Respondents Brief — Department of Homeland Security, et al., Petitioners v. Regents of the University of California, et al.

Supreme Court briefSep 27, 2019

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Nos. 18-587, 18-588, 18-589

IN THE

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_______________

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

ET AL.,

Petitioners,

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,

Respondents.

_______________

KEVIN K. MCALEENAN, ACTING SECRETARY OF

HOMELAND SECURITY, ET AL.,

Petitioners,

MARTIN JONATHAN BATALLA VIDAL, ET AL.,

Respondents.

_______________

On Writ Of Certiorari To The United States Court

Of Appeals For The Ninth Circuit And

Writ Of Certiorari Before Judgment To The United

States Court Of Appeals For The Second Circuit

_______________

Brief for DACA Recipient Respondents, Make the

Road New York, County of Santa Clara, and

Service Employees International Union Local 521

_______________

THEODORE J. BOUTROUS, JR.

ETHAN D. DETTMER

JONATHAN N. SOLEIMANI

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

MARK D. ROSENBAUM

JUDY LONDON

PUBLIC COUNSEL

610 South Ardmore Avenue

Los Angeles, CA 90005

(213) 385-2977

THEODORE B. OLSON

COUNSEL OF RECORD

STUART F. DELERY

MATTHEW S. ROZEN

ANDREW J. WILHELM

SURIA M. BAHADUE

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

TOlson@gibsondunn.com

Counsel for DACA Recipient Respondents in No. 18-587

(Additional Captions and Counsel Listed on Inside Cover)

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL.,

Petitioners,

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, ET AL.,

Respondents.

_______________

On Writ Of Certiorari Before Judgment To The

United States Court Of Appeals For The

District Of Columbia Circuit

_______________

ERWIN CHEMERINSKY

UNIVERSITY OF CALIFORNIA,

BERKELEY SCHOOL OF LAW*

215 Boalt Hall

Berkeley, CA 94720

(510) 642-6483

LAURENCE H. TRIBE

HARVARD LAW SCHOOL*

1575 Massachusetts Avenue

Cambridge, MA 02138

(617) 495-1767

LUIS CORTES ROMERO

IMMIGRANT ADVOCACY & LITIGATION

CENTER, PLLC

19309 68th Avenue South,

Suite R102

Kent, WA 98032

(253) 872-4730

LEAH M. LITMAN

UNIVERSITY OF MICHIGAN

LAW SCHOOL*

3226 Jeffries Hall

Ann Arbor, MI 48109

(734) 764-0549

Additional Counsel for DACA Recipient Respondents in No. 18-587

*Affiliation for identification purposes only

MICHAEL J. WISHNIE

MUNEER I. AHMAD

MARISOL ORIHUELA

JEROME N. FRANK LEGAL

SERVICES ORGANIZATION

P.O. Box 209090

New Haven, CT 06520

(203) 432-4800

TRUDY S. REBERT

NATIONAL IMMIGRATION LAW

CENTER

P.O. Box 721361

Jackson Heights, NY 11372

(646) 867-8793

KAREN C. TUMLIN

COOPERATING ATTORNEY

JEROME N. FRANK LEGAL

SERVICES ORGANIZATION

P.O. Box 209090

New Haven, CT 06520

(323) 316-0944

ARACELI MARTÍNEZ-OLGUÍN

MAYRA B. JOACHIN

NATIONAL IMMIGRATION LAW

CENTER

3450 Wilshire Blvd.

#108-62

Los Angeles, CA 90010

(213) 639-3900

AMY S. TAYLOR

PAIGE AUSTIN

MAKE THE ROAD NEW YORK

301 Grove Street

Brooklyn, NY 11237

(718) 418-7690

SCOTT FOLETTA

MAKE THE ROAD NEW YORK

92-10 Roosevelt Avenue

Jackson Heights, NY 11372

(929) 244-3456

Counsel for DACA Recipient Respondents and

Make the Road New York in No. 18-589

JAMES R. WILLIAMS

GRETA S. HANSEN

LAURA S. TRICE

MARCELO QUIÑONES

OFFICE OF THE COUNTY COUNSEL

COUNTY OF SANTA CLARA

Counsel for Respondents County of 70 West Hedding Street

Santa Clara and Service Employees East Wing, Ninth Floor

International Union Local 521 in

San Jose, CA 95110

No. 18-587

(408) 299-5900

STACEY M. LEYTON

ALTSHULER BERZON LLP

177 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151

Counsel for Respondent County of

Santa Clara in No. 18-587

QUESTIONS PRESENTED

Since 2012, the Deferred Action for Childhood Arrivals (“DACA”) policy has enabled nearly 800,000 undocumented individuals who arrived in the United

States as children to live and work here without fear

of deportation, so long as they qualify and remain eligible for the policy. In September 2017, the Attorney

General issued a one-page, conclusory letter reversing

the government’s longstanding legal position. Bound

by the Attorney General’s advice, the Acting Secretary

of Homeland Security abruptly issued a new immigration enforcement policy that terminated DACA.

The questions presented in these consolidated

cases are:

1. Whether either the Administrative Procedure

Act (“APA”), 5 U.S.C. § 701(a)(2), or the Immigration

and Nationality Act (“INA”), 8 U.S.C. § 1252(b)(9), (g),

precludes judicial review of the Secretary’s decision to

terminate the DACA policy.

2. Whether the Secretary’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law,” in violation of the APA, 5

U.S.C. § 706(2)(A).

PARTIES TO THE PROCEEDING

In No. 18-587, 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; and the

United States.

Respondents are the Regents of the University of

California; Janet Napolitano, President of the University of California; the State of California; the State of

Maine; the State of Maryland; the State of Minnesota;

the City of San Jose; Dulce Garcia; Miriam Gonzalez

Avila; Saul Jimenez Suarez; Viridiana Chabolla Mendoza; Norma Ramirez; Jirayut Latthivongskorn; the

County of Santa Clara; and Service Employees International Union Local 521.*

In No. 18-588, 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. Citizenship and Immigration Services; U.S. Immigration and Customs Enforcement; the U.S. Department of Homeland Security; and the United

States.

Respondents are the Trustees of Princeton University; Microsoft Corporation; Maria De La Cruz Perales Sanchez; National Association for the Advancement of Colored People; American Federation of

Teachers, AFL-CIO; and the United Food and Commercial Workers International Union, AFL-CIO,

CLC.

After the Complaint was filed in September 2017, Viridiana

Chabolla Mendoza was granted Lawful Permanent Resident status.

iii

In No. 18-589, Petitioners are Kevin K.

McAleenan, Acting Secretary of Homeland Security;

the U.S. Department of Homeland Security; William

P. Barr, Attorney General of the United States; Donald J. Trump, President of the United States; U.S. Citizenship and Immigration Services; U.S. Immigration

and Customs Enforcement; and the United States.

Respondents are Martin Jonathan Batalla Vidal,

Antonio Alarcon, Eliana Fernandez, Carlos Vargas,

Mariano Mondragon, and Carolina Fung Feng, on behalf of themselves and all other similarly situated individuals; Make the Road New York, on behalf of itself, its members, its clients, and all similarly situated

individuals; the State of New York; the State of Massachusetts; the State of Washington; the State of Connecticut; the State of Delaware; the District of Columbia; the State of Hawaii; the State of Illinois; the State

of Iowa; the State of New Mexico; the State of North

Carolina; the State of Oregon; the State of Pennsylvania; the State of Rhode Island; the State of Vermont;

the State of Virginia; and the State of Colorado.

TABLE OF CONTENTS

Page

INTRODUCTION ........................................................ 1

STATEMENT .............................................................. 3

SUMMARY OF ARGUMENT ................................... 14

ARGUMENT ............................................................. 17

I. DHS’s New Immigration Enforcement

Policy Terminating DACA Is Judicially

Reviewable .................................................... 17

A. The APA Does Not Bar Judicial

Review .................................................... 18

1. DHS’s Action Is Not A

Traditionally Unreviewable

Nonenforcement Decision................ 18

2. There Are Meaningful

Standards For Judicial Review ....... 21

B. The INA Does Not Bar Judicial

Review .................................................... 28

II. DHS Violated The APA By Failing To

Engage In Reasoned Decisionmaking ......... 29

A. The Government Violated the APA

By Failing To Explain Its Policy

Change Or Acknowledge Its Prior

Stance On DACA’s Legality ................... 30

B. The Government Violated the APA

By Failing To Consider The Costs

Of Its Decision Or The Interests

Affected ................................................... 33

C. The Decision Violates the APA

Because Its Central Legal

Premise—That DACA Is

Unlawful—Is Wrong .............................. 37

D. The Government's Other Proffered

Rationales Do Not Justify DHS’s

Policy ...................................................... 48

1. Concerns About Litigation

Risk Do Not Justify The

Decision ............................................ 48

2. Secretary Nielsen’s

Memorandum Does Not Justify

The Decision..................................... 53

CONCLUSION .......................................................... 59

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. United States,

567 U.S. 387 (2012) .................................... 3, 39, 44

Arpaio v. Obama,

797 F.3d 11 (D.C. Cir. 2015) ................................ 31

Berger v. United States,

295 U.S. 78 (1935) ................................................ 43

Bowman Transp., Inc. v. Ark.-Best

Freight Sys., Inc.,

419 U.S. 281 (1974) ........................................ 30, 33

Burlington Truck Lines, Inc. v.

United States,

371 U.S. 156 (1962) .............................................. 48

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) .............................................. 38

Capitol Sprinkler Inspection, Inc. v.

Guest Servs., Inc.,

630 F.3d 217 (D.C. Cir. 2011) .............................. 25

Citizens for Responsibility & Ethics in

Washington v. U.S. Dep’t of Justice,

922 F.3d 480 (D.C. Cir. 2019) .............................. 32

Citizens to Pres. Overton Park, Inc. v.

Volpe,

401 U.S. 402 (1971) ........................................ 24, 53

vii

Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384 (1990) .............................................. 48

Crane v. Johnson,

783 F.3d 244 (5th Cir. 2015) ................................ 31

Crowley Caribbean Transp., Inc. v.

Pena,

37 F.3d 671 (D.C. Cir. 1994) ................................ 20

Dalton v. Specter,

511 U.S. 462 (1994) .............................................. 32

Dames & Moore v. Regan,

453 U.S. 654 (1981) .............................................. 42

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019) .................................. passim

E. Bay Sanctuary Covenant v. Trump,

354 F. Supp. 3d 1094

(N.D. Cal. 2018).................................................... 54

Encino Motorcars, LLC v. Navarro,

136 S. Ct. 2117 (2016) .................................... 30, 34

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ........................................ 26, 35

Franklin v. Massachusetts,

505 U.S. 788 (1992) .............................................. 23

Heckler v. Chaney,

470 U.S. 821 (1985) .................................. 19, 20, 22

viii

ICC v. Brotherhood of Locomotive

Engineers,

482 U.S. 270 (1987) ........................................ 23, 25

INS v. St. Cyr,

533 U.S. 289 (2001) .............................................. 17

Jennings v. Rodriguez,

138 S. Ct. 830 (2018) ...................................... 28, 29

Judulang v. Holder,

565 U.S. 42 (2011) ................................................ 27

Kingdomware Techs., Inc. v.

United States,

136 S. Ct. 1969 (2016) .......................................... 37

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .................................... 22, 40

United States ex rel. Knauff v.

Shaughnessy,

338 U.S. 537 (1950) .............................................. 43

M.G.U. v. Nielsen,

325 F. Supp. 3d 111 (D.D.C. 2018) ...................... 54

Mach Mining, LLC v. EEOC,

135 S. Ct. 1645 (2015) .............................. 18, 19, 28

Make the Road N.Y. v. U.S. Dep’t

Homeland Sec.,

No. 1:18-cv-2445, ECF No. 63-1

(E.D.N.Y. Aug. 14, 2019)................................ 11, 50

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................... 22

Mass. Trs. of E. Gas & Fuel Assocs. v.

United States,

377 U.S. 235 (1964) .................................. 51, 53, 58

Massachusetts v. EPA,

549 U.S. 497 (2007) .............................................. 20

Michigan v. EPA,

135 S. Ct. 2699 (2015) .................. 26, 29, 34, 35, 36

Mingo Logan Coal Co. v. EPA,

829 F.3d 710 (D.C. Cir. 2016) ........................ 34, 57

Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp.,

460 U.S. 1 (1983) .................................................. 25

Motor Vehicle Mfrs. Ass’n. of U.S., Inc.

v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) .......................................... 37, 48

Ms. L. v. ICE,

310 F. Supp. 3d 1133 (S.D. Cal.

2018) ..................................................................... 54

In re Nielsen,

No. 17-3345, ECF No. 171

(2d Cir. Dec. 27, 2017).......................................... 10

Red Lion Broad. Co. v. FCC,

395 U.S. 367 (1969) .............................................. 41

Reno v. Am.-Arab Anti-Discrimination

Comm.,

525 U.S. 471 (1999) .................. 5, 28, 29, 40, 41, 45

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) .......................................... 45

Rutledge v. United States,

517 U.S. 292 (1996) .............................................. 33

SEC v. Chenery Corp.,

318 U.S. 80 (1943) .......................................... 29, 48

SEC v. Chenery Corp.,

332 U.S. 194 (1947) .............................................. 48

Sessions v. Dimaya,

138 S. Ct. 1204 ............................................... 43, 45

Shieldalloy Metallurgical Corp. v.

Nuclear Regulatory Comm’n,

624 F.3d 489 (D.C. Cir. 2010) .............................. 37

SPV-LS, LLC v. Transamerica Life

Ins. Co.,

912 F.3d 1106 (8th Cir. 2019) .............................. 25

Texas v. United States,

136 S. Ct. 2271 (2016) ............................................ 8

Texas v. United States,

328 F. Supp. 3d 662 (S.D. Tex. 2018) .................. 52

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) .... 8, 21, 32, 44, 51, 52

Trump v. Hawaii,

138 S. Ct. 2392 (2018) .............................. 25, 43, 54

United States v. Armstrong,

517 U.S. 456 (1996) .............................................. 42

United States v. Riverside Bayview

Homes, Inc.,

474 U.S. 121 (1985) .............................................. 42

Utility Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) .............................................. 40

Walter O. Boswell Mem’l Hosp. v.

