alleges that the Union’s organizational

mission is to organize, represent, and empower employees, as well as mobilize immigration reform (Santa

Clara Compl. ¶¶ 1, 15-20, 32, 37, 43-52).

Collectively, plaintiffs assert the following claims:

• The rescission violated the Administrative Procedure Act because it was arbitrary, capricious,

an abuse of discretion, and otherwise not in accordance with law (UC Compl. ¶¶ 50-58; State

Compl. ¶¶ 152-55; Garcia Compl. ¶¶ 165-84; Santa

Clara Compl. ¶¶ 67-73).

• The rescission violated the APA because it was a

substantive rule that did not comply with the

APA’s notice-and-comment requirements or the

Regulatory Flexibility Act’s mandate under

5 U.S.C. § 604 that an agency publish analysis of

a rule’s impact on small businesses (UC Compl.

¶¶ 59-66; State Compl. ¶¶ 146-63; San Jose

Compl. ¶¶ 59-63; Garcia Compl. ¶¶ 177-84).

22a

• The rescission deprived DACA recipients of

constitutionally-protected property and liberty

interests without due process of law. Plaintiffs

also allege that the rescission violated due process because the government changed its policy

regarding agency use of DACA-related information (UC Compl. ¶¶ 67-73; State Compl.

¶¶ 141-45; Garcia Compl. ¶¶ 133-47; Santa Clara

Compl. ¶¶ 59-66).

• The rescission violates equal protection of the law

because it was motivated by discriminatory animus and because it deprived DACA grantees of

their substantial interests in supporting themselves and furthering their education (State

Compl. ¶¶ 172-77; San Jose Compl. ¶¶ 52-58;

Garcia Compl. ¶¶ 148-59; Santa Clara Compl.

¶¶ 74-78).

• The rescission violates equitable estoppel.

DACA recipients provided detailed personal information to the government and rearranged

their lives based on the government’s representations, but now face the possibility of removal.

Plaintiffs argue that the government should

therefore be equitably estopped from terminating DACA or from using their DACA information

for immigration enforcement purposes (State

Compl. ¶¶ 164-71; Garcia Compl. ¶¶ 192-99; Santa

Clara Compl. ¶¶ 79-86).

• Plaintiffs seek a declaration that the rescission

was unlawful and an order restoring DACA (UC

Compl. at 16, State Compl. at 35-36; San Jose

Compl. at 15-16; Garcia Compl. at 43; Santa Clara

Compl. at 26-27).

23a

On September 21, an initial case management conference occurred for all DACA actions in our district.

At the conference, all counsel, including government

counsel, presented a joint proposal whereby the government would file the administrative record by October 13. Significantly, although the government argued that discovery would be premature, it agreed to

submit the administrative record without any condition

that it be done before any decision on its threshold

jurisdictional motion (presumably because it knew its

jurisdictional motion would be premised on the administrative record) (see Dkt. No. 114 at 16; Tr. at 17:3,

22:2). The Court made only slight revisions to the

joint proposal, all in aid of a stated goal of providing a

full record and final decision for our court of appeals

prior to the March 5 expiration date. Pursuant to

FRCP 26, a case management order then set a October

6 deadline for the government to file the administrative

record, set a briefing schedule for the parties’ motions

to dismiss, for provisional relief, or for summary judgment, and permitted the parties to proceed with reasonable, limited, and narrowly-directed discovery (Dkt.

No. 49).

The government filed an administrative record on

October 6. It was merely, however, fourteen documents comprising 256 pages of which 187 consisted of

published opinions from the DAPA litigation, and all of

which already resided in the public domain. All nonpublic materials, some eighty-four documents, actually

reviewed by the Acting Secretary remained withheld as

privileged (Dkt. No. 71). In other words, of the ninetyeight DACA-related documents personally considered

by the decisionmaker, all but the fourteen already known

to the public were withheld as privileged. Although

24a

government counsel further indicated, upon inquiry by

the district judge, that the decisionmaker had also

likely received verbal input, nothing was included in

the administrative record to capture this input. Nor

were there any materials regarding the agency’s earlier, recent decisions to leave DACA in place.

On October 9, plaintiffs moved to require the government to complete the administrative record, seeking all materials considered directly or indirectly by

the Acting Secretary in reaching her decision to rescind DACA, which motion was granted in part and

denied in part. The government, having earlier consented to filing the administrative record, was ordered

to keep its word and to file a complete administrative

record (Dkt. Nos. 65, 79-80).

Instead, the government filed a petition for writ of

mandamus with our court of appeals, seeking relief

from having to complete the administrative record until

after its jurisdictional arguments were determined, a

turnabout from its earlier voluntary proposal and stipulation to file the administrative record as part of an

agreed-upon schedule. After full briefing and oral

argument, our court of appeals denied the government’s mandamus petition and vacated the stay (over

one dissent). 5

Recently, the United States Court of Appeals for the Second

Circuit denied the government’s petition for a writ of mandamus to

stay an order to supplement the same administrative record. The

court of appeals found that there was “a strong suggestion that the

record before the District Court was not complete” and, noting that

nearly 200 pages of the record consisted of published opinions from

various federal courts, “[i]t is difficult to imagine that a decision as

important as whether to repeal DACA would be made based upon a

5

25a

The government was again ordered to complete the

administrative record, this time by November 22, later

extended to December 22 to accommodate the government’s claim of burden. On December 1, however, the

government filed a petition for writ of mandamus and

application for a stay in the United States Supreme

Court. Ultimately, the Supreme Court did not reach

the merits of the government’s petition but required

that defendants’ jurisdictional defenses be adjudicated

prior to consideration of discovery or completing the

administrative record (Dkt. Nos. 86, 188, 197, 214, 224),

a decision the district judge himself might have made

at the outset save for the government’s own proposal

and agreement to file the administrative record in

October.

Consequently, this action has proceeded on the incomplete administrative record initially filed by the

government. Plaintiffs have been forced to draw on

other materials. Ironically, even the government in

these motions relies on material outside of the administrative record to defend the agency decision (Dkt. No.

204 at 10, 12, 19-20). The parties have now fully

briefed motions to dismiss and a motion for provisional

relief, all argued on December 20 (Dkt. Nos. 111, 114).

This order now follows.

factual record of little more than 56 pages, even accepting that litigation risk was the reason for repeal.” In Re: Kirstjen M. Nielsen, No. 17-3345 (2d. Cir. Dec. 27, 2017).

26a

ANALYSIS

1.

MOTION TO DISMISS.

Defendants raise three jurisdictional arguments under FRCP 12(b)(1). First, they argue that the decision to rescind DACA was a discretionary act barred

from judicial review under the APA. Second, they

contend that the INA bars judicial review. Third, although defendants concede that Individual Plaintiffs

have standing, they contend that no others do. Each

is now addressed in turn. A separate order will consider defendants’ motion to dismiss under FRCP

12(b)(6).

A.

The DACA Rescission Was Not Committed To

Agency Discretion by Law.

Congress has instructed our district courts to review and set aside agency action found to be “arbitrary,

capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A). Under

the APA, however, our district courts lack subjectmatter jurisdiction to review agency action that is

“committed to agency discretion by law.” 5 U.S.C.

§ 701(a)(2).

In Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 410 (1971), the Supreme Court explained

that the jurisdictional bar of Section 701(a)(2) is “very

narrow” and “applicable in those rare instances where

statutes are drawn in such broad terms that in a given

case there is no law to apply.” The Supreme Court

held that because the statute there at issue contained

“clear and specific directives” guiding the agency’s decision, there was “ ‘law to apply,’ so the exemption for

action ‘committed to agency discretion’ [was] inappli-

27a

cable.”

ted).

Id. at 411-13 (quotations and citations omit-

When it next revisited the exception in Heckler v.

Chaney, 470 U.S. 821, 830 (1985), the Supreme Court

reiterated that the exception applies only where “the

statute is drawn so that a court would have no meaningful standard against which to judge the agency’s

exercise of discretion.” There, condemned inmates

asked the FDA to bring an enforcement action to prevent purported violations of the Federal Food, Drug,

and Cosmetic Act through the administration of deathpenalty drugs. The FDA Commissioner, however, refused to do so on the ground that the FDA lacked jurisdiction and otherwise should not interfere with the

state criminal justice system.

Skipping over the

agency jurisdiction issue, the Supreme Court held that

such decisions not to prosecute or initiate enforcement

actions are generally not reviewable as they are “committed to an agency’s absolute discretion.” Id. at

824-25, 831.

Chaney identified several characteristics of nonenforcement decisions as key to its holding. First, nonenforcement decisions require a complicated balancing

of factors “peculiarly within [the agency’s] expertise,”

including whether “resources are best spent on this

violation or another, whether the agency is likely to

succeed if it acts, whether the particular enforcement

action requested best fits the agency’s overall policies,

and . . . whether the agency has enough resources

to undertake the action at all.” Id. at 831. Second, in

refusing to act, an agency “does not exercise its coercive power over an individual’s liberty” and accordingly

“does not infringe upon areas that courts often are

28a

called upon to protect.” Id. at 832. When an agency

does act to enforce, however, that action itself provides

a focus for judicial review, inasmuch as the agency must

have exercised its power in some manner. Third, a refusal to institute enforcement proceedings is similar to

a prosecutor’s decision not to indict, which decision

“has long been regarded as the special province of the

Executive Branch.” Ibid.

Our case is different from Chaney. There, the

agency simply refused to initiate an enforcement proceeding. Here, by contrast, the agency has ended a

program which has existed for five years affecting

689,800 enrollees. Importantly, major policy decisions

are “quite different from day-to-day agency nonenforcement decisions.” National Treasury Employees

Union v. Horner, 854 F.2d 490, 496 (D.C. Cir. 1988).

Rather, broad enforcement policies “are more likely to

be direct interpretations of the commands of the substantive statute rather than the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision.” Crowley Caribbean Transp.,

Inc. v. Pena, 37 F.3d 671, 677 (D.C. Cir. 1994). Even

defendants concede that where “the agency’s interpretation of a statute is embedded in a non-reviewable

enforcement policy, the former may be reviewable as

such” (Dkt. No. 218 at 3 n.4). Although they contend

that the rescission memorandum “does not contain an

embedded interpretation of the INA,” that assertion is

incompatible with the Acting Secretary’s explicit references to the INA and the Attorney General’s determination that DACA was effectuated without “statuto-

29a

ry authority.” The first and third Chaney factors, accordingly, do not apply to the instant case. 6

Chaney is also distinguishable because, unlike there,

here the government reversed course after five years

of inviting DACA recipients out of the shadows. In

contrast to nonenforcement decisions, “rescissions of

commitments, whether or not they technically implicate liberty and property interests as defined under the

fifth and fourteenth amendments, exert much more

direct influence on the individuals or entities to whom

the repudiated commitments were made.” Robbins v.

Reagan, 780 F.2d 37, 47 (D.C. Cir. 1985). Through

DACA, the government has invited undocumented aliens who meet threshold criteria to step forward, disclose substantial personal information, pay a hefty fee,

and comply with ongoing conditions, all in expectation

of (though not a right to) continued deferred action.

DACA allows enrollees to better plan their careers and

lives with a reduced fear of removal. DACA work authorizations, for example, allow recipients to join in the

mainstream economy (and pay taxes). DACA covers a

class of immigrants whose presence, seemingly all

agree, pose the least, if any, threat and allows them to

sign up for honest labor on the condition of continued

good behavior. This has become an important proContrary to defendants, Perales v. Casillas, 903 F.2d 1043,

1050 (5th Cir. 1990), is distinguishable on its facts. There, the

Fifth Circuit addressed a class action stemming from the Immigration and Naturalization Service’s failure to adjudicate requests

for voluntary departure. The court of appeals determined that

the district court had improperly issued an injunction directing

INS to consider particular grounds in deciding individual requests for voluntary departure and employment authorization.

Id. at 1046.

6

30a

gram for DACA recipients and their families, for the

employers who hire them, for our tax treasuries, and

for our economy. An agency action to terminate it bears

no resemblance to an agency decision not to regulate

something never before regulated.

Finally, there is law to apply. The main, if not exclusive, rationale for ending DACA was its supposed

illegality. But determining illegality is a quintessential role of the courts. 7

B. The INA Does Not Bar Review.

The principle that courts owe substantial deference

to the immigration determinations of the political

branches is important and undisputed. Washington v.

Trump, 847 F.3d 1151, 1162 (9th Cir. 2017). That deference, however, does not remove the decision to rescind DACA from the ambit of judicial review. Rather,

the Supreme Court has applied the “strong presumption in favor of judicial review of administration action”

in the immigration context. See INS v. St. Cyr, 533

U.S. 289, 298-99 (2001).

In this connection, defendants raise two arguments.

First, they contend that review of discretionary enforcement decisions results in the inappropriate delay

of removal, and accordingly prolongs violations of our

immigration laws. This argument, however, again

ignores that plaintiffs do not challenge any particular

Defendants are correct, of course, that a presumptively unreviewable agency action does not become reviewable simply because

“the agency gives a reviewable reason for otherwise unreviewable

action.” ICC v. Bhd. of Locomotive Eng’s, 482 U.S. 270, 283 (1987).

As discussed above, however, the rescission of DACA was not such

an unreviewable decision.

7

31a

removal but, rather, challenge the abrupt end to a nationwide deferred-action and work-authorization program. In any individual case, DACA allows DHS to

revoke deferred status and to deport. Second, defendants assert that review of such decisions may involve

disclosure of law enforcement priorities and foreignpolicy objectives. Neither concern is implicated here,

as defendants’ stated reasons for the rescission all

relate to the across-the-board cancellation of DACA

based on supposed illegality, not to the facts particular

to any proposed removal.

