Petition for Writ of Certiorari — Department of Homeland Security, et al., Petitioners v. Casa de Maryland, et al.

Supreme Court briefMay 24, 2019

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Text

No.

In the Supreme Court of the United States

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

CASA DE MARYLAND, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOSEPH H. HUNT

Assistant Attorney

General

JEFFREY B. WALL

Deputy Solicitor General

HASHIM M. MOOPPAN

Deputy Assistant Attorney

General

JONATHAN Y. ELLIS

Assistant to the Solicitor

General

MARK B. STERN

ABBY C. WRIGHT

THOMAS PULHAM

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

This dispute concerns the policy of immigration enforcement discretion known as Deferred Action for

Childhood Arrivals (DACA). In 2016, this Court affirmed, by an equally divided Court, a decision of the

Fifth Circuit holding that two related U.S. Department

of Homeland Security (DHS) discretionary enforcement

policies, including an expansion of the DACA policy, were

likely unlawful and should be enjoined. See United

States v. Texas, 136 S. Ct. 2271 (per curiam). In September 2017, DHS determined that the original DACA

policy was unlawful and would likely be struck down by

the courts on the same grounds as the related policies.

DHS thus instituted an orderly wind-down of the DACA

policy. The questions presented are as follows:

1. Whether DHS’s decision to wind down the DACA

policy is judicially reviewable.

2. Whether DHS’s decision to wind down the DACA

policy is lawful.

(I)

PARTIES TO THE PROCEEDING

Petitioners are Donald J. Trump, President of the

United States; William P. Barr, Attorney General of the

United States; Kevin K. McAleenan, Acting Secretary

of Homeland Security; U.S. Department of Homeland Security; L. Francis Cissna, Director of U.S. Citizenship and

Immigration Services; U.S. Citizenship and Immigration

Services; Matthew T. Albence, Acting Director of U.S.

Immigration and Customs Enforcement; U.S. Immigration and Customs Enforcement; John P. Sanders, Acting

Commissioner of U.S. Customs and Border Protection;

U.S. Customs and Border Protection; and the United

States.

Respondents are Casa de Maryland; Coalition for Humane Immigrant Rights; Fair Immigration Movement;

One America; Promise Arizona; Make the Road Pennsylvania; Michigan United; Arkansas United Community

Coalition; Junta for Progressive Action, Inc.; Angel Aguiluz; Estefany Rodriguez; Heymi Elvir Maldonado; Nathaly Uribe Robledo; Eliseo Mages; Jesus Eusebio Perez;

Josue Aguiluz; Missael Garcia; Jose Aguiluz; Maricruz

Abarca; Annabelle Martines Herra; Maria Joseline Cuellar Baldelomar; Brenda Moreno Martinez; Luis Aguilar;

J.M.O., a minor child; Adriana Gonzales Magos, next of

friend to J.M.O.; A.M., a minor child; Isabel Cristina Aguilar Arce, next of friend to A.M.

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statutory provisions involved ...................................................... 1

Statement ...................................................................................... 2

Reasons for granting the petition ............................................. 16

A. The questions presented warrant the Court’s

immediate review ........................................................... 17

B. This case squarely presents the reviewability and

the lawfulness of DACA’s rescission ........................... 18

C. The Court should expedite consideration of this

petition, grant the government’s petitions before

the summer recess, and consolidate the cases for

consideration next Term ............................................... 20

Conclusion ................................................................................... 22

Appendix A — Court of appeals opinion (May 17, 2019) ...... 1a

Appendix B — District court memorandum opinion

(Mar. 5, 2018) ............................................ 62a

TABLE OF AUTHORITIES

Cases:

Arizona v. United States, 567 U.S. 387 (2012) ..................... 2

DHS v. Regents of the Univ. of Cal., 138 S. Ct. 1182

(2018) ................................................................................ 9, 17

Heckler v. Chaney, 470 U.S. 821 (1985) ........................... 2, 12

Reno v. American-Arab Anti-Discrimination

Comm., 525 U.S. 471 (1999) ....................................... 2, 3, 13

Texas v. United States:

86 F. Supp. 3d 591 (S.D. Tex.), aff ’d, 809 F.3d 134

(5th Cir. 2015), aff ’d, 136 S. Ct. 2271 (2016) ................ 5

809 F.3d 134 (5th Cir. 2015), aff ’d, 136 S. Ct. 2271

(2016).......................................................................... 5, 13

United States v. Texas, 136 S. Ct. 2271 (2016) ..................... 5

(III)

Case—Continued:

Page

Whitley v. Albers, 475 U.S. 312 (1986)................................. 19

Statutes and regulation:

Administrative Procedure Act, 5 U.S.C. 551 et seq.............. 5

5 U.S.C. 553(b)(A) ........................................................... 13

5 U.S.C. 701(a)(2)............................................................. 12

Immigration and Nationality Act,

8 U.S.C. 1101 et seq. .............................................................. 2

8 U.S.C. 1103(a)(1)............................................................. 2

8 U.S.C. 1158(b)(1)(A) ....................................................... 2

8 U.S.C. 1182(a) (2012 & Supp. V 2017) .......................... 2

8 U.S.C. 1227(a) (2012 & Supp. V 2017) .......................... 2

8 U.S.C. 1229(b) ................................................................. 2

8 U.S.C. 1252 .............................................................. 12, 13

8 U.S.C. 1252(b)(9) .......................................................... 13

8 U.S.C. 1252(g) ............................................................... 12

6 U.S.C. 202(5) (2012 & Supp. V 2017) .................................. 3

28 U.S.C. 1292(b) ..................................................................... 8

8 C.F.R. 274a.12(c)(14) ............................................................ 3

Miscellaneous:

William P. Barr, Att’y Gen., Remarks to the

American Law Institute on Nationwide

Injunctions (May 21, 2019), https://go.usa.

gov/xmGBx .......................................................................... 18

Jordan Fabian, Trump Rolls Out “Pro-American”

Immigration Plan, The Hill, May 16, 2019,

https://thehill.com/homenews/administration/

444092-trump-rolls-out-pro-americanimmigration-plan .............................................................. 18

Miscellaneous—Continued:

Page

Ted Mitchell, Congress Must Act to Protect

Dreamers Still Living in Legal Limbo, Fox News,

May 21, 2019, https://www.foxnews.com/opinion/

ted-mitchell-congress-must-act-to-protectdreamers-still-living-in-legal-limbo .................................. 18

S. 1291, 107th Cong., 1st Sess. (2001) .................................... 3

S. 1545, 108th Cong., 1st Sess. (2003) .................................... 3

S. 2075, 109th Cong., 1st Sess. (2005) .................................... 3

S. 2205, 110th Cong., 1st Sess. (2007) .................................... 3

S. 3827, 111th Cong., 2d Sess. (2010) ..................................... 3

S.M., What the Supreme Court’s Silence on

DACA Means, The Economist, Jan. 23, 2019,

https://www.economist.com/democracy-inamerica/2019/01/23/what-the-supreme-courtssilence-on-daca-means........................................................ 18

U.S. Citizenship & Immigration Servs.,

U.S. Dep’t of Homeland Sec.:

Deferred Action for Childhood Arrivals:

Frequently Asked Questions, https://go.usa.

gov/xngCd (last updated Mar. 8, 2018) ........................ 4

Guidance on Rejected DACA Requests,

https://go.usa.gov/xPVmG (last updated

Feb. 14, 2018) .................................................................. 7

U.S. Dep’t of Homeland Sec., Frequently Asked

Questions: Rescission of Deferred Action for

Childhood Arrivals (DACA), https://go.usa.

gov/xPVmE (last published Sept. 5, 2017) ......................... 7

In the Supreme Court of the United States

No.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

CASA DE MARYLAND, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the U.S. Department of Homeland Security and other federal parties,

respectfully petitions for a writ of certiorari to the

United States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

1a-61a) is not yet reported but is available at 2019 WL

2147204. The memorandum opinion of the district court

(App., infra, 62a-98a) is reported at 284 F. Supp. 3d 758.

JURISDICTION

The judgment of the court of appeals was entered on

May 17, 2019. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are set forth in the

appendix to the petition for a writ of certiorari in DHS

(1)

v. Regents of the University of California, No. 18-587,

at 127a-143a (filed Nov. 5, 2018) (Regents App.).

STATEMENT

1. a. The Immigration and Nationality Act (INA),

8 U.S.C. 1101 et seq., charges the Secretary of Homeland Security “with the administration and enforcement” of the immigration laws. 8 U.S.C. 1103(a)(1). Individual aliens are subject to removal if, inter alia,

“they were inadmissible at the time of entry, have been

convicted of certain crimes, or meet other criteria set

by federal law.” Arizona v. United States, 567 U.S. 387,

396 (2012); see 8 U.S.C. 1182(a) (2012 & Supp. V 2017);

see also 8 U.S.C. 1227(a) (2012 & Supp. V 2017). As a

practical matter, however, the federal government cannot remove every removable alien, and a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 567 U.S. at 396.

For any alien subject to removal, U.S. Department

of Homeland Security (DHS) officials must first “decide

whether it makes sense to pursue removal at all.” Arizona, 567 U.S. at 396. After removal proceedings begin,

government officials may decide to grant discretionary

protection or relief from removal, such as asylum or cancellation of removal. See 8 U.S.C. 1158(b)(1)(A), 1229b.

And, “[a]t each stage” of the process, “the Executive has

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

(1999) (AADC). In making these decisions, like other

agencies exercising enforcement discretion, DHS must

engage in “a complicated balancing of a number of factors which are peculiarly within its expertise.” Heckler

v. Chaney, 470 U.S. 821, 831 (1985). Recognizing the

need for such balancing, Congress has provided that the

“Secretary [of Homeland Security] shall be responsible

for * * * [e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. 202(5) (2012 &

Supp. V 2017).

b. In 2012, DHS announced the policy known as

Deferred Action for Childhood Arrivals (DACA). See

Regents App. 97a-101a. Deferred action is a practice in

which the Secretary exercises discretion to notify an alien of a decision to forbear from seeking the alien’s removal for a designated period. AADC, 525 U.S. at 484.

Under DHS regulations, aliens granted deferred action

may apply for and receive work authorization for the

duration of the deferred-action grant if they establish

economic necessity. 8 C.F.R. 274a.12(c)(14). A grant of

deferred action does not confer lawful immigration status or provide any defense to removal. DHS retains discretion to revoke deferred action unilaterally, and the

alien remains removable at any time.

DACA made deferred action available to “certain

young people who were brought to this country as children.” Regents App. 97a. The INA does not provide

any exemptions or special relief from removal for such

individuals. And dating back to at least 2001, bipartisan

efforts to provide such relief legislatively had failed.1

Under the DACA policy, following successful completion of a background check and other review, an alien

would receive deferred action for a period of two years,

subject to renewal. Id. at 99a-100a. The policy made

clear that it “confer[red] no substantive right, immigration status or pathway to citizenship,” because “[o]nly

See, e.g., S. 1291, 107th Cong., 1st Sess. (2001); S. 1545,

108th Cong., 1st Sess. (2003); S. 2075, 109th Cong., 1st Sess. (2005);

S. 2205, 110th Cong., 1st Sess. (2007); S. 3827, 111th Cong., 2d Sess.

(2010).

the Congress, acting through its legislative authority,

can confer these rights.” Id. at 101a.

DHS explained that information provided in the

DACA request process would be protected from disclosure for the purpose of immigration enforcement proceedings unless certain criteria related to national security or public safety were satisfied, or the individual met

the requirements for a Notice to Appear. U.S. Citizenship & Immigration Servs., DHS, Deferred Action

for Childhood Arrivals: Frequently Asked Questions,

https://go.usa.gov/xngCd. DHS also stated, however,

that this information-sharing policy “may be modified,

superseded, or rescinded at any time without notice,”

and that it “may not be relied upon to create any right

or benefit, substantive or procedural, enforceable at law

by any party in any administrative, civil, or criminal

matter.” Ibid.

Later, in 2014, DHS created a new policy of enforcement discretion referred to as Deferred Action for Parents of Americans and Lawful Permanent Residents

(DAPA). See Regents App. 102a-110a. Through a process expressly designed to be “similar to DACA,”

DAPA made deferred action available for certain individuals who had a child who was a U.S. citizen or lawful

permanent resident. Id. at 107a; see id. at 107a-108a.

At the same time, DHS also expanded DACA by extending the deferred-action period from two to three years

and by loosening the age and residency criteria. Id. at

106a-107a.

c. Soon thereafter, Texas and 25 other States brought

suit in the Southern District of Texas to enjoin DAPA

and the expansion of DACA. The district court issued a

nationwide preliminary injunction, finding a likelihood

of success on the claim that the DAPA and expanded

DACA memorandum was a “ ‘substantive’ rule that should

have undergone the notice-and-comment rule making

procedure” required by the Administrative Procedure

Act (APA), 5 U.S.C. 551 et seq. Texas v. United States,

86 F. Supp. 3d 591, 671 (S.D. Tex. 2015); see id. at 607,

647, 664-678.

The Fifth Circuit affirmed the injunction, holding

that the DAPA and expanded DACA policies likely violated both the APA and the INA. Texas v. United

States, 809 F.3d 134, 146, 170-186 (2015). The court of

appeals concluded that plaintiffs had “established a substantial likelihood of success on the merits of their procedural claim” that DAPA and expanded DACA were

invalidly instituted without notice and comment. Id. at

178. The court also concluded, “as an alternate and additional ground,” that the policies were substantively

contrary to law. Ibid. The court observed that the INA

contains an “intricate system of immigration classifications and employment eligibility,” and “does not grant

the Secretary discretion to grant deferred action and

lawful presence on a class-wide basis to 4.3 million otherwise removable aliens.” Id. at 184, 186 n.202. It also

noted that Congress had repeatedly declined to enact

legislation “closely resembl[ing] DACA and DAPA.”

Id. at 185.

After briefing and argument, this Court affirmed the

Fifth Circuit’s judgment by an equally divided Court,

United States v. Texas, 136 S. Ct. 2271, 2272 (2016) (per

curiam), leaving the nationwide injunction in place.

d. In June 2017, Texas and other plaintiff States in

the Texas case announced their intention to amend their

complaint to challenge the original DACA policy. D. Ct.

Doc. 26-1, at 238-240 (Nov. 15, 2017). They asserted that

“[f ]or the[] same reasons that DAPA and Expanded

DACA’s unilateral Executive Branch conferral of eligibility for lawful presence and work authorization was

unlawful, the original June 15, 2012 DACA memorandum is also unlawful.” Id. at 239.

On September 5, 2017, rather than confront litigation challenging DACA on essentially the same grounds

that had succeeded in Texas before the same court for

the DAPA and expanded DACA policies, DHS decided

to wind down DACA in an orderly fashion. Regents

App. 111a-119a. In the rescission memorandum, thenActing Secretary of Homeland Security Elaine C. Duke

explained that, “[t]aking into consideration the Supreme

Court’s and the Fifth Circuit’s rulings in the ongoing

litigation,” as well as the Attorney General’s view that

the DACA policy was unlawful and that the “potentially

imminent” challenge to DACA would “likely * * * yield

similar results” as the Texas litigation, “it is clear that

the June 15, 2012 DACA program should be terminated.” Id. at 116a-117a. The Acting Secretary accordingly announced that, “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,” the original DACA memorandum was “rescind[ed].” Id. at 117a.

The rescission memorandum stated, however, that

the government “[w]ill not terminate the grants of previously issued deferred action * * * solely based on the

directives in this memorandum” for the remaining twoyear periods. Regents App. 118a. The memorandum also

explained that DHS would “provide a limited window in

which it w[ould] adjudicate certain requests for DACA.”

Id. at 117a. Specifically, DHS would “adjudicate—on an

individual, case by case basis—properly filed pending

DACA renewal requests * * * from current beneficiaries that have been accepted by the Department as of the

date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this

memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.” Id. at

117a-118a.

DHS has also made clear that the “informationsharing policy has not changed in any way since it was

first announced, including as a result of the Sept. 5,

2017” DACA rescission. U.S. Citizenship & Immigration Servs., DHS, Guidance on Rejected DACA Requests,

https://go.usa.gov/xPVmG; see DHS, Frequently Asked

Questions: Rescission of Deferred Action for Childhood

Arrivals (DACA), https://go.usa.gov/xPVmE.

e. Shortly after DHS’s decision to rescind DACA,

challenges to the rescission were filed across the country, including in the Northern District of California, the

Eastern District of New York, the District of Columbia,

and, in this case, the District of Maryland. See, e.g.,

Regents of the Univ. of Cal. v. DHS, No. 17-cv-5211

(N.D. Cal. filed Sept. 8, 2017); NAACP v. Trump, No.

17-cv-1907 (D.D.C. filed Sept. 18, 2017); Batalla Vidal

v. Nielsen, No. 16-cv-4756 (E.D.N.Y. second amended

complaint filed Sept. 19, 2017). The plaintiffs alleged

that the termination of DACA is unlawful because it is

arbitrary and capricious under the APA; violates the

APA’s requirement for notice-and-comment rulemaking; and denies respondents equal protection and due

process. See, e.g., App., infra, 12a. The government

defended, arguing that the plaintiffs’ claims are not reviewable under the APA and that, in any event, DHS

rationally explained the decision to wind down the discretionary DACA policy, given the agency’s conclusion

that the policy is unlawful and the imminent risk of its

being invalidated in the Texas case, and that the plaintiffs’ claims are otherwise without merit.