Heckler,

749 F.2d 788 (D.C. Cir. 1984) .............................. 36

Wayte v. United States,

470 U.S. 598 (1985) .............................................. 42

Weyerhaeuser Co. v. U.S. Fish &

Wildlife Serv.,

139 S. Ct. 361 (2018) ............................................ 17

White Stallion Energy Ctr., LLC v. EPA,

748 F.3d 1222 (D.C. Cir. 2014) ............................ 36

Youngstown Sheet & Tube Co. v.

Sawyer,

343 U.S. 579 (1952) .............................................. 42

Statutes

5 U.S.C. § 701(a)(1) ................................................... 18

5 U.S.C. § 701(a)(2) ............................................. 14, 18

xii

5 U.S.C. § 706(2)(A) ........................... 10, 16, 27, 29, 47

5 U.S.C. § 706(2)(C) ................................................... 27

5 U.S.C. § 1151(b)(2)(A)(i) ......................................... 51

6 U.S.C. § 202(5) .............................................. 4, 28, 39

8 U.S.C. § 1103(a)(1) ................................................. 21

8 U.S.C. § 1103(a)(3) ................................................. 39

8 U.S.C. § 1182(a)(9)(B) ............................................ 38

8 U.S.C. § 1227(d)(2) ................................................. 41

8 U.S.C. § 1252(b)(9) ..................................... 15, 28, 29

8 U.S.C. § 1252(g) .................................... 15, 28, 29, 41

8 U.S.C. § 1324a(h)(3) ........................................... 5, 41

8 U.S.C. § 1427 .......................................................... 51

8 U.S.C. § 1611(b)(2)-(4) .............................................. 6

Consolidated Appropriations Act, 2008,

Pub. L. No. 110-161, Div. A, Tit. II,

121 Stat. 1844, 2051 ............................................ 28

Consolidated Appropriations Act, 2016,

Pub. L. No. 114-113, Div. F, Tit. II,

129 Stat. 2242, 2497 ............................................ 28

REAL ID Act of 2005, Pub. L. No. 10913, Div. B., § 201(c)(2)(B)(viii), 119

Stat. 302 (2005) ................................................ 6, 42

xiii

USA PATRIOT Act of 2001, Pub. L. No.

107-56, § 423(b), 115 Stat. 361 ............................ 41

Regulations

8 C.F.R. § 1.3(a)(4)(vi) ........................................... 6, 38

8 C.F.R. § 109.1(b)(6) (1982) ........................... 5, 40, 41

8 C.F.R. § 212.5 ........................................................... 6

8 C.F.R. § 274a.12(c)(14) ................................. 5, 38, 40

42 C.F.R. § 417.422(h) ........................................... 6, 38

Other Authorities

American Immigration Council,

Executive Grants of Temporary

Immigration Relief, 1956-Present

(Oct. 2014),

https://tinyurl.com/y27k6qx8 ....................... 4, 5, 46

Ana Gonzalez-Barrera, Record Number

of Deportations in 2012, Pew

Research Center (Jan. 24, 2014),

https://tinyurl.com/y292hjnh. .............................. 47

Andorra Bruno et al., Cong. Research

Serv., Analysis of June 15, 2012

DHS Memorandum, Exercising

Prosecutorial Discretion with Respect

to Individuals Who Came to the

United States as Children (July 13,

2012) ..................................................................... 39

xiv

DHS Secretary on Trump’s Reported

Vulgar Comments, DACA Policy,

CBS News (Jan. 16, 2018),

https://tinyurl.com/y8ekmzar .............................. 44

H.R. Rep. No. 627, 100th Cong., 2d

Sess. 6 (1988).......................................................... 4

Jeffrey S. Passel & Mark Hugo Lopez,

Pew Research Center, Up to 1.7

Million Unauthorized Immigrant

Youth May Benefit from New

Deportation Rules (Aug. 14, 2012)....................... 46

Memorandum from Doris Meissner,

Commissioner of Immigration and

Naturalization Service, on

Exercising Prosecutorial Discretion

(Nov. 17, 2000), https://tinyurl.com/

y6hw8gsq .............................................................. 45

Memorandum from Johnny N. Williams, Exec. Assoc. Comm’r, Office of

Field Operations, to Reg’l Dirs. et al.,

Unlawful Presence (June 12, 2002) ..................... 38

Moore’s Federal Practice § 54.25[4]

(2019) .................................................................... 26

Moore’s Federal Practice § 59.30[6]

(2019) .................................................................... 26

No Free Rides Act, H.R. 3090, 115th

Cong. (June 28, 2017) .......................................... 44

The Separation of Powers Act of 2015,

H.R. 29, 114th Cong. (Jan. 6, 2015) .................... 44

Tom K. Wong & Hillary Kosnac, Does

the Legalization of Undocumented

Immigrants in the US Encourage

Unauthorized Immigration from

Mexico? An Empirical Analysis of the

Moral Hazard of Legalization

International Migration 159 (2017) .................... 56

INTRODUCTION

The Constitution and federal immigration laws

afford the Executive Branch significant authority to

set immigration enforcement priorities. For decades,

presidential administrations from both political

parties have used that authority to permit certain

categories of individuals to remain and work in the

United States. The principal check on the Executive’s

authority in this area is procedural: As with other

exercises of the government’s coercive power, the

Executive must comply with the Administrative

Procedure Act (“APA”) by giving “reasoned

explanation[s] … that can be scrutinized by courts and

the interested public.” Dep’t of Commerce v. New

York, 139 S. Ct. 2551, 2575-76 (2019).

administration may impose new or different

priorities, but only if it adheres to APA requirements

and clearly states its policy choices so that it can be

held publicly accountable for them. The judiciary, in

turn, has a limited but essential role: ensuring that

the Executive considers and clearly explains the

consequences of new approaches, especially for those

who will be profoundly affected by a change.

This case concerns an immigration policy change

covering undocumented individuals who arrived in

the United States as children. Since 2012, the

Deferred Action for Childhood Arrivals (“DACA”)

policy allowed these individuals, known as

“Dreamers,” to obtain an education, work, and

contribute to this nation and its economy without

constant fear of deportation.

The Secretary of

Homeland Security announced DACA in a

memorandum that explicitly articulated the factors

underlying the policy: the agency’s limited

“enforcement

resources,”

DACA

recipients’

“contribut[ions] to our country,” and the need for a

“clear and efficient process for exercising

prosecutorial discretion” on an “individual basis.”

Regents Pet. App. 98a-100a. The policy has been

widely perceived as a success, and many people—

including DACA recipients, and their families,

employers, and educational institutions—have made

significant decisions based on forbearance from

removal, just as the government intended them to do.

For many months, the current administration

maintained and publicly supported DACA. But in

September 2017, the Secretary suddenly announced a

new policy that terminated the five-year-old policy,

threatening deportation of DACA recipients from the

only country many of them have ever known as home.

In sharp contrast to the decision adopting DACA, the

new memorandum came nowhere near satisfying the

APA’s requirements for reasoned decisionmaking.

The Secretary did not even mention enforcement

resources or the significant costs to DACA recipients,

their families, communities, workplaces, schools, and

the larger economy.

The government has offered different rationales

for the decision over time. But the same fatal flaw

infects them all: The Secretary’s assertion that DACA

exceeded her authority. In terminating DACA, the

Secretary purported to respond to a binding letter

from the Attorney General stating that DACA is

unlawful and unconstitutional.

The letter’s

perfunctory legal analysis included an obvious factual

error and failed to acknowledge the administration’s

departure from the Executive Branch’s longstanding

legal position, as presented to this Court and reflected

in advice of the Justice Department’s Office of Legal

Counsel (“OLC”). In fact, the Secretary’s ostensible

legal premise driving her decision was erroneous:

DACA is lawful.

The administration could have left DACA in place.

It did not have to end this humanitarian policy that

allows nearly 700,000 people to stay in the only

country they have ever really known. It did not have

to eliminate the opportunity for these individuals to

earn a living to support themselves and their families.

It did not have to disclaim Executive authority that

administrations of both parties rightly have exercised

for decades. But rather than own up to its choice, the

administration claimed its hands were tied by the

courts and the law. It is a cardinal principle of

administrative law that the Executive may not shield

discretionary policy decisions from scrutiny behind

erroneous claims that the law allows only one result,

yet that is what the administration did here.

The APA demands—and the public deserves—a

genuine analysis and lucid explanation of the relevant

policy considerations before reversing a long-standing

policy and subjecting 700,000 individuals to

deportation to unfamiliar nations where they may not

even speak the language. Because DHS failed to meet

these basic standards, the lower courts correctly set

aside the new policy.

STATEMENT

1. The Immigration and Nationality Act (“INA”)

grants immigration officials “broad discretion” to

pursue removal from the United States of noncitizens

deemed removable by Congress. Arizona v. United

States, 567 U.S. 387, 396 (2012). That discretion is

one of immigration law’s “principal feature[s].” Ibid.

It reflects the reality that “there simply are not

enough resources to enforce all of the rules and

regulations presently on the books,” and that “[i]n

some circumstances”—because Congress “cannot

possibly [have] contemplate[d] all of the possible

circumstances in which the [INA] may be applied”—

“application of the literal letter of the law” would be

“unconscionable” and “serve no useful purpose.”

Regents Ct. App. ECF No. 45, at 1215. The INA

accordingly directs the Secretary of Homeland

Security to “[e]stablis[h] national immigration

enforcement policies and priorities.”

6 U.S.C.

§ 202(5).

Every presidential administration over the past 65

years has exercised some form of enforcement

discretion—through more than thirty separate

policies—to make categories of undocumented

noncitizens deemed low priority eligible for

forbearance from removal. American Immigration

Council, Executive Grants of Temporary Immigration

Relief,

1956-Present

3-10

(Oct.

2014),

https://tinyurl.com/y27k6qx8 (“AIC Report”). The

Eisenhower, Kennedy, Johnson, and Nixon

Administrations, for example, paroled more than

600,000 Cubans into the United States, and the Ford

and Carter Administrations paroled in nearly 360,000

Vietnamese, Cambodians, and Laotians.

Ibid.

Similarly, from 1960 to 1990, each presidential

administration used “extended voluntary departure”

to forbear removal of groups of “otherwise deportable

aliens” based on their nationality “out of concern that

… forced repatriation … could endanger their lives or

safety.” H.R. Rep. No. 627, 100th Cong., 2d Sess. 6

(1988).

The Reagan and George H.W. Bush

Administrations’ Family Fairness Program made

extended voluntary departure available to 1.5 million

eligible recipients—more than 40 percent of the

undocumented population at the time—while their

parents or spouses pursued immigration status under

newly enacted legislation.

AIC Report, at 2.

Subsequent administrations used “deferred enforced

departure” to grant similar relief to 80,000 Chinese

following the Tiananmen Square protests, 190,000

Salvadorans after their eligibility for temporary

protected status expired, and others. Id. at 6-7.

One way the Executive exercises its enforcement

discretion is through deferred action, “a regular

practice” in which the government elects not to seek

removal of individuals “for humanitarian reasons or

simply for its own convenience.” Reno v. Am.-Arab

Anti-Discrimination Comm., 525 U.S. 471, 483-84 &

n.8 (1999) (“AADC”). The Executive has granted

deferred action since the 1970s, Regents Ct. App. ECF

No. 45, at 1220, and each presidential administration

since 1997 has adopted deferred action policies

covering categories of noncitizens. J.A. 822-26. Past

policies covered battered spouses and human

trafficking survivors awaiting visas, students

displaced by Hurricane Katrina, and surviving

spouses of U.S. citizens who had “no avenue of

immigration relief.” Ibid.

The Executive has long recognized the need for individuals granted discretionary relief from removal to

support themselves and their families. Since 1981,

federal regulations have expressly authorized recipients of deferred action and other exercises of enforcement discretion to work in the United States. 8 C.F.R.

§ 109.1(b)(6) (1982); id. § 274a.12(c)(14). Congress

later codified this authority by permitting employers

to hire any noncitizen “authorized to be … employed

by [the INA] or by the Attorney General” (now Secretary). 8 U.S.C. § 1324a(h)(3) (emphasis added); 8

C.F.R. § 274a.12(c)(14). By statute and regulation,

deferred action recipients may also obtain driver’s licenses, REAL ID Act of 2005, Pub. L. No. 109-13,

Div. B., § 201(c)(2)(B)(viii), 119 Stat. 302 (2005); participate in Social Security and Medicaid, 8 U.S.C.

§ 1611(b)(2)-(4); 8 C.F.R. § 1.3(a)(4)(vi); 42 C.F.R.

§ 417.422(h); and apply for and receive advance parole, allowing them to travel abroad and re-enter the

United States, 8 C.F.R. § 212.5.

2. In 2012, Secretary of Homeland Security Janet Napolitano established the DACA policy. Regents

Pet. App. 97a-101a. Undocumented individuals who

arrived in the United States as children and met rigorous criminal background checks and education or

military service requirements could apply for deferred

action for renewable two-year periods. Ibid. Both initial and renewal applications were decided on a “case

by case basis,” and DHS provided no “assurance[s]

that relief w[ould] be granted in all cases.” Id. at 99a.

Indeed, the government does not dispute the Ninth

Circuit’s determination that DHS actually exercised

discretion in adjudicating DACA applications. See Regents Supp. App. 50a-51a. Individuals granted deferred action could apply for work authorization and

other benefits pursuant to existing statutes and regulation. Id. at 12a. Secretary Napolitano explained

that immigration laws were not “designed to remove

productive young people to countries where they may

not have lived or even speak the language,” and DHS’s

exercise of “prosecutorial discretion” to forbear removal of these individuals was “especially justified”

because they had “already contributed to our country

in significant ways” and “lack the intent to violate the

law.” Regents Pt. App. 98a-99a. She adopted DACA

to “ensure that [the government’s] enforcement resources are not expended on these low priority cases.”