Nor does Section 1252(g) bar judicial review of the

agency action in question. 8 U.S.C. § 1252(g) provides:

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory) . . . no court shall have jurisdiction to hear

any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or

execute removal orders against any alien under this

chapter.

As explained by the Supreme Court, this provision

applies only to the three discrete decisions or actions

named in Section 1252(g). AADC, 525 U.S. at 482.

Plaintiffs’ claims do not involve such decisions, but rather the challenge here is to the across-the-board cancellation of a nationwide program. 8

The district court in Batalla Vidal also concluded that Section

1252(g) did not bar judicial review of challenges to the DACA rescission. Batalla Vidal v. Duke, 2017 WL 5201116, at *13.

8

32a

Defendants recognize that these actions were

brought prior to the commencement of any removal

proceedings. Nevertheless, they argue that Section

1252(g) precludes review of plaintiffs’ claims because

the decision to discontinue deferred action is “an ingredient to the commencement of enforcement proceedings.” It is true that eliminating DACA draws its

enrollees one step closer to deportation, but the Supreme Court rejected the argument that Section

1252(g) somehow precludes review of the “many other

decisions or actions that may be part of the deportation

process.” As AADC emphasized, “[i]t is implausible

that the mention of three discrete events along the

road to deportation was a shorthand way of referring

to all claims arising from deportation proceedings.”

Ibid.

Defendants cite two decisions. Importantly, however, both stemmed from already-commenced deportation or removal proceedings. See Botezatu v. I.N.S.,

195 F.3d 311, 312 (7th Cir. 1999) (declining to review a

decision to deny deferred action after plaintiff had

been found deportable); Vasquez v. Aviles, 639 F. App’x

898, 899-900 (3d Cir. 2016) (district court lacked jurisdiction to hear habeas corpus petition that claimed

plaintiff was improperly denied DACA relief).

By comparison, our court of appeals has held, following AADC, that Section 1252(g) does not bar review

of actions that occur “prior to any decision to ‘comKwai Fun Wong v. United

mence proceedings.’ ”

States, 373 F.3d 952, 965 (9th Cir. 2004). The claims in

Kwai Fun Wong challenged the revocation of the plaintiff ’s parole without first deciding her application for

immigration relief, conduct which “resulted in the

33a

INS’s decision to commence removal proceedings and

ultimately to remove” the plaintiff from the United

States. Id. at 959, 964. Contrary to defendants, it is

immaterial that Kwai Fun Wong did not involve deferred action, as both the revocation of parole and the

revocation of deferred action are “an ingredient” to the

commencement of enforcement proceedings. The jurisdictional limits of Section 1252(g) were instead “directed at the deconstruction, fragmentation, and hence

prolongation of removal proceedings.” AADC, 525

U.S. at 482.

C.

Most Plaintiffs Have Standing.

To establish standing, Article III of the United

States Constitution requires plaintiffs to show “(1) they

suffered an injury in fact, (2) that is fairly traceable to

the challenged conduct of the defendant, and (3) that is

likely to be redressed by a favorable judicial decision.”

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992)). The standing inquiry is focused on

whether the plaintiff has a sufficient personal stake in

the outcome of the controversy to ensure that the parties will be truly adverse and their legal presentations

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

Standing must be assessed on a claim-by-claim basis.

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352

(2006).

Defendants do not dispute that the Individual Plaintiffs have standing. Rather, they argue in brief that

the entity plaintiffs (the state and local governments,

UC Plaintiffs, and SEIU Local 521) lack Article III

standing because the rescission does not regulate or

restrict them in any way. Defendants therefore posit

34a

that the entity plaintiffs’ claimed injuries are due only

to “incidental effects” of the rescission, which defendants contend are insufficient to establish injury-in-fact.

As set forth below, these arguments lack merit.

First, California, Maryland, the City of San Jose,

and the County of Santa Clara each employ DACA recipients, in connection with whom they have invested

substantial resources in hiring and training. Plaintiffs

allege that they will not only lose these employees as

work authorizations expire, but that they will also need

to expend additional resources to hire and train replacements. San Jose further alleges that as a result

of the rescission, the City has had decreased productivity, and that it has had to expend time and resources

to deal with decreased employee morale (States Compl.

¶¶ 26-27, 32, 53; San Jose Compl. ¶¶ 49-50; Santa Clara

Compl. ¶¶ 32-37; App. 11, 95-97, 706-07, 798, 1575-76).

Second, Plaintiff States, including Maine and Maryland, stand to lose significant tax revenue as a result of

the rescission (States Compl. ¶¶ 28-30, 37, 49-50,

70-71). Although general allegations of injury to a

state’s economy and the associated decline in general

tax revenues may not be sufficient to establish standing, here, Plaintiff States sufficiently allege a “direct

injury in the form of a loss of specific tax revenues.”

Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992). They

allege, for example, that Maine stands to lose $96,000

in annual state and local taxes as DACA recipients

leave the workforce (States Compl. ¶¶ 30, 38). Evidence submitted by plaintiffs supports these allegations, and demonstrates that DACA’s rescission would

reduce state and local tax contributions by DACAeligible individuals by at least half (App. 68-74, 218-30).

35a

Third, the University of California has also established that it will suffer injury to its proprietary interests. As declarations submitted by the University

demonstrate, the rescission has harmed the University

in multiple ways. Because DACA recipients can no

longer seek advance parole, these students are unable

to travel outside of the United States for research and

educational conferences. DACA recipients have also

decided to cancel their enrollment in the University,

and additional recipients are at risk of dropping out,

because they would not be able to pay the cost of attendance without work authorizations. The University has also invested resources in recruiting and retaining DACA recipients as employees in various roles, including as teaching assistants and health care providers. Such investments would be lost should these

employees lose their ability to work in the United

States.

California, Maryland, and Minnesota also allege injury to their public universities through harm to their

educational missions and the loss of students and

teachers. According to the declarations filed by plaintiffs, the rescission, and the resulting loss of work

authorization and potential for deportation, will adversely impact the diversity of the talent pool of potential students, which will make it more difficult for the

universities to fulfill their missions of increasing diversity (States Compl. ¶¶ 27, 55, 64-66; App. 12-16,

496-514, 884-90). Our court of appeals recently affirmed the standing of two state governments to challenge an immigration policy that similarly harmed the

plaintiffs’ public universities. Washington v. Trump,

847 F.3d 1151, 1160-01 (9th Cir. 2017). These injuries

accordingly give the University of California and the

36a

States of California, Maryland, and Minnesota Article

III standing. Ibid. (citing Singleton v. Wulff, 428 U.S.

106, 114-16 (1976)). 9

Fourth, State Plaintiffs Maryland and Minnesota

further allege that the rescission will negatively impact

their public health programs. In particular, Maryland

and Minnesota allege that rescinding DACA will cause

many DACA grantees to lose their employer-based

health insurance, imposing higher healthcare costs on

the state (State Compl. ¶¶ 51, 62). These injuries are

also sufficient to confer Article III standing. 10

The public universities of California, Maryland, and Minnesota

are branches of the states under state law. Campbell v. Regents of

Univ. of California, 35 Cal. 4th 311, 321 (2005); Hanauer v. Elkins,

217 Md. 213, 219, 141 A.2d 903, 906 (Md. 1958); Univ. of Minn. v.

Raygor, 620 N.W.2d 680, 683 (Minn. 2001).

10

Although not discussed by the parties, the District of Columbia

Circuit held that Joe Arpaio, Sheriff of Maricopa County, Arizona,

lacked Article III standing to challenge DACA. Arpaio v. Obama,

797 F.3d 11 (D.C. Cir. 2015). While the court of appeals found that

the plaintiff’s alleged harm—increased spending on criminal investigation, apprehension, and incarceration—was sufficiently concrete,

his theory that DACA would lead to an increased number of undocumented immigrants committing crimes in his jurisdiction was

too speculative. Id. at 19-20. Here, by contrast, plaintiffs allege

that the rescission will cause DACA recipients to lose their work

authorizations, and that plaintiffs will lose employees and students,

suffer decreased tax revenue, and otherwise incur increased costs

as a direct result. This case is also different from Crane v. Johnson, 783 F.3d 244, 252 (5th Cir. 2015), where the Fifth Circuit held

that Mississippi lacked standing to challenge DACA because it

failed to submit evidence that DACA eligible immigrants resided in

the state. Defendants do not dispute State Plaintiffs’ allegations

that hundreds of thousands of DACA recipients live in Plaintiff

States.

9

37a

Finally, SEIU Local 521 has associational standing

to bring its claims on behalf of its members who are

DACA recipients. An association has standing to

bring suit on behalf of its members when: (1) its

members would otherwise have standing to sue in their

own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the

claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.

Int’l Union, United Auto., Aerospace & Agr. Implement

Workers of Am. v. Brock, 477 U.S. 274, 282 (1986)

(quoting Hunt v. Washington State Apple Advertising

Comm’n, 432 U.S. 333, 343 (1977)). SEIU has established all three elements here. SEIU has members

who are DACA recipients. Its constitution states that

part of its mission is to provide its members with a

voice in the larger community, and that its members

should be treated equally with dignity regardless of immigration status or national origin. SEIU has also

formed a Committee on Comprehensive Immigration

Reform, a member-based committee that engages in

organizing, advocacy, and education to help undocumented workers. Its members’ interests in these actions are therefore germane to SEIU’s stated purpose

(App. 801-09). Furthermore, this action does not require the participation of SEIU’s individual members.

Defendants, in arguing that the entity plaintiffs lack

standing, rely solely on Linda R.S. v. Richard D., 410

U.S. 614, 619 (1973). There, the plaintiff lacked standing to challenge a Texas state court’s interpretation of

a child support statute. Ibid. The Supreme Court

held that, although the plaintiff had alleged an injury,

she had not shown “a direct nexus between the vindication of her interest and the enforcement of the State’s

38a

criminal laws” because the relationship between the

state’s decision not to prosecute and the father’s decision not to pay under the statute could “at best, be

termed only speculative.” Id. at 618-19. Linda R.S.

has no application here. As explained above, the entity plaintiffs have alleged harm to their proprietary

interests as a direct result of defendants’ decision to

terminate the DACA program, most notably through

its termination of work authorizations. Accordingly,

the entity plaintiffs have sufficiently alleged injury-infact traceable to the termination of DACA, and have

demonstrated that these harms are redressable by

their requested relief. 11

Turning to prudential standing under the APA, a

plaintiff must show that it has suffered or will suffer

sufficient injury-in-fact, and that “the interest[s] sought

to be protected by the complainant [are] arguably within the zone of interests to be protected or regulated by

the statute . . . in question.” Nat’l Credit Union

Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479,

488 (1998).

A plaintiff that is not itself the subject of the contested regulatory action lacks prudential standing only

where its interests “are so marginally related to or inconsistent with the purposes implicit in the statute that

it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Sec. Indus. Ass’n,

479 U.S. 388, 399 (1987). This test is “not meant to be

especially demanding,” and must be applied “in keepBecause defendants’ conduct imposes direct injury on the State

Plaintiffs’ proprietary interests, this order need not reach defendants’ argument that the State Plaintiffs lack standing as parens

patriae.

11

39a

ing with Congress’s evident intent when enacting the

APA to make agency action presumably reviewable.”

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quotations

and citations omitted).

The parties’ briefs include only a cursory discussion

of plaintiffs’ prudential standing under the APA.

Again, defendants do not dispute that the Individual

Plaintiffs also have statutory standing. SEIU, which

asserts the rights of its members who are DACA recipients, likewise seeks the protection of interests

regulated by the INA. Not all of the entity plaintiffs,

however, have established prudential standing to proceed on their APA claims.

Plaintiffs primarily rely on our court of appeals’ recent decision in Hawaii v. Trump, 859 F.3d 741, 765

(9th Cir. 2017), as well as on various provisions of the

INA which provide for student- and employmentrelated immigrant visas. Plaintiffs do not contend,

however, that their DACA-recipient students or employees qualify for such visas. Nor do plaintiffs point

to any provisions of the INA which indicate a protected

interest in enrolling students with deferred action in

their schools or universities. Plaintiffs are also unable

to point to any provision of the INA indicating that

Congress intend to protected Plaintiff States’ interests

in maintaining income tax revenue or avoiding increased healthcare costs.

By contrast, local and state governments San Jose,

Santa Clara, California, and Maryland, as well as the

University of California, have all identified injuries resulting from their status as employers, and allege harm

caused by their employees’ future loss of deferred

40a

action and associated work authorization. The INA

gives the Executive Branch broad discretion to determine when noncitizens may work in the United States,

8 U.S.C. § 1324a(h)(3), and regulations promulgated

pursuant to this authority allow recipients of deferred

action to apply for work authorization if they can

demonstrate an “economic necessity for employment.”

8 C.F.R. § 274a.12(c)(14). Moreover, the INA contains

detailed provisions which subject employers to criminal

and civil liability for knowingly hiring unauthorized

aliens, see 8 U.S.C. § 1324a(a)(1)(A), and for “continu[ing] to employ the alien in the United States

knowing the alien is (or has become) an unauthorized

alien with respect to such employment,” id.

§ 1324a(a)(2). The work authorization document that

the agency issues to DACA recipients is one of the

documents that is acceptable for Form I-9, Employment Eligibility Verification, which employers must

complete and retain for each individual they hire for

employment in the United States (App. 2061-62).

