Amicus Curiae Brief — Department of Homeland Security, et al., Petitioners v. Regents of the University of California, et al.
Supreme Court briefOct 4, 2019
Ask Donna
What actually matters in this document.
Text
Nos. 18-587, 18-588, and 18-589
In the Supreme Court of the United States
_________________
DEPARTMENT OF HOMELAND SECURITY, ET AL.,
PETITIONERS,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
RESPONDENTS
____________
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________
BRIEF OF FORMER SERVICE SECRETARIES,
MODERN MILITARY ASSOCIATION OF AMERICA, AND MILITARY AND VETERAN ADVOCACY ORGANIZATIONS AS AMICI CURIAE IN
SUPPORT OF RESPONDENTS
____________
PETER E. PERKOWSKI
Modern Military
Association of America
P.O. Box. 65301
Washington, DC 20035
(202) 328-3244
peter@modermilitary.org
Counsel for Amicus Curiae
Modern Military Association
of America
CHARLES B. KLEIN
Counsel of Record
CLAIRE A. FUNDAKOWSKI
Winston & Strawn LLP
1700 K Street, N.W.
Washington, DC 20006
(202) 282-5000
cklein@winston.com
Counsel for Amici Curiae
Additional Captions and Counsel
Listed on Inside Cover
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL., PETITIONERS,
v.
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
____________
KEVIN K. MCALEENAN, ACTING SECRETARY OF
HOMELAND SECURITY, ET AL., PETITIONERS,
v.
MARTÍN JONATHAN BATALLA VIDAL, ET AL.,
RESPONDENTS.
____________
ON WRIT OF CERTIORARI BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________
HARVEY WEINER
Peabody & Arnold LLP
600 Atlantic Avenue
Boston, MA 02210
hweiner@peabodyarnold.com
Counsel for Amicus Curiae
Jewish War Veterans of the USA
TABLE OF CONTENTS
Page(s)
INTERESTS OF AMICI CURIAE ............................... 1
STATEMENT................................................................ 5
SUMMARY OF ARGUMENT ...................................... 8
ARGUMENT ................................................................. 9
I.
The Government Must Consider Serious
Reliance Interests When Changing
Existing Policy.................................................... 9
II.
DACA Engendered Serious Reliance
Interests on the Part of Non-Citizens
Enlisted in the Military, Their Families,
and the American People. ................................ 11
A.
Foreign-Born Recruits Are Integral
to the U.S. Military and Vital to Its
Mission. .................................................. 11
B.
Enlistees Rely on DACA for
Eligibility to be Employed by the
Military and for a Path to
Citizenship. ............................................ 14
C.
Enlistees’ Families Rely on DACA
for the Possibility of Parole in Place
or Deferred Action. ................................ 18
D.
The U.S. Military Relies on NonCitizens, Including DACA
ii
Recipients, to Protect the American
People. .................................................... 20
III.
The Government Violated the APA When
It Rescinded DACA Without Considering
Serious Reliance Interests. .............................. 29
CONCLUSION ........................................................... 31
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Burlington Truck Lines, Inc. v. United
States,
371 U.S. 156 (1962) .............................................. 30
Encino Motorcars, LLC v. Navarro,
136 S. Ct. 2117 (2016) ................................ 9, 10, 31
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) .............................................. 10
Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) .................................................. 9
SEC v. Chenery Corp.,
332 U.S. 194 (1947) .............................................. 30
Statutes
5 U.S.C. § 706(2)(A) ..................................................... 9
8 U.S.C. § 1439........................................................... 15
8 U.S.C. § 1439(a) ...................................................... 15
8 U.S.C. § 1439(f) ....................................................... 15
8 U.S.C. § 1440........................................................... 15
8 U.S.C. § 1440(a) ...................................................... 15
8 U.S.C. § 1440(c)....................................................... 15
iv
10 U.S.C. § 504(b)(2) ...........................................passim
10 U.S.C. § 513(b)(1)-(3) ............................................ 17
38 U.S.C. §§ 3311 ...................................................... 16
38 U.S.C. § 3702........................................................ 16
Regulations
8 C.F.R. § 274a.12(c)(14).............................................. 6
32 C.F.R. § 199.3 ........................................................ 16
Other Authorities
Air Force News, The U.S. Military Helps Naturalize
Non-Citizens (2019),
https://www.military.com/join-armedforces/eligibility-requirements/the-us-militaryhelps-naturlize-non-citizens.html ........................ 23
Baldor, Lolita, Problems for Pentagon’s
immigrant recruit program, AP NEWS
(Sept. 30, 2018),
https://www.apnews.com/84530d3799
004a0a8c15b3d11058e030 ................................... 22
Bennett, Jonah, Pentagon: Fewer Than
900 DACA Recipients Are Currently
Serving In The Military (Sept. 6,
2017), https://stream.org/pentagonfewer-than-900-daca-recipients-arecurrently-serving-in-the-military/ ....................... 13
v
Bowman, Tom, Citizenship For Military
Service Program Under Fire, NPR
(July 11, 2017),
https://www.npr.org/2017/07/11/53663
0223/citizenship-for-military-serviceprogram-under-fire ............................................... 16
Exec. Order 13,269, 67 Fed. Reg. 45287
(July 3, 2002) .................................................. 13, 15
Chief of Naval Personnel Public Affairs,
SECNAV Releases Updated Diversity,
Inclusion Policy Statement (Feb. 25,
2016), available at
https://www.navy.mil/submit/display.