Ibid. The government actually encouraged eligible

noncitizens to apply to participate in DACA. See

Supp. Pet. App. 73a (Ninth Circuit “agreeing” that the

government’s “assurances were crucial to inducing

[DACA recipients] to apply for DACA”) (quotation

marks omitted); Regents Dist. Ct. ECF No. 121-1, at

181, 227; id. ECF No. 1 ¶ 33.

DACA has allowed nearly 800,000 people—

including nearly 700,000 current recipients—to build

productive lives in the United States without

persistent fear of deportation. NAACP Pet. App. 5a.

Based upon DACA, they have organized their lives to

advance their education, serve in the U.S. military,

start businesses, have families, and make other lifechanging decisions. J.A. 435-49, 652-70. Like many

other DACA recipients, the individual respondents

here—Dulce Garcia, Miriam Gonzalez Avila, Saul

Jimenez

Suarez,

Norma

Ramirez,

Jirayut

Latthivongskorn, Martín Jonathan Batalla Vidal,

Antonio Alarcon, Eliana Fernandez, Carlos Vargas,

Mariano Mondragon, and Carolina Fung Feng—have

pursued new paths and dreams previously

unavailable to them. Some have embarked on careers

as lawyers, medical professionals, and teachers;

others now can raise families without fear of

separation, pay for children’s or parents’ health care,

drive family members to school and medical

appointments, provide a home for their families, or

advocate for their communities. Id. at 659, 889-910,

927, 946, 960. DACA recipients are embedded

throughout the economy; 72% of Fortune 500

companies have hired DACA recipients. Id. at 605. If

DACA is eliminated, recipients will face the persistent

fear of being uprooted from their homes and separated

from their families. They, their families, and their

communities will suffer extraordinary losses. Id. at

435-49, 461.

3. Four years after DACA began, this Court considered a challenge to a different policy—Deferred Action for Parents of Americans and Lawful Permanent

Residents (“DAPA”). Announced in 2014 but never

implemented, DAPA would have made deferred action

available to up to 4.3 million parents whose children

were U.S. citizens or lawful permanent residents. Regents Pet. App. 54a, 107a-08a. Unlike DACA, the

memorandum announcing DAPA said that, although

“[d]eferred action does not confer any form of legal status in this country, … it simply means that, for a specified period of time, an individual is presumed to be

lawfully present in the United States.” Id. at 104a.

DAPA also would have loosened the age and residency

requirements for DACA and extended the deferred action period to three years. Id. at 106a-07a.

Before DAPA was implemented, several states

challenged it under the APA and obtained a preliminary injunction. A divided Fifth Circuit panel affirmed. Texas v. United States, 809 F.3d 134, 171-86

(5th Cir. 2015). This Court affirmed by an evenly divided vote in a per curiam, nonprecedential decision

on June 23, 2016. Texas v. United States, 136 S. Ct.

2271 (2016).

4. The

current

administration

initially

supported DACA. In March 2017, DHS Secretary

John Kelly stated that DACA embodies a

“commitment” “by the government towards …

Dreamer[s].” J.A. 435. In April 2017, the President

personally assured DACA recipients they could “rest

easy” because the “policy of [his] administration [is] to

allow the dreamers to stay.” Ibid (alterations in

original). DHS continued to accept, process, and grant

DACA applications.

Then the administration reversed course. On

September 4, 2017, Attorney General Jefferson

Sessions sent a one-page letter to Acting DHS

Secretary Elaine Duke, stating that “DACA was

effectuated by the previous administration through

executive action, without proper statutory authority”

and “was an unconstitutional exercise of authority by

the Executive Branch.” J.A. 877. Although no court

had found DAPA constitutionally defective, the

Attorney General cited the Texas decision and stated

that DACA has “the same legal and constitutional

defects that the courts recognized as to DAPA.” Id. at

877-78.

The following day, Secretary Duke issued a new

enforcement policy memorandum that ended DACA.

Regents Pet. App. 111a-19a. Her explanation was

brief: “Taking into consideration the Supreme Court’s

and the Fifth Circuit’s rulings in the ongoing [DAPA]

litigation, and the September 4, 2017 letter from the

Attorney General,” she concluded that DACA “should

be terminated.” Id. at 117a. The memorandum contained no analysis of purported litigation risks. Nor

did it weigh defending DACA and its benefits against

the hardship that limiting deferred action would impose on the hundreds of thousands of DACA recipients, their families, employers, schools, communities,

and the economy. The memorandum instructed DHS

to stop approving new DACA applications—even

where immigration officials might have granted the

same relief before DACA—and to stop processing certain renewal applications in October 2017, thus allowing individual recipients’ deferred action to expire beginning in March 2018. Id. at 117a-18a.

Even after the new policy was announced, the

President publicly supported DACA recipients. E.g.,

Donald Trump (@realDonaldTrump), Twitter (Sept.

14,

2017,

5:28

AM),

https://tinyurl.com/

y378dsy9 (“Does anybody really want to throw out

good, educated and accomplished young people who

have jobs, some serving in the military? Really!”);

Donald Trump (@realDonaldTrump), Twitter (Sept.

14, 2017, 5:35 AM), https://tinyurl.com/y29uh56w

(“They have been in our country for many years

through no fault of their own - brought in by parents

at young age.”).

5. Respondents in these consolidated cases filed

lawsuits challenging DHS’s action in the Northern

District of California, the District of Columbia, and

the Eastern District of New York. J.A. 376-796.

Respondents contend, inter alia, that the policy is

unlawful under the APA because it is “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law,” 5 U.S.C. § 706(2)(A). J.A. 463767.

The government produced a mere 256-page

administrative record comprising just 14 public

documents: the memoranda adopting and rescinding

DACA, OLC’s analysis of DAPA, the Attorney

General’s letter, published opinions from the DAPA

litigation, and letters from States and Members of

Congress. Regents Dist. Ct. ECF No. 64-1. “All

nonpublic materials, some eighty-four documents,

actually reviewed by the Acting Secretary remained

withheld as privileged.” Regents Pet. App. 23a. The

lower courts in Regents and Batalla Vidal found that

the administrative record was incomplete. Regents

Dist. Ct. ECF No. 79, at 8; Batalla Vidal Dist. Ct. ECF

No. 89, at 3; see also In re Nielsen, No. 17-3345, ECF

No. 171, at 3 (2d Cir. Dec. 27, 2017) (finding “strong

suggestion” that administrative record was

incomplete). It turns out, for example, that DHS did

not include a Summary of Conclusions from a

Principals Committee meeting, dated August 24,

2017, reflecting the Committee’s “agree[ment] that”

DHS will “withdraw the 2012 DACA memorandum …

in light of DOJ’s legal determination” that DACA is

unlawful.

Make the Road N.Y. v. U.S. Dep’t

Homeland Sec., No. 1:18-cv-2445, ECF No. 63-1, at

209 (E.D.N.Y. Aug. 14, 2019).

In all three cases, the district courts rejected the

government’s arguments that the APA and the INA

prohibit judicial review of its action. Regents Pet.

App. 26a-33a; NAACP Pet. App. 25a-43a; Batalla

Vidal Pet. App. 24a-38a. Each court then either

enjoined or vacated the policy.

In Department of Homeland Security v. Regents of

the University of California, No. 18-587 (“Regents”),

the district court granted preliminary injunctive relief. Regents Pet. App. 41a-69a. It found respondents

likely to succeed on their APA claim that DHS’s policy

was “‘not in accordance law’ because [the decision to

adopt it] was based on the flawed legal premise that

the agency lacked authority to implement DACA.” Id.

at 42a. And it held that equity strongly favored preliminary relief because eliminating DACA would “result in hundreds of thousands of individuals losing

their work authorizations and deferred action status,”

tearing apart families and removing productive workers from the economy. Id. at 65a. The Ninth Circuit

affirmed the injunction for largely the same reasons.

Regents Supp. App. 1a-78a.1

The Ninth Circuit also affirmed the denial of the government’s motion to dismiss the DACA Recipient Respondents’

Equal Protection claim, but noted that “Plaintiffs did not seek a

In McAleenan v. Batalla Vidal, No. 18-589

(“Batalla Vidal”), the district court granted an

identical preliminary injunction. Batalla Vidal Pet.

App. 90a-129a. It found that respondents were likely

to succeed on their APA claim because DHS acted

“based on an erroneous legal premise.” Id. at 91a.

The court also concluded that the action was arbitrary

and capricious because: (1) it rested on an “obvious

factual mistake”—the Attorney General’s assertion

that the Fifth Circuit in Texas had found

“‘constitutional defects … as to DAPA,’” id. at 105a

(omission in original); and (2) the Secretary’s decision

to wind down DACA gradually was “internally

inconsistent” with her statement that DACA is

unlawful, id. at 107a-09a.

In Trump v. NAACP, No. 18-588, the district court

vacated Secretary Duke’s memorandum. NAACP Pet.

App. 48a-66a. It reasoned that the government had

failed sufficiently to explain its legal conclusion that

DACA is unlawful, and the decision therefore was arbitrary and capricious regardless of the correctness of

that legal conclusion. Id. at 49a-55a. The court rejected the government’s request to remand to the new

DHS Secretary, Kirstjen Nielsen, while leaving DHS’s

new policy in place. Id. at 62a-66a. Instead, it vacated

the policy but stayed its order for 90 days to give the

preliminary injunction on [that] claim, instead relying solely on

their APA argument.” Regents Supp. App. 84a. The district

court in Batalla-Vidal likewise found that plaintiffs had stated

an Equal Protection claim, Batalla-Vidal Pet. App. 157a, but

based its preliminary injunction only on the APA, id. at 68a. Respondents do not rely on the Equal Protection claims to affirm

the issuance of the preliminary injunctions. No court has yet decided the merits of those claims. The APA claims are sufficient

to resolve the case, and this Court need not address Equal Protection in this interlocutory posture at the pleading stage.

Secretary an opportunity to “reissue a memorandum

rescinding DACA, this time providing a fuller explanation for the determination that the program lacks

statutory and constitutional authority.” Id. at 66a.

6. Secretary Nielsen declined the NAACP court’s

invitation to issue a new agency action. Instead, she

issued a memorandum in which she “decline[d] to

disturb” Secretary Duke’s policy and proffered several

reasons why, in her view, that action “was, and

remains, sound.” Regents Pet. App. 121a.

Secretary Nielsen’s memorandum stated that she

was “bound” by the Attorney General’s conclusion that

DACA is unlawful, and therefore legally compelled to

terminate DACA. Regents Pet. App. 122a-23a. Thus,

she did not address—any more than the Attorney

General or Secretary Duke—the Trump and Obama

administrations’ prior support for DACA or the

Executive’s longstanding legal position and exercises

of deferred action authority. Instead, Secretary

Nielsen purported to recast that conclusion in policy

terms—suggesting for example that deferred action

“should be enacted legislatively” rather than

implemented by the Executive. Id. at 123a-24a. The

memorandum did not weigh these supposed policy

considerations independently against the significant

hardships that denying deferred action would cause to

multiple stakeholders. Instead, it offered only the

perfunctory conclusion that DACA’s “questionable

legality” and “other reasons” together outweighed the

unstated “interests” of DACA recipients alone. Id. at

125a.

The government has not defended Secretary

Nielsen’s memorandum as a new agency action.

Instead, DHS offered the memorandum as a reason

for the district court to reconsider its order vacating

Secretary Duke’s initial decision. See NAACP Pet.

App. 81a. Exercising discretion under Federal Rule of

Civil Procedure 54(b)—which permits reconsideration

of interlocutory orders any time before final

judgment—the court declined to consider any “‘new

reason[s]’” first offered by Secretary Nielsen. Id. at

92a. The court agreed to consider the Nielsen

memorandum only as it clarified Secretary Duke’s

reasoning, id. at 91a-92a, but concluded that even

with this additional gloss, the reasons Secretary Duke

“previously gave” could not salvage her decision

“because the Court ha[d] already rejected them.” Id.

at 82a. The Court thus allowed its vacatur of

Secretary Duke’s policy to stand. Ibid.

SUMMARY OF ARGUMENT

1. Neither the APA’s narrow exception for

decisions “committed to agency discretion by law,”

5 U.S.C. § 701(a)(2), nor the INA prevents judicial

review of the government’s new enforcement policy.

The APA does not preclude review of an agency’s

action affecting 700,000 DACA recipients’ ability to

remain in the United States, as well as eligibility for

work authorization and other benefits under separate

authorities. There is no remotely comparable case

withholding judicial review, much less a “tradition” of

unreviewability.

Here, there are meaningful

standards for the Court to apply, particularly because

DHS’s decision was based on an (incorrect) legal

judgment. The government now claims that its

decision was based on “litigation risk,” but that

rationale appears nowhere in Secretary Duke’s

memorandum, nor can it be meaningfully separated

from DHS’s incorrect belief that DACA is unlawful.

The government also argues that Secretary

Nielsen’s subsequent memorandum precludes review.

But that memorandum was not offered as a new

agency action on a new administrative record. It

merely purported to provide additional support for

Secretary Duke’s memorandum after it was vacated

by the NAACP court. That court did not abuse its

discretion in refusing to reconsider the vacatur based

on Secretary Nielsen’s memorandum. In any event,

both memoranda can be reviewed under the APA’s

general requirement of reasoned decisionmaking.

Nor does the INA, 8 U.S.C. § 1252(b)(9), (g),

preclude review. Section 1252(b)(9) applies only to

removal orders, detention decisions, and removal

decisions. Section 1252(g) applies only to decisions to

commence proceedings, adjudicate cases, or executive

removal orders. Respondents’ claims do not fall into

any of these categories.

2. The Executive can change course on

enforcement policies, but not in arbitrary and

unreasoned ways. DHS’s new policy terminating

DACA did not meet the APA’s requirement for

reasoned decisionmaking and public accountability.

DHS did not consider, for example, the Executive’s

long history of deferred action policies and

institutional claim of legal authority. Nor did it

consider the costs of its decision, including loss of work

authorization for 700,000 DACA recipients. The

failure to consider costs to DACA recipients, their

families and employers, and the larger economy is

particularly egregious as hundreds of thousands of

people made life-altering decisions based on DACA, as

the government intended them to do.