Plaintiffs’ interest in their employees’ continued authorization to work in the United States is therefore

“arguably within the zone of interests” that the INA

protects. Hawaii, 859 F.3d at 765; Nat’l Credit Union

Admin., 522 U.S. at 488. 12

Defendants’ sole argument against the entity plaintiffs’ prudential standing is that no provision of the INA protects the entity

plaintiffs from “bearing the incidental effects” of a denial of deferred action. The case on which defendants rely, however, dealt

with a private anti-immigration organization whose members were

not impacted by the immigration policy at issue. See Fed’n for

Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897, 899 (D.C. Cir.

1996).

12

41a

Accordingly, even though the zone of interests inquiry is not demanding, this order concludes that

Maine and Minnesota’s interests are “so marginally

related” to the purposes implicit in the INA that it

cannot reasonably be assumed that Congress intended

to permit the suit. Maine and Minnesota’s APA claims

are accordingly DISMISSED WITH LEAVE TO AMEND.

The remaining entity plaintiffs, however, have established that their interests that support Article III

standing also satisfy the APA’s zone of interests test.

*

*

*

Apart from the holding that Maine and Minnesota

do not have statutory standing, the foregoing rejects

all of the government’s jurisdictional arguments to dismiss plaintiffs’ challenges under the Administrative

Procedure Act.

2.

PROVISIONAL RELIEF.

Plaintiffs seek a preliminary injunction to restore

DACA. To support a preliminary injunction, plaintiffs

must establish four elements: (1) likelihood of success

on the merits; (2) irreparable harm in the absence of

preliminary relief; (3) that the balance of equities tips

in their favor; and (4) that the injunction is in the public

interest. Winter v. Natural Resources Defense Council Inc., 555 U.S. 7, 20 (2008). As now explained, the

record warrants most of the provisional relief requested.

A.

Likelihood of Success on the Merits.

Plaintiffs have shown a likelihood of success on their

claim that the rescission was arbitrary, capricious, an

abuse of discretion, or not otherwise in accordance with

42a

law. Specifically, plaintiffs are likely to succeed on

their claims that: (1) the agency’s decision to rescind

DACA was based on a flawed legal premise; and (2)

government counsel’s supposed “litigation risk” rationale is a post hoc rationalization and would be, in any

event, arbitrary and capricious.

(1) The Rescission was Based on a Flawed

Legal Premise.

The agency action was “not in accordance with law”

because it was based on the flawed legal premise that

the agency lacked authority to implement DACA.

When agency action is based on a flawed legal premise,

it may be set as aside as “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.” See Massachusetts, 549 U.S. at 532 (setting

aside the EPA’s denial of a petition for rulemaking

under the Clean Air Act for supposed lack of authority); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101

(9th Cir. 2007). This order holds that DACA fell within the agency’s enforcement authority. The contrary

conclusion was flawed and should be set aside.

The administrative record includes the 2014 determination of the Office of Legal Counsel of the United

States Department of Justice that programmatic deferred action is a permissible exercise of DHS’s enforcement discretion. OLC noted that deferred action

programs such as DACA are permissible so long as immigration officials retain discretion to evaluate each

application on an individualized basis and so long as the

concerns animating the program were consistent with

the types of concerns that have customarily guided the

exercise of immigration enforcement discretion. OLC

recognized that the “practice of granting deferred ac-

43a

tion date[d] back several decades,” and that “Congress

has long been aware of the practice of granting deferred action, including in its categorical variety, and of

its salient features; and it has never acted to disapprove or limit the practice.” Indeed, not only has

Congress not limited the practice, but it has “enacted

several pieces of legislation that have either assumed

that deferred action would be available in certain circumstances, or expressly directed that deferred action

be extended to certain categories of aliens” (AR 15-27).

As explained in OLC’s opinion, each feature of the

DACA program is anchored in authority granted or

recognized by Congress or the Supreme Court. Because this is the heart of the problem, and with apology

for some repetition, this order will now examine each

feature in turn.

The Secretary of Homeland Security is responsible

under the INA for “establishing national immigration

enforcement policies and priorities.” 6 U.S.C. § 202(5).

The Secretary is also charged with the administration

and enforcement of the INA. 8 U.S.C. § 1103. In

making immigration enforcement decisions, the executive “considers a variety of factors such as the danger posed to the United States of an individual’s unlawful presence, the impact of removal on the nation’s

international relations, and the ‘human concerns’ of

whether the individual ‘has children born in the United

States, long ties to the community, or a record of distinguished military service.’ ” Arpaio v. Obama, 797

F.3d 11, 16 (D.C. Cir. 2015) (citing Arizona v. United

States, 132 S. Ct. 2492, 2499 (2012)). In instituting

DACA, Secretary Napolitano explained that the program was “necessary to ensure that [DHS’s] enforce-

44a

ment resources are not expended on [] low priority

cases but are instead appropriately focused on people

who meet our enforcement priorities” (AR 1). 13

As set forth above, deferred action originated without any statutory basis apart from the discretion vested by Congress in connection with the agency’s enforcement of the immigration laws. Over the decades,

however, deferred action became such a fixture that

Congress referred to it by name in several INA amendments. See, e.g., 8 U.S.C. § 1227(d)(2) (stating that U

visa and T visa applicants who were denied an administrative stay of removal were not precluded from applying for “deferred action”); 8 U.S.C. § 1154(a)(1)(D)(i)(II)

(stating that eligible derivatives of VAWA petitioners

were eligible for “deferred action” and work authorization); 8 U.S.C. § 1151 note (stating that certain immediate family members of certain United States citizens

“shall be eligible for deferred action”). Congress has

also acknowledged deferred action in enactments outside of the INA. See, e.g., 49 U.S.C. § 30301 note (specifying that evidence of lawful status includes proof of

“deferred action status”); USA PATRIOT Act of 2001,

Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361 (stating

that immediate family members of legal permanent

residents killed on September 11, 2001 “may be eligible

for deferred action”). Congress has been free to constrain DHS’s discretion with respect to granting deferred action, but it has yet to do so.

The United States Court of Appeals for the District of Columbia Circuit did not reach the merits of Sheriff Joe Arpaio’s challenges to DACA and DAPA but instead dismissed the case for lack

of Article III standing. Arpaio, 797 F.3d at 15.

13

45a

The Supreme Court has recognized the authority of

DHS to grant relief from removal, Arizona, 567 U.S. at

396, and has specifically recognized deferred action as

a way to exercise that discretion—“for humanitarian

reasons or simply for [the Executive’s] own convenience.” AADC, 525 U.S. at 484. Notably, our court of

appeals has said that “the exercise of prosecutorial

discretion in deferred action flows from the authority

conferred on the Secretary by the INA.” Arizona

Dream Act Coal. v. Brewer, 855 F.3d 957, 968 (9th Cir.

2017) (“Brewer II”). 14

In extending programmatic deferred action to

DACA enrollees, the agency acted within the scope of

this long and recognized practice. In the exercise of

its enforcement discretion and policy-making, the agency

simply found that DACA enrollees represented low priority cases for removal and instituted DACA to manage

that population while it redirected its resources elsewhere. Even for enrollees approved under the program, DHS expressly retained the authority to terminate their deferred action at any time, in the agency’s

discretion. DACA provided no guarantee against removal.

Nevertheless, DACA has provided recipients with a

major benefit, namely work authorizations for the

period of deferral upon a demonstration of economic

need. This has allowed DACA recipients to become

part of the mainstream workforce and contribute openIn Brewer II, our court of appeals denied a petition for rehearing en banc. Circuit Judge Kozinski, joined by five other Circuit

Judges, filed a dissent to the denial of the petition, expressing the

view that DACA did not preempt Arizona’s law refusing to issue

drivers’ licenses to DACA recipients. 855 F.3d at 958-62.

14

46a

ly to our economy. Significantly, Section 1324a(h)(3)

defines an “unauthorized alien” not entitled to work in

the United States as an alien who is neither a legal permanent resident nor “authorized to be . . . employed

by [the INA] or by the [Secretary of Homeland Security].” In turn, the Secretary of Homeland Security

has allowed work authorizations in cases of deferred

action under 8 C.F.R. § 274a.12(c)(14). As our court of

appeals has stated, “the Executive Branch has determined that deferred action recipients—including DACA

recipients—are ordinarily authorized to work in the

United States.” See Brewer I, 757 F.3d at 1062.

It is also within the lawful authority of the agency to

determine that DACA recipients do not accrue “unlawful presence” for purposes of the INA’s bars on reentry. Pursuant to pre-existent DHS regulations and

policy guidance, deferred action recipients already

avoided accrual of “unlawful presence.” 8 C.F.R.

§ 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); Memorandum

for Field Leadership, from Donald Neufeld, Acting

Associate Director, Domestic Operations Directorate,

USCIS, Re: Consolidation of Guidance Concerning

Unlawful Presence for Purposes of Sections

212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42

(May 6, 2009). Importantly, DHS excludes recipients

of deferred action from being “unlawfully present”

because their deferred action is considered a period of

stay authorized by the government. See 8 U.S.C.

§ 1182(a)(9)(B)(ii) (an alien is deemed to be unlawfully

present if the alien is present “in the United States

after the expiration of the period of stay authorized by

the Attorney General [and now the Secretary of Homeland Security]”); Brewer I, 757 F.3d at 1059.

47a

Allowing DACA recipients to apply for and obtain

advance parole to travel overseas and return to the

United States is also in accord with pre-existing regulations. 8 C.F.R. § 212.5(f ); 8 U.S.C. § 1182(d)(5)(A)

(the Attorney General [and now the Secretary of

Homeland Security] may “in his discretion parole into

the United States temporarily under such conditions as

he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”).

In short, what exactly is the part of DACA that

oversteps the authority of the agency? Is it the granting of deferred action itself? No, deferred action has

been blessed by both the Supreme Court and Congress

as a means to exercise enforcement discretion. Is it

the granting of deferred action via a program (as apposed to ad hoc individual grants)? No, programmatic

deferred action has been in use since at least 1997, and

other forms of programmatic discretionary relief date

back to at least 1956. Is it granting work authorizations coextensive with the two-year period of deferred

action? No, aliens receiving deferred action have

been able to apply for work authorization for decades.

Is it granting relief from accruing “unlawful presence”

for purposes of the INA’s bars on reentry? No, such

relief dates back to the George W. Bush Administration

for those receiving deferred action. Is it allowing

recipients to apply for and obtain advance parole?

No, once again, granting advance parole has all been in

accord with pre-existing law. Is it combining all these

elements into a program? No, if each step is within

the authority of the agency, then how can combining

them in one program be outside its authority, so long as

48a

the agency vets each applicant and exercises its discretion on a case-by-case basis?

Significantly, the government makes no effort in its

briefs to challenge any of the foregoing reasons why

DACA was and remains within the authority of the

agency. Nor does the government challenge any of

the statutes and regulations under which deferred action recipients obtain the foregoing benefits.

Instead, the administrative record shows that the

Attorney General told the Acting Secretary that DACA

was illegal. First, the Attorney General said that

DACA had been improperly adopted by the Obama

Administration after “Congress’ repeated rejection of

proposed legislation that would have accomplished a

similar result.” But the proposals rejected by Congress

markedly differ from DACA. Importantly, while the

proposed legislation would have offered Dreamers the

ability to become lawful permanent residents, no comparable pathway was offered by DACA. Our court of

appeals recognized this distinction, noting that “the

DREAM Act and the DACA program are not interchangeable policies because they provided different

forms of relief.” Brewer II, 855 F.3d at 976 n.10. In

fact, the 2012 DACA memo made explicit that DACA

offered no pathway to lawful permanent residency,

much less citizenship.

Secretary Napolitano concluded her memo by stating that DACA “confer[ed] no

substantive right, immigration status or pathway to citizenship.” To claim that DACA was rejected by Congress, therefore, is unfair. 15

See, e.g., S. 1291, 107th Congress (2001); S. 1545, 108th Congress (2003); S. 2075, 109th Congress (2005); H.R. 5131, 109th

15

49a

Second, another criticism of DACA was that applications received mechanical, routine approval without

individualized consideration. In her rescission memorandum, the Acting Secretary indicated that “[United

States Citizenship and Immigration Services] has not

been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as outlined in the [original DACA] memorandum, but still had his or her application denied

based solely upon discretion.” The simple answer to

this, if true, would be for the agency to instruct its

adjudicators to exercise discretion, on a individualized

basis, to make sure applicants do not pose a threat to

national security or public safety and are otherwise

deserving of deferred action.

It appears, moreover, that the Acting Secretary was

in error when she said that USCIS has been unable to

identify discretionary denials of DACA applications.

She cited no evidence for this fact, and none is found in

the administrative record. Possibly, the Acting Secretary relied on findings made in the DAPA litigation.

There, the majority panel noted that USCIS could not

produce any applications that satisfied the guidelines of

the original DACA memorandum but were nonetheless

refused through an exercise of discretion. Texas, 809

F.3d at 172. As the dissent pointed out, however, the

district court may have conflated rejections of DACA

applications with denials, and as a result suggested

Congress (2006); H.R. 1275, 110th Congress (2007); S. 2205, 110th

Congress (2007); H.R. 1751, 111th Congress (2009); S. 3827, 111th

Congress (2010); S. 3962, 111th Congress (2010); S. 3992, 111th

Congress (2010); H.R. 6497, 111th Congress (2010); S. 952, 112th

Congress (2011).

50a

that most denials were made for mechanical, administrative reasons. Id. at 210 (King, J., dissenting). A

declaration submitted in that case by Donald Neufeld,

then-Associate Director for Service Center Operations

for USCIS, pointed to several instances of discretionary denials. Id. at 175. That same declaration explained that while a DACA application was rejected

when it was “determined upon intake that the application [had] a fatal flaw,” an application was denied when

a USCIS adjudicator, on a case-by-case basis, determined that the requestor either had not demonstrated

that they satisfied the guidelines for DACA or when an

adjudicator determined that deferred action should be

denied even though the threshold guidelines were met.