The first nationwide injunction soon followed. On

January 9, 2018, in Regents of the Univ. of Cal. v. DHS,

supra, the district court entered a preliminary injunction requiring the government 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,” with certain exceptions. Regents

App. 66a; see id. at 1a-70a. The court determined that,

although agency decisions “not to prosecute or initiate

enforcement actions are generally not reviewable,” the

rescission of DACA was different because it concerned

a “broad enforcement polic[y],” rather than an “ ‘individual enforcement decision,’ ” and the “main” rationale

for rescinding the prior policy was its “supposed illegality,” which the court reasoned it could assess. Id. at

27a-28a, 30a (citation omitted). The court concluded

that the plaintiffs were likely to succeed in showing that

the rescission was arbitrary and capricious because, in

the court’s view, it was “based on a flawed legal premise.” Id. at 42a.

The same court largely denied the government’s

motion to dismiss three days later. Regents App. 71a90a. It declined to dismiss respondents’ arbitrary-andcapricious claim for the same reasons it granted the nationwide preliminary injunction. Id. at 72a. And the

court declined to dismiss the equal-protection claim,

concluding that respondents’ allegations “raise a plausible inference that racial animus towards Mexicans and

Latinos was a motivating factor in the decision to end

DACA.” Id. at 87a; see id. at 83a-87a. The court sua

sponte certified that order for interlocutory appeal pursuant to 28 U.S.C. 1292(b). Regents App. 89a.

f. Less than a week later, the merits of the dispute

reached this Court for the first time. On January 18,

2018, the government filed a petition for a writ of certiorari before judgment seeking review the Regents

court’s orders. DHS v. Regents of the Univ. of Cal., No.

17-1003. The government contended that the district

court’s unprecedented order requiring DHS to maintain

a discretionary policy of non-enforcement on a nationwide basis warranted this Court’s immediate review. In

February 2018, the Court denied the government’s petition. DHS v. Regents of the Univ. of Cal., 138 S. Ct.

1182. But the Court stated that its order was “without

prejudice” and it “assumed that the Court of Appeals

w[ould] proceed expeditiously to decide this case.” Ibid.

When the government’s Regents appeal remained

pending before the Ninth Circuit eight months later,

the government filed a second petition for a writ of certiorari before judgment in Regents, along with similar

petitions for writs of certiorari before judgment to the

Second and D.C. Circuits, both of which were (and are)

considering appeals of similar orders. See DHS v. Regents of the Univ. of Cal., No. 18-587 (filed Nov. 5, 2018);

Trump v. NAACP, No. 18-588 (filed Nov. 5, 2018);

McAleenan v. Batalla Vidal, No. 18-589 (filed Nov. 5,

2018). The government explained that the petitions were

necessary for the Court to consider and resolve this important dispute during the current Term. While briefing proceeded on those petitions, the Ninth Circuit resolved the appeal in Regents, affirming the district

court’s orders. Regents Gov’t Supp. Br. App. 1a-78a.

The government filed a supplemental brief, alerting this

Court to the Ninth Circuit’s decision and suggesting

that the government’s petition in that case should be

considered a petition for a writ of certiorari after judgment, in keeping with the Court’s practice in similar

cases. Regents Gov’t Supp. Br. 1. No other party objected to the government’s suggestion.

The government’s petitions in Regents, Batalla Vidal, and NAACP were distributed to the Court for consideration at its January 11, 2019 Conference. They

were redistributed for consideration at the Court’s January 18, 2019 Conference. No further activity has been

recorded on the dockets.

2. Meanwhile, this case proceeded in parallel in the

District of Maryland. In March 2018, the district court

granted the government’s motion for summary judgment in relevant part. App., infra, 62a-98a. Although

the court concluded that respondents’ claims were justiciable, id. at 75a-79a, it rejected on the merits each of

respondents’ challenges to DACA’s rescission, id. at

81a-97a. The court reasoned that the rescission was exempt from APA’s notice-and-comment requirements

because the rescission memorandum provides guidance

on the agency’s “exercise of discretion,” not “a rule with

the force of law.” Id. at 82a. It rejected respondents’

arbitrary-and-capricious challenge, observing that “[r]egardless of whether DACA is, in fact, lawful or unlawful,” the agency’s “belief that it was unlawful and subject to serious legal challenge is completely rational.”

Id. at 83a. And the court concluded that respondents’

allegation of discriminatory intent was “unsupported by

the record,” and that they otherwise failed to establish

a violation of equal-protection, due-process, or estoppel

principles. Id. at 93a; see id. at 84a-95a. Respondents

appealed.2

The district court also concluded that it was “theoretically possible” that the government might use information obtained from

3. In June 2018, while this case was pending before

the Fourth Circuit, then-Secretary of Homeland Security Kirstjen M. Nielsen issued a memorandum in response to the district court in NAACP v. Trump, supra,

providing further explanation of DHS’s decision to rescind DACA. Regents App. 120a-126a. Secretary Nielsen concluded that “the DACA policy properly was—

and should be—rescinded, for several separate and independently sufficient reasons.” Id. at 122a. First, the

Secretary agreed that “the DACA policy was contrary

to law” and explained that “[a]ny arguable distinctions

between the DAPA and DACA policies” were “not sufficiently material” to convince her otherwise. Ibid.; see

id. at 122a-123a. Second, the Secretary reasoned that,

in any event, “[l]ike Acting Secretary Duke, [she]

lack[s] sufficient confidence in the DACA policy’s legality to continue this non-enforcement policy, whether the

courts would ultimately uphold it or not.” Id. at 123a.

She noted that “[t]here are sound reasons for a law enforcement agency to avoid discretionary policies that

are legally questionable.” Ibid. Third, the Secretary

offered several “reasons of enforcement policy to rescind the DACA policy,” regardless of whether the policy is “illegal or legally questionable.” Ibid. The Secretary also explained that, although she “do[es] not come

to these conclusions lightly,” “neither any individual’s

reliance on the expected continuation of the DACA pol-

DACA requestors in a manner inconsistent with estoppel principles,

and therefore enjoined DHS to comply with the information-sharing

policy as “first announced in 2012” pending further order from the

court. App., infra, 95a; 3/15/18 Am. Order 1; see App., infra, 95a97a. The court of appeals, however, vacated that injunction, and it

is not at issue in this petition. App., infra, 33a-35a.

icy nor the sympathetic circumstances of DACA recipients as a class” outweigh the reasons to end the policy.

Id. at 125a. The parties addressed the implications of

Secretary Nielsen’s memorandum for this case in their

briefs to the court of appeals. See, e.g., Gov’t C.A. Br.

38-39, 41-42; Resps. C.A. Resp. & Reply Br. 16.

4. On May 17, 2019, a divided panel of the court of

appeals affirmed in part, reversed in part, vacated in

part, dismissed in part, and remanded the case to the

district court. App., infra, 1a-37a.

a. The panel majority first determined, like the district court, that respondents’ claims were justiciable.

App., infra, 14a-25a. The majority acknowledged that,

under Chaney, supra, an agency’s decision whether “to

enforce the substantive law” was presumptively “committed to agency discretion by law,” 5 U.S.C. 701(a)(2).

App., infra, 19a; see id. at 18a-19a. But it concluded that

the presumption was inapplicable here. Id. at 19a-23a.

Because DACA’s rescission was a “[m]ajor agency policy decision[],” rather than an exercise of enforcement

discretion “in an individual case,” the court concluded

that the rescission was “not a ‘Chaney-type enforcement

action.’ ” Id. at 19a-20a (brackets and citation omitted).

The court of appeals further concluded that Section

1252 of the INA did not require that challenges to

DACA’s rescission be raised only at the behest of an individual alien after a final order of removal. App., infra,

14a-16a. In the court’s view, the rescission of DACA

was not a “ ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders’ ” such

that Section 1252(g) would preclude review prior to a

final order of removal. Id. at 14a (quoting 8 U.S.C.

1252(g)). And it reasoned that the “ ‘zipper’ clause” in

Section 1252(b)(9), AADC, 525 U.S. at 483—which provides that “[ j]udicial review of all questions of law and

fact * * * arising from any action taken * * * to remove an alien * * * shall be available only in judicial

review of a final order under [Section 1252],” 8 U.S.C.

1252(b)(9)—“applies only with respect to review of an

order of removal under [8 U.S.C. § 1252(a)(1)].” App.,

infra, 16a (citation omitted; brackets in original).

b. On the merits, the court of appeals agreed with

every court to have considered the issue that DACA’s

rescission did not violate the procedural requirements

in the APA. App., infra, 25a-28a. The court observed

that while the rescission removed a “mechanism under

which individuals could receive deferred action,” it did

not create any “ ‘new binding rule of substantive law’ ”

or “curtail [DHS’s] discretion to make deferred action

available on a case-by-case or ad hoc basis.” Id. at 27a28a (citation omitted). The court thus concluded that

the rescission memorandum was a “general statement[]

of policy” to which the APA’s notice-and-comment requirements “do[] not apply.” Id. at 26a (quoting 5 U.S.C.

553(b)(A)).

The court of appeals determined, however, that the

rescission was substantively arbitrary and capricious,

because DHS “failed to give a reasoned explanation for

the change in policy, particularly given the significant

reliance interests involved.” App., infra, 31a. The court

rejected DHS’s reliance on the Texas litigation as justifying the change, observing that “DACA and DAPA are

not identical.” Id. at 32a (quoting Texas, 809 F.3d at

174). It faulted DHS for not explaining “why it was

likely that the district court in the Texas litigation

would have enjoined DACA.” Ibid. And the court of

appeals criticized DHS for not “adequately account[ing]

for the reliance interests” of individuals who would be

affected by the rescission of the policy. Id. at 33a. In a

footnote, the court refused to consider the explanation

in Secretary Nielsen’s June 22 memorandum on the

ground that the memorandum “was not part of the administrative record in this appeal.” Id. at 33a n.18.

Accordingly, the court of appeals reversed the district court’s arbitrary-and-capricious ruling, vacated

DACA’s rescission in its entirety, and remanded the

matter for “further proceedings consistent with this

opinion.” App., infra, 36a.3 In light of that disposition,

the court of appeals declined to consider whether DHS’s

“conclusions about DACA’s legality [we]re substantively incorrect.” Id. at 31a n.17. It also “decline[d] to

decide whether DACA’s rescission violates the Fifth

Amendment’s due process and equal protection guarantees.” Id. at 35a. As to the constitutional claims, the

court “vacate[d] the district court’s judgment on th[o]se

issues and dismiss[ed] those claims.” Id. at 37a.

c. Judge Richardson concurred in part and dissented

in part. App., infra, 38a-61a. In his view, “the rescission

of DACA is judicially unreviewable under the APA.” Id.

at 42a. Judge Richardson explained that “[d]iscretion

in prosecutorial enforcement is deeply rooted in the

Constitution’s separation of powers.” Id. at 43a. He observed that “[i]t is normally neither appropriate nor

Because the court of appeals vacated the rescission in its entirety, should the decision take effect, it would alter the status quo

and require DHS to, among other things, accept new DACA requests in addition to renewal requests (as required by the Regents

and Batalla Vidal injunctions). Accordingly, the government intends to file a motion in the court of appeals shortly, asking the court

to stay its mandate.

necessary for judges to involve themselves in the decision to bring, or not to bring, enforcement actions.” Id.

at 44a. And he concluded that DHS’s decision to rescind

the policy of enforcement discretion at issue here should

be treated no differently. See id. at 46a-49a.

Judge Richardson rejected the majority’s new “general enforcement policies” exception to these justiciability principles. App., infra, 49a. He noted that such an

exception was irreconcilable with Chaney, which itself

concerned “the FDA’s categorical decision not to take

enforcement action against a class of actors (drug manufacturers, prison administrators, and others in the

drug distribution chain)” for the use of certain lethalinjection drugs. Id. at 50a. He also reasoned that such

an exception was “untenable” as a logical matter. Id. at

51a. “Standardizing (i.e., generalizing) how agents use

their prosecutorial discretion does not alter its character.” Ibid. In fact, he reasoned, “[t]o find that discretionary enforcement decisions are unreviewable only

when inferior officers exercise single-shot” discretion

would “brush[] aside” the constitutional separation of

powers in which the responsibility for such decisions

“remains firmly at the President’s feet.” Id. at 51a-52a.

Judge Richardson determined that respondents’

constitutional claims were reviewable, App., infra, 56a

n.6, but he had “little trouble” agreeing with the district

court that they failed on the merits, id. at 56a. With

respect to due process, he reasoned that respondents

“fail[ed] to articulate a constitutionally protected life,

liberty, or property interest impacted by the rescission.” Ibid. Indeed, he noted that the DACA memorandum itself disavowed creating any rights or entitlements,

“acknowledg[ing] that such rights could be conferred

only by ‘Congress, acting through its legislative authority.’ ” Id. at 57a (quoting Regents App. 101a). With respect to equal protection, Judge Richardson concluded

that respondents had failed to create a “plausible inference” of invidious animus on the part of the Attorney

General or Acting Secretary in “tak[ing] the official

government actions at issue,” much less the showing of

“outrageous discrimination” that would be required to

establish what in essence is a selective-prosecution

claim. Id. at 58a-59a.

REASONS FOR GRANTING THE PETITION

In November 2018, the government filed petitions

for writs of certiorari before judgment to the Second,

Ninth, and D.C. Circuits to review decisions concluding

that the rescission of DACA either is or likely is unlawful. Six months later, those petitions remain pending

before this Court. In the meantime, by virtue of two

nationwide injunctions, the government remains obligated to keep in place a discretionary policy of nonenforcement that the Attorney General and DHS have

reasonably concluded is unlawful and that is sanctioning

an ongoing violation of federal immigration law by

nearly 700,000 aliens. That state of affairs calls for this

Court’s immediate action.

As the government has explained in its previous filings, the DACA policy is materially indistinguishable

from the related policies that the Fifth Circuit held

were contrary to federal immigration law in a decision

that four Justices of this Court voted to affirm. Consistent with that decision, DHS has decided that such a

policy should be adopted only by legislative action, not

unilateral executive action. Yet a divided panel of the

court of appeals in this case, like those earlier courts,

concluded that DHS somehow acted arbitrarily and capriciously by relying in part on the Fifth Circuit’s decision to reach that conclusion. The court of appeals’ decision is of a piece with the related decisions pending

before this Court, and it is wrong for the reasons explained in the petition for a writ of certiorari in DHS v.

Regents of the University of California, No. 18-587

(filed Nov. 5, 2018). At a minimum, these decisions

presently warrant this Court’s plenary review. Accordingly, to facilitate the Court’s orderly consideration of

this important dispute, the government respectfully

submits that the Court should expedite consideration of

this petition, grant the government’s petition in this

case and the other pending cases before the Court’s

summer recess, and consolidate the cases for review

next Term.

A. The Questions Presented Warrant The Court’s Immediate

Review

The government’s petition in Regents explains in detail why a grant of certiorari is necessary in order to

obtain an appropriately prompt resolution of this important dispute. Regents Pet. 15-17. In February 2018,

this Court recognized the need for an “expeditious[]”

resolution of this dispute in its order denying without

prejudice the government’s petition for a writ of certiorari before judgment in DHS v. Regents of the University of California, 138 S. Ct. 1182. Now 15 months later,

the government is still being required to retain a discretionary non-enforcement policy that DHS and the Attorney General have correctly concluded is unlawful

and that sanctions the ongoing violation of federal law

by more than half a million people.

In the meantime, the very existence of this pending

litigation (and lingering uncertainty) continues to impede efforts to enact legislation addressing the legitimate policy concerns underlying the DACA policy. See,

e.g., S.M., What the Supreme Court’s Silence on DACA

Means, The Economist, Jan. 23, 2019, https://www.

economist.com/democracy-in-america/2019/01/23/whatthe-supreme-courts-silence-on-daca-means (explaining

that the existing injunctions are frustrating legislative

negotiations); Ted Mitchell, Congress Must Act to Protect Dreamers Still Living in Legal Limbo, Fox News,

May 21, 2019, https://www.foxnews.com/opinion/tedmitchell-congress-must-act-to-protect-dreamers-stillliving-in-legal-limbo) (describing the current inability to

bring any legislation concerning DACA recipients to a

vote); Jordan Fabian, Trump Rolls Out “Pro-American”

Immigration Plan, The Hill, May 16, 2019, https://

thehill.com/homenews/administration/444092-trumprolls-out-pro-american-immigration-plan (noting that

DACA was left out of the Administration’s most recent

immigration proposal). As a result, “the political process has been pre-empted, and we have had over a year

of bitter political division that included a government

shutdown of unprecedented length.” William P. Barr,

Att’y Gen., Remarks to the American Law Institute on

Nationwide Injunctions (May 21, 2019), https://go.usa.

gov/xmGBx.

B. This Case Squarely Presents The Reviewability And The

Lawfulness Of DACA’s Rescission

Like the others pending before the Court, this case

squarely presents both of the questions presented. Respondents raise all of the principal challenges to the

lawfulness of the rescission of DACA, including that it

is arbitrary and capricious, that it should have gone

through notice-and-comment rulemaking, and that it violates equal-protection and due-process principles. The

government moved to dismiss or, in the alternative, for

summary judgment on all of respondents’ claims on justiciability and merits grounds. The district court rejected each of respondents’ claims on the merits. The

court of appeals passed on the justiciability issues and

rested its merits determination on essentially the same

arbitrary-and-capricious grounds on which the district

courts in Regents and in McAleenan v. Batalla Vidal,

No. 18-589 (filed Nov. 5, 2018), rested their nationwide

preliminary injunctions and the district court in Trump

v. NAACP, No. 18-588 (filed Nov. 5, 2018), based its final order of vacatur.