Moreover, the central rationale for DHS’s

decision—that DACA is unlawful—is wrong. The

government has never defended the Attorney

General’s assertion that DACA is “unconstitutional.”

Nor has it questioned the Executive’s authority to

grant deferred action on an individualized basis, 70

years of deferred action policies affecting more than a

million noncitizens, or the validity of regulations

making deferred action recipients eligible for work

authorization. The Executive’s inherent authority

over immigration, which this administration and

others have consistently argued to this Court, and the

congressional ratification of deferred action put DACA

on solid legal footing. DACA fits comfortably within

the tradition of past humanitarian deferred action

policies. The government’s contrary conclusion is “not

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

The government’s remaining rationales also fail.

First, purported concerns over litigation risk

cannot justify DHS’s action. Secretary Duke claimed

she was bound by the Attorney General’s erroneous

conclusion that DACA was unlawful; thus, any

discussion of litigation risk was an afterthought and

bound up with the legal error. Regardless, the agency

never fully considered litigation risk through, for

example, carefully comparing DACA and DAPA or

weighing the benefits of defending DACA against

risks the government might face if DACA were

successfully challenged. Moreover, because nearly all

major agency action will spur litigation, this

rationale—if credited—would defeat judicial review of

nearly any agency action. As Gene Hamilton, the

principal drafter of Secretary Duke’s memorandum

testified, a “litigation risk” rationale “sounds like the

craziest policy you could have in a department. You

could never do anything if you were always worried

about being sued.” J.A. 1007.

Second, Secretary Nielsen’s memorandum does not

justify the agency’s action. She, too, claimed to be

bound by the Attorney General’s legal conclusion and

she, too, failed to meaningfully analyze litigation risk.

Her other rationales, which she claims are

independent, merely recast the legal case against

DACA in policy terms. Her memorandum is not

supported by any administrative record (none was

ever filed).

Secretary Nielsen’s purported rationales—

“doubts” about legal authority and concern that relief

“should be enacted legislatively,” be provided

“individually,” and “project a message” of consistent

enforcement—cannot

provide

the

“reasoned

explanation”

absent

from

Secretary

Duke’s

memorandum because Secretary Nielsen chose not to

take new agency action.

Regardless, Secretary

Nielsen (like her predecessor) never accounted for the

hardships that DHS’s reversal would impose on

DACA recipients or others. Her superficial costbenefit analysis weighed the costs of ending DACA

against all of her collective reasons for supporting that

outcome—including her erroneous views on DACA’s

legality. Her conclusion cannot stand.

ARGUMENT

I. DHS’s New Immigration Enforcement Policy

Terminating DACA Is Judicially Reviewable

The APA mandates that those who “suffe[r] legal

wrong because of agency action” are “entitled to

judicial review.” 5 U.S.C. § 702. Because agencies are

“‘especially’” likely to disregard their legal obligations

“‘when [violations] have no consequence,’” the APA

establishes a “‘strong presumption favoring judicial

review of administrative action,’” Weyerhaeuser Co. v.

U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018),

especially in the immigration context, see INS v. St.

Cyr, 533 U.S. 289, 298 (2001). The government bears

the “heavy burden” to overcome that presumption.

Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651

(2015).

Agency decisions are reviewable unless: (1) they

have been “committed to agency discretion by law,” 5

U.S.C. § 701(a)(2); or (2) another “statut[e] preclude[s]

judicial review,” id. § 701(a)(1). As every court to

consider the issue has agreed, see, e.g., U.S. Opening

Brief (“Br.”) 9-14, neither bar applies here.

A. The APA Does Not Bar Judicial Review

This Court “narrowly” construes the APA’s

exception to judicial review for decisions “committed

to agency discretion by law.” Dep’t of Commerce

v. New York, 139 S. Ct. 2551, 2568 (2019). The

exception is “limited … to certain categories of

administrative decisions that courts traditionally

have regarded as committed to agency discretion.”

Ibid. (quotation marks omitted).

And it only

precludes review when there is “no meaningful

standard” for courts to apply.

Ibid.

Neither

requirement is met here.

1. DHS’s Action Is Not A Traditionally

Unreviewable

Nonenforcement

Decision

The government asserts that DHS’s new policy

terminating DACA is unreviewable because it is like

a traditionally unreviewable decision “not to institute

enforcement actions.” Br. 17. But DHS did not

decline to institute an enforcement action. It made a

broad policy change affecting all DACA recipients’

ability to remain in the country and, pursuant to

separate authorities, access work authorization and

other attendant benefits. The government cannot

point to any remotely similar policy reversal that has

escaped judicial review—let alone a tradition of

denying review—because none exists.

The

government thus falls far short of its “heavy burden”

to avoid review. Mach Mining, 135 S. Ct. at 1651.

The government relies mainly on Heckler v.

Chaney, 470 U.S. 821 (1985), but Chaney involved a

completely different situation. In Chaney, eight

inmates who had been sentenced to death petitioned

the FDA to initiate enforcement proceedings against

two States to prevent their use of particular drugs for

lethal injections. In denying the petition, the FDA

invoked its “inherent discretion to decline to pursue

certain enforcement matters.” Id. at 824. This Court

held that the decision was not reviewable in light of

the “tradition” of affording “absolute” deference to “an

agency’s decision not to prosecute or enforce.” Id. at

831.

The Court emphasized the “complicated

balancing of … factors” involved in selecting

enforcement targets and measuring “particular

enforcement action[s]” against the “agency’s overall

policies.” Ibid. Most tellingly, the Court reasoned

that nonenforcement decisions generally lack any

“focus for judicial review” because they do not involve

the exercise of “coercive power” over an individual. Id.

at 832.

Here, by contrast, DHS’s action is coercive.

Although DACA is rooted in the government’s

authority to defer removal proceedings against

individuals subject to deportation, Congress (by

statute) and DHS (by regulation) have added benefits

that flow from deferred action, including access to

work authorization. Ending DACA denies 700,000

DACA recipients the ability to work, and thus directly

“infringe[s] upon areas that courts are called upon to

protect.” Chaney, 470 U.S. at 832. The government is

therefore wrong that ending DACA “will not, by itself,

bring to bear the agency’s coercive power over any

individual.” Br. 19.

Further, the Secretary exercised that power

categorically, whereas Chaney involved “[i]ndividual,

isolated nonenforcement decisions.” 470 U.S. at 839

(Brennan, J., concurring).

As Justice Brennan

explained, Chaney “holds that [the FDA’s] individual

decisions … not to take enforcement action in

response to citizen requests are presumptively not

reviewable” because Congress did not “inten[d] courts

to review such mundane matters.” Id. at 838-39

(emphasis added).

The FDA did not make an

affirmative, public “programmatic determination” to

exempt all cases from enforcement, as the government

contends. Br. 21-22. It declined to initiate specific

enforcement actions sought in a single petition.

This Court has declined to extend Chaney to

decisions that are “‘less frequent’” and “‘more apt to

involve legal as opposed to factual analysis.’”

Massachusetts v. EPA, 549 U.S. 497, 527 (2007).

Decisions about general enforcement policy are both.

They are “abstracted from the particular

combinations of facts” that “drive … individual

enforcement decision[s],” and that agencies may be

better suited to evaluate. Crowley Caribbean Transp.,

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

also cover more ground, so agencies typically supply

“a clearer (and more easily reviewable) statement of

[their] reasons.” Ibid. “[C]ursory, ad hoc, or post hoc”

decisionmaking may be the norm, by necessity, for

“individual decisions to forego enforcement,” ibid, but

agencies must explain major policy initiatives that

tangibly and adversely affect hundreds of thousands

of persons.

These considerations permit review of Secretary

Duke’s decision for the same reason they permit

review of the decisions to adopt DACA and DAPA. As

the Fifth Circuit explained, a decision that “triggers

… eligibility for federal benefits” involves “much more

than nonenforcement,” and is therefore reviewable.

Texas v. United States, 809 F.3d 134, 166 (5th Cir.

2015). This was the ground for reviewability offered

to this Court. State Resp. Br. at 39, Texas, 2016 WL

1213267 (U.S. Mar. 28, 2016). And the very premise

of the change in policy is that “potentially imminent

litigation” would enjoin DACA. J.A. 878. The

government dismisses any distinction between

“eliminat[ing]”

and

“adopt[ing]”

DACA

“immaterial,” Br. 22 (emphasis omitted), so its

assertion that the decision to eliminate DACA is

unreviewable contradicts the stated premise of DHS’s

new policy. DHS’s action is reviewable.

2. There Are Meaningful Standards For

Judicial Review

There are “meaningful standard[s]” for courts to

apply in reviewing Secretary Duke’s action. Dep’t of

Commerce, 139 S. Ct. at 2568.

a. Secretary Duke ostensibly announced a new

policy terminating DACA because Attorney General

Sessions

determined

that

DACA

was

“unconstitutional” and “effectuated … without proper

statutory authority.” J.A. 877. Secretary Nielsen

later recognized that conclusion was binding on DHS.

Regents Pet. App. 122a-23a (citing 8 U.S.C.

§ 1103(a)(1)). In her memorandum, Secretary Duke

said that she “[took] into consideration” only the

Attorney General’s letter and the authorities

underlying his legal conclusion. Id. at 117a.

Assessing this purely legal premise falls squarely

within the judiciary’s core competency: “to say what

the law is.” Marbury v. Madison, 5 U.S. (1 Cranch)

137, 177 (1803). The APA likewise “requires the court

to determine legal questions,” Kisor v. Wilkie, 139 S.

Ct. 2400, 2432 (2019) (Gorsuch, J., concurring in the

judgment). The legal question here can be answered

by reference to the INA’s text and structure, the

Executive’s broad discretion over immigration and

long history of implementing deferred action policies,

and this Court’s precedent on the appropriateness of

deferred action. See infra at 37-48.

Secretary Duke’s disavowal of legal authority to

maintain DACA also further distinguishes this case

from Chaney. The Secretary did not “exercise [her]

‘discretion’” to change DHS’s deferred action policy

based on a “complicated balancing of a number of

factors which are peculiarly within [the agency’s]

expertise.” Chaney, 470 U.S. at 823, 831. In fact, she

disclaimed discretion to maintain DACA in light of

the Attorney General’s binding legal determination.

Cf. id. at 833 n.4 (distinguishing “a refusal by an

agency to institute proceedings based solely on the

belief that it lacks jurisdiction”).

Reviewing an agency’s determination that it lacks

legal authority furthers, rather than threatens, the

agency’s discretion. It frees the agency to make a

policy decision to exercise or decline to exercise its

authority. “[A]llowing judicial review under these

circumstances

…

promot[es]

…

democratic

accountability” within the Executive Branch by

preventing it from “blam[ing] the other two branches

… for a choice that was the agency’s to make all

along.” Regents Supp. App. 31a-33a. Reviewing the

Executive’s new enforcement policy “prevents this

anti-democratic and untoward outcome,” id. at 33a,

and ensures that “an official cannot claim that the law

ties her hands while at the same time denying the

courts’ power to unbind her,” NAACP Pet. App. 73a.

These are not “free-floating” accountability concerns,

Br. 31; they reflect the APA’s central purpose of

holding federal agencies “accountable to the public

and their actions subject to review by the courts.”

Franklin v. Massachusetts, 505 U.S. 788, 796 (1992).

The government is wrong that under ICC v.

Brotherhood of Locomotive Engineers, 482 U.S. 270

(1987) (“BLE”), it “makes no difference what reasons

DHS gave.” Br. 23. BLE involved an agency’s singleshot decision not to reconsider its prior order after the

time to obtain judicial review had passed. This Court

held that parties could not “exten[d] indefinitely” the

time to seek relief by first asking the agency to

reconsider its order and then petitioning for review of

the decision denying reconsideration, 482 U.S. at 280,

and emphasized that there is a “tradition” of denying

review in similar circumstances, id. at 282. These

reasons did not depend on why the agency had denied

reconsideration, so the Court adopted a blanket rule

that such decisions are always unreviewable, even if

the agency gives a “‘reviewable’ reason.” Id. at 283.

This situation is very different. It may be that

under BLE, “agency actions falling within a tradition

of nonreviewability” remain nonreviewable even when

they are based on “reviewable reason[s].” Br. 23-24

(quoting BLE, 482 U.S. at 282-83) (quotation marks

omitted; emphasis added). But Secretary Duke’s

decision—to deprive DACA recipients of deferred

action and, as a result, eligibility for work

authorization by regulation—is the type of decision

that courts traditionally review. See supra at 21. It

is enough, therefore, that there are meaningful

standards to apply in this case. Citizens to Pres.

Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)

(review available if there is “law to apply” “in a given

case”), abrogated on other grounds by Califano v.

Sanders, 430 U.S. 99 (1977). The Secretary’s reliance

on a reviewable legal premise satisfies that

requirement.

b. The government denies that the decision was

“based solely on DHS’s legal conclusion.” Br. 26.

Although Secretary Duke’s sole stated reason for her

new policy was DACA’s supposed illegality, the

government has unearthed a new and different

argument in this litigation—that it was justified by

“litigation risk.” Br. 27. This maneuver does not

defeat reviewability.

First, the Ninth Circuit correctly deemed that

justification a “mere post hoc rationalization” and

refused to consider it, including in deciding

reviewability. Regents Supp. App. 35a. Post hoc

rationalizations cannot deprive courts of the ability to

review the agency’s otherwise-reviewable original

action. See infra at 48-49.

Second, even if Secretary Duke’s reasoning were

stretched to encompass litigation risk, there are still

meaningful standards for courts to apply. The

Attorney General’s conclusion about the likely

outcome of litigation challenging DACA was expressly

premised on his own view of the policy’s legality. J.A.

878 (“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.”).

Nothing else in Secretary Duke’s memorandum is

tethered to litigation risk. As such, litigation risk here

is inseparable from the reviewable legal judgment.

NAACP Pet. App. 41a-42a. Moreover, assessing a

lawsuit’s likelihood of success—as the lower courts did

here in assessing the need for a preliminary

injunction—is standard fare for courts. E.g., Regents

Supp. App. 77a.

c. Secretary Nielsen’s later memorandum comes

too late to bear on reviewability and in any event

would not lead to a different result.