asp?story_id=93282 ........................................ 23, 28
Chishti, Muzaffar, et al., Immigrants in
the Military: Evolving Recruitment
Needs Can Accommodate National
Security Concerns (May 2019),
https://www.migrationpolicy.org/sites/
default/files/publications/MPINoncitizens-Military-Final.pdf ............................ 24
Courtney, Paul Vincent, Prohibiting
Sexual Orientation Discrimination in
Public Accommodations: A Common
Law Approach, 163 U. Pa. L. Rev.
1497 (2014-2015) .................................................. 26
Dep’t of Def., Defense Language
Transformation Roadmap 3 (Jan.
2005) http://www.defense.gov/news
/mar2005/d20050330roadmap.pdf ....................... 27
vi
Dep’t of Def., DoD Announces Policy
Changes to Lawful Permanent
Residents and the Military Accessions
Vital to the National Interest
(MAVNI) Pilot Program (Oct. 13,
2017), https://www.defense.gov
/Newsroom/Releases/Release/Article/1
342317/dod-announces-policychanges-to-lawful-permanentresidents-and-the-military-acc/...................... 15, 16
Dep’t of Def., MAVNI Fact Sheet,
https://dod.defense.gov/news/mavnifact-sheet.pdf ........................................................ 14
Dep’t of Def., Population Representation
in the Military Services: Fiscal Year
2010 Summary Report, available at
https://www.cna.org/pop-rep/2010
/summary/PopRep10summ.pdf ............................ 12
Dep’t of Def., Population Representation
in the Military Services: Fiscal Year
2016 Summary Report, available at
https://www.cna.org/pop-rep/2016
/summary/summary.pdf. .................... 12, 14, 21, 24
Dep’t of Def., Remarks by Secretary
Hagel at the Lesbian, Gay, Bisexual,
Transgender Pride Month Event in
the Pentagon Auditorium (June 25,
2013), http://archive.defense.gov
/transcripts/transcript.aspx?transcrip
tid=5262 ................................................................ 27
vii
Dep’t of Homeland Security, MAVNI
Program Status for Fiscal Year 2017
(Dec. 2, 2016), https://www.ice.gov
/doclib/sevis/pdf/bcm-1612-02.pdf ........................ 14
Eric Fanning, Immigration reform: An Army
recruitment opportunity (Jan. 8, 2018),
https://thehill.com/opinion/nationalsecurity/367839-immigration-reform-an-armyrecruitment-opportunity. ........................ 21, 22, 23
Eric Fanning, Secretary of the Army: America’s
Diversity is Our Army’s Strength, ASS’N OF THE
U.S. ARMY (Oct. 1, 2016), available at
https://www.ausa.org/articles/secretary-armyamerica%E2%80%99s-diversity-ourarmy%E2%80%99s-strength............................... 28
Gates, Gary J., The Williams Inst.,
Effects of “Don’t Ask, Don’t Tell” on
Retention Among Lesbian, Gay and
Bisexual Military Personnel (2007),
available at
https://williamsinstitute.law.ucla.edu/
wp-content/uploads/GatesEffectsOfDontAskDontTellOnRetenti
on-Mar-2007.pdf ................................................... 26
viii
Horton, Alex, Foreign-born recruits,
promised citizenship by the Pentagon,
flee the country to avoid deportation,
Washington Post (July 17, 2017),
https://www.washingtonpost.com/new
s/checkpoint/wp/2017/07/17/foreignborn-recruits-promised-citizenshipby-the-pentagon-flee-the-country-toavoid-deportation/ ................................................ 18
Horton, Alex, The military looked to
‘dreamers’ to use their vital skills.