Moreover, although the court of appeals remanded

the case to the district court, it did so only after finally

resolving the arbitrary-and-capricious claim and “vacat[ing] as arbitrary and capricious” DACA’s rescission.

App., infra, 36a. And after declining to address the

merits of respondents’ constitutional challenges, the

court of appeals “vacate[d] the district court’s judgment

on th[o]se issues and dismiss[ed] those claims.” Id. at

37a. Because respondents pressed each of their constitutional claims in the court of appeals, they remain

free to reassert them in this Court as an alternative

ground for affirmance. See Whitley v. Albers, 475 U.S.

312, 326 (1986). A grant of certiorari to the Fourth Circuit would therefore bring before this Court the court

of appeals’ final determination of all of the relevant issues and permit the Court to address all of the relevant

claims.

C. The Court Should Expedite Consideration Of This

Petition, Grant The Government’s Petitions Before The

Summer Recess, And Consolidate The Cases For

Consideration Next Term

To ensure an adequate vehicle for the timely and definitive resolution of this dispute, the government respectfully submits that the Court should expedite consideration of this petition to permit consideration before

the Court’s summer recess, alongside the pending petitions in Regents, Batalla Vidal, and NAACP. Those petitions have now been pending before this Court for six

months. Briefing was completed on those petitions in

early January 2019. And although each of the petitions

was filed as a petition for a writ of certiorari before judgment, all parties appear to agree that given the Ninth

Circuit’s intervening decision, the Regents petition is

properly treated as an ordinary petition for a writ of certiorari after judgment. Resolution of those petitions before the summer recess is critical, if the petitions are

granted, to afford the government and the multiple private and state parties involved sufficient time to coordinate on a briefing schedule and to allow appropriate time

for each side to address, and for the Court to consider

and resolve, the many important issues presented by

these cases. And expedition of this petition would allow

the Court to consider this petition at the same time.

The Court should grant the petitions in this case, Regents, and NAACP, and consolidate those cases for further review. Although respondents in this case present

the principal challenges against the rescission of DACA

and the court of appeals’ decision represents its final resolution of those issues, the court did not pass on the constitutional claims and it refused to consider the implica-

tions of Secretary Nielsen’s June 22 memorandum before vacating DACA’s rescission. Granting the government’s petitions in Regents and NAACP would bring before this Court the Ninth Circuit’s resolution of the

equal-protection and due-process claims, and allow for

consideration of the NAACP court’s analysis of the June

22 memorandum. See Regents Gov’t Supp. Br. 7-10.

As for Batalla Vidal, as the government’s supplemental brief in Regents explained, the Court may still

wish to grant the Batalla Vidal petition to permit the

parties in those cases to participate in the Court’s consideration of the overlapping issues. See Regents Gov’t

Supp. Br. 10-11. The Court could, however, hold the

Batalla Vidal petition pending resolution of the government’s petitions in the other cases to ensure that an order vacating the nationwide injunction in Regents would

have immediate effect on the identical injunction issued

in the Batalla Vidal cases.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOSEPH H. HUNT

Assistant Attorney

General

JEFFREY B. WALL

Deputy Solicitor General

HASHIM M. MOOPPAN

Deputy Assistant Attorney

General

JONATHAN Y. ELLIS

Assistant to the Solicitor

General

MARK B. STERN

ABBY C. WRIGHT

THOMAS PULHAM

Attorneys

MAY 2019

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-1521

CASA DE MARYLAND; COALITION FOR HUMANE

IMMIGRANT RIGHTS (CHIRLA); FAIR IMMIGRATION

MOVEMENT (FIRM); ONE AMERICA; PROMISE ARIZONA;

MAKE THE ROAD PENNSYLVANIA; MICHIGAN UNITED;

ARKANSAS UNITED COMMUNITY COALITION; JUNTA

FOR PROGRESSIVE ACTION, INC.; ANGEL AGUILUZ;

ESTEFANY RODRIGUEZ; HEYMI ELVIR MALDONADO;

NATHALY URIBE ROBLEDO; ELISEO MAGES; JESUS

EUSEBIO PEREZ; JOSUE AGUILUZ; MISSAEL GARCIA;

JOSE AGUILUZ; MARICRUZ ABARCA; ANNABELLE

MARTINES HERRA; MARIA JOSELINE CUELLAR

BALDELOMAR; BRENDA MORENO MARTINEZ;

LUIS AGUILAR; J.M.O., A MINOR CHILD; ADRIANA

GONZALES MAGOS, NEXT OF FRIEND TO J.M.O.;

A.M., A MINOR CHILD; ISABEL CRISTINA AGUILAR

ARCE, NEXT OF FRIEND TO A.M.,

PLAINTIFFS-APPELLANTS

U.S. DEPARTMENT OF HOMELAND SECURITY;

U.S. CITIZENSHIP AND IMMIGRATION SERVICES;

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

U.S. CUSTOMS AND BORDER PROTECTION; DONALD J.

TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF

THE UNITED STATES; WILLIAM P. BARR, IN HIS

OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE

UNITED STATES; ELAINE C. DUKE, IN HER OFFICIAL

CAPACITY AS ACTING SECRETARY OF HOMELAND

SECURITY; L. FRANCIS CISSNA, IN HIS OFFICIAL

CAPACITY AS DIRECTOR OF U.S. CITIZENSHIP AND

IMMIGRATION SERVICES; RONALD D. VITIELLO, IN HIS

OFFICIAL CAPACITY AS ACTING DIRECTOR OF

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

(1a)

KEVIN K. MCALEENAN, IN HIS OFFICIAL CAPACITY

IN HIS OFFICIAL CAPACITY AS ACTING COMMISSIONER

OF CUSTOM AND BORDER PROTECTION; UNITED STATES

OF AMERICA, DEFENDANTS-APPELLEES

18-1522

CASA DE MARYLAND; COALITION FOR HUMANE

IMMIGRANT RIGHTS (CHIRLA); FAIR IMMIGRATION

MOVEMENT (FIRM); ONE AMERICA; PROMISE ARIZONA;

MAKE THE ROAD PENNSYLVANIA; MICHIGAN UNITED;

ARKANSAS UNITED COMMUNITY COALITION; JUNTA

FOR PROGRESSIVE ACTION, INC.; ANGEL AGUILUZ;

ESTEFANY RODRIGUEZ; HEYMI ELVIR MALDONADO;

NATHALY URIBE ROBLEDO; ELISEO MAGES; JESUS

EUSEBIO PEREZ; JOSUE AGUILUZ; MISSAEL GARCIA;

JOSE AGUILUZ; MARICRUZ ABARCA; ANNABELLE

MARTINES HERRA; MARIA JOSELINE CUELLAR

BALDELOMAR; BRENDA MORENO MARTINEZ;

LUIS AGUILAR; J.M.O., A MINOR CHILD; ADRIANA

GONZALES MAGOS, NEXT OF FRIEND TO J.M.O.;

A.M., A MINOR CHILD; ISABEL CRISTINA AGUILAR

ARCE, NEXT OF FRIEND TO A.M.,

PLAINTIFFS-APPELLEES

U.S. DEPARTMENT OF HOMELAND SECURITY;

U.S. CITIZENSHIP AND IMMIGRATION SERVICES;

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

U.S. CUSTOMS AND BORDER PROTECTION; DONALD J.

TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF

THE UNITED STATES; WILLIAM P. BARR, IN HIS

OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE

UNITED STATES; ELAINE C. DUKE, IN HER OFFICIAL

CAPACITY AS ACTING SECRETARY OF HOMELAND

SECURITY; L. FRANCIS CISSNA, IN HIS OFFICIAL

CAPACITY AS DIRECTOR OF U.S. CITIZENSHIP AND

IMMIGRATION SERVICES; RONALD D. VITIELLO, IN HIS

OFFICIAL CAPACITY AS ACTING DIRECTOR OF

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

KEVIN K. MCALEENAN, IN HIS OFFICIAL CAPACITY

IN HIS OFFICIAL CAPACITY AS ACTING COMMISSIONER

OF CUSTOM AND BORDER PROTECTION; UNITED STATES

OF AMERICA, DEFENDANTS-APPELLANTS

Argued: Dec. 11, 2018

Decided: May 17, 2019

Appeals from the United States District Court for the

District of Maryland, at Greenbelt. Roger W. Titus,

Senior District Judge. (8:17-cv-02942-RWT)

Before: KING, DIAZ, and RICHARDSON, Circuit Judges.

DIAZ, Circuit Judge:

In 2012, the Secretary of Homeland Security established the Deferred Action for Childhood Arrivals

(“DACA”) policy. Under this policy, certain noncitizens who came to the United States as children could

receive deferred action—a decision forbearing their removal from the country. Hundreds of thousands of individuals, including those who appear as Plaintiffs in

these appeals, applied for and received grants of deferred action under DACA.

In 2017, the Acting Secretary of Homeland Security

rescinded DACA, which prompted a flurry of lawsuits

across the country challenging the action. Plaintiffs in

these appeals (a group of individuals and organizations)

allege that the government’s decision to rescind DACA

(and its changes to policies governing the use of information provided by DACA applicants) violates the Fifth

Amendment to the U.S. Constitution, as well as the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq.,

and common law principles of estoppel.

On the government’s motion for summary judgment,

the district court determined that Plaintiffs’ challenges

were subject to judicial review, that the rescission of

DACA and changes to the government’s policies on use

of DACA applicant information did not violate the APA,

that the constitutional claims were without merit, and

that DACA’s rescission did not violate principles of estoppel. The court, however, ordered the government

(on grounds of estoppel) to comply with the policies

promulgated in 2012 on the use of information provided

by DACA applicants and enjoined it from altering these

policies.

As we explain, we agree with the district court that

Plaintiffs’ challenges are subject to judicial review.

We also agree with the district court that the government’s decision to rescind DACA did not require notice

and comment under the APA. But the decision nonetheless violated the APA because—on the administrative record before us—it was not adequately explained

and thus was arbitrary and capricious. We also conclude that the district court erred in ordering the government to comply with its policies promulgated in 2012

on the use of information provided by DACA applicants

and enjoining it from altering those policies.

Given our resolution, we decline, under the doctrine

of constitutional avoidance, to decide whether Plaintiffs’

Fifth Amendment rights were violated. Nor do we address Plaintiffs’ remaining arguments challenging the

district court’s grant of summary judgment.

Before turning to the record material, some context

is in order. The Secretary of Homeland Security is

“charged with the administration and enforcement” of

the Immigration and Nationality Act (“INA”). 8 U.S.C.

§ 1103(a)(1). One of the enforcement tools available

under the INA is the removal of aliens from the United

States. “Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain

crimes, or meet other criteria set by federal law.” Arizona v. United States, 567 U.S. 387, 396 (2012); see

8 U.S.C. §§ 1182(a), 1227(a) (listing classes of deportable

and inadmissible aliens).

Because of the “practical fact,” however, that the

government can’t possibly remove all such aliens, the

Secretary has discretion to prioritize the removal of

some and to deprioritize the removal of others. Arpaio

v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015); see 6 U.S.C.

§ 202(5) (charging the Secretary of Homeland Security

with “[e]stablishing national immigration enforcement

policies and priorities”). One form of discretion the

government exercises is deferred action, which “is a decision by Executive Branch officials not to pursue deportation proceedings against an individual or class of individuals otherwise eligible for removal from this country.” Regents of the Univ. of Cal. v. DHS, 908 F.3d 476,

487 (9th Cir. 2018), petition for cert. filed, 87 U.S.L.W.

3201 (U.S. Nov. 5 & 19, 2018) (No. 18-587).

Immigration authorities have granted deferred action and related forms of relief from deportation or removal since at least the early 1960s. See id. at 487-89;

The Department of Homeland Security’s Authority to

Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, 38 Op. O.L.C. ____, 2014 WL 10788677, at *10-13

(Nov. 19, 2014) (“2014 OLC Opinion”) 1 (addressing the

Department’s practices of granting deferred action ad

hoc and through broad policies making relief from removal available to particular groups of aliens). The Supreme Court also has recognized deferred action

by name, describing it as the executive branch’s “regular practice . . . of exercising . . . discretion for

humanitarian reasons or simply for its own convenience.” Reno v. Am.-Arab Anti-Discrimination Comm.

(“AAADC”), 525 U.S. 471, 484 (1999).

Turning now to the record material, the essential

undisputed facts are as follows. To ensure government

resources were not spent on the “low priority cases” of

“certain young people who were brought to [the United

The Office of Legal Counsel, or OLC, is an office within the U.S.

Department of Justice that drafts legal opinions of the Attorney

General and provides its own written opinions and other advice in

response to requests from various agencies within the executive

branch. See 28 U.S.C. § 512 (providing that agency heads may seek

legal advice from the Attorney General); 28 C.F.R. § 0.25 (delegating

Attorney General’s authority to render legal advice to OLC); “Office

of Legal Counsel,” The United States Department of Justice, https://

www.justice.gov/olc (saved as ECF opinion attachment). Although

not binding on courts, OLC opinions “reflect[] the legal position of

the executive branch” and “are generally viewed as providing binding interpretive guidance for executive agencies.” United States v.

Arizona, 641 F.3d 339, 385 n.16 (9th Cir. 2011) (internal quotation

marks omitted) (Bea, J., concurring in part and dissenting in part),

aff ’d in part, rev’d in part, 567 U.S. 387 (2012).

States] as children and know only this country as home,”

J.A. 129, then Secretary of Homeland Security Janet

Napolitano announced in a June 15, 2012, memorandum

the policy that has become known as DACA. The DACA

Memo made renewable two-year terms of deferred action from removal and authorization for employment

available to individuals who came to the United States

as children, satisfied certain other eligibility criteria, 2

and passed background checks.

To be considered for deferred action under DACA,

applicants had to submit to biometric screening and provide extensive personal information to the Department

of Homeland Security. The Department informed applicants that the information provided was “protected

from disclosure . . . for the purpose of immigration

enforcement proceedings” unless the requestor met criteria for commencement of removal proceedings or referral to U.S. Immigration and Customs Enforcement

for a determination whether to commence removal proceedings.3 J.A. 1004. The Department warned, however, that these policies could be “modified, superseded,

or rescinded at any time without notice” and were “not

intended to” and did not “create any right or benefit,

In its original form, deferred action was available to individuals

who were under age 16 when they came to the United States, were

not above age 30, had continuously resided in the United States for

at least five years preceding June 15, 2012, and were present in the

country on June 15, 2012, and satisfied certain other requirements

relative to public safety and education or military service.

Separately, the Department noted that the information provided

could be shared with national security and law enforcement agencies

“for purposes other than removal.” J.A. 1004.

substantive or procedural, enforceable at law by any

party.” Id.

The DACA Memo made clear that it “confer[red] no

substantive right, immigration status[,] or pathway to

citizenship.” J.A. 131. DACA recipients, however,

were eligible to receive a host of other benefits under

preexisting statutes and regulations, including advance

parole allowing reentry into the United States after

travel abroad, social security benefits, and certain forms

of public assistance. See 8 U.S.C. §§ 1182(d)(5)(A),

1611(b)(1), 1621(b)(1), (d); 8 C.F.R. §§ 1.3(a)(4)(vi), 212.5.

DACA recipients also were eligible to receive employment authorization on a showing of economic necessity.

See 8 U.S.C. § 1324a(h)(3); 8 C.F.R. § 274a.12(c)(14).

In November 2014, then Secretary of Homeland Security Jeh Johnson announced a separate deferred action policy for certain parents of United States citizens

and lawful permanent residents that became known as

Deferred Action for Parents of Americans (“DAPA”). 4

The DAPA memorandum also expanded DACA by

(1) extending the deferred action and employment authorization terms from two to three years; (2) removing

the “age cap” that previously excluded certain individuals

from DACA eligibility; and (3) reducing the period of time

The 2014 OLC Opinion concluded that DAPA “would constitute a

permissible exercise of [the Department of Homeland Security]’s enforcement discretion under the INA.” J.A. 162; 2014 WL 10788677,

at *23. While the opinion doesn’t directly address the Department’s

authority to implement DACA, it does recount that, before DACA

was announced, the OLC had “orally advised” the Department that

the policy would be permissible “provided that immigration officials

retained discretion to evaluate each application on an individualized

basis.” J.A. 149 n.8; 2014 WL 10788677, at *13 n.8.

that someone needed to be physically present in the

United States to be eligible for DACA. See J.A. 167-68.

A coalition of states led by Texas sued to block implementation of the DAPA policy (and its proposed expansions to DACA) on the grounds that it violated the APA

and the Take Care Clause of the Constitution, U.S. Const.

art. II, § 3 (the “Texas litigation”). See Texas v. United

States, 86 F. Supp. 3d 591, 604 & n.1, 607 (S.D. Tex.

2015). The district court in that case granted injunctive relief, id. at 671-72, 677-78 & n.111, and the Fifth

Circuit affirmed, Texas v. United States, 809 F.3d 134,

178-79, 186, 188 (5th Cir. 2015). The Supreme Court

affirmed the Fifth Circuit’s judgment by an equally divided vote. United States v. Texas, 136 S. Ct. 2271

(2016) (per curiam).

In June 2017 (approximately five months after the

Trump administration took office), then Secretary of

Homeland Security John Kelly rescinded DAPA but left

in place DACA and the deferred action relief and employment authorizations granted between the issuance

of the DAPA Memo and the district court’s decision in

the Texas litigation.

On September 4, 2017, Attorney General Jefferson

Sessions wrote to then Acting Secretary Elaine Duke,

advising her to rescind DACA. According to the Attorney General:

DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result.