The Nielsen memorandum is not a new

agency action like the successive travel bans in Trump

v. Hawaii, 138 S. Ct. 2392 (2018), and the government

has not defended it as such. The government offers it

only as support for the Duke memorandum. Br. 28.

Since NAACP vacated that memorandum before

Secretary Nielsen issued hers, the Nielsen

memorandum is relevant only if it provides a basis to

reconsider the vacatur.

The decision to reconsider an interlocutory order

rests in “the discretion of the district judge.” Moses H.

Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.

1, 12 (1983). As BLE confirms, decisions denying

reconsideration—“by lower courts” and agencies

alike—are traditionally reviewable only in limited

circumstances. 482 U.S. at 282. Appellate courts

review denials of reconsideration for abuse of

discretion. E.g., SPV-LS, LLC v. Transamerica Life

Ins. Co., 912 F.3d 1106, 1111 (8th Cir. 2019); Capitol

Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630

F.3d 217, 227 (D.C. Cir. 2011).

The district court in NAACP did not abuse its

discretion in denying reconsideration. DHS had every

opportunity to offer additional reasons for its new

policy, both before the policy was vacated and after.

The court invited Secretary Nielsen to revive the

policy properly—through a new agency action on a

new administrative record, NAACP Pet. App. 94a—

but she declined. The court was not required to revisit

its vacatur at all, let alone based on arguments DHS

failed to advance before vacatur. See Moore’s Federal

Practice §§ 54.25[4], 59.30[6] (2019). The court thus

reasonably declined to consider Secretary Nielsen’s

“new reason[s]” through the backdoor of a

reconsideration motion. NAACP Pet. App. 92a.

The government points out that NAACP discussed

the Nielsen memorandum at length. Br. 28. But the

court considered that memorandum only as evidence

of Secretary Duke’s reasons, NAACP Pet. App. 91a92a, and properly read, it sheds no light on that issue.

Secretary Nielsen issued her memorandum “to

explain her reasons,” not Secretary Duke’s. Br. 29.

Since nothing in the record suggests Secretary Duke

shared Secretary Nielsen’s reasons, the Nielsen

memorandum does not affect the district court’s

reasoning.

ii. Regardless, the Nielsen memorandum is

reviewable in its own right “according to the general

requirements of reasoned agency decisionmaking”

under the APA. Dep’t of Commerce, 139 S. Ct. at 2569.

Judicial review is available to ensure, at minimum,

that DHS: (1) gave a “reasoned explanation … that

can be scrutinized by courts and the interested

public,” id. at 2575-76; (2) considered the “facts and

circumstances that underlay or were engendered by

[its] prior policy” before “chang[ing] … course,” FCC v.

Fox Television Stations, Inc., 556 U.S. 502, 515-16

(2009); and (3) “pa[id] attention to the advantages and

the disadvantages of [its] decisions,” Michigan v. EPA,

135 S. Ct. 2699, 2707 (2015). Courts routinely apply

these standards.

It makes no difference, therefore, whether the INA

itself “circumscribes the Secretary’s decision.” Br. 19.

The authority to set aside agency action that is

“arbitrary” and “capricious” or an “abuse of

discretion,” 5 U.S.C. § 706(2)(A), is independent of the

authority to set aside actions “in excess of statutory

jurisdiction,” id. § 706(2)(C).

In Judulang v. Holder, for example, this Court

held that a Board of Immigration Appeals policy

governing eligibility for discretionary relief from

deportation was properly reviewed under the APA’s

“arbitrary and capricious” standard, even though the

challenged policy was “not an interpretation of any

statutory language” and the statute “d[id] not

mention” the question decided by the agency. 565

U.S. 42, 52 n.7 (2011). Even without a “textual

anchor” to guide its review, the Court unanimously

rejected the policy because it was based on

“irrelevant” factors unconnected to whether the

noncitizens affected deserved the requested relief. Id.

at 55, 60. As Judulang recognized, removal of

noncitizens with “longstanding ties to this country” is

“a matter of the utmost importance,” and statutory

silence cannot justify approaching that matter

arbitrarily without judicial oversight. Id. at 64. Even

when an agency acts within its substantive authority,

courts have “a role, and an important one, in ensuring

that [it] engaged in reasoned decisionmaking.” Id. at

53.2

Although DHS’s substantive authority is “broad,” it is not

“unbounded.” Dep’t of Commerce, 139 S. Ct. at 2568. Congress

B. The INA Does Not Bar Judicial Review

The government’s truncated arguments based on

the INA, 8 U.S.C. § 1252(b)(9), (g), are similarly

misplaced. See Br. 20-21. The challenged action does

not fit within either provision’s plain language and

thus cannot overcome the presumption of

reviewability. Mach Mining, 135 S. Ct. at 1651.

Neither provision applies outside of the removal

process. Section 1252(b)(9) limits judicial review of

claims that challenge “an order of removal,” a

“decision to detain … or to seek removal,” or “part of

the process by which … removability will be

determined.” Jennings v. Rodriguez, 138 S. Ct. 830,

841 (2018) (plurality op.). The three-justice plurality

in Jennings stated this expressly, and the three

dissenting justices would have gone farther, limiting

Section 1252(b)(9) to claims that “challenge … an

order of removal.” Id. at 876 (Breyer, J., dissenting).

Section 1252(g), meanwhile, “applies only to three

discrete actions that the Attorney General may take:

her ‘decision or action’ to ‘commence proceedings,

adjudicate cases, or execute removal orders.’” Reno

v. AADC, 525 U.S. 471, 482 (1999). It is not triggered

by “all claims arising from deportation proceedings,”

ibid., and does not “sweep in any claim that can

authorized the Secretary to set “national immigration … priorities,” 6 U.S.C. § 202(5), but it regularly circumscribes that authority. See, e.g., Consolidated Appropriations Act, 2016, Pub. L.

No. 114-113, Div. F, Tit. II, 129 Stat. 2242, 2497 (directing the

Secretary to prioritize the removal of criminal noncitizens by “severity of th[e] crime”); Consolidated Appropriations Act, 2008,

Pub. L. No. 110-161, Div. A, Tit. II, 121 Stat. 1844, 2051 (conditioning grant of funds to deport noncitizens who have committed

crimes on the Secretary’s creation of a “methodology” to “identify

and prioritize for removal criminal aliens convicted of violent

crimes”).

technically be said to ‘arise from’ the three listed

actions of the Attorney General,” Jennings, 138 S. Ct.

at 841 (plurality op.).

Respondents here do not challenge any removal

order or detention decision.

And the Duke

memorandum is not a decision to “commence” removal

proceedings against any DACA recipient; “adjudicate”

any case; or “execute” any removal order. 8 U.S.C.

§ 1252(g). Accordingly, neither statute applies.

Sections 1252(b)(9) and 1252(g) may “give some

measure of protection to ‘no deferred action’ decisions”

in the specific context of individual removal

proceedings. Br. 20 (quoting AADC, 525 U.S. at 485)

(emphasis added). But Congress was concerned about

“‘[e]fforts to challenge the refusal to exercise [deferred

action] on behalf of specific aliens.’” AADC, 525 U.S.

at 485 (emphasis added).

The government’s

programmatic decision here is not a matter that must

await judicial review in separate, individual actions in

immigration courts.

II. DHS Violated The APA By Failing To Engage

In Reasoned Decisionmaking

DHS’s new policy that terminated DACA is

“arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law” in violation of

the APA, 5 U.S.C. § 706(2)(A), and must be set aside,

SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)

(“Chenery I”) (“[A]n order may not stand if the agency

has misconceived the law.”).

The fundamental principle of administrative law is

that “administrative agencies are required to engage

in reasoned decisionmaking.” Michigan, 135 S. Ct. at

2706 (quotation marks omitted). While agencies

remain “free to change their existing policies,” the

APA demands that they “provide a reasoned

explanation for [such] change[s],” Encino Motorcars,

LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016), “that

can be scrutinized by courts and the interested

public,” Dep’t of Commerce, 139 S. Ct. at 2575-76.

Respondents do not ask this Court to “secondgues[s]” DHS’s policy “judgment” or question its

ability to change policy. Br. 32-33. The decisions

below recognized that the Executive can rescind

DACA “as an exercise of [its] discretion,” Regents

Supp. App. 57a, but the policy cannot be changed

without the “minimal level of analysis” necessary for

reasoned decisionmaking, judicial oversight, and

public accountability, Encino Motorcars, 136 S. Ct. at

2125, supported by the administrative record, Dep’t of

Commerce, 139 S. Ct. at 2573. The way in which DHS

replaced DACA with a new enforcement policy is

antithetical to proper administrative action. DACA is

a matter of significant public concern.

DACA

recipients, their communities, and the public deserve

a reasoned explanation for the government’s decision

supported by a complete administrative record. They

did not receive one.

A. The Government Violated the APA By

Failing To Explain Its Policy Change Or

Acknowledge Its Prior Stance On DACA’s

Legality

The letter from Attorney General Sessions and

Secretary Duke’s memorandum do not allow a

reviewer to reasonably “discer[n]” the legal “path”

DHS followed in jettisoning its prior positions and

concluding that DACA is unlawful. Bowman Transp.,

Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286

(1974). The decision violated the APA.

For decades, the Executive has exercised its

authority to grant deferred action for humanitarian

purposes, including on a categorical basis, and to

couple that relief from removal with work

authorization and other benefits. After DACA was

adopted, the Department of Justice vigorously

defended it as a “valid exercise of the [Executive’s]

broad authority and discretion to set policies for

enforcing the immigration laws.” U.S. Amicus Br. at

1, Ariz. Dream Act Coalition v. Brewer, 2015 WL

5120846 (9th Cir. Aug. 2015); see also Arpaio v.

Obama, 797 F.3d 11 (D.C. Cir. 2015); Crane v.

Johnson, 783 F.3d 244 (5th Cir. 2015). Reflecting the

Executive’s

legal

judgment

and

long-term

institutional interests, the Solicitor General defended

DAPA before this Court and argued that challenges to

that

deferred

action

policy

“dramatically

understate[d] the scope of [DHS’s] authority” to

establish immigration-enforcement policies and

priorities. Pet. Br. at 61, Texas, 2016 WL 836758 (U.S.

Mar. 1, 2016); see also Appellants’ Br. at 26, Barr v. E.

Bay Sanctuary Covenant, 2019 WL 4307408 (9th Cir.

Sept. 3, 2019) (government arguing it was permitted

to “exercise its discretion” to limit asylum “through

categorical rules”).

That position was backed by OLC’s considered

legal analysis. OLC “orally advised” DHS that DACA

was lawful, J.A. 827 n.8, and later memorialized its

recognition of DHS’s authority to grant deferred

action on a categorical basis in a lengthy opinion that

the Justice Department made public. Id. at 797-856.

Such OLC “formal written opinions” are a

“particularly important form of controlling legal

advice,” and especially “significant” OLC opinions are

“presumpt[ively]” made public, thereby educating the

nation “on some of the weightiest matters in our

public life.” Citizens for Responsibility & Ethics in

Washington v. U.S. Dep’t of Justice, 922 F.3d 480, 48384 (D.C. Cir. 2019) (quotation marks omitted). And

for much of 2017—even after this Court’s 4-4

affirmance in Texas—President Trump, the DHS

Secretary, and other members of the current

administration publicly supported DACA. J.A. 455.

Notwithstanding this history, Attorney General

Sessions and Secretary Duke offered only a

threadbare explanation of their central legal premise

that DACA is both unconstitutional and unlawful.

Neither addressed the Solicitor General’s detailed

defense of Executive authority and practice on

deferred action before this Court or the analysis in

OLC’s opinion, nor did they explain why the Fifth

Circuit’s reasons for rejecting DAPA would apply to

the materially different policy considerations in

DACA. Indeed, in citing the Fifth Circuit’s Texas

decision to conclude that DACA is unconstitutional,

the Attorney General’s letter mischaracterized the

very opinion on which it purported to rely—a crucial

and “obvious factual mistake.” Batalla Vidal Pet.

App. 98a. The Fifth Circuit expressly declined to

resolve constitutional questions regarding DAPA,

Texas, 809 F.3d at 154, and as the government

recently argued to this Court, “‘claims that an official

exceeded his statutory authority’ are not

constitutional claims.” App. for Stay Pending Appeal,

Trump v. Sierra Club, No. 19A60 (U.S., July 12, 2019)

(quoting Dalton v. Specter, 511 U.S. 462, 474 (1994)).

The government tries to excuse its unexplained

about-face by asserting that it reflected DHS’s

“agree[ment]” with the Fifth Circuit’s “fla[t]

reject[ion]” of OLC’s lengthy analysis. Br. 52. But

neither the Attorney General’s letter nor Secretary

Duke’s memorandum said that. And regardless, a

conclusory, unexplained statement “agreeing” with

the ruling of a single, divided court of appeals—in the

face of DOJ’s analysis and decades-old Executive

practice across administrations of both parties—does

not constitute “[r]easoned decisionmaking.” Dep’t of

Commerce, 139 S. Ct. at 2576. Nor does this Court’s

4-4 summary affirmance in Texas elevate the legal

significance of the Fifth Circuit’s ruling or its

reasoning. See Br. 7, 15, 16, 33, 52. “An unexplained

affirmance by an equally divided court” is “not

entitled to precedential weight no matter what

reasoning may have supported it.” Rutledge v. United

States, 517 U.S. 292, 304 (1996).

While the government need not outline its

reasoning “with legislative precision” (Br. 27), the

Attorney General’s letter and Secretary Duke’s

memorandum are so sparse that one cannot

reasonably “discer[n]” the logical “path” DHS followed

in its decisionmaking. Bowman, 419 U.S. at 286. It

would be one thing for the government to have

acknowledged its official prior positions, as

articulated by OLC and elsewhere, and explained its

newfound disagreement to justify disclaiming

Executive authority and abandoning the five-year-old

policy with 700,000 participants. But the Attorney

General’s unexplained “failure to even consider OLC’s

thorough [public] analysis”—without any principled

reasons for doing so—“is [itself] arbitrary and

capricious.” NAACP Pet. App. 54a n.23.