Id. at 210-11 (dissent). The United States District

Court for the District of Columbia, in addressing nearly identical statistics, recognized the distinction. The

district court noted that as of December 2014, 36,860

requests for deferred action under DACA were denied

and another 42,632 applicants were rejected as not

eligible, and concluded that such statistics “reflect that

[] case-by-case review is in operation.”

Arpaio,

27 F. Supp. 3d at 209 n.13. The administrative record

tendered in our case completely fails to explain this

apparent discrepancy.

Third, the main ground given by the Attorney General for illegality was the Fifth Circuit’s decision in the

DAPA litigation. DACA, the Attorney General said,

suffered from the same “legal and constitutional defects” leveled against DAPA in Texas v. United States,

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

the full history of that case, however, this was an overstatement.

51a

In the DAPA litigation, the district court held that

DAPA violated the APA’s notice-and-comment procedures because it constituted “a new rule that substantially change[d] both the status and employability of

millions” and inflicted “major costs on both states and

federal government.” The district court found that

the discretionary aspects of DAPA were “merely pretext,” based on its finding that DACA had been implemented in such a mechanical way as to prevent the

exercise of discretion on a case-by-case basis, and

DAPA would therefore be implemented in the same

manner. Notice and opportunity for public comment,

it held, should have accordingly been given. Texas,

86 F. Supp. 3d at 671.

Although the Fifth Circuit recognized that “there

was conflicting evidence on the degree to which DACA

allowed discretion,” because the government had failed

to produce any applications that satisfied all of the

criteria but were refused deferred action by an exercise

of discretion, it was “not error—clear or otherwise—” for

the district court to have concluded that DHS had only

issued denials under mechanical formulae. The appellate court also pointed to DACA’s Operating Procedures, which contained “nearly 150 pages of specific

instructions for granting or denying deferred action,”

as supporting the conclusion that DACA did not leave

the agency free to exercise discretion.

It cautioned, however, that “[f]or a number of reasons, any extrapolation from DACA must be done

carefully.” Texas, 809 F.3d at 173 (emphasis added).

In particular, the appellate court recognized that

DACA involved self-selecting applicants, and those who

expected to be denied relief were unlikely to apply.

52a

Id. at 174. The court also recognized that “DACA and

DAPA are not identical” and that because eligibility for

DACA was restricted to a younger and less numerous

population, DACA applicants were less likely to have

backgrounds that would warrant a discretionary denial.

Ibid.

In addition to affirming the notice-and-comment

holding (over one dissent), two of the judges on the

Fifth Circuit panel went a large step further and

held that DAPA conflicted with the INA. The majority pointed out that the INA already had a specific

provision through which aliens could derive lawful

status from their children’s immigration status. Id.

at 180 n.167 (citing 8 U.S.C. §§ 1151(b)(2)(A)(i),

1182(a)(9)(B)(i)(II), 1201(a), 1255). DAPA, the majority said, circumvented this statutory pathway.

The Fifth Circuit also pointed out that the INA had

specific provisions through which aliens could be classified as “lawfully present,” could obtain discretionary

relief from removal, or could obtain eligibility for work

authorization. Because DAPA could make 4.3 million

removable aliens eligible for lawful presence, employment authorization, and associated benefits, the Fifth

Circuit concluded that DAPA implicated “questions of

deep ‘economic and political significance’ that are central to [the INA’s] statutory scheme,” and therefore

had Congress wished to assign that decision to an agency,

“it surely would have done so expressly.”

The Fifth Circuit rejected the argument that various provisions of the INA, such as the broad grant of

authority to the agency in 6 U.S.C. § 202(5) (providing

that the Secretary “shall be responsible for establishing national immigration enforcement policies and

53a

priorities”), provided the authority to implement

DAPA. Rather, it found that such grants of authority

could not reasonably be construed as assigning the

agency decisions of such massive “economic and political significance.” Such an interpretation, the majority

said, would allow the agency to grant lawful presence

and work authorization to any illegal alien in the United States. It concluded that “even with ‘special deference’ to the Secretary,” the INA did not permit the

reclassification of 4.3 million aliens as “lawfully present,” thereby making them newly eligible for a host of

federal and state benefits, including work authorization.

The majority also rejected the argument that DAPA

was moored in historical practice, finding that such historical practice “does not, by itself, create power,” and

that in any event, previous deferred-action programs

were not analogous to DAPA because most discretionary deferrals had been done on a country-specific basis,

usually in response to war, civil unrest, or natural disasters, or had been bridges from one legal status to

another. It found that “[n]othing like DAPA, which alters the status of more than four million aliens, has

ever been contemplated absent direct statutory authorization.”

The majority concluded that Congress had “directly

addressed the precise question at issue” in DAPA because the INA “prescribes how parents may derive an

immigration classification on the basis of their child’s

status and which classes of aliens can achieve deferred

action and eligibility for work authorization.” Texas,

809 F.3d at 186. Because it found that DAPA was

foreclosed by Congress’s “careful plan,” the majority

54a

held that the program was “manifestly contrary to the

statute.”

While at least some of the majority’s reasons for

holding DAPA illegal would apply to DACA, fairness

requires saying that DACA and DAPA were different,

as the panel opinion stated. An important criticism

against DAPA would not apply against DACA, namely

the fact that Congress had already established a pathway to lawful presence for alien parents of citizens (so

that DAPA simply constituted a more lenient substitute

route). DACA, by contrast, has no such analogue in

the INA. And, there is a difference between 4.3 million and 689,800. Finally, the criticism that DACA had

been mechanically administered without the exercise of

discretion in individual cases, if true, could be fixed by

simply insisting on exercise of discretion. In sum, the

DAPA litigation was not a death knell for DACA.

This order holds that, in light of our own court of

appeals’ reasoning in Brewer I and Brewer II, in light

of the analysis of the Office of Legal Counsel of the

United States Department of Justice, and the reasoning set forth above, our court of appeals will likely hold

that DACA was and remains a lawful exercise of authority by DHS. Plaintiffs are therefore likely to

succeed on the merits of their claim that the rescission

was based on a flawed legal premise and must be set

aside as “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” Massachusetts, 549 U.S. at 528; Sec. & Exch. Comm’n v. Chenery

55a

Corp., 318 U.S. 80, 94 (1943); Safe Air for Everyone,

488 F.3d at 1101. 16

(2) Government Counsel’s Alternative Rationale Is Post Hoc and, in Any Event, Arbitrary, Capricious, and an Abuse of Discretion.

Government counsel now advances an alternative

rationale for the Secretary’s decision to rescind DACA.

Counsel contends that DHS acted within its discretion

in managing its litigation exposure in the Fifth Circuit,

weighing its options, and deciding on an orderly wind

down of the program so as to avoid a potentially disastrous injunction in the Fifth Circuit. This, they say,

constituted a reasonable judgment call involving management of litigation risk and agency resources.

Courts, of course, may not accept post hoc rationalizations for agency action, see Burlington Truck Lines

v. United States, 371 U.S. 156, 168 (1962), nor may they

“supply a reasoned basis for the agency’s action that

the agency itself has not given.” Bowman Transp.,

Defendants argue that if the Acting Secretary had relied on

DACA’s purported illegality in terminating the program, that reliance should be presumed to be a “reasonable policy judgment that

immigration decisions of this magnitude should be left to Congress.” This argument finds no support in the administrative

record. In Syracuse Peace Council v. F.C.C., upon which defendants rely, the agency explicitly based its decision on the independent grounds that a policy was both unconstitutional and contrary to

the public interest. 867 F.2d 654, 656 (D.C. Cir. 1989). Although

the court of appeals elected to review only the agency’s policy determination under the APA, it noted that “if the Commission had

written its opinion in purely constitutional terms, we would have no

choice but to address the constitutional issue.” Id. at 659.

16

56a

Inc. v. Ark.-Best Freight Sys., 419 U.S. 281, 285-86

(1974); see also Cal. Pub. Util. Comm’n v. Fed. Energy

Regulatory Comm’n, No. 16-70481 at 15 (9th Cir. Jan.

8, 2018). Rather, “an agency’s action must be upheld,

if at all, on the basis articulated by the agency itself.”

Motor Vehicle Mfrs. Ass’n. of United States, Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983).

The reason actually given in the administrative record for the rescission was DACA’s purported illegality.

The Attorney General’s letter and the Acting Secretary’s memorandum can only be reasonably read as

stating DACA was illegal and that, given that DACA

must, therefore, be ended, the best course was “an

orderly and efficient wind-down process,” rather than a

potentially harsh shutdown in the Fifth Circuit. Nowhere in the administrative record did the Attorney

General or the agency consider whether defending the

program in court would (or would not) be worth the

litigation risk. The new spin by government counsel

is a classic post hoc rationalization. That alone is dispositive of the new “litigation risk” rationale.

Significantly, the INA itself makes clear that once

the Attorney General had determined that DACA was

illegal, the Acting Secretary had to accept his ruling as

“controlling.” Section 1103(a)(1) of Title 8, a provision

that allocates immigration power and duties among the

Secretary of Homeland Security, the Secretary of

State, and the Attorney General, provides that “determinations and rulings by the Attorney General with respect to all questions of law shall be controlling.”

Therefore, once the Attorney General advised the Acting Secretary that DACA was illegal, that ruling became “controlling” upon her. She had no choice other

57a

than to end DACA. She had no room to push back

with arguments for the program, to weigh litigation

risks, or to consider whether DACA recipients warranted fighting for. The ruling of law by the Attorney

General, controlling upon her, made all such considerations moot. Therefore, the new spin by government

counsel that the decisionmaker here indulged in a litigation risk assessment and, out of caution, chose not to

fight for the program in favor of an orderly wind-down

is foreclosed by the INA itself. Her wind-down references plainly presuppose that DACA had to end and

the only question was how.

Nevertheless, this order now indulges government

counsel’s new explanation and addresses whether it

holds up even if taken as authentic. In that event, two

major criticisms can and should be made of the “litigation risk management” rationale.

First, even as to the risk in the Fifth Circuit, the administrative record mentions only similarities between

DAPA and DACA (and even then only in an exceedingly conclusory way). No mention appears concerning

the differences between DAPA and DACA that might

have led to a different result. In addition to the distinctions made above, one powerful consideration

should have been the doctrine of laches. Unlike the

DAPA challenge filed immediately after DAPA was announced, the threatened DACA challenge by ten states

would have come five years after the program began

and after hundreds of thousands of young adults had

enrolled and entered the workforce. See Abbott Labs.,

Inc. v. Gardner, 387 U.S. 136, 155 (1967) (adopting

laches in APA context); see also Arpaio v. Obama,

27 F. Supp. 3d 185, 210 (D.D.C. 2014), aff ’d, 797 F.3d 11

58a

(D.C. Cir. 2015) (noting that even if plaintiff did have

standing he could not demonstrate irreparable harm

since he waited two years to challenge DACA). Another difference was that DACA was precisely the kind

of interstitial program of deferred action seemingly

approved even by the Fifth Circuit, Texas, 809 F.3d at

185, given that both sides of the aisle and our two most

recent presidents have called for Dreamer legislation.

Nor was there any mention of our own circuit’s more

recent decision in Brewer II that favored DACA, or of

recognition by the district court in the District of Columbia that DACA had, contrary to the Fifth Circuit,

involved discretionary denials of DACA relief.

Second, if we are to indulge the spin that the decision to end DACA rested on a litigation-management

assessment (rather than on a ruling of illegality), then

the Acting Secretary committed a serious error.

Against the litigation risk the Acting Secretary should

have—but did not—weigh DACA’s programmatic objectives as well as the reliance interests of DACA recipients. Encino Motorcars, LLC v. Navarro, — U.S.

—, 136 S. Ct. 2117, 2126-27 (2016). This responsibility

lay with the Acting Secretary, not the Attorney General. That is, once the Acting Secretary was informed

of the supposed litigation risk, it remained her responsibility to balance it against competing policy considerations. It remained her responsibility to recognize

the litigation risk, yet still ask whether the program

was worth fighting for. The administrative record is

utterly silent in this regard.

The agency reversed over five years of DHS policy,

did so only one day after the Attorney General’s letter,

and did so just three months after Secretary Kelly had

59a

continued the program (despite the Fifth Circuit’s decision and affirmance). The Acting Secretary failed to

provide a “reasoned explanation” as to why she was

“disregarding facts and circumstances which underlay

or were engendered by the prior policy.” See F.C.C. v.

Fox Television Stations, Inc., 556 U.S. 502, 516 (2009).

Encino Motorcars seems very close on point.

There, the Supreme Court addressed the Department

of Labor’s reversal of an interpretive regulation construing the Fair Labor Standard Act’s minimum wage

and overtime provisions for car dealership employees.

Our court of appeals gave Chevron deference to the

new interpretation. The Supreme Court reversed.

In determining whether the regulation was “procedurally defective”—and accordingly whether the agency’s

regulation warranted Chevron deference—the Supreme Court evaluated whether the agency had given

adequate reasons for its decision to reverse course.

Encino Motorcars, 136 S. Ct. at 2125 (citing Motor

Vehicle Mfrs. Ass’n., 463 U.S. at 43). The Supreme

Court explained (at page 2126) that while agencies are

free to change their existing policies, they must provide

a reasoned explanation for a change (quotes and citations omitted):

In explaining its changed position, an agency must

also be cognizant that longstanding policies may

have engendered serious reliance interests that

must be taken into account. In such cases it is not

that further justification is demanded by the mere

fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the

prior policy. It follows that an unexplained incon-

60a

sistency in agency policy is a reason for holding an

interpretation to be an arbitrary and capricious

change from agency practice.