Such an open-ended circumvention of immigration

10a

laws was an unconstitutional exercise of authority by

the Executive Branch. The related . . . DAPA

. . . policy was enjoined on a nationwide basis in a

decision affirmed by the Fifth Circuit on the basis of

multiple legal grounds and then by the Supreme

Court by an equally divided vote. . . . Because

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. [5]

In light of the costs and burdens that will be imposed

on DHS associated with rescinding this policy, DHS

should consider an orderly and efficient wind-down

process.

J.A. 379 (internal citations omitted).

The next day, Acting Secretary Duke rescinded

DACA and instructed Department personnel to “winddown” the policy. J.A. 380, 383. The Secretary’s Rescission Memo recounts in a “Background” section the

DACA and DAPA policies, the Texas litigation, Secretary Kelly’s rescission of DAPA, the letter to Attorney

General Sessions from the plaintiffs in the Texas litigation, and General Sessions’s September 4 letter. The

Rescission Memo then states:

Taking into consideration the Supreme Court’s and

the Fifth Circuit’s rulings in the ongoing litigation,

and the September 4, 2017[,] letter from the Attorney

Plaintiffs in the Texas litigation had written to General Sessions

in June 2017, requesting that the Secretary of Homeland Security

rescind DACA and prohibit new grants and renewals of deferred action. The letter warned that, if the Executive Branch failed to so act,

plaintiffs there would amend their complaint to challenge DACA.

11a

General, it is clear that the June 15, 2012[,] DACA

program should be terminated.

J.A. 383.

The Rescission Memo—which issued without notice

or an opportunity for public comment—did not end

DACA outright. Rather, it allowed for a case-by-case

basis adjudication of initial applications for deferred action and employment authorization accepted by September 5, 2017, and renewal requests accepted by October

5, 2017, from current DACA beneficiaries whose benefits would expire between September 5, 2017, and March

5, 2018.

The Memo stated that the Department would not terminate existing grants of deferred action and employment authorization under DACA “solely based on the directives” in the Memo and would “generally honor” approved applications for advanced parole. Id. But it

made clear that the Department would reject all other

DACA applications, including initial applications filed

after September 5, 2017, and all pending and future applications for advance parole under DACA. Id. The

Memo, however, explicitly placed “no limitations” on the

Department’s “otherwise lawful enforcement

. . .

prerogatives.” J.A. 384.

The Department also announced that once an individual’s deferred action under DACA expired, information

provided by applicants would not be “proactively provided to [law enforcement agencies] for the purpose of

immigration enforcement proceedings” unless the requestor met criteria for commencement of removal proceedings or referral to U.S. Immigration and Customs

Enforcement for a determination whether to commence

12a

removal proceedings. J.A. 1142. For individuals whose

pending DACA requests were denied, the announcement stated that “[g]enerally, information provided in

DACA requests will not be proactively provided to other

law enforcement entities . . . for the purpose of immigration enforcement proceedings” unless the requestor posed “a risk to national security or public safety” or

met criteria for commencement of removal proceedings

or referral to U.S. Immigration and Customs Enforcement for a determination whether to commence removal

proceedings. J.A. 1143.

Nearly 800,000 individuals have received deferred action under DACA since its inception.

Plaintiffs’ complaint raises a host of challenges to the

government’s decision to rescind DACA. First, the complaint alleges that the rescission is a substantive rule

and thus requires notice-and-comment rulemaking under the APA. Next, it asserts that the government’s

decisions to rescind DACA and change the way the government proposed to share personal information collected from DACA applicants were arbitrary, capricious,

and contrary to law, in violation of the APA, and violated

the substantive and procedural due process protections

of the Fifth Amendment. Plaintiffs also allege that the

decision to rescind DACA violates the equal protection

guarantee of the Fifth Amendment. Finally, Plaintiffs

say that the government should be equitably estopped

from rescinding DACA or using information provided by

DACA applicants for immigration enforcement purposes beyond those first announced in 2012, when the

government’s information-sharing policies were first

implemented.

13a

The district court granted partial summary judgment

to the government. The court found (contrary to the

government’s contention) that Plaintiffs’ claims were

justiciable. Casa De Maryland v. DHS, 284 F. Supp.

3d 758, 768-71 (D. Md. 2018). But on the merits, the

court determined that DACA’s rescission and the government’s changes to its policies on information-sharing

did not violate the APA and that Plaintiffs’ constitutional claims lacked merit. Id. at 771-77. The court

also determined that DACA’s rescission did not violate

the doctrine of estoppel. Id. at 777-78.

The court, however, granted summary judgment to

Plaintiffs on the portion of their estoppel claim pertaining to the sharing of DACA applicant information. The

court ordered the government to comply with the policies as originally announced in 2012 and enjoined it from

altering these policies. Id. at 778-79; J.A. 1531-33.

These appeals followed. We review a district court’s

grant of summary judgment de novo. Roland v. USCIS,

850 F.3d 625, 628 (4th Cir. 2017). “We can affirm a grant

of summary judgment only where there is no genuine

dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Certain Underwriters at Lloyd’s, London v. Cohen, 785 F.3d 886, 889-90

(4th Cir. 2015) (internal quotation marks omitted). We

review a district court’s grant of an injunction for abuse

of discretion. South Carolina v. United States, 907 F.3d

742, 753 (4th Cir. 2018).

II.

We begin with the government’s argument that

Plaintiffs’ claims are not justiciable, an issue we consider de novo. See Bostic v. Schaefer, 760 F.3d 352, 370

14a

(4th Cir. 2014); Angelex Ltd. v. United States, 723 F.3d

500, 505 (4th Cir. 2013).

The government contends that Plaintiffs’ claims are

immune from judicial review under 8 U.S.C. § 1252(g), a

provision of the INA stating, “no court shall have jurisdiction to hear any cause or claim by or on behalf of any

alien arising from the decision or action by the [Secretary of Homeland Security] to commence proceedings,

adjudicate cases, or execute removal orders against any

alien under this chapter.”

According to the government, § 1252(g) bars review

here in two ways. First, noting that the Supreme Court

in AAADC observed that § 1252(g) “seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations,” 525 U.S. at 485,6 the government contends

that this section bars review because DACA’s rescission

is a “no deferred action” decision. But this contention

ignores both the plain language of § 1252(g) and the Supreme Court’s determination in AAADC that this section “applies only to three discrete actions that the [Secretary of Homeland Security] may take: her ‘decision

or action’ to ‘commence proceedings, adjudicate cases,

or execute removal orders.’ ” Id. at 482 (first emphasis

The Supreme Court said as much after reviewing a treatise describing the practice of deferred action and litigation that would result when it was not granted. AAADC, 525 U.S. at 484-85. That

treatise, however, referred explicitly to “[e]fforts to challenge the

refusal to exercise [deferred action] on behalf of specific aliens.”

Id. at 485 (emphasis added). Plaintiffs don’t challenge the refusal

to grant deferred action to a particular individual.

15a

added). In rescinding DACA, the Acting Secretary did

none of these things.

Second, the government says that § 1252(g) precludes review because DACA’s rescission is an initial

“action” in the commencement of removal proceedings.

As the government would have it, review of its decision

to rescind DACA must await a final order of removal.

The Supreme Court in AAADC though “specifically rejected a broad reading of the three discrete actions

listed in [§] 1252(g).” Regents, 908 F.3d at 504. Specifically, “decisions to open an investigation, [or] to surveil

the suspected violator” are not encompassed by § 1252(g)’s

jurisdictional bar, even though these decisions “may be

part of the deportation process.” AAADC, 525 U.S. at

482; see Jennings v. Rodriguez, 138 S. Ct. 830, 841

(2018) (Alito, J., plurality) (“[In AAADC, w]e did not interpret [§ 1252(g)] to sweep in any claim that can technically be said to ‘arise from’ the three listed actions.

. . . Instead, we read the language to refer to just

those three specific actions themselves.” (emphasis

added)).

And while we accept that § 1252(g) “is specifically directed at the deconstruction, fragmentation, and hence

prolongation of removal proceedings,” AAADC, 525 U.S.

at 487, the government hasn’t moved to remove any of

the Plaintiffs. The two Circuit decisions on which the

government relies to support the proposition that judicial review of DACA’s rescission is available only through

review of a final order of removal—Vasquez v. Aviles,

639 F. App’x 898 (3d Cir. 2016), and Botezatu v. INS,

195 F.3d 311 (7th Cir. 1999)—are inapposite. Those

cases involved challenges to individual “no deferred

action” decisions by aliens adjudicated removable.

16a

Vasquez, 639 F. App’x at 901; Botezatu, 195 F.3d at 314.

The government’s reliance on AAADC is therefore misplaced, and we reject its argument that § 1252(g) bars review of Plaintiffs’ claims. 7

The government argues that another provision of the

INA—8 U.S.C. § 1252(b)(9)—bars review of Plaintiffs’

claims. The government did not press this argument

in the district court. But because a party may challenge subject matter jurisdiction for the first time on

appeal, Am. Canoe Ass’n, Inc. v. Murphy Farms, Inc.,

326 F.3d 505, 515 (4th Cir. 2003), we consider this issue.

Section 1252(b)(9) provides that “[ j]udicial review of

all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien

from the United States under this subchapter shall be

available only in judicial review of a final order under

this section.” 8 U.S.C. § 1252(b)(9). But that provision

doesn’t help the government here because it “applies

only with respect to review of an order of removal under

[8 U.S.C. § 1252(a)(1)].” INS v. St. Cyr, 533 U.S. 289,

Accord Regents, 908 F.3d at 504 (holding § 1252(g) doesn’t deprive courts of jurisdiction to review DACA’s rescission); NAACP v.

Trump, 298 F. Supp. 3d 209, 224 (D.D.C. 2018) (rejecting as “misplaced” government’s reliance on AAADC and finding § 1252(g)

didn’t bar review of challenges to DACA’s rescission), appeals docketed, Nos. 18-5243, 18-5245 (D.C. Cir. Aug. 10 & 13, 2018), petition

for cert. before judgment filed, 87 U.S.L.W. 3204 (U.S. Nov. 5, 2018)

(No. 18-588); Batalla Vidal v. Duke, 295 F. Supp. 3d 127, 152-54

(E.D.N.Y. 2017) (rejecting government’s § 1252(g) argument in challenge to DACA’s rescission), appeals docketed, Nos. 18-1985, 18-1986

(2d Cir. July 5, 2018), petition for cert. before judgment filed,

87 U.S.L.W. 3201 (U.S. Nov. 5, 2018) (No. 18-589).

17a

313 (2001) (emphases added; internal quotation marks

and alteration omitted); see Calcano-Martinez v. INS,

232 F.3d 328, 340 (2d Cir. 2000) (“Congress enacted

[§ 1252(b)(9)] for the important purpose of consolidating

all claims that may be brought in removal proceedings

into one final petition for review of a final order in the

court of appeals.” (emphasis added)), aff ’d, 533 U.S.

348 (2001).

The government’s contention that § 1252(b)(9) bars

review thus is without merit.

Next, the government contends that judicial review

is foreclosed under the APA because the decision to rescind DACA is committed to agency discretion by law.

We do not agree.

“Although there is a ‘strong presumption’ in favor of

judicial review of agency action,” Speed Mining, Inc. v.

Fed. Mine Safety & Health Review Comm’n, 528 F.3d

310, 316 (4th Cir. 2008) (quoting Bowen v. Mich. Acad.

of Family Physicians, 476 U.S. 667, 670 (1986)), the

APA bars judicial review of agency action “committed to

agency discretion by law.” 5 U.S.C. § 701(a)(2). The

government says that the Acting Secretary’s decision to

rescind DACA is a type of agency enforcement decision

that is presumptively unreviewable under the Supreme

Court’s decision in Heckler v. Chaney, 470 U.S. 821

(1985). 8 Invoking the “broad discretion exercised by

The government doesn’t appear to seriously contest that Plaintiffs’ procedural APA claim challenging the decision to rescind

DACA is subject to judicial review. Accord Lincoln v. Vigil, 508 U.S.

182, 195-98 (1993) (process by which an agency makes a rule may be

18a

immigration officials” that is a “principal feature of the

removal system,” Arizona, 567 U.S. at 396, the government urges that the concerns driving Chaney’s presumption of unreviewability apply with “particular force”

in the removal context, a context in which allowing delay

would result in ordering the government to allow a “continuing violation” of federal law, AAADC, 525 U.S. at 490.

And while conceding that an agency’s expression of a

legal interpretation announced in a broad or general enforcement policy may be reviewable, the government

says that the decision to rescind DACA is distinguishable because it rested on discretionary enforcement concerns and expressed the Department of Homeland Security’s view about the scope of its enforcement authority, not the substantive unlawfulness of the policy. Finally, relying on the Supreme Court’s post-Chaney decision in ICC v. Bhd. of Locomotive Eng’rs (“BLE”),

482 U.S. 270 (1987), the government argues that, even if

the sole rationale for the rescission decision was the

view that DACA was unlawful, such rationale cannot

provide a “hook” to support review of the decision.

Because the government relies so heavily on Chaney

for its argument, we turn to that decision. There, a

group of death row inmates petitioned the Food and

Drug Administration to prevent the use in lethal injections of certain drugs that the agency had not approved

for that purpose. 470 U.S. at 823-24. The agency refused to act, based on its view that its jurisdiction to act

under the substantive law was unclear and, even if it had

jurisdiction, it would decline to exercise that jurisdiction

reviewed for compliance with applicable procedural requirements,

regardless of reviewability of the substance of the rule).

19a

under its inherent discretion to do so. Id. at 824-25.

The petitioners filed suit, seeking an order directing the

agency to act. Id. at 825.

Without addressing the jurisdictional issue, the

Court held that the agency’s discretionary decision not

to enforce the substantive law was unreviewable under

the APA. Id. at 828, 837-38. As the Court explained,

such decisions “often involve[] a complicated balancing

of a number of factors which are peculiarly within [the

agency’s] expertise,” including “whether agency resources are best spent on this violation or another,

whether the agency is likely to succeed if it acts, [and]

whether the particular enforcement action . . . best

fits the agency’s overall policies.” Id. at 831.

Nonenforcement decisions, the Court observed, generally do not involve the exercise of “coercive power over

an individual’s liberty or property rights,” and, accordingly, do “not infringe upon areas that courts often are

called upon to protect.” Id. at 832. Such decisions

also “share[] to some extent the characteristics of the

decision of a prosecutor in the Executive Branch not to

indict—a decision which has long been regarded as the

special province of the Executive Branch.” Id. For

these reasons, the Court found, such decisions have

“traditionally been committed to agency discretion,”

and Congress, in “enacting the APA[,] did not intend to

alter that tradition.” Id. (internal quotation marks

omitted). Thus, the Court concluded, “an agency’s decision not to take enforcement action should be presumed

immune from judicial review under § 701(a)(2).” Id.

Here, however, the Department of Homeland Security’s decision to rescind DACA is not a “Chaney-type

enforcement action[].” Kenney v. Glickman, 96 F.3d

20a

1118, 1123 (8th Cir. 1996). For starters, the Acting

Secretary did not exercise her discretion in an individual

case.9 Nor did she identify a violation of the INA against

which to act, determine whether government resources

would be best spent enforcing one violation over another, or decide whether the Department would succeed

if it pursued a particular violation. Rather, Acting Secretary Duke rescinded a general enforcement policy in

existence for over five years and affecting hundreds of

thousands of enrollees based on the view that the policy

was unlawful.

Major agency policy decisions are “quite different

from day-to-day agency []enforcement decisions.” Nat’l

Treasury Emps. Union v. Horner, 854 F.2d 490, 496

(D.C. Cir. 1988). Where an agency expresses a broad

or general enforcement policy, different considerations

than those driving Chaney’s presumption are at play.

“As general statements, they 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 and that are, as Chaney recognizes, peculiarly

within the agency’s expertise and discretion.” Crowley

Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 677

(D.C. Cir. 1994).

The government correctly observes that an agency’s discretionary decision to enforce the law may be unreviewable under § 701(a)(2).

See Speed Mining, 528 F.3d at 311, 317-18 (holding agency’s discretionary decision to enforce substantive law by issuing citations for

safety violations was committed to agency discretion and therefore

unreviewable). But Speed Mining is distinguishable because it involved a discretionary enforcement decision in an individual case.

21a

Accordingly, as courts have recognized, an agency’s

expression of a broad or general enforcement policy

based on the agency’s legal interpretation is subject

to review. OSG Bulk Ships, Inc. v. United States,

132 F.3d 808, 811-12 (D.C. Cir. 1998) (holding courts had

jurisdiction under APA because challenged agency action was a general policy of refusing to enforce provision

of substantive law and not a “single-shot non-enforcement

decision” (citing Crowley, 37 F.3d at 674-76)); see Kenney, 96 F.3d at 1123-24 (concluding Chaney applies to

“individual, case-by-base determinations of when to enforce existing [law] rather than permanent policies or

standards” and did not encompass agency’s adoption of

general policies stating standards agency deemed acceptable to implement statutory goals); Crowley, 37 F.3d

at 672-73, 675 (Chaney’s presumption applies if “agency

bases its refusal to enforce in an individual case solely

on a legal interpretation without explicitly relying on its

enforcement discretion”); see also Edison Elec. Inst. v.