B. The Government Violated the APA By

Failing To Consider The Costs Of Its

Decision Or The Interests Affected

“[R]easonable regulation” also “ordinarily requires

paying attention to the advantages and the

disadvantages of agency decisions,” Michigan, 135 S.

Ct. at 2707, and then “explain[ing] whether the

benefits outweigh the costs,” Mingo Logan Coal Co. v.

EPA, 829 F.3d 710, 734 (D.C. Cir. 2016) (Kavanaugh,

J., dissenting). In adopting her new policy, Secretary

Duke “failed [her] most basic duty under the [APA] to

consider all of the relevant factors, including costs,”

and thereby “asses[s] whether [her] proposed action

would do more good than harm.” Id. at 732. Both

“common administrative practice and common sense

require[d]” such an assessment, id. at 733, and its

absence here violated the APA, Michigan, 135 S. Ct.

at 2707.

These principles apply with special force where, as

here, an agency’s “longstanding policies …

engendered serious reliance interests,” Encino

Motorcars, 136 S. Ct. at 2126. When individuals and

businesses form plans around a policy, reversing

course is “more costly” than when an agency

“announces a decision on a clean slate.” Mingo, 829

F.3d at 732 (Kavanaugh, J., dissenting). Considering

the consequences of a change for people and

institutions who have ordered their affairs in response

to government action, in other words, is part of

agencies’ basic obligation to consider costs, which

exists independent of whether regulated parties can

assume that the government will stay its course from

administration to administration, see Br. 42; Encino

Motorcars, 136 S. Ct. at 2126 (agency was free to

change interpretation at any time but had to

acknowledge harms that could result). Here, the

government never considered the “disruption” its

policy “would have on the lives of DACA recipients, let

alone their families, employers and employees,

schools and communities.” Regents Pet. App. 60a.

In establishing DACA, Secretary Napolitano

explained that the policy was meant “to ensure that

[DHS’s] enforcement resources are not expended on …

low priority cases but are instead appropriately

focused on people who meet [DHS’s] enforcement

priorities.” Regents Pet. App. 98a. Generally, those

who met the policy’s criteria were not enforcement

priorities because they “lacked the intent to violate

the law,” and “many” were “already [being] offer[ed]

administrative closure” in any event.

Ibid.

“[P]rosecutorial discretion” was also “especially

justified” because those “productive young people” had

“already contributed to our country in significant

ways.” Id. at 98a-99a.

In terminating DACA for a different enforcement

approach, neither Attorney General Sessions nor

Secretary Duke even acknowledged such “facts and

circumstances,” let alone provided “a reasoned

explanation … for disregarding [them].” Fox, 556 U.S.

at 516. They neither questioned DHS’s original

reasons for adopting DACA nor suggested that the

circumstances supporting the policy had changed.

Indeed, nothing in Secretary Duke’s memorandum

suggests the government considered any of the

hardships that DACA recipients and others would

face without deferred action. Michigan, 135 S. Ct. at

2708. By 2017, DACA had enabled hundreds of

thousands of young people “to enroll in colleges and

universities, complete their education, start

businesses that help improve our economy, and give

back to our communities as teachers, medical

professionals, engineers, and entrepreneurs—all on

the books.” Regents Dist. Ct. ECF No. 121-1, at 25253. DACA recipients, including the individual

respondents here, had subjected themselves to

background checks, paid their fair share of taxes, and

ceased living in persistent fear of removal. They have

advanced their education, served in the U.S. military,

started businesses, formed families, and taken out

business and student loans and mortgages. Regents

Dist. Ct. ECF No. 124-2, at 1-3. They have made

significant contributions to their employers and

educational institutions, which in turn made decisions

and investments based on the ability of DACA

recipients to continue to work or study in the United

States. Id. at 7-9. Data from shortly before Secretary

Duke’s memorandum showed that over 90 percent of

DACA recipients were then-employed. Regents Dist.

Ct. ECF No. 119-2, at 41, 44. And research from 2017

estimated that ending DACA would cost the federal

government $60 billion in lost revenue and eliminate

$215 billion from the economy in lost GDP. Regents

Dist. Ct. ECF No. 113-1, at 73.

Rather than weigh these costs against the

perceived “advantages … of [its] decisio[n],” Michigan,

135 S. Ct. at 2707, the government adopted an

impermissibly “cost-blind approach” to terminating

the policy, White Stallion Energy Ctr., LLC v. EPA,

748 F.3d 1222, 1265 (D.C. Cir. 2014) (Kavanaugh, J.,

dissenting), majority rev’d sub nom. Michigan, 135 S.

Ct. 2699. It treats DHS’s policy change as if nothing

significant will come of it. This Court is “‘not required

to exhibit [such] naiveté.’” Dep’t of Commerce, 139

S. Ct. at 2575.

Beyond failing to consider costs, DHS failed to

consider “reasonably obvious alternatives” to

terminating DACA. Walter O. Boswell Mem’l Hosp. v.

Heckler, 749 F.2d 788, 803 (D.C. Cir. 1984). For

example, even if the Secretary believed DACA was

implemented in a manner that gave insufficient

discretion to agency employees, she was required to

consider, at minimum, “significant and viable”

alternatives that remedy DACA’s alleged legal defects

while mitigating the foreseeable impact on relevant

reliance interests. Shieldalloy Metallurgical Corp. v.

Nuclear Regulatory Comm’n, 624 F.3d 489, 493 (D.C.

Cir. 2010); accord Motor Vehicle Mfrs. Ass’n. of U.S.,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983) (agency must consider “important aspect[s]” of

its decision). She did not do so.

C. The Decision Violates the APA Because Its

Central Legal Premise—That DACA Is

Unlawful—Is Wrong

Earlier in this litigation, the government did not

directly defend the Secretary’s premise that DACA is

unlawful; it merely argued that the Secretary’s legal

premise was “reasonable,” Regents Ct. App. Br. 31, 3940, and “ma[de] no effort” to argue that DACA is

unlawful, Regents Pet. App. 48a. Before this Court,

however, the government squarely contends that

DACA is unlawful. See Br. 43. This Court “normally

decline[s] to entertain such forfeited arguments.”

Kingdomware Techs., Inc. v. United States, 136 S. Ct.

1969, 1978 (2016).

Further, the government does not defend Attorney

General Sessions’ conclusion that DACA is

“unconstitutional.” It limits its argument that DACA

is unlawful to one assertion: The INA cannot be

“fairly interpreted as authorizing DHS to maintain a

categorical deferred-action policy” comparable to

DACA. Br. 43-44.3

The challengers to DAPA took the opposite position in Texas,

conceding before this Court that the government had ample authority to “forbea[r] from remov[ing]” a large group of noncitizens

The government concedes that, by regulation,

noncitizens “granted deferred action may receive

certain benefits, including work authorization for the

same period if they establish economic necessity.”

Br. 5 (citing 8 C.F.R. § 274a.12(c)(14)). It has never

questioned the legality of those regulations—or any of

the benefits conferred by DACA. Thus, this Court

need not determine the lawfulness of longstanding

regulations that treat recipients of deferred action as

“lawfully present” for purposes of Social Security or

Medicare. E.g., 8 C.F.R. § 1.3(a)(4)(vi); 42 C.F.R.

§ 417.422(h). Nor is this Court called upon to assess

DHS’s longstanding guidance that remaining in the

United States during a period of deferred action does

not count against an individual seeking lawful

admission.

See Memorandum from Johnny N.

Williams, Exec. Assoc. Comm’r, Office of Field

Operations, to Reg’l Dirs. et al., Unlawful Presence 1

(June 12, 2002); 8 U.S.C. § 1182(a)(9)(B). This Court

need not go further than the arguments advanced by

the parties. See Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682, 721 (2014).

The arguments the government does make against

the legality of DACA fail for several reasons.

1. The Executive Has Long Granted Deferred

Action. The government’s argument that deferred

action cannot be granted through a broad policy is

inconsistent with the INA and the Executive’s

longstanding practice, which has been approved by

Congress and the courts.

The INA directs the Secretary to “establis[h]

national immigration enforcement policies and

on a “class bas[is].” Oral Arg. Tr., United States v. Texas, No. 15674, at 50:9-11 (U.S. Apr. 18, 2016).

priorities,” 6 U.S.C. § 202(5), and authorizes her to

perform all acts she “deems necessary” for enforcing

the immigration laws, 8 U.S.C. § 1103(a)(3). “[T]he

broad discretion exercised by immigration officials”

pursuant to these provisions is a “principal feature of

the removal system.” Arizona v. United States, 567

U.S. 387, 396 (2012). As the government recognizes,

“DHS does not have the ability to vigorously enforce

the immigration laws against every alien unlawfully

present in the United States.” Br. 45. Congress

annually appropriates only enough funding to remove

400,000 of 11.3 million undocumented noncitizens, so

prioritizing enforcement of certain deportable

noncitizens is a “practical necessity.” Batalla Vidal

Pet. App. 72a. The government concedes that setting

those

priorities

“more

susceptible

implementation through broad guidance than

through case-by-case enforcement decisions.” Br. 22.

For nearly seventy years, the Executive has

interpreted the INA to authorize discretionary relief

to forbear removal on a categorical basis of

undocumented noncitizens deemed to be low-priority.

Between 1976 and 2011, the government issued over

twenty “administrative directives on blanket or

categorical deferrals of deportation” for humanitarian

and other reasons ranging from protecting refugees to

keeping families together. Andorra Bruno et al.,

Cong. Research Serv., Analysis of June 15, 2012 DHS

Memorandum, Exercising Prosecutorial Discretion

with Respect to Individuals Who Came to the United

States as Children 15 n.72, 20-23 (July 13, 2012)

(capitalization omitted). The Executive has used

deferred action to provide relief to battered spouses,

human trafficking survivors, foreign students

displaced by Hurricane Katrina, and surviving

spouses of U.S. citizens. Id. at 20. Many of these

policies include work authorization, e.g. id. at 21; J.A.

822, 825, and since 1981, the Executive has

acknowledged its authority to grant deferred action in

published regulations that allow noncitizens to

receive work authorization in connection with

deferred action, see 8 C.F.R. § 109.1(b)(6) (1982),

codifying 46 Fed. Reg. 25,079, 25,080 (May 5, 1981);

8 C.F.R. § 274a.12(c)(14).

Collectively, these policies provided relief to more

than a million recipients before DACA was adopted.

In addition, the Family Fairness program (1987-1990)

made as many as 1.5 million individuals eligible for

discretionary relief—more than 40 percent of the

undocumented population at the time. AIC Report at

Thus, in implementing DACA, DHS did not

“‘discover … an unheralded power’” in a “‘long-extant

statute,’” as the government contends. Br. 45 (quoting

Utility Air Regulatory Grp. v. EPA, 573 U.S. 302, 324

(2014)). Instead, the Executive’s interpretation of the

INA to permit categorical deferred action policies was

“early, longstanding, and consistent,” and it

accordingly “count[s] as powerful evidence of [the

INA’s] original public meaning.” Kisor, 139 S. Ct. at

2426 (Gorsuch, J., concurring in the judgment)

(emphasis omitted). The novel decision was not the

adoption of DACA, but instead the Executive’s current

position to cede authority long exercised by

administrations of both parties rather than protect

institutional prerogatives.

Congress And This Court Have Ratified

Deferred Action. This Court has recognized deferred

action as “a regular practice” that the government

may exercise “for humanitarian reasons or simply for

[its] own convenience.” AADC, 525 U.S. at 483-84 &

n.8. “Congress,” meanwhile, “has not just kept its

silence by refusing to overturn the administrative

construction” of the INA authorizing deferred action,

“but has ratified it with positive legislation.” Red Lion

Broad. Co. v. FCC, 395 U.S. 367, 381-82 (1969).

Even before the INA included any express mention

of deferred action, Congress amended the INA to

account for it. In 1987, for example, Congress enacted

the current provision underlying DACA’s workauthorization component, which provides that a

noncitizen may be lawfully hired if she is “authorized

to be so employed by … the Attorney General.”

8 U.S.C. § 1324a(h)(3).

And in 1996, Congress

enacted 8 U.S.C. § 1252(g), which, as this Court

recognized, was “clearly designed to give some

measure of protection to ‘no deferred action’ decisions”

in individual cases, AADC, 525 U.S. at 485. Congress

enacted both provisions without purporting to

prohibit the Executive’s established practice of

granting deferred action (including on a categorical

basis), or countermanding the regulation expressly

permitting the Attorney General to authorize

employment for deferred-action recipients, 8 C.F.R.

§ 109.1(b)(6) (1982).

Since that time, moreover, Congress has:

(1) provided statutory authority to grant deferred

action to specific classes of noncitizens, e.g., USA

PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b),

115 Stat. 361 (certain family members of lawful

permanent residents killed on September 11, 2001, or

of citizens killed in combat); (2) codified procedural

protections for deferred action applications, 8 U.S.C.

§ 1227(d)(2) (denial of administrative stay “shall not

preclude the alien from applying for … deferred

action”); and (3) authorized States to issue driver’s

licenses to deferred action recipients, REAL ID Act of

2005, Pub. L. No. 109-13, Div. B, § 201(c)(2)(B)(viii),

119 Stat. 302 (2005).

Nowhere in this “closely related” legislation

codifying deferred action and its attendant benefits

did Congress evince any “contrary indication” that it

sought to limit the “broad discretion” thus conferred.

Dames & Moore v. Regan, 453 U.S. 654, 678 (1981).

This

demonstrates

that

the

Executive

“implementing congressional policy rather than

embarking on a frolic of its own.” United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 139

(1985).

3. The Executive Has Inherent Authority To

Implement And Maintain DACA. In any event, the

power to grant deferred action does not depend on any

delegation from Congress because it is inherent in the

Executive’s constitutional authority.

“When the

President acts in absence of either a congressional

grant or denial of authority, he can only rely upon his

own independent powers, but there is a zone of

twilight in which he and Congress may have

concurrent authority.” Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

concurring). Here, the Executive’s constitutional duty

under the Take Care Clause to “take Care that the

Laws be faithfully executed” is more than enough to

confer power to grant deferred action even “in absence

of … a congressional grant … of authority.” Ibid.