Because the agency “gave almost no reason at all” for

its change in position, the Supreme Court concluded

that the agency had failed to provide the sort of reasoned explanation required in light of the “significant

reliance issues involved.” Id. at 2126-27.

So too here.

As there, the agency here reversed its interpretation of its statutory authority. As there, the administrative record here includes no analysis of the “significant reliance issues involved.” The parallel is striking. In terminating DACA, the administrative record

failed to address the 689,800 young people who had

come to rely on DACA to live and to work in this country. These individuals had submitted substantial personal identifying information to the government, paid

hefty fees, and planned their lives according to the

dictates of DACA. The administrative record includes

no consideration to the disruption a rescission would

have on the lives of DACA recipients, let alone their

families, employers and employees, schools and communities. 17

Ironically, government counsel now cite material

outside of the administrative record in an attempt to

show the Acting Secretary considered the plight of

DACA recipients (Dkt. 204 at 10, 12, 19-20). This

Here, perhaps in light of Encino Motors, the government does

not argue that Chevron deference should be afforded to the Attorney General’s legal conclusion that DACA exceeded the agency’s

authority.

17

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press release came after the fact and was not part of

the administrative record, and therefore cannot now

rescue the agency. In that respect, Cal. Pub. Util.

Comm’n, No. 16-70481 at 17 n.4 is analogous. There,

our court appeals refused to consider an agency’s position which was not advanced in connection with the

decision under review but, rather, was offered for the

first time afterwards.

Defendants next argue that because no statute here

dictated the factors for an agency to consider in granting or rescinding deferred action, the agency need not

have given weight to the benefits of the DACA program or the harm that would be caused to its recipients

upon its rescission. The Supreme Court has recognized, however, that “[c]onsideration of cost reflects the

understanding that reasonable regulation ordinarily

requires paying attention to the advantages and the

disadvantages of agency decision.” Michigan v. EPA,

— U.S. —, 135 S. Ct. 2699, 2707 (2015). While defendants attempt to distinguish Michigan on the ground

that the text of the statute required regulation there to

be “appropriate and necessary,” they ignore that a

change in agency policy requires the agency to have

“good reasons for it.” Fox TV Stations, Inc., 556 U.S.

at 515.

Defendants, of course, are correct that when an

agency reverses policy it “need not demonstrate to a

court’s satisfaction that the reasons for the new policy

are better than the reasons for the old one.” Ibid.

Where, however, an agency abruptly changes course

and terminates a program on which so many people

rely, the APA requires “a more detailed justification.”

Ibid. Indeed, “[i]t would be arbitrary and capricious

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to ignore such matters.” Ibid. In such cases, “it is

not that further justification is demanded by the mere

fact of policy change; but that a reasoned explanation is

needed for disregarding facts and circumstances that

underlay or were engendered by the prior policy.” Id.

at 515-16. Defendants’ attempt to portray DACA as a

program that did not generate reliance interests is unconvincing. As plaintiffs’ evidence shows, DACA recipients, their employers, their colleges, and their communities all developed expectations based on the possibility that DACA recipients could renew their deferred

action and work authorizations for additional two-year

periods.

In sum, government counsel’s alternative spin on

the administrative record is just a post hoc rationalization. But, even if it had been the actual rationale, it

was arbitrary, capricious, and an abuse of discretion

under Encino Motors.

*

*

*

Accordingly, plaintiffs have shown that they are likely to succeed on the merits of their claim that the rescission was arbitrary and capricious and must be set

aside under the APA.

B. Irreparable Harm.

Plaintiffs have clearly demonstrated that they are

likely to suffer serious irreparable harm absent an injunction. Before DACA, Individual Plaintiffs, brought

to America as children, faced a tough set of life and

career choices turning on the comparative probabilities

of being deported versus remaining here. DACA gave

them a more tolerable set of choices, including joining

the mainstream workforce. Now, absent an injunc-

63a

tion, they will slide back to the pre-DACA era and

associated hardship.

The University of California and other entity plaintiffs have also demonstrated that they face irreparable

harm as they begin to lose valuable students and employees in whom they have invested, and that loss of

DACA recipients from the workforce will have a detrimental impact on their organization interests, economic

output, public health, and safety.

Our court of appeals recently confirmed that “prolonged separation from family members” and “constraints to recruiting and retaining faculty members to

foster diversity and quality within the University community” are harms which are not compensable with

monetary damages and therefore weigh in favor of

finding irreparable harm. Hawaii v. Trump, No.

17-17168, 2017 WL 6554184, at *22 (9th Cir. Dec. 22,

2017). These showings accordingly demonstrate that

preliminary relief is appropriate. Ibid.; see also Valle

del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir.

2013).

Defendants do not dispute that plaintiffs are likely

to suffer such harms. Rather, they argue that these

harms will not happen before the phase-out begins on

March 5, 2018, the date by which the undersigned

judge had wanted to present a final record and final

decision for appellate review.

Delays in this case, however, have made it impossible to send a final judgment to our court of appeals by

March 5. To take only one example, it would be unfair

to reach a conclusion without giving plaintiffs an opportunity to examine the complete administrative record. Government counsel, however, succeeded in ob-

64a

taining an order from the Supreme Court postponing

proceedings on completing the administrative record

until after ruling on its FRCP 12(b)(1) motion to dismiss. As a result, we have yet to receive a complete

administrative record. Although plaintiffs are likely

to prevail on even the truncated administrative record,

as set forth above, our appellate court might disagree

with that conclusion or the agency might seek to cure

the flaws in its process via a fresh agency action.

Plaintiffs are entitled to learn of all flaws, if any more

there be, lurking in the whole record. One such possibility suggested by plaintiffs is that the rescission

was contrived to give the administration a bargaining

chip to demand funding for a border wall in exchange

for reviving DACA. A presidential tweet after our

hearing gives credence to this claim. Another possibility raised by plaintiffs is racial animus. These

theories deserve the benefit of the full administrative

record. It will be impossible to litigate this case to a

fair and final conclusion before March 5. 18

C.

Balance of Equities and Public Interest.

On provisional relief motions, district judges must

consider whether (or not) such relief would be in the

public interest. On this point, we seem to be in the

On December 29, 2017, President Trump tweeted: “The Democrats have been told, and fully understand, that there can be no

DACA without the desperately needed WALL at the Southern

Border and an END to the horrible Chain Migration & ridiculous

Lottery System of Immigration etc. We must protect our Country

at all cost!” (Dkt. No. 227-2). Plaintiffs separately request judicial

notice of this tweet. Defendants object to judicial notice on various

relevancy grounds, but do not argue that it is not properly subject to

judicial notice under FRE 201 (Dkt. Nos. 227, 230). Plaintiffs’ request is accordingly GRANTED.

18

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unusual position wherein the ultimate authority over

the agency, the Chief Executive, publicly favors the

very program the agency has ended. In September,

President Trump stated his support for DACA, tweeting: “Does anybody really want to throw out good,

educated and accomplished young people who have

jobs, some serving in the military? Really! . . . .” He

has also called upon Congress to ratify DACA, tweeting, “Congress now has 6 months to legalize DACA

(something the Obama Administration was unable to

do). If they can’t, I will revisit this issue!” (App.

1958).

For the reasons DACA was instituted, and for the

reasons tweeted by President Trump, this order finds

that the public interest will be served by DACA’s continuation (on the conditions and exceptions set out below). Beginning March 5, absent an injunction, one

thousand individuals per day, on average, will lose their

DACA protection. The rescission will result in hundreds of thousands of individuals losing their work authorizations and deferred action status. This would

tear authorized workers from our nation’s economy and

would prejudice their being able to support themselves

and their families, not to mention paying taxes to support our nation. Too, authorized workers will lose the

benefit of their employer-provided healthcare plans

and thus place a greater burden on emergency healthcare services.

On provisional relief motions, district judges must

also weigh the balance of hardships flowing from a

grant versus denial of provisional relief. The hardship

to plaintiffs need not be repeated. The only hardship

raised by defendants is interference with the agency’s

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judgment on how best to allocate its resources in keeping our homeland secure, as well as its judgment in

phasing out DACA. Significantly, however, the agency’s judgment here was not based on a policy change.

It was based on a mistake of law. If the instant order

is correct that DACA fell within the statutory and constitutional powers of the Executive Branch, then a policy supported as high up as our Chief Executive has

been the victim of a colossal blunder. A preliminary

injunction will set that right without imposing any policy unwanted by the Executive Branch. 19

D. Scope of Provisional Relief.

For the foregoing reasons, defendants ARE HEREBY

ORDERED AND ENJOINED, pending final judgment herein

or other order, to maintain the DACA program on a nationwide basis on the same terms and conditions as

were in effect before the rescission on September 5,

2017, including allowing DACA enrollees to renew their

enrollments, with the exceptions (1) that new applications from applicants who have never before received

deferred action need not be processed; (2) that the

advance parole feature need not be continued for the

time being for anyone; and (3) that defendants may

take administrative steps to make sure fair discretion

If a likelihood of irreparable injury is shown and an injunction

is in the public interest, a preliminary injunction is also appropriate

when a plaintiff demonstrates that serious questions going to the

merits are raised and the balance of hardships tips sharply in the

plaintiff’s favor. Alliance for the Wild Rockies v. Cottrell, 632

F.3d 1127, 1134-35 (9th Cir. 2011). Because plaintiffs have clearly

demonstrated a likelihood of irreparable injury and that the balance of hardships tips sharply in plaintiffs’ favor, preliminary relief

would also be appropriate under this alternative standard of review.

19

67a

is exercised on an individualized basis for each renewal

application.

Nothing in this order prohibits the agency from proceeding to remove any individual, including any DACA

enrollee, who it determines poses a risk to national

security or public safety, or otherwise deserves, in its

judgment, to be removed. Nor does this order bar the

agency from granting advance parole in individual cases it finds deserving, or from granting deferred action

to new individuals on an ad hoc basis.

The agency shall post reasonable public notice that

it will resume receiving DACA renewal applications

and prescribe a process consistent with this order.

The agency shall keep records of its actions on all

DACA-related applications and provide summary reports to the Court (and counsel) on the first business

day of each quarter. 20

By way of explanation, while plaintiffs have demonstrated that DACA recipients, as well as their families,

schools, employers, and communities, are likely to suffer substantial, irreparable harm as a result of the rescission, they have not made a comparable showing as

A mandatory injunction orders a responsible party to take action, while “[a] prohibitory injunction prohibits a party from taking

action and preserves the status quo pending a determination of the

action on the merits.” Brewer I, 757 F.3d at 1060. The relevant

status quo is the legally relevant relationship between the parties

before the controversy arose. Id. at 1061. Here, plaintiffs contest the validity of defendants’ rescission of DACA, the status quo

before which was that DACA was fully implemented. Accordingly, plaintiffs’ requested preliminary injunction is not mandatory.

But even if it were, plaintiffs have demonstrated that sufficiently

serious irreparable harm would result to warrant even a mandatory

injunction.

20

68a

to individuals who have never applied for or obtained

DACA.

This order will not require advance parole. Unlike

the widespread harm to plaintiffs and our economy that

would result were the 689,800 DACA enrollees to lose

their ability to work in this country, plaintiffs have not

demonstrated that comparable harm will occur as a result of DACA recipients’ inability to travel abroad.

True, Individual Plaintiffs Jirayut Latthivongskorn and

Norma Ramirez describe professional disadvantages

that may result if they are unable to travel internationally. These, however, do not amount to hardships

justifying a provisional injunction requiring DHS to

resume accepting applications for advance parole.

However, as stated, nothing in this order would bar

individuals from asking for such agency relief or bar

the agency from granting it in deserving cases.

With respect to geographical scope, this order finds

a nationwide injunction is appropriate. Our country

has a strong interest in the uniform application of immigration law and policy. Plaintiffs have established

injury that reaches beyond the geographical bounds of

the Northern District of California. The problem

affects every state and territory of the United States.

In February 2017, our court of appeals considered

this very issue in Washington v. Trump, 847 F.3d 1151,

1167 (9th Cir. 2017), and upheld a nationwide injunction

imposed by a single district court, observing that limiting the geographic scope of an injunction on an immigration enforcement policy “would run afoul of the

constitutional and statutory requirements for uniform

immigration law and policy” and that, as here, “the

government ha[d] not proposed a workable alterna-

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tive.” Indeed, the Fifth Circuit reached the same

conclusion in determining the appropriate scope of an

injunction over DAPA, Texas, 809 F.3d at 187-88, holding that uniform application of the immigration laws

justified a nationwide injunction. So too here. 21

Limiting relief to the States in suit or the Individual

Plaintiffs would result in administrative confusion and

simply provoke many thousands of individual lawsuits

all over the country. The most practical relief is to

maintain DACA in the same manner to which the agency and recipients are accustomed, subject to the exceptions above noted.

CONCLUSION

Defendants’ motion to dismiss under FRCP 12(b)(1)

is GRANTED IN PART only to the limited extent stated

above and is otherwise DENIED. Maine and Minnesota’s APA claims are hereby DISMISSED. Maine or

Minnesota may seek leave to amend and will have 21

CALENDAR DAYS from the date of this order to file a

motion, noticed on the normal 35-day track, for leave to

file an amended complaint. A proposed amended

Oddly, the government’s contrary authority is Bresgal v. Brock,

843 F.2d 1163, 1169-70 (9th Cir. 1987), a decision in which our court

of appeals upheld a nationwide injunction and held, “[t]here is no

general requirement that an injunction affect only the parties in

the suit,” and “nationwide relief in federal district or circuit court

[is permitted] when it is appropriate.” Bresgal merely observed

that “[w]here relief can be structured on an individual basis, it must

be narrowly tailored to remedy the specific harm shown.” Id. at

1170. Here, it cannot be so structured. Nor are any of the government’s other authorities, which restate the general proposition

that a remedy should match the injury alleged, see, e.g., Town of

Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017), to the

contrary.