Now the U.S. might deport them.,
Washington Post (Sept. 7, 2017),
https://www.washingtonpost.com/new
s/checkpoint/wp/2017/09/07/themilitary-looked-to-dreamers-to-usetheir-vital-skills-now-the-u-s-mightdeport-them .......................................................... 17
Memorandum from Deborah Lee James,
Secretary of the Air Force, Air Force
Diversity & Inclusion (Mar. 4, 2015),
available at
https://www.af.mil/Portals/1/documen
ts/SECAF/FINALDiversity_Inclusion_
Memo1.pdf ...................................................... 22, 28
McIntosh, Molly F., et al., Non-Citizens
in the Enlisted U.S. Military (Nov.
2011), available at
https://www.cna.org/CNA_files/PDF/D
0025768.A2.pdf ......................................... 22, 23, 29
ix
Military Leadership Diversity
Commission, From Representation to
Inclusion: Diversity Leadership for the
21st-Century Military, Final Report xvi
(2011), https://www.hsdl.org
/?view&did=11390 ................................................ 27
National Immigration Forum, For Love of Country:
New Americans Serving in our Armed Forces:
Executive Summary (Nov. 7, 2017),
https://immigrationforum.org/article/love-countrynew-americans-serving-armed-forces-2/ .............. 29
New American Economy, Outside the
Wire: How Barring the DACA-Eligible
Population from Enlisting Weakens
our Military (Nov. 8, 2017),
https://research.newamericaneconomy
.org/report/outside-the-wire-howbarring-the-daca-eligible-populationfrom-enlisting-weakens-our-military/ ..... 14, 24, 25
U.S. Citizenship and Immigration Servs.,
Adjudicator’s Field Manual, ch.
21.1(c) ........................................................ 18, 19, 20
U.S. Citizenship and Immigration Servs.,
Military Naturalization Statistics,
https://www.uscis.gov/military/militar
y-naturalization-statistics (last
updated Dec. 6, 2018) ..................................... 13, 15
x
U.S. Citizenship and Immigration Servs.,
USCIS Facilities Dedicated to the
Memory of Immigrant Medal of Honor
Recipients, https://www.uscis.gov
/about-us/find-uscis-office/uscisfacilities-dedicated-memoryimmigrant-medal-honor-recipients
(last updated Jan. 24, 2014)................................. 12
U.S. Gov’t Accountability Office,
Immigration Enforcement: Actions
Needed to Better Handle, Identify, and
Track Cases Involving Veterans 7
(2019) ........................................................ 14, 17, 18
Memorandum from Jessica Wright,
Undersecretary of Defense for
Personnel and Readiness, Military
Accessions Vital to the National
Interest Program Changes (Sept. 25,
2014) ..................................................................... 13
Jie Zong & Jeanne Batalova, Immigrant
Veterans in the United States (May
16, 2019),
https://www.migrationpolicy.org/articl
e/immigrant-veterans-united-states. ............. 12, 29
1
INTERESTS OF AMICI CURIAE 1
The amici curiae are Secretary Eric Fanning, Secretary Deborah Lee James, Secretary Ray Mabus, the
Modern Military Association of America (MMAA), the
National Veterans Legal Services Program (NVLSP),
Jewish War Veterans of the USA (JWV), Blue Star
Families, Minority Veterans of America (MVA), and
Swords to Plowshares. Amici share a common interest in policies that enhance the U.S. military’s readiness and protect the interests of service members and
their families.
Secretary Eric K. Fanning served as the 22nd U.S.
Secretary of the Army. As Secretary, he had statutory responsibility for all matters related in the United
States Army, including manpower, personnel, and
reserve affairs. Previously, he served as Chief of
Staff to the Secretary of Defense, as Acting Secretary
of the Air Force, as Under Secretary of the Air Force,
and as Deputy Under Secretary of the Navy/Deputy
Chief Management Officer. He is the only person to
have held senior appointments in all three military
departments and the Office of the Secretary of Defense.