EPA, 996 F.2d 326, 333 (D.C. Cir. 1993) (holding challenge to agency’s interpretation of law and regulations

advanced in enforcement policy statement was “not the

type of discretionary judgment concerning the allocation of enforcement resources that [Chaney] shields

from judicial review”); Nat’l Wildlife Fed’n v. EPA,

980 F.2d 765, 767, 773 (D.C. Cir. 1992) (holding Chaney’s

presumption “is inapplicable or at least rebutted [where

plaintiff ] raise[d] a facial challenge to the [agency’s]

statutory interpretation embodied in [a regulation] and

d[id] not contest a particular enforcement decision” and

22a

citing authority in support).

within this rubric. 10

DACA’s rescission fits well

The government attempts to distinguish this authority, but its efforts are unavailing. It claims DACA’s rescission involved discretionary balancing because it was

based on concerns about its legality and “litigation risk,”

a term that appears to refer to the likelihood the policy

would have been invalidated had it been challenged in

the Texas litigation. But the Rescission Memo doesn’t

identify the “risk” of litigation as a “consideration” on

which the Acting Secretary relied in rescinding the policy. Rather, the Memo relies on the Attorney General’s conclusion that DACA needed to be rescinded because it was unlawful. 11 True, the Attorney General’s

letter also proffers the conclusion that “potentially imminent litigation” would invalidate DACA, as was the

case with DAPA in the Texas litigation. But we agree

with the determination of our district court colleague

Judge Bates in his opinion resolving challenges to

DACA’s rescission that this justification “was too closely

bound up with [the Attorney General’s] evaluation of

DACA’s legality,” NAACP, 298 F. Supp. 3d at 234, and

Our dissenting colleague contends that decisions from the D.C.

Circuit supporting our view that DACA’s rescission is reviewable

don’t explain how they can be reconciled with Chaney. Dis. op. at

48-51. We disagree. See Crowley, 37 F.3d at 675-77; Nat’l Wildlife Fed’n, 980 F.2d at 772-73.

See 8 U.S.C. § 1103(a)(1) (“[D]etermination[s] and ruling[s] by

the Attorney General with respect to all questions of law shall be

controlling [on the Secretary of Homeland Security].”); see YanezMarquez v. Lynch, 789 F.3d 434, 450 n.6 (4th Cir. 2015) (finding Attorney General’s position controlling where Department of Homeland Security and Attorney General had conflicting views about applicability of a legal doctrine).

23a

thus cuts against Chaney’s presumption of unreviewability.

Nor are we persuaded by the government’s claim

that DACA’s rescission rested on the Department’s view

of the scope of its enforcement authority, not the substantive unlawfulness of the policy. As Judge Bates

aptly noted when presented with the same argument,

“this strikes the [c]ourt as a distinction without a difference. To say that a particular agency action is ‘without

statutory authority’ is simply to say that no statutory

provision authorizes that action; in a sense, therefore, it

is a determination of the substantive content of each

statutory provision that might plausibly apply.” Id. at

232. We, like Judge Bates, “fail[] to perceive any meaningful difference between an agency’s conclusion that it

lacks statutory authority and its interpretation of a specific statutory provision.” Id.12

Our dissenting colleague notes that Acting Secretary Duke

didn’t say in the Rescission Memo “that DACA must be terminated

or that she lacked the legal authority to enforce DACA or a DACAlike program.” Dis. op. at 54. It is true that Acting Secretary Duke

wrote only that it was clear DACA “should” be terminated. J.A.

383. Standing alone, however, “should” can express the notion of

requirement or obligation. Should, Webster’s Third New International Dictionary Unabridged (2002) (“used . . . to express duty,

obligation, [or] necessity”). Given the Attorney General’s evaluation of DACA’s legality and the absence of any reference to litigation

risk in the Rescission Memo’s list of considerations, this use of the

word “should” supports our conclusion, ante, at 20, 22, that the Secretary rescinded DACA based on her view that the policy was unlawful. Contrary to our dissenting colleague’s view, our decision

today does not intrude on discretionary prerogatives of the Executive Branch (see Dis. op. at 50-52); rather, it “preserves the judiciary’s role as the ultimate arbiter of statutory meaning while at the

24a

The government also relies on the Supreme Court’s

decision in BLE as further support for the view that

Plaintiffs’ claims are unreviewable. But there, the Supreme Court held only that “where a party petitions an

agency for reconsideration on the ground of material error, i.e., on the same record that was before the agency

when it rendered its original decision, an order which

merely denies rehearing of the prior order is not itself

reviewable.” 482 U.S. at 280 (internal quotation marks,

ellipsis, and alteration omitted). The government is

correct that the Court also rejected the principle that, if

an “agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable,” citing as an example a prosecutor’s refusal to institute criminal proceedings based on the belief that the law will not

sustain a conviction. Id. at 283. But BLE still does

not advance the government’s argument.

For one thing, Plaintiffs here filed a timely challenge

to the government’s original decision to rescind DACA.

BLE doesn’t bar review of that type of challenge. Moreover, as the government itself concedes, Appellees’ Opening & Response Br. at 19, BLE addressed the scope of judicial review in the context of agency non-enforcement action in an individual case. See Crowley, 37 F.3d at 67577 (explaining the basis for distinguishing—for purposes of judicial review—between individual enforce-

same time affording agencies breathing space to adopt enforcement

policies for discretionary reasons,” NAACP, 298 F. Supp. 3d at 234.

25a

ment decisions and implementation of broad enforcement policies). DACA’s rescission involves a broad enforcement policy, not an individual decision. 13

In sum, we hold that Plaintiffs’ claims are reviewable.14

III.

We turn now to the merits and consider first whether

the district court erred in granting summary judgment

to the government on Plaintiffs’ procedural APA claim.

The court determined that DACA’s rescission was akin

to a policy statement and thus was not subject to notice

and comment under the APA. Casa, 284 F. Supp. 3d at

772. We review this determination de novo. Children’s

Hosp. of the King’s Daughters, Inc. v. Azar (“CHKD”),

896 F.3d 615, 619 (4th Cir. 2018).

We accept that agency action doesn’t become reviewable simply

because “the agency gives a ‘reviewable’ reason for otherwise unreviewable action.” BLE, 482 U.S. at 283. But, as we’ve explained,

DACA’s rescission is not such an unreviewable decision. See

NAACP, 298 F. Supp. 3d at 231 (“[A]n otherwise reviewable interpretation of a statute does not become presumptively unreviewable

simply because the agency characterizes it as an exercise of enforcement discretion.”).

The government has not cross-appealed from the district court’s

additional determination that all Plaintiffs had standing, Casa,

284 F. Supp. 3d at 771, and the parties have not briefed this issue on

appeal. Nonetheless, reviewing this issue de novo, Bostic, 760 F.3d

at 370, we agree with the district court that the individual DACA

recipient Plaintiffs have standing to sue. We consequently need

not consider whether the other Plaintiffs have standing. See id. at

370-71.

26a

The APA generally requires that agencies provide

notice of proposals to create, amend, or repeal a rule 15

and an opportunity for interested persons to comment

on the proposal. See 5 U.S.C. §§ 551(4)-(5), 553(a)-(c).

“Rules issued through the notice-and-comment process

are often referred to as legislative rules because they

have the force and effect of law.” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015) (internal quotation

marks omitted). “[T]he APA provides[, however,] that,

unless another statute states otherwise, the notice-andcomment requirement ‘does not apply’ to ‘interpretative

rules, general statements of policy, or rules of agency

organization, procedure, or practice.’ ” Id. at 1203-04

(quoting 5 U.S.C. § 553(b)(A)).

Plaintiffs argue that DACA’s rescission required notice and comment under the APA because the Rescission

Memo is a legislative rule that mandates how Department officials must act and substantively affects DACA

recipients. The government rejects this premise, countering that the Memo is a general statement of policy.

We agree with the government. 16

The parties don’t dispute that DACA’s rescission qualifies as a

“rule” for APA purposes. See 5 U.S.C. § 551(4).

Accord Regents, 908 F.3d at 512-14 (holding DACA’s rescission

is not a binding rule of substantive law); NAACP, 298 F. Supp. 3d at

237 (“[T]he rescission of DACA was exempt from notice and comment as a general statement of agency policy.”); Batalla Vidal

v. Nielsen, 291 F. Supp. 3d 260, 270-73 (E.D.N.Y. 2018) (dismissing

notice-and-comment claims because Rescission Memo is not a legislative rule), appeals docketed, Nos. 18-1521, 18-1525, 18-1986 (2d Cir.

May 21 & July 5, 2018).

27a

The critical question in distinguishing between legislative rules and general statements of policy is whether

the statement “is of present binding effect; if it is, then

the APA calls for notice and comment.” Elec. Privacy

Info. Ctr. v. DHS (“EPIC”), 653 F.3d 1, 7 (D.C. Cir.

2011) (internal quotation marks and ellipsis omitted).

“[S]ubstantive or legislative rule[s], pursuant to properly delegated authority, ha[ve] the force of law, and

create[] new law or impose[] new rights or duties.”

CHKD, 896 F.3d at 620 (internal quotation marks omitted); see Nat’l Latino Media Coal. v. FCC, 816 F.2d 785,

788 (D.C. Cir. 1987) (“A valid legislative rule is binding

upon all persons, and on the courts, to the same extent

as a congressional statute.”). “To that end, a rule is

legislative if it supplements a statute, adopts a new position inconsistent with existing regulations, or otherwise effects a substantive change in existing law or policy.” CHKD, 896 F.3d at 620 (internal quotation marks

and alteration omitted).

By contrast, general statements of policy “advise the

public prospectively of the manner in which the agency

proposes to exercise a discretionary power.” Vigil,

508 U.S. at 197 (internal quotation marks omitted). A

directive that doesn’t establish a “binding norm” and

leaves agency officials free to exercise their discretion

qualifies as a general statement of policy. Chen Zhou

Chai v. Carroll, 48 F.3d 1331, 1341 (4th Cir. 1995) (citing

Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1046 (D.C. Cir.

1987), and Mada-Luna v. Fitzpatrick, 813 F.2d 1006,

1015 (9th Cir. 1987)).

The Rescission Memo removes a mechanism under

which individuals could receive deferred action but places

“no limitations” on other lawful enforcement prerogatives

28a

of the Department of Homeland Security. J.A. 384.

As the district court observed, Casa, 284 F. Supp. 3d at

772, the Memo doesn’t curtail the Department’s discretion to make deferred action available on a case-by-case

or ad hoc basis. Nor does the Memo, by its terms, create “right[s] or benefit[s]” enforceable “by any party.”

J.A. 384.

Additionally, although DACA was rescinded based on

the government’s view that the policy was unlawful, the

Rescission Memo doesn’t bind subsequent Secretaries

who might disagree with this reasoning or bar the Department from implementing other deferred action policies in the future. Contrary to Plaintiffs’ arguments,

the Memo doesn’t “replace[] agency discretion with a new

binding rule of substantive law,” Mada-Luna, 813 F.2d

at 1014 (internal quotation marks omitted), affecting the

rights of people regulated by the Department, see EPIC,

653 F.3d at 7 (agency’s statement “cast in mandatory

language so the affected private parties are reasonably

led to believe that failure to conform will bring adverse

consequences” qualifies as binding on those subject to it

(internal quotation marks omitted)). It therefore falls

on the policy “end of the spectrum,” CHKD, 896 F.3d at

620-21 (internal quotation marks omitted), and thus was

exempt from notice and comment under the APA.

We consider next whether the district court erred in

granting summary judgment to the government on

Plaintiffs’ claim that DACA’s rescission is substantively

invalid under the APA.

29a

The APA requires a reviewing court to “hold unlawful

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).

These “criteria render our oversight highly deferential,

with a presumption in favor of finding the agency action

valid.” Friends of Back Bay v. U.S. Army Corps of

Eng’rs, 681 F.3d 581, 587 (4th Cir. 2012) (internal quotation marks omitted). This standard, however, “does not

reduce judicial review to a rubber stamp of agency action.” Id. (internal quotation marks omitted). Rather, “we must engage in a searching and careful inquiry

of the [administrative] record, so that we may consider

whether the agency considered the relevant factors and

whether a clear error of judgment was made.” Id. (internal quotation marks omitted). Where agency action

qualifies as “unreasonable as a matter of law, it is likely

to have been arbitrary and capricious.” Id. (citing

Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377 n.23

(1989)). “We evaluate [this issue] de novo[.]” Id.

To comply with § 706(2)(A), an agency “must examine

the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983). The giving of “adequate reasons” for an agency’s decision is “[o]ne of the

basic procedural requirements of administrative rulemaking.” Encino Motorcars, LLC v. Navarro, 136 S. Ct.

2117, 2125 (2016). In a challenge under § 706(2)(A), “an

agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” State Farm, 463 U.S.

30a

at 50; see Jimenez-Cedillo v. Sessions, 885 F.3d 292, 299

(4th Cir. 2018) (“[A] reviewing court may not speculate

on reasons that might have supported a change in

agency position []or supply a reasoned basis for the

agency’s action that the agency itself has not given.”

(internal quotation marks and citation omitted)).

An agency satisfactorily explains a decision when it

provides “enough clarity that its ‘path may reasonably

be discerned.’ ” Jimenez-Cedillo, 885 F.3d at 297 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight

Sys., Inc., 419 U.S. 281, 286 (1974)). If the agency provides such an explanation, “we will uphold its decision.”

Id. at 297-98. “But where the agency has failed to provide even that minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of

law.” Encino Motorcars, 136 S. Ct. at 2125.

These principles apply with equal force to a change

in agency position. Jimenez-Cedillo, 885 F.3d at 298.

Thus, in changing policies, agencies “must ‘provide a reasoned explanation for the change.’ ” Id. (quoting Encino

Motorcars, 136 S. Ct. at 2125). “At a minimum, an

agency must ‘display awareness that it is changing position and show that there are good reasons for the new

policy.’ ” Id. (quoting Encino Motorcars, 136 S. Ct. at

2126). The agency’s explanation must address the “facts

and circumstances that underlay or were engendered by

the prior policy,” including any “serious reliance interests.” Encino Motorcars, 136 S. Ct. at 2126 (quoting

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 51516 (2009)). “An ‘unexplained inconsistency’ in agency

policy indicates that the agency’s action is arbitrary and

capricious, and therefore unlawful.” Jimenez-Cedillo,

31a

885 F.3d at 298 (quoting Encino Motorcars, 136 S. Ct.

at 2125).

Plaintiffs argue that DACA’s rescission was arbitrary and capricious because the Department of Homeland Security failed to give a reasoned explanation for

the change in policy, particularly given the significant

reliance interests involved. We agree.17

As we have explained, DACA was rescinded based on

the Department’s view that the policy was unlawful.

But neither the Attorney General’s September 4 letter

nor the Department’s Rescission Memo identify any

statutory provision with which the DACA policy conflicts. Cf. Encino Motorcars, 136 S. Ct. at 2127 (rejecting as insufficient agency statement regarding statutory

exemption proffered in support of policy change where

agency did not “analyze or explain” why statute should

be interpreted as agency suggested).

The Attorney General’s letter does mention that the

Fifth Circuit affirmed the injunction against the DAPA

policy on “multiple legal grounds” in the Texas litigation, J.A. 379, and the Rescission Memo cites to this ruling. The Fifth Circuit’s ruling was based in part on its

determination that the DAPA policy likely ran counter

to the INA’s “intricate process for illegal aliens to derive

a lawful immigration classification from their children’s

immigration status.” Texas, 809 F.3d at 179. There

Plaintiffs also assert that (1) the district court failed to consider

evidence of “bad faith” and “animus” underlying the decision to rescind DACA presented in their complaint and (2) the Department’s

conclusions about DACA’s legality are substantively incorrect.

Given our disposition, we decline to address these arguments.

32a

is no dispute here, however, that “DACA has no analogue in the INA.” NAACP, 298 F. Supp. 3d at 239 (internal quotation marks omitted). Further, as the Fifth

Circuit explained in reaching its conclusion, “DACA and

DAPA are not identical.” Texas, 809 F.3d at 174.

The Attorney General’s letter also asserts that DACA

suffered from the same “constitutional defects that the

courts recognized as to DAPA.” J.A. 379. The courts in

the Texas litigation, however, did not address constitutional claims. And while the Attorney General urged

in his letter that his office had a duty to “defend the Constitution” and “faithfully execute the laws passed by Congress,” J.A. 379, he does not explain how allowing the

DACA policy to remain in effect would violate that duty.

The Attorney General’s letter and the Rescission

Memo also proffer the concern—based on the Attorney

General’s determination that the DAPA and DACA policies share the same legal defects—that “potentially imminent” litigation would result in a ruling in the Texas

litigation enjoining DACA. Entirely absent, however,

is an explanation why it was likely that the district court

in the Texas litigation would have enjoined DACA.

Further, the 2014 OLC Opinion outlining the Department’s authority to implement the DAPA policy identified “from the nature of the Take Care duty” at least

“four general . . . principles governing the permissible scope of enforcement discretion,” J.A. 137-38;

2014 WL 10788677, at *5-6, and noted that concerns “animating DACA were . . . consistent with the types

of concerns that have customarily guided the exercise of

immigration enforcement discretion,” J.A. 149 n.8; 2014

WL 10788677, at *13 n.8.

33a

The point is that the Department had before it at the

time it rescinded DACA a reasoned analysis from the

office tasked with providing legal advice to all executive

branch agencies that supported the policy’s legality.

Yet the Department changed course without any explanation for why that analysis was faulty. Cf. Fox Television Stations, 556 U.S. at 516 (“[A] reasoned explanation is needed for disregarding facts and circumstances

that underlay . . . the prior policy.”).

Nor did the Department adequately account for the

reliance interests that would be affected by its decision.

Hundreds of thousands of people had structured their

lives on the availability of deferred action during the

over five years between the implementation of DACA

and the decision to rescind. Although the government

insists that Acting Secretary Duke 18 considered these

interests in connection with her decision to rescind

DACA, her Memo makes no mention of them.