“‘Broad discretion,’” including “whether or not to

prosecute” is a core executive constitutional function.

United States v. Armstrong, 517 U.S. 456, 464 (1996)

(quoting Wayte v. United States, 470 U.S. 598, 607

(1985)). And, an enduring principle of prosecutorial

discretion is not prosecution to the full extent of the

law, but rather “that justice shall be done.” Berger v.

United States, 295 U.S. 78, 88 (1935).

The Executive has “sweeping authority” in the

immigration context. Trump, 138 S. Ct. at 2413.

Accordingly, Congress’s “‘delegat[ion]’” of enforcement

discretion to DHS “merely authorizes the Executive

Branch to exercise a power that it already has.”

Sessions v. Dimaya, 138 S. Ct. 1204, 1248-49 (Thomas,

J., dissenting).

Congress need not speak with

precision to “‘delegate a policy decision of [great]

economic

and

political

magnitude

administrative agency,’” Br. 45-46, when the

constitutional separation of powers already assigns

that decision to the Executive in the first instance.

The government’s argument to the contrary is at

odds with the administration’s own theory of

Executive authority. The government told this Court

in Trump v. Hawaii that the Executive’s power over

immigration “stems not alone from legislative power

but is inherent in the executive power.” U.S. Br. 45,

Trump v. Hawaii, No. 17-965 (U.S. Feb. 21, 2018)

(quoting United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537, 542 (1950)). The government offers no

principled basis for retreating from that authority

here.

This is not to say that the Executive is unchecked.

Congress can impose substantive limitations on

deferred action—through legislation but not through

silence. And under the APA, DHS can adopt deferred

action policies only after giving “genuine,” “reasoned

explanation[s] … that can be scrutinized by courts and

the interested public.” Dep’t of Commerce, 139 S. Ct.

at 2575-76.

But Congress has not imposed any substantive

limit here. Its failure to pass the DREAM Act, see

Texas, 809 F.3d at 185; Texas Pet. Br. 5 & n.2, cannot

be read to limit deferred action because that Act was

not a deferred-action policy; instead, it would have

provided the Dreamers with a pathway to permanent

residency. Regents Supp. App. 48a.

Congress’s

failure to act left the status quo intact—where the

agency can use, and often has used, deferred action.

In fact, Congress repeatedly has refused to pass bills

that would terminate DACA. See, e.g., The Separation

of Powers Act of 2015, H.R. 29, 114th Cong. (Jan. 6,

2015); No Free Rides Act, H.R. 3090, 115th Cong.

(June 28, 2017).

4. DACA Fits Within Traditional Deferred Action

Policies. DACA fits squarely within longstanding

Executive practice.

The policy is limited to

individuals who even by Secretary Nielsen’s

standards are “not [a] priority of enforcement.” DHS

Secretary on Trump’s Reported Vulgar Comments,

DACA Policy, CBS News (Jan. 16, 2018),

https://tinyurl.com/y8ekmzar. They undergo rigorous

background checks, J.A. 924; may not have felony or

multiple or serious misdemeanor convictions or

“pos[e] a threat to national security or public safety”;

and must be “in school,” have a high school degree or

equivalent, or be a veteran, Regents Pet. App. 98a.

They are “productive young people” who “have already

contributed to our country in significant ways.” Id. at

99a. And because they arrived in this country “as

children,” ibid.—at the average age of 6.5, Regents

Dist. Ct. ECF No. 119-2, at 41—they “lacked the

intent to violate the law.” Regents Pet. App. 98a.

Indeed, “[a]s a general rule, it is not a crime for a

removable alien to remain in the United States.”

Arizona, 567 U.S. at 407. DACA “ensure[s] that [the

government’s] enforcement resources are not

expended on these low priority cases.” Regents Pet.

App. 98a.

Like past forbearance policies, moreover, DACA

serves “humanitarian” purposes. AADC, 525 U.S. at

483-84. DACA recipients “know only this country as

home.” Regents Pet. App. 97a-98a. Deportation “to

countries where they may not have lived or even

speak the language,” id. at 99a, is a “‘drastic

measure’” akin to “‘banishment or exile,’” Dimaya,

138 S. Ct. at 1213. The Executive has long treated a

person’s “ties to [her] home country (e.g., whether the

alien speaks the language or has relatives in the home

country)” as a “[r]elevant humanitarian concern” in

exercising prosecutorial discretion in immigration

cases.

Memorandum from Doris Meissner,

Commissioner of Immigration and Naturalization

Service, on Exercising Prosecutorial Discretion 3

(Nov. 17, 2000), https://tinyurl.com/y6hw8gsq. The

concerns animating DACA are “consistent with the

types of concerns that have customarily guided the

exercise of immigration enforcement discretion.” J.A.

828 n.8.

The government argues that DACA is a policy of

“‘vast economic and political significance’” and

therefore different from prior policies. Br. 44-45.

Setting aside the fact that DHS was required to, but

did not, weigh this “vast economic and political

significance” in adopting its new policy terminating

DACA (supra at 33-37), the government identifies no

authority that the size of a categorical deferred action

policy has statutory or constitutional significance.

And the government offers no “discernible and

manageable standard” for deciding when a deferred

action policy goes “too far.” Rucho v. Common Cause,

139 S. Ct. 2484, 2501 (2019).

Even still, whether this Court considers the

number of individuals eligible or the number of

recipients, DACA is comparable to past policies. The

government inflates the number eligible to 1.7 million

by including every child that could eventually age into

the policy. Jeffrey S. Passel & Mark Hugo Lopez, Pew

Research Center, Up to 1.7 Million Unauthorized

Immigrant Youth May Benefit from New Deportation

Rules 3 (Aug. 14, 2012). The number immediately

eligible was 950,000. Ibid. Either way, the population

is comparable to the 1.5 million that were eligible for

Family Fairness by the government’s own

contemporaneous estimates. The number ultimately

“affected” by Family Fairness may have been smaller

because fewer applied, Br. 49, but other policies

reached hundreds of thousands of recipients, see

supra at 4.

The government’s remaining attempts to

distinguish past policies are meritless. Those policies

did not exclusively cover individuals awaiting visas or

“categories of aliens for whom Congress had expressed

special solicitude in the INA.” Br. 47-48. The

government granted deferred enforced departure to

190,000 Salvadorans after their eligibility for

temporary protected status expired. AIC Report, at 7.

And it granted deferred action for surviving spouses

of U.S. citizens who had “no avenue of immigration

relief.” J.A. 826. Family Fairness covered individuals

whose spouses and parents had a pathway to

citizenship and at most could hope to “‘bring in

immediate relatives’” many years in the future. Br.

49. While some of these policies “purported” to

exercise specific grants of statutory authority, Br. 49

n.10 (discussing extended voluntary departure

statute), so does DACA, see supra at 6, and none of the

past statutes support the government’s insistence

that only explicit congressional authorization of

categorical discretionary relief is sufficient.

5. DACA Does Not Facilitate Legal Violations. The

government asserts that DACA “facilitates ongoing

violation[s]” of the immigration laws.

Br. 46

(emphasis omitted). But that is no more true of DACA

than of individual grants of deferred action or for the

myriad deferred enforcement policies historically

approved by all three branches of government over

decades. Perhaps more importantly, remaining in the

country while removable is not a crime. Nor is

obtaining work authorization or other benefits

pursuant to regulations backed by statutory authority

that the government does not question in this

litigation.

If anything, encouraging low-priority

enforcement targets to self-identify facilitates

enforcement against higher-priority targets. Indeed,

the year that the Obama Administration implemented

DACA, it deported a record number of individuals.

See Ana Gonzalez-Barrera, Record Number of

Deportations in 2012, Pew Research Center (Jan. 24,

2014), https://tinyurl.com/y292hjnh.

6. The APA Does Not Protect “Reasonable” But

Wrong Legal Conclusions. Finally, the government

argues that its legal position, even if not correct, was

nevertheless “reasonable.” Br. 43, 50-52. Under the

APA, however, a “reasonable” but wrong legal

analysis cannot sustain agency action. Agencies, like

lower courts, may have “independent duty to

determine whether [they] lac[k] authority to act.”

Br. 50. But those determinations, no less than lower

courts’ rulings, cannot evade judicial review. Agency

decisions are reviewed for “abuse of discretion” and

must be set aside if the agency’s “conclusions” are “not

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

a lower court decision based on “an erroneous view of

the law” is “necessarily” an abuse of discretion, Cooter

& Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990),

an agency “order may not stand if the agency has

misconceived the law,” Chenery I, 318 U.S. at 94.

Beyond conflicting with the APA, the government’s

proffered standard of a “reasonable” legal analysis is

so ambiguous and subjective as to nearly always be a

fallback argument for sustaining agency action. That

is not, and cannot be, the law.

D. The Government's Other Proffered

Rationales Do Not Justify DHS’s Policy

Unable to defend Secretary Duke’s stated rationale for her policy, the government primarily defends it on grounds she did not articulate. But these

cannot survive scrutiny.

1. Concerns About Litigation Risk Do Not

Justify The Decision

The government now claims Secretary Duke ended

DACA because she had “serious doubts about the

lawfulness of the policy and the litigation risks in

maintaining it.” Br. 33.

a. It is well-settled that courts “may not accept

appellate counsel’s post hoc rationalizations for

agency action.” Burlington Truck Lines, Inc. v. United

States, 371 U.S. 156, 168 (1962). Instead, APA review

is limited to the “grounds invoked by the agency.”

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)

(“Chenery II”). “[A]n agency’s action must be upheld,

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

State Farm, 463 U.S. at 50.

The government’s litigation-risk rationale is a

“classic post hoc rationalization” because it appears

“[n]owhere in the administrative record.” Regents

Pet. App. 56a. Neither Attorney General Sessions nor

Secretary Duke ever “consider[ed] whether defending

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

the litigation risk.” Ibid. Although Secretary Duke

mentioned possible litigation challenging DACA, she

never identified “risks” posed by this litigation that

the government would avoid by adopting a new policy.

The government now suggests the decision was

motivated by a concern that a “court-ordered” end to

the policy would be more “‘abrupt’” than an

administrative “wind-down.” Br. 27, 34-35. But

Secretary Duke’s memorandum “offers absolutely no

indication that [the government] considered these

impacts,” and no one reading the memorandum would

“have guessed that [the government] made [its]

decision for this reason.” Batalla Vidal Pet. App.

111a-13a. The memorandum’s statement that DACA

should be terminated in “‘an efficient and orderly

fashion,’” Br. 27 (quoting Regents Pet. App. 116a-17a),

did not evince a reason for terminating DACA; it was

a statement of how the Secretary planned to end the

policy given the administrative “complexities” of doing

so.

A recent Freedom of Information Act production by

the government confirms that DACA was terminated

based on a legal judgment and not any other

reason. See supra at 11. A Principals Committee

meeting at the White House determined that DACA

“is unlawful and will be ended” and specified a process

to be followed. “The DOJ will send a memorandum to

DHS outlining the legal reasons that the DACA

program is unlawful,” and then “DHS will draft a

memorandum to withdraw the 2012 DACA

memorandum, and any related memoranda or

guidance, in light of DOJ’s legal determination.”

Make the Road, No. 1:18-cv-2445, ECF No. 63-1, at

209. At that point, “DHS will then propose a plan to

wind down the DACA program.” Ibid. This document

establishes that the government did not include vital

information in the incomplete administrative records

in these cases, and that “litigation risk” and other

subsequent “rationales” are litigation-driven, post hoc

justifications and not legitimate bases for the

decision.

b. The prospect of litigation hovers over virtually

all major policy decisions by an agency. If that alone

justified abandoning a rule, the APA’s requirement of

reasoned explanation would be a dead letter. As Gene

Hamilton, the principal drafter of Secretary Duke’s

memorandum, testified, a “litigation risk” rationale

“sounds like the craziest policy you could have in a

department.” J.A. 1007. Nor would anyone have

thought that a decision to terminate DACA—a

longstanding policy currently affecting 700,000

people—would avoid significant litigation.

And

indeed, it did not.

Any assessment of litigation risk also cannot be

extricated from the government’s flawed conclusion

that DACA is unlawful. The Attorney General

predicted that litigation challenging DACA would

likely succeed “[b]ecause” of DACA’s “legal and

constitutional defects.” J.A. 878. His factual and legal

errors inevitably infected his conclusion.

fundamentally, Secretary Duke and Secretary

Nielsen were “bound” by the Attorney General’s

conclusion that DACA is unlawful, Regents Pet. App.

122a-23a, so the discussion of potential litigation at

best was offered to bolster a foregone conclusion. In

these circumstances, it is impossible to excise the

Secretary’s “mistake[s]” in concluding that DACA was

unlawful and say they “clearly had no bearing on the

… substance” of whatever litigation risk analysis she

may have performed. Mass. Trs. of E. Gas & Fuel

Assocs. v. United States, 377 U.S. 235, 248 (1964).

c. Although the Attorney General and the

Secretary placed great weight on the Fifth Circuit’s

decision in Texas, neither considered the “differences

between DAPA and DACA that might have led to a

different result.” Regents Pet. App. 57a. The Fifth

Circuit recognized that “DAPA and DACA are not

identical” and that “any extrapolation from DACA [to

DAPA] must be done carefully.” Texas, 809 F.3d at

173-74. The policies differ in significant ways.

First, DAPA, unlike DACA, would have classified

recipients as “lawfully present in the United States,”

as the memorandum adopting DAPA expressly stated.

Regents Pet. App. 104a. This language formed the

centerpiece of the Texas plaintiffs’ arguments

challenging DAPA before this Court. Texas Pet. Br.,

United States v. Texas, No. 15-674, at 1, 7-8 (U.S. Dec.

2015). By contrast, “the DACA memo itself said

nothing about lawful presence.” Id. at 6.

Second, DAPA covered parents of citizens and

lawful permanent residents, who already had a

statutory path to lawful immigration status. Texas,

809 F.3d 179-80.4 The Fifth Circuit found this fact

decisive in concluding that DAPA could not be

justified as filling a “‘gap’” in the INA. Id. at 186.