21

70a

complaint must be appended to the motion and plaintiffs must plead their best case. Any such motion

should clearly explain how the amendments to the complaint cure the deficiencies identified herein. To the

extent stated above, plaintiffs’ motion for provisional

relief is GRANTED. A separate order will address defendants’ motion to dismiss pursuant to FRCP 12(b)(6).

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

Pursuant to our court of appeals’ order dated December 21, 2017, the district court hereby certifies for

interlocutory appeal the issues decided herein (i) whether

(or not) the rescission of DACA is unreviewable as committed to agency discretion or by reason of 8 U.S.C.

§ 1252(g), (ii) whether (or not) plaintiffs have standing,

and (iii) all other questions interposed by the government in its motion to dismiss under FRCP 12(b)(1).

This order finds that these are controlling questions of

law as to which there is substantial ground for difference of opinion and that their resolution by the court of

appeals will materially advance the litigation. This order realizes that the same issues are reviewable upon

appeal of this injunction. Nevertheless, out of caution

and to avoid any problem concerning scope of review,

the district court so certifies.

IT IS SO ORDERED.

Dated:

Jan. 9, 2018.

/s/

WILLIAM ALSUP

WILLIAM ASLUP

UNITED STATES DISTRICT JUDGE

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APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. 3:17-cv-05211-WHA

REGENTS OF UNIVERSITY OF CALIFORNIA AND JANET

NAPOLITANO, IN HER OFFICIAL CAPACITY AS PRESIDENT

OF THE UNIVERSITY OF CALIFORNIA,

PLAINTIFFS

v.

UNITED STATES DEPARTMENT OF HOMELAND

SECURITY AND KIRSTJEN M. NIELSEN, IN HER OFFICIAL

CAPACITY AS THE SECRETARY OF HOMELAND SECURITY,

DEFENDANTS

Filed: Jan. 16, 2018

NOTICE OF APPEAL

Judge: Honorable William Alsup

72a

No. 3:17-cv-05235-WHA

STATE OF CALIFORNIA, STATE OF MAINE, STATE OF

MARYLAND, AND STATE OF MINNESOTA, PLAINTIFFS

v.

UNITED STATES DEPARTMENT OF HOMELAND

SECURITY AND KIRSTJEN M. NIELSEN, IN HER OFFICIAL

CAPACITY AS SECRETARY OF HOMELAND SECURITY, AND

THE UNITED STATES OF AMERICA, DEFENDANTS

No. 3:17-cv-05329-WHA

CITY OF SAN JOSE, A MUNICIPAL CORPORATION, PLAINTIFF

v.

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES, IN HIS OFFICIAL CAPACITY, KIRSTJEN M.

NIELSEN, IN HER OFFICIAL CAPACITY AS SECRETARY OF

HOMELAND SECURITY, AND THE UNITED STATES OF

AMERICA, DEFENDANTS

No. 3:17-cv-05380-WHA

DULCE GARCIA, MIRIAM GONZALEZ AVILA, SAUL

JIMENEZ SUAREZ, VIRIDIANA CHABOLLA MENDOZA,

NORMA RAMIREZ, AND JIRAYUT LATTHIVONGSKORN,

PLAINTIFFS

v.

UNITED STATES OF AMERICA, DONALD J. TRUMP, IN

HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED

STATES, U.S. DEPARTMENT OF HOMELAND SECURITY,

AND KIRSTJEN M. NIELSEN, IN HER OFFICIAL CAPACITY

AS SECRETARY OF HOMELAND SECURITY, DEFENDANTS

73a

No. 3:17-cv-05813-WHA

COUNTY OF SANTA CLARA AND SERVICE EMPLOYEES

INTERNATIONAL UNION LOCAL 521, PLAINTIFFS

v.

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES, IN HIS OFFICIAL CAPACITY; JEFFERSON

BEAUREGARD SESSIONS, ATTORNEY GENERAL OF THE

UNITED STATES, IN HIS OFFICIAL CAPACITY; KIRSTJEN M.

NIELSEN, SECRETARY OF HOMELAND SECURITY, IN HER

OFFICIAL CAPACITY; AND THE U.S. DEPARTMENT OF

HOMELAND SECURITY, DEFENDANTS

NOTICE OF APPEAL

PLEASE TAKE NOTICE that all Defendants in

the above-captioned matters hereby appeal to the

United States Court of Appeals for the Ninth Circuit

from this Court’s January 9, 2018 Order Denying

FRCP 12(b)(1) Dismissal and Granting Provisional

Relief 1 and this Court’s January 12, 2018 Order

Granting in Part Defendants’ Motion to Dismiss Under

FRCP 12(b)(6). 2 Those Orders are docketed in each

of these five cases as follows:

• Regents of the University of California, et al. v.

United States Department of Homeland Securi-

While the January 9, 2018 Order is immediately appealable

to the extent it grants provisional relief, all Defendants are also

appealing the Order to the extent it denies Defendants’ motion to

dismiss. That aspect of the appeal is being taken pursuant to

28 U.S.C. § 1292(b).

2

The January 12, 2018 Order is being appealed pursuant to

28 U.S.C. § 1292(b).

1

74a

ty, et al., No. 3:17-cv-05211-WHA, ECF Nos. 234,

239.

• State of California, et al. v. U.S. Department of

Homeland Security, et al., No. 3:17-cv-05235WHA, ECF Nos. 83, 88.

• City of San Jose v. Donald J. Trump, et al., No.

3:17-cv-05329-WHA, ECF Nos. 66, 71.

• Dulce Garcia, et al. v. United States of America,

et al., No. 3:17-cv-05380-WHA, ECF Nos. 60, 65.

• County of Santa Clara, et al. v. Donald J.

Trump, et al., No. 3:17-cv-05813-WHA, ECF

Nos. 48, 53.

This appeal includes all prior orders and decisions that

merge into the Court’s January 9, 2018 and January 12,

2018 Orders.

Dated:

Jan. 16, 2018

Respectfully submitted,

CHAD A. READLER

Acting Assistant Attorney

General

ALEX G. TSE

Acting United States Attorney

BRETT A. SHUMATE

Deputy Assistant Attorney

General

JENNIFER D. RICKETTS

Branch Director

JOHN R. TYLER

Assistant Branch Director

75a

/s/

BRAD P. ROSENBERG

BRAD P. ROSENBERG

(DC Bar #467513)

Senior Trial Counsel

STEPHEN M. PEZZI

(DC Bar #995500)

KATE BAILEY

(MD Bar #1601270001)

Trial Attorneys

United States Department of

Justice

Civil Division, Federal

Programs Branch

20 Massachusetts Avenue N.W.

Washington, DC 20530

Phone: (202) 514-3374

Fax: (202) 616-8460

Email:

brad.rosenberg@usdoj.gov

Attorneys for Defendants

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APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Nos. C 17-05211 WHA, C 17-05235 WHA, C 17-05329

WHA, C 17-05380 WHA, C 17-05813 WHA

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

AND JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS

PRESIDENT OF THE UNIVERSITY OF CALIFORNIA,

PLAINTIFFS

v.

UNITED STATES DEPARTMENT OF HOMELAND

SECURITY AND KIRSTJEN NIELSEN, IN HER OFFICIAL

CAPACITY AS SECRETARY OF THE DEPARTMENT OF

HOMELAND SECURITY, DEFENDANTS

Filed: Jan. 12, 2018

ORDER GRANTING IN PART DEFENDANTS’ MOTION

TO DISMISS UNDER FRCP 12(b)(6)

INTRODUCTION

In these challenges to the government’s rescission

of the Deferred Action for Childhood Arrivals program,

the government moves to dismiss plaintiffs’ complaints

for failure to state a claim. For the reasons discussed

below, the motion is GRANTED IN PART and DENIED IN

PART .

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STATEMENT

This order incorporates the statement set forth in

the order dated January 9, 2018, largely denying dismissal under FRCP 12(b)(1) and largely granting plaintiffs’ motion for provisional relief (Dkt. No. 234). This

order, however, addresses a separate motion by the

government to dismiss all claims for failure to state a

claim for relief under FRCP 12(b)(6). This order

sustains three claims for relief but finds that the rest

fall short.

ANALYSIS

1.

APA CLAIMS UNDER 5 U.S.C. § 706(2)(A).

For the same reasons that plaintiffs are likely to

succeed on their claim that the rescission of DACA was

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” in violation of the Administrative Procedure Act, as explained in the January 9 order, the government’s motion to dismiss plaintiffs’ APA claims under 5 U.S.C. § 706(2)(A) is DENIED.

2.

APA CLAIMS UNDER 5 U.S.C. § 706(2)(D).

The original DACA program began in 2012 without

any notice or opportunity for public comment. Likewise, the rescission in question ended DACA without

notice or opportunity for public comment. One issue

now presented is whether the rescission is invalid for

having been carried out without notice-and-comment

procedures.

Under the APA, an agency action must be set aside

if it was done “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). An agency is required to follow prescribed notice-and-comment procedures before promulgating certain rules. 5 U.S.C.

78a

§ 553. The Regulatory Flexibility Act further requires that notice-and-comment rulemaking include an

assessment of the impact on small entities. 5 U.S.C.

§ 604(a). These requirements do not apply, however,

to general statements of policy. 5 U.S.C. § 553(b)(A).

A general statement of policy “advis[es] the public

prospectively of the manner in which the agency proposes to exercise a discretionary power.” Mada-Luna

v. Fitzpatrick, 813 F.2d 1006, 1012-13 (9th Cir. 1987).

Such policies also “serve to educate and provide direction to the agency’s personnel in the field, who are required to implement its policies and exercise its discretionary power in specific cases.” Id. at 1013 (quotes

and citations omitted). “The critical factor” in determining whether a directive constitutes a general statement of policy is “the extent to which the challenged

[directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.”

Ibid. Thus, to qualify as a statement of policy two requirements must be satisfied: (1) the policy operates

only prospectively, and (2) the policy does “not establish a binding norm,” and is not “finally determinative

of the issues or rights to which [it] address[es],” but instead leaves officials “free to consider the individual

facts in the various cases that arise.” Id. at 1014 (quotes

and citations omitted). Under this standard, the rescission memorandum is a general statement of policy.

This order rejects plaintiffs’ contention that the rescission could only be done through notice and comment. For the same reasons that the promulgation of

DACA needed no notice and comment, its rescission

needed no notice and comment.

79a

Almost this exact problem was addressed in MadaLuna. There, our court of appeals held that the repeal of an INS policy under which applicants could seek

deferred action was not subject to notice and comment.

It rejected the argument that the repeal could not constitute a general statement of policy because it diminished the likelihood of receiving deferred action for a

class of individuals. Id. at 1016. Rather, because the

original policy allowed for discretion and failed to establish a “binding norm,” the repeal of that policy also

did not require notice and comment. Id. at 1017. So

too here. The DACA program allowed but did not

require the agency to grant deferred action, and upon

separate application, travel authorization, on a case-bycase basis at the agency’s discretion. Therefore, neither its promulgation nor its rescission required notice

and comment.

Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977),

on which plaintiffs heavily rely, does not warrant the

conclusion that the rescission policy is a substantive

rule. Parco also addressed whether the rescission of

an INS policy required notice and comment. Notably,

the government in Parco stipulated that the policy’s

precipitous rescission was the sole reason for denial of

the plaintiff’s application for immigration relief. Id. at

984. The district court determined that the repeal

therefore left no discretion, explaining that “discretion” was stripped of all meaning where “one contends

that under a certain regulation ‘discretion’ was exercised favorably in all cases of a certain kind and then,

after repeal of the regulation, unfavorably in each such

case.” Ibid. Here, by contrast, plaintiffs do not allege that all deferred action applications under DACA

80a

were approved but now, after the rescission, all requests for deferred action will be denied.

Plaintiffs argue that the rescission memorandum is

more than a policy because it creates a blanket prohibition against granting deferred action to DACA applicants. Plaintiffs are correct that the rescission policy

contains mandatory language on its face. It is also

true that the rescission memorandum categorically

eliminates advance parole for DACA recipients. This

comes closer to resembling a substantive rule. However, it remains the case that because the original promulgation of the discretionary program did not require

notice and comment, a return to the status quo ante also does not require notice and comment. Mada-Luna,

813 F.2d at 1017.

Defendants’ motion to dismiss plaintiffs’ claims

pursuant to Section 706(2)(D) of the APA and the Regulatory Flexibility Act is accordingly GRANTED.

3.

DUE PROCESS CLAIMS.

To assert a due process claim, a plaintiff must first

show that he or she has an interest in liberty or property protected by the Constitution. See Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Plaintiffs fail

to make the threshold showing that they have a protected interest in the continuation of DACA and, accordingly, their due process claims based on the rescission must be dismissed. Plaintiffs have adequately

alleged, however, that the agency’s changes to its

information-sharing policy are “fundamentally unfair.”

A.

Deferred Action.

Because discretionary immigration relief “is a privilege created by Congress, denial of such relief cannot

81a

violate a substantive interest protected by the Due

Process clause.” Munoz v. Ashcroft, 339 F.3d 950, 954

(9th Cir. 2003) (citing INS v. Yang, 519 U.S. 26, 30

(1996)). Moreover, “aliens have no fundamental right

to discretionary relief from removal” for purposes of

due process. Tovar-Landin v. Ashcroft, 361 F.3d

1164, 1167 (9th Cir. 2004). Our court of appeals has

accordingly held there is no protected interest in temporary parole, since such relief is “entirely within the

discretion of the Attorney General.” Kwai Fun Wong

v. United States, 373 F.3d 952, 967-68 (9th Cir. 2004).