Accordingly, we hold that the Department’s decision

to rescind DACA was arbitrary and capricious and must

be set aside.

IV.

We turn next to the district court’s rulings (1) granting summary judgment to Plaintiffs on the portion of

their estoppel claim pertaining to sharing of DACA applicant information, and (2) ordering the government to

The government urges us to consider the June 2018 memorandum from former Secretary of Homeland Security Kirstjen Nielsen

belatedly proffered by the government as a basis for upholding

DACA’s rescission. We decline to do so because the memorandum

was not part of the administrative record in this appeal. Fla. Power

& Light Co. v. Lorion, 470 U.S. 729, 743 (1985).

34a

comply with the information-sharing policies promulgated in 2012 and enjoining it from altering those policies.

“Equitable estoppel is a well-established concept invoked by courts to aid a party who, in good faith, has

relied, to his detriment, upon the representations of another.” United States ex rel. Humble Oil & Ref. Co. v.

Fid. & Cas. Co. of N.Y., 402 F.2d 893, 897 (4th Cir. 1968)

(internal footnote omitted). To establish equitable estoppel, “[i]t is only necessary to show that the person

[sought to be] estopped, by . . . statements or conduct, misled another to his prejudice.” Id. at 898 (quoting United States ex rel. Noland Co. v. Wood, 99 F.2d

80, 82 (4th Cir. 1938)). As against the government, “estoppel may only be justified, if ever, in the presence of

affirmative misconduct by government agents.” Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 2003).

In enjoining the government, the district court determined that estoppel “potentially would apply to any use

for immigration enforcement of the information collected

. . . during DACA registrations” because “the Government promised not to transfer or use the information gathered from [DACA applicants] for immigration enforcement.” Casa, 284 F. Supp. 3d at 778.

We disagree with the district court. The government

did not make such a promise or suggest in any other way

that its policies governing the sharing of information provided by DACA applicants would never change. Rather,

the government warned DACA applicants that information they provided could be used for immigration enforcement where criteria for commencement of removal proceedings or referral to law enforcement for a determination whether to commence such proceedings were met.

It also warned that its policies governing the sharing of

35a

applicant information could be “modified, superseded, or

rescinded at any time without notice” and created no

“right or benefit.” J.A. 1004. In view of these clear and

unequivocal warnings, Plaintiffs could not reasonably believe that the information they provided as part of their

DACA application would never be used for immigration

enforcement purposes. Cf. Volvo Trucks of N. Am., Inc.

v. United States, 367 F.3d 204, 212 (4th Cir. 2004) (“Equitable estoppel requires reasonable reliance.”). Plaintiffs’

equitable estoppel claim thus necessarily fails.

We turn finally to Plaintiffs’ constitutional claims,

which were dismissed by the district court. We decline

to decide whether DACA’s rescission violates the Fifth

Amendment’s due process and equal protection guarantees under the “well established principle governing the

prudent exercise of this [c]ourt’s jurisdiction that normally

the [c]ourt will not decide a constitutional question if there

is some other ground upon which to dispose of the case.”

Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984) (per

curiam). Because we have determined that DACA’s rescission violates the APA, we need go no further. See,

e.g., Veasey v. Abbott, 830 F.3d 216, 265 (5th Cir. 2016).

We also decline to decide whether Plaintiffs’ Fifth

Amendment rights were violated by the policies announced on September 5, 2017, regarding the sharing of personal information from DACA applicants. 19

McMillan, 466 U.S. at 51. Our decision today restores

DACA to its pre-September 5, 2017, status, rendering a

Although the district court found Plaintiffs’ due process

claims lacked merit, its analysis addressed DACA’s rescission, not

information-sharing. Casa, 284 F. Supp. 3d at 775-77.

36a

nullity the information-sharing policies announced on

September 5. It therefore is unnecessary to address

Plaintiffs’ constitutional challenge to these policies. See

Veasey, 830 F.3d at 265. 20

VI.

To sum up: We affirm the district court’s rulings

that Plaintiffs’ claims are justiciable and that DACA’s

rescission did not require notice and comment under the

APA. We reverse the district court’s ruling sustaining

the rescission of the policy as valid under 5 U.S.C.

§ 706(2)(A). DACA’s rescission is vacated as arbitrary

and capricious, and the matter is remanded for further

proceedings consistent with this opinion. We reverse

the district court’s ruling finding Plaintiffs entitled to

injunctive relief on equitable estoppel grounds, reverse

the grant of summary judgment in Plaintiffs’ favor, and

vacate the injunction. Because we find it unnecessary to

decide Plaintiffs’ constitutional challenges to DACA’s

rescission and the related changes to the Department’s

Plaintiffs also contend that the district court misapplied Fed. R.

Civ. P. 56 by failing to (1) afford them a reasonable opportunity for

discovery on their claims, (2) consider or address their statement of

material facts in dispute, and (3) view the facts in the light most favorable to them. They allege further that the district court misapplied the APA by granting summary judgment to the government

without addressing their contention that the administrative record

was incomplete and by failing to consider evidence of “bad faith and

improper behavior” by government officials. Given our disposition,

we find it unnecessary to address these issues.

37a

policies governing use of information provided by DACA

applicants, we vacate the district court’s judgment on

these issues and dismiss those claims.

AFFIRMED IN PART,

REVERSED IN PART,

VACATED IN PART,

DISMISSED IN PART,

AND REMANDED

38a

RICHARDSON , Circuit Judge, concurring in part and dissenting in part:

The plaintiffs ask this Court to invalidate the rescission of DACA, a seven-year-old program explained at its

inception as an act of prosecutorial discretion. The Majority’s opinion grants this request, reasoning that the

Department of Homeland Security behaved in an arbitrary and capricious manner by giving what my good

colleagues decide are faulty legal reasons for rescinding

the discretionary policy.

I disagree with the premise that the Administrative

Procedure Act permits this review of the Executive

Branch’s rescission of DACA. Enforcement discretion

lies at the heart of executive power. The Executive

may decide to prosecute, or not prosecute, an individual

or a group so long as the reasons for that decision are

constitutionally sound and the decision does not violate

or abdicate the Executive’s statutory duties. Here, the

Executive’s proper exercise of that discretion to rescind

DACA is judicially unreviewable under the Administrative Procedure Act, regardless of one’s view of the policy

questions underlying DACA. To hold otherwise permits the Judicial Branch to invade the province of the

Executive and impair the carefully constructed separation of powers laid out in our Constitution.

I. Background

The Secretary of Homeland Security is charged by

statute with enforcing the nation’s immigration laws.

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

responsibilities is removing individuals subject to removal under federal law. See Arizona v. United States,

39a

567 U.S. 387, 396 (2012). “A principal feature of the removal system is the broad discretion exercised by immigration officials.” Id. At each stage of the process—

from investigation to execution of a removal order—the

Secretary has the discretion to pursue removal or forbear doing so. Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 483 (1999).

The Secretary has used this discretion to prioritize

the removal of certain categories of aliens and deprioritize others. See, e.g., Memorandum from Doris Meissner, Commissioner, Dep’t of Justice, Immigration &

Naturalization Service, “Exercising Prosecutorial Discretion” 7-9 (Nov. 17, 2000) (deprioritizing the removal

of aliens who, for instance, resided in the United States

for a long time, had little to no criminal history, and had

greater ties to the United States than another country);

Memorandum from John Morton, Director, Dep’t of

Homeland Sec., Immigration & Customs Enforcement,

“Exercising Prosecutorial Discretion Consistent with

the Civil Immigration Enforcement Priorities of the

Agency for the Apprehension, Detention, and Removal

of Aliens” 2 (June 17, 2011) (deprioritizing the removal

of veterans, minors, elderly individuals, pregnant women,

and various other groups). On top of these general, department-wide enforcement policies, individual agents

have been empowered to exercise enforcement discretion based on specific circumstances. See, e.g., Meissner Memorandum at 1-2. Just as a highway patrolman

has discretion whether to pull over a given driver (and

even after pulling someone over, whether to give that

person a ticket), immigration agents can weigh individual and country-specific humanitarian circumstances

when deciding whether to exercise their prosecutorial

discretion. See Morton Memorandum at 4.

40a

Relying on this broad enforcement discretion to set

enforcement priorities and to guide agents in rendering

their individualized enforcement decisions, the Secretary of Homeland Security established the DACA program. Memorandum from Janet Napolitano, Secretary,

Dep’t of Homeland Sec., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the

United States as Children” (June 15, 2012). DACA authorized agents to grant deferred action 1 to certain people brought illegally to the United States as children.

Under DACA, aliens who applied and satisfied certain

gateway criteria were “granted” or “denied” deferred

action, ostensibly on an individualized, case-by-case basis. Id. Even when granted, deferred action could be

revoked unilaterally by the Department. See AAADC,

525 U.S. at 484-85. The DACA memorandum stated

expressly that it conferred upon recipients of deferred

action “no substantive right, immigration status or pathway to citizenship.” Napolitano Memorandum at 3.

Two years later, the Secretary expanded DACA by

loosening some restrictions and extending the period of

deferred action from two years to three. Memorandum from Jeh Johnson, Secretary, Dep’t of Homeland

Sec., “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (Nov. 20, 2014).

In the same action, the Secretary also created a new enforcement policy, known as “DAPA,” extending “deferred

action, on a case-by-case basis,” to parents of American

citizens and lawful permanent residents. Id. at 4.

“Deferred action” means “an act of administrative convenience

to the government which gives some cases lower priority.” 8 C.F.R.

§ 274a.12(c)(14).

41a

Led by Texas, a coalition of states challenged this

new policy in federal court, arguing that DAPA (and the

DACA expansion) violated the Administrative Procedure Act as well as the President’s Article II duty to

“take Care that the Laws be faithfully executed.” U.S.

CONST. art. II, § 3. The district court preliminarily enjoined DAPA, holding that the Department had “legislated a substantive rule without complying with the procedural requirements under the” APA. Texas v. United

States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015). The

Fifth Circuit affirmed the district court, finding that the

Department had promulgated DAPA in violation of the

APA and that it was “manifestly contrary” to the Immigration and Nationality Act (“INA”). Texas v. United

States, 809 F.3d 134, 182 (5th Cir. 2015). 2

The Supreme Court granted certiorari and directed

the parties to brief not only the issues decided by the

Fifth Circuit, but also whether “the Guidance violates

the Take Care Clause of the Constitution, Art. II, § 3.”

United States v. Texas, 136 S. Ct. 906 (2016). But after

oral argument, the Fifth Circuit decision was summarily

affirmed by an equally divided Court. United States v.

Texas, 136 S. Ct. 2271, 2272 (2016).

In response, the Secretary rescinded the enjoined

DAPA program and DACA expansion. Memorandum

from John Kelly, Secretary, Dep’t of Homeland Sec.,

“Rescission of November 20, 2014 Memorandum” (June

In finding DAPA subject to review under the APA, the Fifth Circuit held that deferred action “is much more than nonenforcement.”

Texas, 809 F.3d at 166. The court reasoned that since recipients are

conferred “lawful presence” and may receive associated benefits such

as driver’s licenses and unemployment insurance, deferred action was

not an exercise of enforcement discretion. Id. at 168, 168 n.108.

42a

15, 2017). And several months later, after Texas threatened to challenge the original DACA policy, the Acting

Secretary similarly rescinded DACA. Memorandum

from Elaine Duke, Acting Secretary, Dep’t of Homeland

Sec., “Rescission of the June 15, 2012 Memorandum”

(Sept. 5, 2017).

In justifying her decision to rescind DACA, the Acting Secretary referred to the Supreme Court and Fifth

Circuit decisions in the DAPA litigation. She also relied on a letter from the Attorney General that asserted

that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it

is likely that potentially imminent litigation would yield

similar results with respect to DACA.” Id. at 3-4. The

Acting Secretary nonetheless ordered that DACA be

wound down in stages over a six-month period. Id.

II.

Administrative Procedure Act Review

The plaintiffs primarily contend that the rescission of

DACA violates the APA. Because I find that immigration enforcement decisions are committed to the discretion of the Department, I part with my colleagues and

conclude that the rescission of DACA is judicially unreviewable under the APA. 3

Discretionary enforcement decisions are presumptively

unreviewable.

The APA regulates the decisionmaking process of

federal agencies. As such, the statute provides for the

judicial review of a “final agency action for which there

is no other adequate remedy in court.” 5 U.S.C. § 704.

The plaintiffs’ constitutional claims are, of course, reviewable,

and I address them separately below.

43a

Even so, the statute does not permit review of agency

action that “is committed to agency discretion by law.”

5 U.S.C. § 701(a)(2). This provision applies to a variety

of agency decisions that are unsuitable for judicial review. See Lincoln v. Vigil, 508 U.S. 182, 191 (1993);

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.

402, 410 (1971). One essential category of decisions “generally committed to an agency’s absolute discretion” consists of enforcement decisions, both in the civil and criminal arenas. Heckler v. Chaney, 470 U.S. 821, 831 (1985).

Discretion in prosecutorial enforcement is deeply

rooted in the Constitution’s separation of powers. See,

e.g., In re Aiken County, 725 F.3d 255, 264 (D.C. Cir.

2013); Saikrishna Prakash, The Chief Prosecutor,

73 GEO. WASH. L. REV. 521, 537-63 (2005). Indeed, the

division of labor with respect to enforcement is among

the most critical protections the Constitution affords:

The Executive Branch decides whether and when to

begin enforcement actions while the Judicial Branch adjudicates the government’s claims. This division reflects the Framers’ recognition that, “in the long term,

structural protections against abuse of power were critical to preserving liberty.” Bowsher v. Synar, 478 U.S.

714, 730 (1986).

Encroachment by the judiciary into enforcement decisions upsets this constitutional balance. If judges

could decide which cases to prosecute, that would combine the role of prosecutor and judge in one branch of

government, seriously risking individual liberty. See

In re United States, 345 F.3d 450, 454 (7th Cir. 2003);

see also 1 BARON DE MONTESQUIEU, THE SPIRIT OF

LAWS 154 (Thomas Nugent trans., 6th ed. 1792) (“[T]here

is no liberty, if the judiciary power be not separated

44a

from the legislative and executive.”). And if the judiciary could decide which meritorious cases not to prosecute, that would improperly divest the President, who

unlike judges is elected by the people, of the executive

authority that the Constitution affords to protect public

safety and enhance public welfare. Thus, in “the ordinary case, ‘so long as the prosecutor has probable cause

to believe that the accused committed an offense defined

by statute, the decision whether or not to prosecute, and

what charge to file or bring before a grand jury, generally rests entirely in his discretion.’ ” United States v.

Armstrong, 517 U.S. 456, 464 (1996) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)); see also

United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he

Executive Branch has exclusive authority and absolute

discretion to decide whether to prosecute a case.”).

The judiciary’s role is to protect individuals by properly

adjudicating the charges against them—for example, by

dismissing meritless enforcement actions after they are

filed. It is normally neither appropriate nor necessary

for judges to involve themselves in the decision to bring,

or not to bring, enforcement actions.

Though perhaps more often discussed in the criminal

context, this broad enforcement discretion also encompasses civil enforcement decisions. See Speed Mining,

Inc. v. Federal Mine Safety, 528 F.3d 310, 317 (4th Cir.

2008); see also Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 448 (1979). Indeed, the Supreme

Court has recognized that the concerns that counsel

against reviewing criminal enforcement decisions are

even stronger in the context of immigration removal decisions. AAADC, 525 U.S. at 490 (noting that the “sys-

45a

temic costs” of judicial supervision of enforcement decisions are “greatly magnified in the deportation context”);

see also Mathews v. Diaz, 426 U.S. 67, 81-82 (1976).

The nature of civil enforcement discretion led the Supreme Court in Heckler v. Chaney to hold that an agency’s

nonenforcement decision was presumptively unreviewable under the APA. In that case, the Food and Drug

Administration refused to take civil enforcement action

against a class of drug manufacturers and others who

produced and distributed drugs used by states to perform executions. The FDA explained its decision not

to institute any enforcement action as a product of concerns that it lacked jurisdiction to address the use of

drugs in such a way. Yet even if it could, the FDA

noted that it would decline to exercise jurisdiction over

those manufacturers under its inherent enforcement

discretion. The Court found the decision to be presumptively unreviewable under the APA because agency

enforcement decisions “involve[] a complicated balancing of a number of factors,” like allocating resources and

prioritizing policies, that “are peculiarly within [the

FDA’s] expertise” and are thus generally unsuitable for

judicial review. Chaney, 470 U.S. at 831; cf. Wayte v.

United States, 470 U.S. 598, 607 (1985) (noting that the

factors that underlie prosecution decisions are of the

type that courts are not competent to evaluate).

While civil enforcement decisions are presumptively

unreviewable, Congress can overcome that presumption

by “circumscrib[ing] agency enforcement discretion”

through a substantive statute. Chaney, 470 U.S. at 834;

see also id. at 830 (noting that judicial review is unavailable under the APA if the statute provides “no judicially

manageable standards . . . for judging how and

46a

when an agency should exercise its discretion”). In

this way, Congress retains the ability to restrict the Executive’s enforcement discretion. In Chaney, to decide

whether the FDA was so restricted, the Court examined

the relevant statutory provisions and determined that

the statutes provided no dictate about when enforcement discretion must be exercised. Since the FDA’s

enforcement discretion was both statutorily authorized

and unconstrained, the Court held that the enforcement

decision was not subject to APA review.