Secretary Nielsen thus mischaracterized the Fifth

The government is wrong that parents of lawful permanent

residents have no path to lawful status. Br. 36. Lawful permanent residents can become citizens, 8 U.S.C. § 1427, and then

sponsor their parents for lawful permanent residence, id.

§ 1151(b)(2)(A)(i).

Circuit’s opinion when she claimed the decision “did

not turn on whether [DAPA recipients] had a pathway

to lawful status.” Regents Pet. App. 122a. Unlike

DAPA, DACA “has no … analogue in the INA”—

DACA recipients have no statutory path to lawful

status. Id. at 54a.

Third, DAPA was challenged before it took effect,

whereas DACA took effect over seven years ago. Any

judicial decision to terminate DACA necessarily

would have to account for the policy’s impact on

hundreds of thousands of people. Regents Pet. App.

57a. Indeed, consideration of those costs had an

impact in Texas v. United States, where a district

court recently denied a preliminary injunction against

DACA despite its doubts about DACA’s lawfulness.

328 F. Supp. 3d 662, 740-42 (S.D. Tex. 2018). The

court recognized the difficulty of “unscrambl[ing] the

egg” after DACA recipients and their families relied

on the program. Ibid. The recognition dispels any

fear of the sort of imminent judicial termination of

DACA that the government now claims it was seeking

to avoid by winding down the policy.

Fourth, DAPA would have covered more than onethird of those unlawfully present in the United States.

Texas, 809 F.3d at 148. The Fifth Circuit concluded

that DAPA’s size undermined its legality. Id. at 18182. DACA is “open to far fewer individuals than

DAPA would have been,” Batalla Vidal Pet. App.

103a, and is close in size to past deferred action

policies.

There is no evidence in the administrative record

that the Secretary ever considered these distinctions.

Failing to do so was arbitrary and capricious.

2. Secretary Nielsen’s Memorandum Does

Not Justify The Decision

a. Secretary Nielsen’s central reason for

supporting Secretary Duke’s policy remains the

Attorney General’s erroneous conclusion that DACA

is unlawful and unconstitutional. Regents Pet. App.

122a-23a. She also states that DACA should be ended

because: (1) maintaining it despite “doubts” about its

lawfulness may “undermine public confidence in and

reliance on the agency and the rule of law” and result

in “burdensome litigation”; (2) relief “should be

enacted legislatively”; (3) deferred action should be

implemented on an “individualized” basis; and

(4) DHS should convey a “message” of “consistent”

enforcement. Id. at 123a-24a.

The NAACP court rightly dismissed these

“attempt[s] to disguise … objection[s] to DACA’s

legality as … policy justification[s].” NAACP Pet.

App. 100a. “[B]oilerplate assertions[s]” that agencies

should avoid legally questionable policies and leave

them to Congress cannot “insulate” an agency’s

assessment of its legal authority from judicial review.

Id. at 98a.

Especially given the government’s

concession that the Attorney General’s legal

conclusion compelled Secretary Nielsen to defend

DACA’s termination, NAACP Ct. App. Oral Arg.

33:11-33:26, https://tinyurl.com/y64xnxoc, there is no

way extricate her reasoning from the Attorney

General’s. See Mass. Trustees, 377 U.S. at 248. If

Secretary Nielsen did not believe she was free to leave

DACA in place, then there was no policy choice for her

to make. At a minimum, her attempt to reframe the

decision in policy terms in the midst of litigation

challenging that premise must be “viewed critically.”

Overton Park, 401 U.S. at 420.

b. Even if considered independently, Secretary

Nielsen’s additional rationales also fail to supply the

“reasoned explanation” missing from the Duke

memorandum. Dep’t of Commerce, 139 S. Ct. at 257576. None of the rationales finds support in the

administrative record, to which “a court is ordinarily

limited.” Id. at 2573. Indeed, the government has

never produced an administrative record supporting

the Nielsen memorandum, and the judicial opinions

on DAPA that largely comprise the record for the

Duke memorandum do not support Secretary

Nielsen’s rationales. That alone is fatal. The

rationales each fail on their own terms as well.

First, “doubts” about legal authority alone are

insufficient to justify abandoning a lawful policy.

Agencies do not ordinarily give up their policies

merely because they are challenged, at least without

specific, articulable reasons for doing so.

This

administration is no exception: Secretary Nielsen

defended multiple controversial policies against legal

challenges—including policies that detain minor

children and separate them from their parents, Ms. L.

v. ICE, 310 F. Supp. 3d 1133, 1149 (S.D. Cal. 2018),

preclude asylum for individuals who enter the United

States outside a designated port of entry, E. Bay

Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094,

1101 (N.D. Cal. 2018), and return asylum seekers to

Mexico during their immigration proceedings, M.G.U.

v. Nielsen, 325 F. Supp. 3d 111, 124 (D.D.C. 2018).

Each time, consistent with past practice, e.g., Trump,

138 S. Ct. at 2423, the government endured “the

litigation risks in maintaining” these policies despite

public “doubts” about their lawfulness, Br. 33.

Secretary Nielsen offers no neutral principle for

treating “doubts” as dispositive here but not

elsewhere.

The evident explanation, which she

conceded, is that she was bound by the Attorney

General’s erroneous legal conclusion.

Second, asserting that relief “should be enacted

legislatively” does not explain why the Executive

should not act absent a legislative solution. As the

government concedes, President Obama pursued a

legislative solution but still supported DACA as a

“stopgap” measure. Br. 38. Secretary Nielsen never

explained why she viewed these two solutions as

mutually exclusive.

Third, Secretary Nielsen’s asserted aversion to

categorical Executive action is incompatible both with

decades-long deferred-action practice, supra at 4, and

DHS’s recent policies.

Under the current

administration, DHS has unilaterally imposed

categorical bans on noncitizens from multiple

countries and categorically altered the requirements

for obtaining asylum—a far more expansive use of

executive power than allowing a class of people to

apply for an individualized grant of deferred action.

See supra at 54. Indeed, just last month, the

Executive defended its authority to “exercise its

discretion” to limit asylum “through categorical rules,

not just through case-by-case adjudication.” App. for

Stay Pending Appeal, at 26, E. Bay, No. 19A230 (U.S.

Aug. 26, 2019). Selective departure from an agency’s

asserted principles is fundamentally arbitrary.

Fourth, maintaining DACA is fully compatible

with Secretary Nielsen’s view that deferred action

decisions should be made on an “individualized” basis.

The DACA policy requires all “requests for relief … to

be decided on a case by case basis,” affording ample

“consideration … to the individual circumstances of

each case.” Regents Pet. App. 98a-99a. Satisfying

DACA’s criteria was only a prerequisite to being

“considered” for relief, ibid. (emphasis added)—it did

not create a “presumption” that relief would be

granted.

Br. 39-40.

The high percentage of

applications granted reflects that many warranted

discretionary relief, and that the most deserving

applicants self-selected to apply. If Secretary Nielsen

believed that fewer applications should have been

granted, “she [could have] simply direct[ed] her

employees to implement” the policy accordingly.

NAACP Pet. App. 100a.

DHS’s new policy, in fact, leaves no possibility for

the “individualized” relief that Secretary Nielsen

promises. Secretary Duke’s memorandum directs

DHS officers to deny all deferred action requests from

DACA-eligible individuals, even where DHS might

have granted the same relief before DACA’s adoption

in 2012. Regents Pet. App. 117a-18a. In practice,

therefore, ending DACA is not a return to

individualized discretion—it is a policy of categorical

denial of relief.

Fifth, ending DACA to “project a message” of

consistent enforcement makes little sense, since

“DACA is available only to those individuals who have

lived in the United States since 2007.” NAACP Pet.

App. 102a. DACA’s termination would send no

meaningful signal to undocumented individuals who

arrived after 2007. The notion that the failure to

rescind this program has caused even one person,

much less many of them, to enter unlawful with the

hope of obtaining amenities and a path to remain is

unsupported by the record and contrary to recent

empirical research. See Tom K. Wong & Hillary

Kosnac, Does the Legalization of Undocumented

Immigrants in the US Encourage Unauthorized

Immigration from Mexico? An Empirical Analysis of

the Moral Hazard of Legalization, 55 International

Migration 159 (2017).

c. In any event, Secretary Nielsen’s analysis is

insufficient because she did not grapple with the toll

of Secretary Duke’s action on the affected people and

institutions. Her memorandum simply asserts that

she is “keenly aware” that “DACA recipients” have

“availed themselves” of the policy, and that their

“interests” do not “outweigh” the agency’s other

concerns. Regents Pet. App. 125a.

This perfunctory analysis falls well short of the

“detailed justification”—“consider[ing] all of the

relevant costs”—that the APA requires. Mingo, 829

F.3d at 737 (Kavanaugh, J., dissenting) (emphasis

added).

Secretary Nielsen never identifies the

“interests” of DACA recipients that she supposedly

weighed or addresses the hardships they will face

without DACA. Instead, she dismisses these concerns

because DACA “conferred no substantive rights.”

Regents Pet. App. 125a. Nor does she purport to weigh

the substantial burden her decision imposes on the

economy as a whole and the many stakeholders—

families, communities, workplaces, and schools—that

structured their lives and businesses around the

policy, just as the government intended them to do.

Ultimately, moreover, Secretary Nielsen’s limited

cost-benefit analysis depends on the validity of each of

the reasons discussed in her memorandum. While

Secretary Nielsen claimed each “separate” rationale

was “independently sufficient” to justify the new

policy, Regents Pet. App. 122a, her conclusion was

that “the questionable legality of the DACA policy and

other reasons for ending the policy” collectively

outweigh DACA recipients’ interests in maintaining

the policy. Id. at 125a. Any error in her reasoning—

including her threshold legal error that DACA is

unlawful—undermines that conclusion. This Court

cannot dismiss Secretary Nielsen’s numerous errors

as harmless. Mass. Trustees, 377 U.S. at 248.

CONCLUSION

The beneficiaries of DACA—including individual

recipients, communities, schools, and businesses—are

as numerous and varied as the contributions DACA

recipients make to our nation. DACA allows 700,000

vetted young people to live, work, and learn in this

country without persistent fear of being sent to a place

they may not remember or even speak the language.

The government may replace DACA with a different

policy, thus raising the specter of deportation, only if

it satisfies the APA’s requirement for reasoned decisionmaking so it can be held publicly accountable.

That includes weighing the costs of eliminating this

valuable humanitarian policy. Perhaps knowing that

a true cost-benefit analysis could not possibly justify

this change, the government argues that its hands

were tied as a legal matter. That is wrong—DACA is

lawful, and the government is free to maintain the

program. If it does not wish to do so, the APA requires

a reasoned explanation of why it is changing course

supported by an administrative record. Because the

government has provided no such explanation, this

Court should affirm the decisions below.

Respectfully submitted.

THEODORE J. BOUTROUS, JR.

ETHAN D. DETTMER

JONATHAN N. SOLEIMANI

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

THEODORE B. OLSON

COUNSEL OF RECORD

STUART F. DELERY

MATTHEW S. ROZEN

ANDREW J. WILHELM

SURIA M. BAHADUE

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

TOlson@gibsondunn.com

MARK D. ROSENBAUM

JUDY LONDON

PUBLIC COUNSEL

610 South Ardmore Avenue

Los Angeles, CA 90005

(213) 385-2977

LUIS CORTES ROMERO

IMMIGRANT ADVOCACY &

LITIGATION CENTER, PLLC

19309 68th Avenue South,

Suite R102

Kent, WA 98032

(253) 872-4730

ERWIN CHEMERINSKY

UNIVERSITY OF CALIFORNIA,

BERKELEY SCHOOL OF LAW*

215 Boalt Hall

Berkeley, CA 94720

(510) 642-6483

LEAH M. LITMAN

UNIVERSITY OF MICHIGAN

LAW SCHOOL*

3226 Jeffries Hall

Ann Arbor, MI 48109

(734) 764-0549

LAURENCE H. TRIBE

HARVARD LAW SCHOOL*

1575 Massachusetts Avenue

Cambridge, MA 02138

(617) 495-1767

Counsel for DACA Recipient Respondents in No. 18-587

*Affiliation for identification purposes only

MICHAEL J. WISHNIE

MUNEER I. AHMAD

MARISOL ORIHUELA

JEROME N. FRANK LEGAL

SERVICES ORGANIZATION

P.O. Box 209090

New Haven, CT 06520

(203) 432-4800

TRUDY S. REBERT

NATIONAL IMMIGRATION LAW

CENTER

P.O. Box 721361

Jackson Heights, NY 11372

(646) 867-8793

KAREN C. TUMLIN

COOPERATING ATTORNEY

JEROME N. FRANK LEGAL

SERVICES ORGANIZATION

P.O. Box 209090

New Haven, CT 06520

(323) 316-0944

ARACELI MARTÍNEZ-OLGUÍN

MAYRA B. JOACHIN

NATIONAL IMMIGRATION LAW

CENTER

3450 Wilshire Blvd.

#108-62

Los Angeles, CA 90010

(213) 639-3900

AMY S. TAYLOR

PAIGE AUSTIN

MAKE THE ROAD NEW YORK

301 Grove Street

Brooklyn, NY 11237

(718) 418-7690

SCOTT FOLETTA

MAKE THE ROAD NEW YORK

92-10 Roosevelt Avenue

Jackson Heights, NY 11372

(929) 244-3456

Counsel for DACA Recipient Respondents and Make the Road New

York in No. 18-589

STACEY M. LEYTON

ALTSHULER BERZON LLP

177 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151

Counsel for Respondents County

of Santa Clara and Service Employees International Union Local

521 in No. 18-587

JAMES R. WILLIAMS

GRETA S. HANSEN

LAURA S. TRICE

MARCELO QUIÑONES

OFFICE OF THE COUNTY COUNSEL

COUNTY OF SANTA CLARA

70 West Hedding Street

East Wing, Ninth Floor

San Jose, CA 95110

(408) 299-5900

Counsel for Respondent County of

Santa Clara in No. 18-587

September 27, 2019

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.