Nor did an INS policy which allowed the agency to

recommend deferred action as “an act of administrative

choice” create substantive liberty interests. Romeiro

de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985).

These authorities foreclose any argument that plaintiffs have a protected interest in continued deferred

action or advance parole under DACA. 1

Plaintiffs reply that even absent a protected interest

in the initial, discretionary grant of deferred action,

there is a protected interest in the renewal of DACA

and its associated benefits. Yet a benefit is not a

“protected entitlement” where “government officials

may grant or deny it in their discretion.” Castle Rock,

545 U.S. 748, 756 (2005). Rather, an individual has a

protected property right in public benefits where the

rules conferring those benefits “greatly restrict the

discretion” of the people who administer them. Nozzi

v. Hous. Auth. of City of Los Angeles, 806 F.3d 1178,

Plaintiffs’ attempt to distinguish Romeiro de Silva on the

ground that the INS policy there involved “unfettered discretion,”

whereas the exercise of prosecutorial discretion under DACA was

guided by standard operating procedures, is unconvincing.

1

82a

1191 (9th Cir. 2015). Plaintiffs’ authorities confirm

that the same principle applies in the context of renewing or retaining existing benefits. Wedges/Ledges of

California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 64

(9th Cir. 1994); Stauch v. City of Columbia Heights,

212 F.3d 425, 430 (8th Cir. 2000). No such limitations

on agency discretion are alleged to have applied under

DACA. Rather, the USCIS DACA FAQs referenced by

plaintiffs in their complaints make clear that “USCIS

retain[ed] the ultimate discretion to determine whether

deferred action [was] appropriate in any given case even if the guidelines [were] met” (Garcia Compl. ¶ 24

n.16; Santa Clara Compl. ¶ 58; UC Compl., Exh. B;

State Compl., Exh. E).

Next, plaintiffs argue that once DACA status was

conferred, and recipients organized their lives in reliance on the program’s protections and benefits, they

developed interests protected by the Constitution.

Plaintiffs’ authorities, however, stand only for the uncontroversial proposition that once in possession of a

particular benefit, the alteration, revocation or suspension of that benefit may implicate due process. 2 Such

a principle has no application where, as here, extant

benefits are not impacted by a change in policy. Indeed, there is no dispute that the rescission acts only

prospectively. That is, all existing DACA recipients

will receive deferred action through the end of their

two-year terms. What they will not receive, if the rescission endures, will be DACA renewal, thereafter.

See Bell v. Burson, 402 U.S. 535, 539 (1971); Gallo v. U.S. Dist.

Court For Dist. of Arizona, 349 F.3d 1169, 1179 (9th Cir. 2003);

Medina v. U.S. Dep’t of Homeland Sec., 2017 WL 5176720, at *9

(W.D. Wash. Nov. 8, 2017).

2

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For this reason, Ixcot v. Holder, 646 F.3d 1202 (9th Cir.

2011), and Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir.

2003), which addressed whether amendments to the

INA were impermissibly retroactive, do not compel a

different result.

Plaintiffs contend that the government’s communications with plaintiffs regarding renewals, its operation

of the program, and the public promises of government

officials “together created an understanding that

DACA recipients were entitled to the continued benefits of the program so long as they met the renewal criteria” (Dkt. No. 205 at 29). Plaintiffs are correct, of

course, that claims of entitlement can be defined by

“rules or mutually explicit understandings.” Perry v.

Sindermann, 408 U.S. 593, 601 (1972). Importantly,

however, a person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably

held, does not create a protected right if that belief is

not mutually held by the government. Gerhart v.

Lake Cty., Mont., 637 F.3d 1013, 1020 (9th Cir. 2011).

An agency’s past practice of generally granting a government benefit is also insufficient to establish a legal

entitlement. Ibid.

This order empathizes with those DACA recipients

who have built their lives around the expectation that

DACA, and its associated benefits, would continue to

be available to them if they played by the rules. That

expectation, however, remains insufficient to give rise

to a constitutional claim under the Fifth Amendment.

Because plaintiffs have failed to allege facts demonstrating a protected interest in DACA’s continuation or

the renewal of benefits thereunder, defendants’ motion

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to dismiss plaintiffs’ due process claims based on the

rescission must be GRANTED.

B. Information-Sharing Policy.

Plaintiffs fare better with their substantive due process claim that DHS allegedly changed its policy with

respect to the personal information provided by DACA

recipients during the application process. Plaintiffs

allege that the government repeatedly represented

that information provided by DACA applicants would

not be used for immigration enforcement purposes absent special circumstances, and that DACA recipients

relied on these promises in submitting the extensive

personal information needed to meet the program’s

requirements.

Defendants insist that the agency’s informationsharing policy remains unchanged. On a motion to

dismiss, however, the well-pled factual allegations in a

complaint must be accepted as true. Manzarek v. St.

Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th

Cir. 2008). Plaintiffs have clearly alleged that DHS

changed its information-sharing policy such that now,

rather than affirmatively protecting DACA recipients’

information from disclosure, the government will only

refrain from “proactively” providing their information

for purposes of immigration enforcement proceedings

(Garcia Compl. ¶ 126; Santa Clara Compl. ¶ 58; State

Compl. ¶ 122).

Plaintiffs have also adequately alleged a “mutually

explicit understanding” giving rise to a protected interest in the confidentiality of DACA recipients’ personal

information. They allege that throughout DACA’s existence, DHS made affirmative representations as to how

this information would (and would not) be used. The

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policy stated (Garcia Compl. ¶ 126; Santa Clara Compl.

¶ 58; State Compl. ¶ 121 (citing USCIS DACA FAQs)):

Information provided in this request is protected

from disclosure to ICE and CBP for the purpose of

immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance

(www.uscis.gov/NTA). Individuals whose cases are

deferred pursuant to DACA will not be referred to

ICE. The information may be shared with national

security and law enforcement agencies, including

ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA,

to identify or prevent fraudulent claims, for national

security purposes, or for the investigation or prosecution of a criminal offense. The above information

sharing policy covers family members and guardians, in addition to the requestor. This policy,

which may be modified, superseded, or rescinded at

any time without notice, is not intended to, does not,

and may not be relied upon to create any right or

benefit, substantive or procedural, enforceable by

law by any party in any administrative, civil, or

criminal matter.

The language contained in the policy’s caveat, that it

could “be modified, superseded, or rescinded at any

time,” is ambiguous. One reading advanced by the

government is that this caveat allows the agency to

change how it treats information already received from

DACA applicants. Another reading, however, is that

it simply allows the government to change its policy

in connection with future applicants. Secretary of

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Homeland Security Jeh Johnson’s December 2016

letter to United States Representative Judy Chu supports the later reading. He stated that, “[s]ince

DACA was announced in 2012, DHS has consistently

made clear that information provided by applicants

. . . will not later be used for immigration enforcement purposes except where it is independently determined that a case involves a national security or public

safety threat, criminal activity, fraud, or limited other

circumstances where issuance of a notice to appear is

required by law” (Garcia Compl. ¶¶ 36-37; State Compl.

¶ 98, Exh. F). This ambiguity presents a question of

fact that cannot be resolved on the pleadings.

Taken as true at this stage, as must be done on a

FRCP 12(b)(6) motion, plaintiffs’ allegations regarding

the government’s broken promise as to how DACA recipients’ personal information will be used—and its potentially profound consequences—“shock[s] the conscience and offend[s] the community’s sense of fair play

and decency.” Marsh v. County of San Diego, 680

F.3d 1148, 1154 (9th Cir. 2012) (quotes and citations

omitted). Defendants’ motion to dismiss plaintiffs’

due process claims based on changes to the government’s information-use policy is DENIED.

4.

EQUITABLE ESTOPPEL.

Plaintiffs bring claims for equitable estoppel, arguing that the government should not be permitted to

terminate DACA or use the information collected from

applicants for immigration enforcement purposes.

Defendants first contend that plaintiffs’ equitable

estoppel claims fail because there is no recognized claim

for relief based on estoppel. The Supreme Court has

87a

refused to adopt, however, “a flat rule that estoppel

may not in any circumstances run against the Government,” noting that “the public interest in ensuring that

the Government can enforce the law free from estoppel

might be outweighed by the countervailing interest of

citizens in some minimum standard of decency, honor,

and reliability in their dealings with their Government.” Heckler v. Cmty. Health Servs. of Crawford

Cty., Inc., 467 U.S. 51, 60-61 (1984). Moreover, our

court of appeals has addressed such claims on the merits, and has held that the government may be subject to

equitable estoppel if it has engaged in “affirmative

misconduct.” Watkins v. U.S. Army, 875 F.2d 699,

706-07 (9th Cir. 1989).

To state an equitable estoppel claim against the government, a party must show (1) that the government

engaged in “affirmative conduct going beyond mere

negligence”; and (2) “the government’s wrongful act

will cause a serious injustice, and the public’s interest

will not suffer undue damage” if the requested relief is

granted. Id. at 707. “Neither the failure to inform

an individual of his or her legal rights nor the negligent

provision of misinformation constitute affirmative

misconduct.” Sulit v. Schiltgen, 213 F.3d 449, 454

(9th Cir. 2000). Moreover, our court of appeals has

defined “affirmative misconduct” to mean a “deliberate

lie” or “a pattern of false promises.” Socop-Gonzalez

v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001). The

allegations in the complaints fail to meet this standard,

inasmuch as no affirmative instances of misrepresentation or concealment have been plausibly alleged.

Plaintiffs are correct that estoppel “does not require

that the government intend to mislead a party,” Wat-

88a

kins, 875 F.2d 707, but plaintiffs fail to explain how

contradictory policies under two different administrations add up to “affirmative misconduct beyond mere

negligence.” Plaintiffs fail to allege, for example, that

the government’s past statements regarding DACA’s

legality were a “deliberate lie” or more than mere negligence. Nor have plaintiffs pleaded that the alleged

change in the agency’s information-use policy was the

result of an affirmative misrepresentation. Rather, they

have merely alleged a change in policy. Under plaintiffs’ theory new administrations would almost never be

able to change prior policies because someone could

always assert reliance upon the old policy. Defendants’ motion to dismiss plaintiffs’ equitable estoppel

claims is GRANTED.

5.

EQUAL PROTECTION CLAIMS.

To state an equal protection claim plaintiffs must

show that the rescission was motivated by a discriminatory purpose. Arce v. Douglas, 793 F.3d 968, 977

(2015) (citing Vill. of Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977)). Determining whether discrimination is a motivating factor

“demands a sensitive inquiry into such circumstantial

and direct evidence of intent as may be available.”

Arlington Heights, 429 U.S. at 266. A plaintiff need

not show that the discriminatory purpose was the sole

purpose of the challenged action, but only that it was a

“motivating factor.” Ibid. In analyzing whether a

facially-neutral policy was motivated by a discriminatory purpose, district courts must consider factors such

as whether the policy creates a disparate impact, the

historical background and sequence of events leading

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up to the decision, and any relevant legislative or administrative history. Id. at 266-68. 3

First, Individual Plaintiffs and Santa Clara clearly

allege that the rescission had a disproportionate impact

on Latinos and Mexican nationals. Indeed, such individuals account for 93 percent of DACA recipients

(Garcia Compl. ¶¶ 100, 151; Santa Clara Compl. ¶¶ 9,

75). Defendants reply that this disparate impact is an

accident of geography, not evidence of discrimination.

True, a disparate impact of a facially-neutral rule,

standing alone, cannot establish discriminatory intent.

See Washington v. Davis, 426 U.S. 229, 242 (1976).

Individual Plaintiffs and Santa Clara, however, have

alleged a discriminatory impact only as a starting

point. They also allege a history of bias leading up to

the rescission of DACA in the form of campaign statements and other public comments by President Trump,

as next discussed. 4

The Supreme Court’s decision in United States v. Armstrong,

517 U.S. 456 (1996), which addressed the showing necessary for a defendant to be entitled to discovery on a selective-prosecution claim,

has no application here. Plaintiffs’ claims cannot fairly be characterized as selective-prosecution claims because they do not “implicate the Attorney General’s prosecutorial discretion—that is, in this

context, his discretion to choose to deport one person rather than

another among those who are illegally in the country.” Kwai Fun

Wong, 373 F.3d at 970. Rather, plaintiffs allege that the agency’s

decision to end a nationwide deferred action program was motivated

by racial animus towards a protected class.

4

The City of San Jose’s equal protection claim falls a little short.

Rather than alleging a disparate impact on a protected class, it alleges only that “[d]efendants’ actions target individuals for discriminatory treatment based on their national origin, without lawful

justification” (San Jose Compl. ¶ 54). For this reason, defendants’

motion to dismiss San Jose’s equal protection claim is GRANTED.

3

90a

Second, plaintiffs allege that President Trump has,

on multiple occasions since he announced his presidential campaign, expressed racial animus towards Latinos

and Mexicans. When President Trump announced his

candidacy on June 16, 2015, for example, he characterized Mexicans as criminals, rapists, and “people that

have lots of problems.” Three days later, President

Trump tweeted that “[d]ruggies, drug dealers, rapists

and killers are coming across the southern border,”

and asked, “When will the U.S. get smart and stop this

travesty?” During the first Republican presidential

debate, President Trump claimed that the Mexican

government “send[s] the bad ones over because they

don’t want to pay for them.” And in August 2017, he

referred to undocumented immigrants as “animals”

who are responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, MS 13”

(Garcia Compl. ¶¶ 102-13, 124; Santa Clara Compl.