Chaney also noted, without deciding, two other possible bases for judicial review of civil nonenforcement

decisions: if (1) the decision was based “solely on belief

that [the agency] lacked jurisdiction”; or (2) an agency

expressly adopted a “general policy that is so extreme

as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4. The Supreme Court

later rejected the first possibility in I.C.C. v. Brotherhood of Locomotive Engineers, finding that an agency’s

reliance on a “reviewable reason” for an otherwise unreviewable discretionary decision did not transform the

decision into one subject to APA review. 482 U.S. 270,

283 (1987). The second, which might be thought related to the Take Care Clause, U.S. CONST. art II, § 3,

remains a narrow exception theoretically permitting judicial review of agency enforcement decisions in some

rare cases.

The rescission of DACA is not reviewable.

The decision to rescind DACA is precisely the sort of

enforcement decision that is “traditionally . . . ‘committed to agency discretion’ ” and not reviewable by the

47a

courts. Chaney, 470 U.S. at 832. None of the recognized exceptions to that limitation apply, and so the rescission of DACA is not reviewable under the APA.

The Supreme Court has recognized that 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). Indeed, executive decisions about immigration enforcement are even further

beyond the capacity of judicial review than criminal enforcement decisions, which are otherwise thought to

represent the peak of executive discretion. AAADC,

525 U.S. at 489-90.

As a result, with or without DACA, government

agents have discretion to grant deferred action in individual cases. Id. at 483-84, 484 n.8. At least by its

own terms, DACA did not eliminate the individualized

discretion over enforcement decisions: it created procedural and substantive scaffolding to guide that discretion. See Napolitano Memorandum at 2. Rescinding

DACA took away the scaffolding but left the underlying

core—individualized discretion—untouched. Thus, insofar as DACA is merely a programmatic enforcement

decision, so is its rescission, and both are unreviewable.

The best argument in favor of reviewability is that

DACA itself was something other than an enforcement

decision. Once granted, deferred action makes recipients eligible for benefits such as the ability to work legally in the country. These are subsidiary or collateral

benefits that arise from other legal provisions not challenged here. See 8 U.S.C. § 1324a(h)(3) (“ ‘[U]nauthorized alien’ means . . . that the alien is not at that

time . . . authorized to be so employed by this chapter or by the Attorney General.”); see also 8 C.F.R.

48a

§ 274a.12(c)(14). Yet the Fifth Circuit found DAPA reviewable because it “would affirmatively confer ‘lawful

presence’ and associated benefits.” Texas, 809 F.3d at

166. Moreover, some have argued that DACA only

masquerades as a program involving individualized discretion and in fact amounts to an entitlement of benefits

for the class of aliens who meet the program’s threshold

criteria. Again, the Fifth Circuit reached a similar conclusion about DAPA. See id. at 171-76.

But neither side presses such an argument in this

case, and for good reason. The government does not

because it claims DACA’s rescission is unreviewable.

Nor do the plaintiffs, because if they did, their case

would be much harder on the merits. DACA relied on

identified individualized enforcement as a necessary

predicate for the program’s existence. See The Department of Homeland Security’s Authority to Prioritize

Removal of Certain Aliens Unlawfully Present in the

United States and to Defer Removal of Others, 38 Op.

O.L.C. ____, 2014 WL 10788677, at *13 n.8 (Nov. 19,

2014). If that predicate was false, then DACA was almost surely procedurally and substantively invalid.

And that would mean one of the Department’s proffered

explanations for rescinding DACA—that it was likely

unlawful—was valid. Unsurprisingly then, the plaintiffs do not rely on this point, giving us no occasion to

consider whether DACA might be anything other than

what it claimed to be: a program for a specific exercise

of prosecutorial discretion.

No other exception makes the plaintiffs’ APA claims

reviewable. In particular, nothing in the INA overcomes Chaney’s presumption of unreviewability. That

presumption “may be rebutted where the substantive

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statute has provided guidelines for the agency to follow

in exercising its enforcement powers.” Chaney, 470 U.S.

at 832-33; see also Webster v. Doe, 486 U.S. 592, 600 (1988)

(“§ 701(a)(2) requires careful examination of the statute

on which the claim of agency illegality is based[.]”).

Nothing in the INA cabins the government’s broad immigration enforcement discretion. To the contrary, the

INA expansively vests the Secretary of Homeland Security with authority for “establishing national immigration

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

see also 8 U.S.C. § 1103(a)(1). Our nation’s immigration laws do not limit the Secretary’s authority to enforce those laws by removing illegal aliens. As a result,

the INA does not overcome the presumptive unreviewability of the DACA rescission.

The generalized nature of DACA does not render its

rescission reviewable .

The Majority adopts a new exception, contending

that general enforcement policies, unlike individual enforcement decisions, are reviewable. While this exception has some support in out-of-circuit precedent, I

would reject it.

This exception is grounded in dictum from Chaney,

which left open the possibility of review when an agency

adopts a “general policy that is so extreme as to amount

to an abdication of its statutory responsibilities.”

Chaney, 470 U.S. at 833 n.4 (emphasis added). That is,

a general policy that licensed illegal conduct across the

board or that categorically excluded a class of individuals from complying with the law might well be reviewable. But nobody here is arguing that the rescission of

DACA should be so characterized. Nor could they. A

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return to the pre-DACA regime would increase the Department’s enforcement of the immigration laws, not

abandon it.

A few cases from the D.C. Circuit seem to stretch

Chaney’s dictum to encompass any “general enforcement policy,” as opposed to a “single-shot nonenforcement

decision.” E.g., OSG Bulk Ships, Inc. v. United States,

132 F.3d 808, 812 (D.C. Cir. 1998) (quoting Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir.

1994)). The facts of these cases suggest this principle

may be narrower than it appears at first blush. For example, in some cases, the agency’s policy was promulgated as a binding regulation after notice-and-comment

rulemaking, which would of course be much more amenable to judicial review than a program like DACA, announced by an informal memorandum. See National

Wildlife Federation v. EPA, 980 F.2d 765 (D.C. Cir.

1992). It also appears that these cases did not involve

programs that, like DACA, were expressly predicated

on the agency’s exercise of individualized discretion.

To the extent that the D.C. Circuit has embraced the

broad principle that any “general enforcement policy”

is judicially reviewable, that principle simply cannot be

reconciled with Chaney. There, the Supreme Court

held unreviewable the FDA’s categorical decision not to

take enforcement action against a class of actors (drug

manufacturers, prison administrators, and others in the

drug distribution chain). 470 U.S. at 824-25, 837-38.

The fact that the decision was made by the FDA Commissioner made no difference. See id. at 824. The

D.C. Circuit’s decisions in this area do not even attempt

to explain how this sweeping principle can be reconciled

with the facts of Chaney. See, e.g., Crowley, 37 F.3d at

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675-77. Indeed, they often have no reasoning, simply

reciting language (often dicta) from earlier circuit cases.

Such a broad exception for “generalized enforcement

policies” would also unduly trammel the Executive

Branch in carrying out its duties. The head of an

agency has every right to exercise enforcement discretion. Standardizing (i.e., generalizing) how agents use

their prosecutorial discretion does not alter its character. Whether the Secretary exercises her discretion

over an individual case or provides guidance for how discretion should be applied in a class of cases, the decision

is unreviewable as one “committed to agency discretion

by law.” Under the plaintiffs’ view, a line agent’s decision not to remove a cancer-stricken alien would be unreviewable, but a front-office policy directing line agents

to consider whether an alien is terminally ill would be

reviewable. That distinction is untenable. See Perales v. Casillas, 903 F.2d 1043, 1048 (5th Cir. 1990)

(holding that § 701(a)(2) precluded review of a categorical refusal by a district office to grant work authorization and pre-hearing voluntary departure to a certain

class of eligible aliens over a three-year period).

As anyone who has exercised enforcement discretion

knows, supervisory control over that discretion is necessary to avoid arbitrariness and ensure consistency.

Supervision through generalized guidance that directs

the exercise of enforcement discretion cannot transform

the enforcement directive into a reviewable action. To

find that discretionary enforcement decisions are unreviewable only when inferior officers exercise single-shot

enforcement decisions also brushes aside the separation

of powers that the Constitution lays out. The President is empowered by Article II to “take Care that the

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Laws be faithfully executed,” and thus may hire officers

to assist in these duties. But the constitutional responsibility remains firmly at the President’s feet, and therefore, the President remains responsible for his subordinates’ exercise of executive power. Free Enter. Fund

v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 484

(2010) (“The President cannot ‘take Care that the Laws

be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them.”). 4

DACA—at least on its face—was just such an unreviewable exercise of supervisory enforcement discretion. It was issued by the Secretary and instructed her

subordinates when and how to exercise their discretion,

emphasizing that “requests for relief pursuant to this

memorandum are to be decided on a case by case basis.”

The supervisory use of prosecutorial discretion is not a novel

phenomenon. See, e.g., Treasury Department Circular to the Supervisors of the Revenue (Sept. 30, 1791), in 9 PAPERS OF ALEXANDER HAMILTON 248-49 (Harold C. Syrett ed., 1965) (advising Treasury officials that “a great relaxation appears unavoidable” in enforcing provisions for seizing spirits without required certificates); Ruth

Wedgewood, The Revolutionary Martyrdom of Jonathan Robbins,

100 YALE L.J. 229, 278, 339-53 (1990) (describing President Adams’s

decision to direct the federal prosecutor to enter a nolle prosequi for

an allegedly mutinous sailor and describing then-Representative

John Marshall’s floor speech defending the Executive’s prosecutorial discretion, see 10 ANNALS OF CONG., 6th Cong. 1st Sess. 614-17

(Mar. 7, 1800)); DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS, THE JEFFERSONIANS: 1801-1829, at 5-6 (2001) (noting President Jefferson’s “decision to pardon two individuals who had been

convicted under the Sedition Act and to quash the pending prosecution of a third”); Letter from Thomas Jefferson to William Duane

(May 23, 1801), in 8 THE WRITINGS OF THOMAS JEFFERSON 54, 55

(Paul Leicester Ford ed., 1897) (explaining that whenever President

Jefferson should be met with a prosecution under the Sedition law

he would treat it as a nullity and order a nolle prosequi).

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Napolitano Memorandum at 2. Such general decisions

on enforcement policy, no less than the individual decisions that flow from them, cannot be reviewed by the

courts without intruding on the prerogatives of the Executive Branch. And that is necessarily true of DACA’s

rescission, which merely removed one avenue for exercising individualized discretion. As a result, the rescission is an even less viable candidate for judicial review

than is the promulgation of DACA.

The Acting Secretary’s use of legal reasoning in

rescinding DACA does not render her decision

reviewable.

The plaintiffs also argue that the Acting Secretary’s

use of legal reasoning in deciding to rescind DACA

makes the decision subject to judicial review. In their

view, courts can evaluate legal determinations.

This argument is foreclosed by Supreme Court precedent. The Supreme Court has matter-of-factly explained that there is no “principle that if the agency gives

a reviewable reason for otherwise unreviewable action,

the action becomes reviewable.” BLE, 482 U.S. at 283

(internal quotation marks omitted). Enforcement decisions are often intertwined with legal reasoning, most obviously “the prosecutor’s belief (sometimes publicly

stated) that the law will not sustain a conviction.” Id.

The Court found it “entirely clear” that this “reviewable”

proposition cannot render the prosecutor’s “refusal to

prosecute” subject to judicial review. Id.

Efforts to distinguish BLE factually cannot avoid its

holding. In BLE, an agency had refused to reconsider

a prior decision on the ground of material error. The

Court found that such denials of reconsideration have

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“traditionally been ‘committed to agency discretion by

law.’ ” Id. at 282 (quoting Chaney, 470 U.S. at 832).

As here, the plaintiffs argued that the particular decision before the Court should be reviewable anyway, because the agency had based its refusal on a reviewable

issue of law. The Court disagreed and held, as noted,

that an unreviewable decision does not become reviewable by virtue of the reasons provided. Id. at 280-81.

That holding is plainly not limited to cases involving requests for reconsideration. After BLE, the scope of

permissible judicial review must be determined by the

type of agency action at issue and not the agency’s reasons for acting.

Just as in BLE, there is a nonsensical implication in

the plaintiffs’ position: that the Executive’s discretion

is more constrained when it gives a “reviewable” reason

for its actions than when it gives no reason at all. If the

Acting Secretary was wrong about the likely illegality

of DACA,5 then this might mean that she had provided

no lawful reason for the rescission. But in the context

Evaluating the actual legality of DACA requires considering

whether and how a court may adjudicate an alleged violation of the

Take Care Clause. See Kendall v. United States ex rel. Stokes,

37 U.S. (12 Pet.) 524, 613 (1838). But it also requires addressing

the distinct question of whether and how one presidential administration may determine that a previous administration’s policy was

inconsistent with the constitutional obligation to take care that the

nation’s immigration laws be faithfully executed. Cf. Letter from

President George Washington to Sec’y Alexander Hamilton, U.S.

Dep’t of the Treasury (Sept. 7, 1792) in 32 WRITINGS OF GEORGE

WASHINGTON 144 (John C. Fitzpatrick ed., 1939) (writing in 1792

about enforcing unpopular tax laws, President Washington explained that it was his “duty to see the Laws executed: to permit

them to be trampled upon with impunity would be repugnant to it”).

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of the Executive’s enforcement discretion, this is perfectly appropriate. The Executive need not explain why

it makes particular enforcement and non-enforcement

decisions. The Judicial Branch cannot bootstrap review of decisions committed to the discretion of the

other branches simply because the reasons provided are

of a type that judges consider themselves competent to

evaluate.

In any event, the Acting Secretary’s rescission memorandum was not a mere statement on the legality of

DACA. Instead, the memorandum considered various

court rulings as well as the Attorney General’s letter before concluding that the “DACA program should be terminated.” Duke Memorandum at 4 (emphasis added).

She did not say that DACA must be terminated or that she

lacked the legal authority to enforce DACA or a DACAlike program. And in declaring the rescission of DACA

after a six-month wind-down period, the Acting Secretary

invoked her statutory authority to “establish[] national immigration policies and priorities.” Id. The Acting Secretary’s legal analysis was only one aspect of her reasoning for rescinding DACA, and, of course, a prosecutor may

consider beliefs about the law when setting enforcement

policy, see BLE, 482 U.S. at 283.

For these reasons, I conclude that the plaintiffs’ APA

claims are not reviewable and would dismiss them.

III.

Constitutional Claims

Because they rule for the plaintiffs under the APA,

my colleagues in the Majority decline to address the

plaintiffs’ constitutional claims. But because I find the

plaintiffs’ APA claims to be unreviewable, I must briefly

address their claims that the rescission of DACA also

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violates the Fifth Amendment’s guarantees of Due Process and Equal Protection. 6 I have little trouble concluding that it did not.

Due Process

The plaintiffs’ due process claim fails to articulate a

constitutionally protected life, liberty, or property interest impacted by the rescission of DACA. And without

a protected interest, there can be no unconstitutional

deprivation.

The Due Process Clause of the Fifth Amendment

guarantees that “[n]o person shall . . . be deprived

of life, liberty, or property, without due process of law.”

U.S. CONST. amend. V, cl. 4. A plaintiff raising a due

process claim must thus begin by identifying a relevant

liberty or property interest. Wooten v. Clifton Forge

Sch. Bd., 655 F.2d 552, 554 (4th Cir. 1981). While a government benefit may create such an interest, “a person

clearly must have more than an abstract need or desire

for [the benefit]. . . . He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of

State Colleges v. Roth, 408 U.S. 564, 577 (1972).

While the plaintiffs argue that DACA created such a

claim of entitlement, it did not. On its face, DACA explicitly conferred no protected property or liberty interest, making deferred action putatively available on a discretionary case-by-case basis for two-year periods that

could be terminated at any time at the Secretary’s discretion. See Napolitano Memorandum at 2-3; AAADC,

Of course, courts may review the exercise of enforcement discretion for compliance with the Constitution. See Armstrong, 517 U.S.

at 464.

57a

525 U.S. at 484-85. The memorandum itself acknowledged that such rights could be conferred only by “Congress, acting through its legislative authority.” Id. at

3; see also Smith v. Ashcroft, 295 F.3d 425, 429 (4th Cir.

2002) (noting that for a statute to create a liberty or

property interest, “it must confer more than a mere expectation (even one supported by consistent government practice) of a benefit”). Having failed to show a

protected interest, the plaintiffs’ due process claim fails.

The plaintiffs may have serious concerns about our

nation’s immigration laws and the Department’s policy

of enforcing those laws. But an understandable policy

concern is not a legally cognizable right. The rescission of DACA simply does not generate a due process

claim.

Equal Protection

The plaintiffs also argue that the rescission of DACA

violates the Fifth Amendment’s guarantee of equal protection by targeting a class of aliens for removal based

on their race and national origin. See Bolling v. Sharpe,

347 U.S. 497, 499 (1954). They have failed to plausibly

allege such a claim.

As both parties acknowledge, DACA is an enforcement policy, and so the plaintiffs’ challenge to its rescission is necessarily a selective-prosecution claim. 7 In an

The plaintiffs assert that they are not claiming selective prosecution “but instead that the Government violated the Equal Protection Clause by rescinding the DACA program in order to target a

class defined by race and national origin.” Appellants’ Response

Brief at 30. This attempted rewording makes no difference. The

rescission of DACA reset the agency’s enforcement policies to no

longer channel the exercise of enforcement discretion in a certain

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ordinary selective-prosecution case, the plaintiffs would

have to show that the government’s conduct “had a discriminatory effect and that it was motivated by a discriminatory purpose.” Wayte v. United States, 470 U.S.

598, 608 (1985); see also Armstrong, 517 U.S. at 465 (noting that “the decision whether to prosecute may not be

based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification’ ”) (emphasis added)

(quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). There

is also a “presumption that a prosecutor has acted lawfully,” which can be displaced only by “clear evidence.”

AAADC, 525 U.S. at 489. But the plaintiffs’ burden is

even higher in this case, because the rescission of DACA

only applies to aliens who are in this country illegally.

Such an alien “has no constitutional right to assert selective enforcement as a defense against his deportation,” with a possible exception for “rare” cases of particularly “outrageous” discrimination. Id. at 488, 491.

Here, both DACA and its rescission are, on their face,

neutral policies. Logically, the presumption of lawfulness that applies in individual selective-prosecution cases

is at least as strong when applied to neutral policies

promulgated by senior Executive Branch officials. And

the plaintiffs must allege facts that, if true, plausibly

suggest that this presumption can be overcome and replaced with an inference of outrageous discrimination.

The plaintiffs have alleged two sets of facts to support their claim of discrimination. First, they argue

way. As the plaintiffs cannot dispute that the government has the

statutory authority to enforce the immigration laws against them,

any equal protection claim in this context must necessarily be a

selective-prosecution claim.

59a

that since 93% of DACA recipients are Latino, the program’s rescission had a disparate impact. A selectiveprosecution claim normally requires differential treatment of “similarly situated individuals of a different

race.” Armstrong, 517 U.S. at 465. Yet who is “similarly situated” to DACA recipients except other DACA

recipients? Setting aside the closely related and nowrescinded DAPA program, DACA stands alone as a

unique exercise of Executive authority. While there

are other deferred action programs (many of which are

statutory), none resembles DACA. And the Department

rescinded DACA for all recipients, not just for those of

a particular ethnicity or nationality.

Second, the plaintiffs rely on presidential campaign

tweets, which they claim show invidious animus. But

the plaintiffs must create a plausible inference that the

same animus allegedly underlying these statements also

motivated the Attorney General and the Acting Secretary to take the official government actions at issue.

Their complaint simply lacks the connective tissue required to draw that inference. There is also an “obvious alternative explanation” for these officials’ actions.

Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009). As the record shows, DACA has long been politically controversial. It “should come as no surprise,” id., that wellknown policy differences would lead cabinet officials in

a new administration to change a controversial government policy. See Memorandum from John Kelly, Secretary, Dep’t of Homeland Sec., “Enforcement of the

Immigration Laws to Serve the National Interest” 2

(Feb. 20, 2017) (setting out the Administration’s new enforcement policies and stating “the Department no

longer will exempt classes or categories of removable al-

60a

iens from potential enforcement”). Changes in government policy are perfectly lawful, and for a selectiveprosecution claim, we must presume that the Attorney

General and the Acting Secretary were motivated by

such a lawful purpose. AAADC, 525 U.S. at 489. The

plaintiffs allege no facts plausibly displacing that presumption.

In short, the plaintiffs have presented no evidence

that racial motivations played any part in either the former Attorney General’s advice or the former Acting

Secretary’s decision to rescind DACA. Therefore, I

would dismiss the equal protection claim.

IV.

Information-Sharing Policy

The Majority is correct that the plaintiffs’ estoppel

claim against the Department is baseless. The availability of equitable estoppel against the government is

controversial under any circumstances. See Office of

Pers. Mgmt. v. Richmond, 496 U.S. 414, 419-21 (1990).

The issue remains unresolved by the Supreme Court.

See id. at 423. And we have recognized that if such

a doctrine is ever justified in this context, there must

be “affirmative misconduct by government agents.”

Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 2003) (citing

INS v. Hibi, 414 U.S. 5, 8 (1973)).

In any case, the mere fact that the Department explicitly told applicants that its information-sharing policy “may be modified, superseded, or rescinded at any

time” and that the policy “may not be relied upon to create any right or benefit,” J.A. 1004, is enough to end our

analysis. There was nothing for the plaintiffs to rely

on for the proposition that their information was immune from disclosure.

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Additionally, even if the doctrine of estoppel applied

here, that would not justify the district court’s nationwide injunction. See Gill v. Whitford, 138 S. Ct. 1916,

1930-31, 1934 (2018); Virginia Society for Human Life,

Inc. v. FEC, 263 F.3d 379, 394 (4th Cir. 2001) (abrogated

on other grounds). This potent judicial tool was largely

unheard-of until the mid-twentieth century. Samuel L.

Bray, Multiple Chancellors: Reforming the National

Injunction, 131 HARV. L. REV. 417, 428 (2017). These

broad injunctions pose many drawbacks that can quickly

outweigh their benefits, particularly when they are overused (and overused repeatedly). Among other things,

such injunctions sharpen plaintiffs’ incentives to forumshop while inhibiting the proper ventilation of difficult

legal issues by deterring other lower courts from grappling with them. See id. at 460-61. Under our decentralized and multifaceted judicial system, judges must

scrutinize the scope of the injunctive remedies they

fashion. Even assuming a nationwide injunction could

be appropriate in some case, an injunction that is limited

to the plaintiffs should generally suffice.

We in the Judicial Branch have a narrowly circumscribed role. It is not our place to second-guess the

wisdom of the discretionary decisions made by the other

Branches. The rescission of DACA was a controversial

and contentious decision, but one that was committed to

the Executive Branch. For this reason, I respectfully

dissent.

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APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. RWT-17-2942

CASA DE MARYLAND, ET AL., PLAINTIFFS

U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL.,

DEFENDANTS

Filed: Mar. 5, 2018

MEMORANDUM OPINION

On October 5, 2017, Plaintiffs filed a Complaint seeking to enjoin rescission of a program known as Deferred

Action for Childhood Arrivals (“DACA”), asserting a variety of claims as to why the rescission was unlawful.

See ECF No. 1. Plaintiffs are a number of individual

participants in that program known as “Dreamers,” as

well as a series of special interest organizations that deal

with immigration policy issues and work directly with

immigrants in the community. Id. at 11-21. Defendants are President Donald Trump, Attorney General

Jeff Sessions, and a series of government agencies—the

Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), U.S.

Customs and Border Protection (“CBP”)—as well as

each agency’s acting leader (secretary, director, or commissioner). Defendants collectively will be referred to

63a

as the “Government.” Each individual defendant is being sued in his or her official capacity. Id. at 21-22.

Plaintiffs’ Complaint alleges a number of causes of

action—both administrative and constitutional—which

they believe are proper grounds for relief. Plaintiffs

assert that rescission of the DACA program was unlawful under the Administrative Procedure Act (“APA”)

both (1) as an arbitrary and capricious decision and

(2) for failure to follow notice-and-comment procedures.

Id. at 54-58. Plaintiffs further allege that the DACA

rescission was a violation of the Fifth Amendment on the

grounds of procedural due process, substantive due process, and equal protection. Id. at 49-54. Plaintiffs

seek injunctive relief on the basis of equitable estoppel

both as to the DACA rescission itself and its information

sharing policy. Id. at 58-59. Lastly, Plaintiffs seek

declaratory relief that the DACA program is lawful.

Id. at 59-60.

On November 1, 2017, the Court held an in-person

status conference in order to resolve the scheduling and

logistical issues of this case. ECF No. 19. Thereafter

on November 15, 2017, the Government filed a Motion to

Dismiss or, in the Alternative, for Summary Judgment.

ECF No. 27. On November 28, 2017, Plaintiffs responded in opposition, ECF No. 29, and on December 5, 2017,

the Government replied in support of its Motion, ECF

No. 30. The Court issued an Order on December 11,

2017 giving notice to the parties in accordance with Rule

56(f ) that it may grant summary judgment for the nonmoving party. See ECF No. 31. On December 15, 2017,

the Court held a hearing on the Motion. ECF No. 34.

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BACKGROUND

“Can we all get along?”—Rodney King1

In recent years, many Americans have found themselves sharing Mr. King’s sentiment. This Court previously noted, albeit in the context of congressional gerrymandering, that “[n]ever before has the United States

seen such deep political divisions as exist today, and

while the courts are struggling in their efforts to find a

standard [for the adjudication of gerrymandering claims],

the fires of excessive partisanship are burning and our

national government is encountering deadlock as never

before.” Fletcher v. Lamone, 831 F. Supp. 2d 887, 905

(D. Md. 2011) (Titus, J., concurring), aff ’d, 567 U.S. 930

(2012). Unfortunately, that 2011 observation still holds

true today—perhaps even more so.

This case is yet another example of the damaging fallout that results from excessive political partisanship.

The highly politicized debate surrounding the DACA

program has thus far produced only rancor and accusations. During the recent debate over the rescission of

DACA, the program even turned into a bargaining chip

that resulted in a brief shutdown of the entire federal

government earlier this year.2 In order to adequately resolve the legal issues of this case, it is important to step

back from the heated rhetoric and understand the context

under which DACA was promulgated and rescinded.

See Richard A. Serrano, Rodney King: ‘Truth will come out’,

L.A. Times (May 2, 1992), http://www.latimes.com/local/california/

la-me-king-case-aftermath-city-in-crisis-19920502-story.html.

See Gregory Krieg, The DACA shutdown is over. Now What?,

CNN (Jan. 22, 2018), https://www.cnn.com/2018/01/22/politics/

shutdown-immigration-daca-outcomes/index.html.

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The Dream Act—a Lengthy History of Failed Legislation

The Constitution reserves the power to enact immigration policy to the legislative branch. U.S. Const.

art. I, § 8 (“[T]o establish a uniform rule of naturalization”). However, the “supervision of the admission of

aliens into the United States may be intrusted by [C]ongress” to the executive branch. Nishimura Ekiu v.

United States, 142 U.S. 651, 659 (1892). For over a decade at the start of the 21st century, Congress quarreled

over policies regarding illegal aliens who entered the country as children, and who may have no memory or connection with their country of origin. Would the world’s beacon of freedom—a nation founded by immigrants—cast

out an immigrant population that was likely brought here

without choice and who likely now knows no other home?

While “no” would seem to be the obvious answer, ordinary logic has eluded our Congress.

“Dreamers” are neither constitutionally nor statutorily defined. Rather, the concept of protection for

“Dreamers” arises from repeated congressional failures

to act, and presidential action taken in their wake. A

series of congressional sessions marked by bitter strife

and inaction left the country without any protections for

persons brought here illegally as children. The first

attempt at a Development, Relief, and Education for Alien Minors (“DREAM”) Act came in 2001, and although

it took on many names in subsequent years, the repeated attempts to pass this legislation were filibustered, abandoned, or defeated on the floor. 3 As illustrated by the frequency of bills proposed, Dreamer

See Immigrant Children’s Educational Advancement and Dropout Prevention Act of 2001, H.R. 1582, 107th Cong. (2001); Student

66a

legislation reached its zenith during late 2010 in the

111th Session of Congress. On December 8, 2010, the

House of Representatives actually passed the DREAM

Act.4 However, like all other iterations of this controversial legislation, its fate was doomed—this time, less

than two weeks later on the Senate floor. 5

DACA—an Act of Desperation Born of Frustration with a

Paralyzed Congress

President Obama’s administration, faced with the reality that Congress could do little more than squabble

regarding the Dreamers, decided to take action on its

own. On June 15, 2012, then-Secretary of Homeland

Security, Janet Napolitano, issued a memorandum promulgating by executive action what is now known as

Adjustment Act of 2001, H.R. 1918, 107th Cong. (2001); DREAM

Act, S. 1291, 107th Cong. (2002); DREAM Act, S. 1545, 108th Cong.

(2003); DREAM Act of 2005, S. 2075, 109th Cong. (2005); Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong. (2006);

American Dream Act, H.R. 5131, 109th Cong. (2006); DREAM Act,

S. 2205, 110th Cong. (2007); Comprehensive Immigration Reform

Act of 2007, S. 1348, 110th Cong. (2007); DREAM Act of 2009, S. 729,

111th Cong. (2009); DREAM Act of 2010, S. 3827, 111th Cong. (2010);

DREAM Act of 2010, S. 3962, 111th Cong. (2010); DREAM Act of

2010, S. 3963, 111th Cong. (2010); DREAM Act of 2010, S. 3992,

111th Cong. (2010); DREAM Act of 2010, H.R. 6497, 111th Cong.

(2010); DREAM Act of 2011, S. 952, 112th Cong. (2011).

See John Brandt, House Passes DREAM Act Immigration

Measures, Fox News (Dec. 8, 2010), http://www.foxnews.com/politics/

2010/12/08/house-passes-dream-act-immigration-measures.html.

See DREAM Act Goes Down in Flames in Senate, Fox News

(Dec. 18, 2010), http://www.foxnews.com/politics/2010/12/18/senatetries-pass-dream-act.html.

67a

DACA (“DACA Memo”). 6 DACA protections were afforded to the same class of immigrants foreseen by the

various failed iterations of Dreamer legislation. The

primary qualifications for DACA protections were that

an individual must (1) have come to the U.S. before the

age of sixteen, (2) meet various education or military

service requirements, (3) not have a criminal record, and

(4) register prior to the age of thirty.7

DACA was issued under a theory of “prosecutorial

discretion” and “deferred action” and essentially permitted otherwise illegal aliens to remain in the United

States without fear of deportation.8 While some heralded DACA as a victory, others decried it as executive

overreach—usurping the powers of Congress to promulgate immigration policy. 9 Over the course of the next

five years, approximately 800,000 Dreamers registered

for DACA protections.

Phase II: DAPA

Soon thereafter, the executive branch sought to expand its use of deferred action beyond the Dreamers.

On November 20, 2014, then-Secretary of Homeland Security, Jeh Charles Johnson, issued a pair of memoranda in an attempt to promulgate what is now known

Memorandum from U.S. Dep’t of Homeland Sec., Exercising

Prosecutorial Discretion with Respect to Individuals Who Came to

the United States as Children (June 15, 2012).

See id.

See Obama suspends deportation for thousands of illegals, tells

GOP to pass DREAM Act, Fox News (June 15, 2012), http://www.

foxnews.com/politics/2012/06/15/obama-administration-to-offerimmunity-to-younger-immigrants.html.

68a

as Deferred Action for Parents of Americans (“DAPA”),

as well as a series of minor expansions for DACA.10

Less than a month later, DAPA was met with a legal

challenge when Texas and twenty-five other states sued

to enjoin implementation of the program. See generally Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex.

2015). In that case, DAPA was struck down by the district court, see id., and a divided Fifth Circuit panel affirmed the decision, see 809 F.3d 134 (5th Cir. 2015). In

June 2016, an equally divided Supreme Court affirmed

the decision. See United States v. Texas, 136 S. Ct.

2271, 2272 (2016). In addition to finding DAPA and the

expansions of DACA unlawful, the judicial decisions

throughout the DAPA litigation illustrate two key realities: (1) challenges to DAPA or analogous immigration

programs promulgated by DHS without approval by

Congress are justiciable; and (2) reasonable legal minds

may differ regarding their lawfulness.

Aside from the classes of immigrants to which each

applies, DACA and DAPA are largely similar programs

addressing different classes or subcategories of immigrants. While DACA affects a population of approximately 800,000 otherwise illegal aliens, DAPA would

have affected nearly half of the 11,000,000 immigrants

currently in the United States unlawfully. See Texas v.

United States, 787 F.3d 733, 745 (5th Cir. 2015). DAPA

Memorandum from U.S. Dep’t of Homeland Sec., Policies for the

Apprehension, Detention, and Removal of Undocumented Immigrants (Nov. 20, 2014); Memorandum from U.S. Dep’t of Homeland

Sec., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to

Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014).

69a

was challenged and defeated before the program was

ever successfully promulgated, while DACA has run for

approximately half of a decade before the threat of any

litigation.

A Change in Administration and a Corresponding Change

in Immigration Philosophy

The 2016 presidential election brought a change in

leadership of the executive branch and, with it, significant

changes in immigration views and philosophies. 11 In

June of 2017, and with the defeat of DAPA directly in

the rear-view mirror, Texas and other state plaintiffs

sent a letter threatening to challenge DACA if it were

not rescinded by September 6, 2017. 12 Attorney General Jeff Sessions advised the Acting Secretary of

Homeland Security, Elaine Duke, that DACA was likely

unlawful and headed for another legal battle. 13 On September 5, 2017, Acting Secretary Duke issued a memorandum (“DACA Rescission Memo”) outlining a sixmonth wind down of DACA to expire March 5, 2018.14

According to the Administrative Record, the basis for

the decision to rescind DACA was its presumed unlawfulness in the wake of the DAPA litigation and the threat

of imminent legal challenge. The agency’s reasoning is

See, e.g., Tessa Berenson, Middle Schoolers in Michigan Chant

‘Build That Wall’ After Trump Victory, TIME (Nov. 11, 2016),

http://time.com/4567812/donald-trump-middle-school-build-wall/.

See Admin. R., ECF No. 26-1 at 238-40.

See Admin. R., ECF No. 26-1 at 251.

Memorandum from U.S. Dep’t of Homeland Sec., Rescission of

the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial

Discretion with Respect to Individuals Who Came to the United

States as Children” (Sept. 5, 2017).

70a

substantiated by the legal advice of the Attorney General and the fact that the memorandum was issued the

day before the state parties had threatened to act. A

six-month wind down period was provided to avoid the

potential for chaos if a court decision resulted in immediate termination, and the President urged Congress to

pass Dreamer-protection legislation. 15

Complicating the picture for some observers is the

unfortunate and often inflammatory rhetoric used by

President Trump during the campaign, as well as his

Twitter pronouncements, both before and after his election. Thoughtful and careful judicial review is not

aided when the President lobs verbal hand grenades at

the federal courts, the Department of Justice, and anyone else with whom he disagrees.

As disheartening or inappropriate as the President’s

occasionally

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.