¶¶ 75-76).

Circumstantial evidence of intent, including statements by a decisionmaker, may be considered in evaluating whether government action was motivated by a

discriminatory purpose. Arlington Heights, 429 U.S.

at 266-68. These statements were not about the rescission (which came later) but they still have relevance

to show racial animus against people south of our border.

Should campaign rhetoric be admissible to undermine later agency action by the victors? This order

recognizes that such admissibility can readily lead to

mischief in challenging the policies of a new administration. We should proceed with caution and give

wide berth to the democratic process. Yet are clear

91a

cut indications of racial prejudice on the campaign trail

to be forgotten altogether?

Our court of appeals recently confirmed that “evidence of purpose beyond the face of the challenged law

may be considered in evaluating Establishment and

Equal Protection Clause claims.”

Washington v.

Trump, 847 F.3d 1151, 1167 (9th Cir. 2017). Washington found that President Trump’s statements regarding a “Muslim ban” raised “serious allegations and

presented significant constitutional questions,” although it ultimately reserved consideration of plaintiffs’ equal protection claim. Id. at 1167-68. Citing

to Washington, at least two district courts have since

considered President Trump’s campaign statements in

finding a likelihood of success on Establishment Clause

claims. See, e.g., Aziz v. Trump, 234 F. Supp. 3d 724,

736 (E.D. Va. 2017) (Judge Leonie Brinkema); Hawai’i

v. Trump, 245 F. Supp. 3d 1227, 1236 (D. Haw. 2017)

(Judge Derrick Watson). This order will follow these

decisions and hold that, at least at the pleading stage,

campaign rhetoric so closely tied to the challenged

executive action is admissible to show racial animus.

Third, a final consideration is the unusual history

behind the rescission. DACA received reaffirmation

by the agency as recently as three months before the

rescission, only to be hurriedly cast aside on what

seems to have been a contrived excuse (its purported

illegality). This strange about-face, done at lightning

speed, suggests that the normal care and consideration

within the agency was bypassed (Garcia Compl. ¶ 154;

Santa Clara Compl. ¶¶ 8, 77).

That President Trump has at other times shown

support for DACA recipients cannot wipe the slate

92a

clean as a matter of law at the pleading stage. Although the government argues that these allegations

fail to suggest that the Acting Secretary (as the purported decisionmaker) terminated DACA due to racial

animus, plaintiffs have alleged that it was President

Trump himself who, in line with his campaign rhetoric,

directed the decision to end the program (Garcia

Compl. ¶¶ 11, 124; Santa Clara Compl. ¶ 21).

Construed in the light most favorable to plaintiffs,

as must be done at the pleading stage, these allegations

raise a plausible inference that racial animus towards

Mexicans and Latinos was a motivating factor in the

decision to end DACA. The fact-intensive inquiry

needed to determine whether defendants acted with

discriminatory intent cannot be made on the pleadings.

Accordingly, defendants’ motion to dismiss Santa

Clara’s and Individual Plaintiffs’ equal protection

claims must be DENIED.

State Plaintiffs allege an equal protection claim on

the alternative theory that the rescission “violates

fundamental conceptions of justice by depriving DACA

grantees, as a class, of their substantial interests in

pursuing a livelihood to support themselves and further

their education” (State Compl. ¶¶ 172-77). Plaintiffs

do not respond to the government’s arguments that

this theory fails to state a claim under FRCP 12(b)(6).

Defendants’ motion to dismiss State Plaintiffs’ equal

protection claim is accordingly GRANTED.

6.

DECLARATORY RELIEF.

Defendants move to dismiss the Individual Plaintiffs’ claim for declaratory relief. Individual Plaintiffs’

request for declaratory relief is also contained in their

prayer for relief and, accordingly, the standalone claim

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is superfluous. Defendants’ motion to dismiss this

claim is GRANTED.

CONCLUSION

Consistent with the foregoing, defendants’ motion to

dismiss is GRANTED IN PART and DENIED IN PART as

follows:

•

Plaintiffs’ APA claims are sustained, except for

the following: Garcia Complaint—Fifth Claim

for Relief; UC Complaint—Second Claim for

Relief; State Complaint—Second Claim for Relief; San Jose Complaint—Second Claim for Relief.

•

Plaintiffs’ Regulatory Flexibility Act claims are

dismissed.

•

Plaintiffs’ due process claims are sustained, except for the following: UC Complaint—Third

Claim for Relief; Garcia Complaint—First Claim

for Relief (to the extent based on the rescission);

Santa Clara Complaint—First Claim for Relief

(to the extent based on the rescission).

•

Plaintiffs’ equal protection claims are sustained,

except for the following: State Complaint—

Sixth Claim for Relief; San Jose Complaint—

First Claim for Relief.

•

Plaintiffs’ equitable estoppel claims are dismissed.

•

Individual Plaintiffs’ declaratory relief claim is

dismissed.

Plaintiffs may seek leave to amend and will have 21

CALENDAR DAYS from the date of this order to file mo-

tions, noticed on the normal 35-day track, seeking leave

94a

to amend solely as to the claims dismissed above.

Proposed amended complaints must be appended to

each motion and plaintiffs must plead their best case.

Any such motion should clearly explain how the amendments to the complaints cure the deficiencies identified

herein and should include as an exhibit a redlined or

highlighted version of the complaints identifying all

changes.

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

The district court hereby certifies for interlocutory

appeal the issues of whether (i) President Trump’s

campaign statements are properly considered in evaluating plaintiffs’ equal protection claims, (ii) whether the

Individual Plaintiffs’ and County of Santa Clara’s allegations as pleaded state an equal protection claim, (iii)

whether plaintiffs’ allegations concerning changes to

the government’s information-sharing policy state a

due process claim; (iv) whether plaintiffs have failed to

state a claim under 5 U.S.C. § 553; and (v) whether

plaintiffs have failed to state a due process claim based

on the rescission of DACA. This order finds that

these are controlling questions of law as to which there

is substantial ground for difference of opinion and that

their resolution by the court of appeals will materially

advance the litigation.

IT IS SO ORDERED.

Dated:

Jan. 12, 2018.

/s/

WILLIAM ALSUP

WILLIAM ASLUP

UNITED STATES DISTRICT JUDGE

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APPENDIX D

June 15, 2012

MEMORANDUM FOR:

David V. Aguilar

Acting Commissioner, U.S. Customs and

Border Protection

Alejandro Mayorkas

Director, U.S. Citizenship and Immigration Services

John Morton

Director, U.S. Immigration and Customs

Enforcement

FROM:

/s/

SUBJECT:

Janet Napolitano

JANET NAPOLITANO

Secretary of Homeland Security

Exercising Prosecutorial Discretion with

Respect to Individuals Who Came to the

United States as Children

By this memorandum, I am setting forth how, in the

exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the

Nation’s immigration laws against certain young people who were brought to this country as children and

96a

know only this country as home. As a general matter,

these individuals lacked the intent to violate the law

and our ongoing review of pending removal cases is

already offering administrative closure to many of

them. However, additional measures are necessary to

ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.

The following criteria should be satisfied before an

individual is considered for an exercise of prosecutorial

discretion pursuant to this memorandum:

•

came to the United States under the age of sixteen;

•

has continuously resided in the United States

for a least five years preceding the date of this

memorandum and is present in the United

States on the date of this memorandum;

•

is currently in school, has graduated from high

school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed

Forces of the United States;

•

has not been convicted of a felony offense, a

significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat

to national security or public safety; and

•

is not above the age of thirty.

Our Nation’s immigration laws must be enforced in a

strong and sensible manner. They are not designed to

be blindly enforced without consideration given to the

individual circumstances of each case. Nor are they

97a

designed to remove productive young people to countries where they may not have lived or even speak the

language. Indeed, many of these young people have

already contributed to our country in significant ways.

Prosecutorial discretion, which is used in so many

other areas, is especially justified here.

As part of this exercise of prosecutorial discretion, the

above criteria are to be considered whether or not an

individual is already in removal proceedings or subject

to a final order of removal. No individual should receive deferred action under this memorandum unless

they first pass a background check and requests for

relief pursuant to this memorandum are to be decided

on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.

1. With respect to individuals who are encountered by

U.S. Immigration and Customs Enforcement (ICE),

U.S. Customs and Border Protection (CBP), or U.S.

Citizenship and Immigration Services (USCIS):

•

With respect to individuals who meet the above

criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in

order to prevent low priority individuals from

being placed into removal proceedings or removed from the United States.

•

USCIS is instructed to implement this memorandum consistent with its existing guidance

regarding the issuance of notices to appear.

2. With respect to individuals who are in removal

proceedings but not yet subject to a final order of removal, and who meet the above criteria:

98a

•

ICE should exercise prosecutorial discretion,

on an individual basis, for individuals who meet

the above criteria by deferring action for a period of two years, subject to renewal, in order to

prevent low priority individuals from being removed from the United States.

•

ICE is instructed to use its Office of the Public

Advocate to permit individuals who believe they

meet the above criteria to identify themselves

through a clear and efficient process.

•

ICE is directed to begin implementing this

process within 60 days of the date of this memorandum.

•

ICE is also instructed to immediately begin the

process of deferring action against individuals

who meet the above criteria whose cases have

already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.

3. With respect to the individuals who are not currently in removal proceedings and meet the above

criteria, and pass a background check:

•

USCIS should establish a clear and efficient

process for exercising prosecutorial discretion,

on an individual basis, by deferring action

against individuals who meet the above criteria

and are at least 15 years old, for a period of two

years, subject to renewal, in order to prevent

low priority individuals from being placed into

removal proceedings or removed from the

United States.

99a

•

The USCIS process shall also be available to

individuals subject to a final order of removal

regardless of their age.

•

USCIS is directed to begin implementing this

process within 60 days of the date of this memorandum.

For individuals who are granted deferred action by

either ICE or USCIS, USCIS shall accept applications

to determine whether these individuals qualify for work

authorization during this period of deferred action.

This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the

Congress, acting through its legislative authority, can

confer these rights. It remains for the executive

branch, however, to set forth policy for the exercise of

discretion within the framework of the existing law. I

have done so here.

/s/ JANET NAPOLITANO

JANET NAPOLITANO

100a

APPENDIX E

Nov. 20, 2014

MEMORANDUM FOR:

León Rodríguez

Director

U.S. Citizenship and Immigration Services

Thomas S. Winkowski

Acting Director

U.S. Immigration and Customs Enforcement

R. Gil Kerlikowske

Commissioner

U.S. Customs and Border Protection

FROM:

/s/

SUBJECT:

Jeh Charles Johnson

JEH CHARLES JOHNSON

Secretary

Exercising Prosecutorial Discretion with

Respect to Individuals Who Came to the

United States as Children and with Respect to Certain Individuals Who Are the

Parents of U.S. Citizens or Permanent

Residents

101a

This memorandum is intended to reflect new policies for the use of deferred action. By memorandum

dated June 15, 2012, Secretary Napolitano issued

guidance entitled Exercising Prosecutorial Discretion

with Respect to Individuals Who Came to the United

States as Children. The following supplements and

amends that guidance.

The Department of Homeland Security (DHS) and

its immigration components are responsible for enforcing the Nation’s immigration laws. Due to limited

resources, DHS and its Components cannot respond to

all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise

prosecutorial discretion in the enforcement of the law.

Secretary Napolitano noted two years ago, when she

issued her prosecutorial discretion guidance regarding

children, that “[o]ur Nation’s immigration laws must be

enforced in a strong and sensible manner. They are

not designed to be blindly enforced without consideration given to the individual circumstances of each case.”

Deferred action is a long-standing administrative

mechanism dating back decades, by which the Secretary of Homeland Security may defer the removal of an

undocumented immigrant for a period of time. 1 A

form of administrative relief similar to deferred action,

known then as “indefinite voluntary departure,” was

originally authorized by the Reagan and Bush Administrations to defer the deportations of an estimated

Deferred action, in one form or another, dates back to at least

the 1960s. “Deferred action” per se dates back at least as far as

1975. See, Immigration and Naturalization Service, Operation Instructions § 103.1(a)(1)(ii) (1975).

1

102a

1.5 million undocumented spouses and minor children

who did not qualify for legalization under the Immigration Reform and Control Act of 1986. Known as

the “Family Fairness” program, the policy was specifically implemented to promote the humane enforcement of the law and ensure family unity.

Deferred action is a form of prosecutorial discretion

by which the Secretary deprioritizes an individual’s

case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission. As an act of prosecutorial discretion, deferred action is legally available so long as it is

granted on a case-by-case basis, and it may be terminated at any time at the agency’s discretion. Deferred action does not confer any form of legal status in

this country, much less citizenship; it simply means

that, for a specified period of time, an individual is

permitted to be lawfully present in the United States.

Nor can deferred action itself lead to a green card.

Although deferred action is not expressly conferred by

statute, the practice is referenced and therefore endorsed by implication in several federal statutes. 2

INA § 204(a)(1)(D)(i)(II), (IV) (Violence Against Women Act

(VAWA) self-petitioners not in removal proceedings are “eligible

for deferred action and employment authorization”); INA

§ 237(d)(2) (DHS may grant stay of removal to applicants for T or

U visas but that denial of a stay request “shall not preclude the

alien from applying for . . . deferred action”); REAL ID Act of

2005 § 202(c)(2)(B)(viii), Pub. L. 109-13 (requiring states to examine documentary evidence of lawfal status for driver’s license

eligibility purposes, including “approved deferred action status”);

National Defense Authorization Act for Fiscal Year 2004 §

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