Secretary Deborah Lee James served as the 25th
U.S. Secretary of the Air Force. Previously, she
served in the Pentagon as the Assistant Secretary of
Defense for Reserve Affairs, where she was the Secretary of Defense’s Senior Advisor on National Guard
This brief is filed with the consent of the parties pursuant to
Supreme Court Rule 37.3(a). In accordance with Supreme Court
Rule 37.6, counsel for amici curiae states that no counsel for any
party authored this brief in whole or in part, and no person other than amici curiae, its members, or its counsel made a monetary contribution to the preparation or submission of this brief.
1
2
and Reserve personnel. As a professional staff member on the House Armed Services Committee, she
served as Senior Advisor to the Military Personnel
and Compensation Subcommittee, the NATO Burden
Sharing Panel, and the Chairman’s Member Services
team.
Secretary Ray Mabus served as the 75th U.S. Secretary of the Navy from 2009 to 2017, the longest to
serve as leader of the Navy and Marine Corps since
World War I. Throughout his tenure, he focused on
four key priorities—People, Platforms, Power, and
Partnerships—that enabled the Navy and Marine
Corps’ unique ability to maintain the global presence
that reassures our allies and deters our adversaries.
Among his achievements, he spearheaded the “21st
Century Sailor and Marine” initiative, which was designed to build and maintain the most resilient and
ready force possible and to prepare service members
and their families for the high-tempo operations of
today’s military.
MMAA is one of the country’s largest non-profit,
non-partisan legal services, policy, and watchdog organizations
serving
lesbian,
gay,
bisexual,
transgender, and queer (LGBTQ) military personnel,
veterans, military spouses, family members, and allies, as well as individuals living with HIV. MMAA
was formed through the merger of the American Military Partner Association and OutServe-SLDN, Inc.,
and it has over 75,000 members and supporters.
MMAA has a unique understanding of the challenges
faced by the populations it serves. Since 1993,
MMAA and its predecessor entities have assisted
over 12,500 clients.
3
MMAA regularly engages in high-profile litigation
and participates as amicus curiae to challenge policies that target, stigmatize, or otherwise negatively
affect service members and their families—reducing
morale and diminishing military readiness by inhibiting the military’s efforts at recruiting and retention.
For example, MMAA has filed lawsuits challenging
laws and regulations that discriminate against and
stigmatize LGBTQ service members, including: the
former “Don’t Ask, Don’t Tell” law requiring that lesbian, gay, and bisexual service members conceal their
sexual orientation; regulations prohibiting same-sex
military spouses from receiving spousal benefits; the
current ban on openly transgender people serving in
the U.S. military; and regulations negatively affecting service members with HIV. MMAA has a strong
interest in advocating for its members who may be
affected by DACA’s rescission as well as an interest
in advocating for a ruling in this case that would affirm the need for government agencies to consider
how their policy choices would harm the military by
stigmatizing and otherwise negatively affecting service members and their families.
NVLSP is an independent nonprofit organization
that has worked since 1981 to ensure that our nation’s 22 million veterans and active duty personnel
receive the federal benefits they have earned through
service to our nation. NVLSP advocates before federal agencies, courts, and Congress to protect service
members and veterans irrespective of whether they
joined the military as citizens or non-citizens.
NVLSP has represented thousands of individual service members and veterans, served as counsel for certified classes of veteran-plaintiffs, and participated as
4
amicus curiae in support of service members and veterans in numerous agency and court actions.
JWV, organized in 1986 by Jewish veterans of the
Civil War, is the oldest active national veterans’ service organization in America. Incorporated in 1924,
and chartered by an act of Congress in 1983, see 36
U.S.C. § 110103, JWV’s objectives include to “encourage the doctrine of universal liberty, equal rights, and
full justice to all men,” id § 110103(5), “combat the
powers of bigotry and darkness wherever originating
and whatever the target”, id § 110103(6), and “preserve the spirit of comradeship by mutual helpfulness
to comrades and their families,” id § 110103(7).
JWV has long taken an interest in the right to
serve in the military. Jewish immigrants and refugees have fought and died for America, particularly
in World War II against the Nazis. Over one third of
the Jews awarded the Congressional Medal of Honor
were born in a foreign country.
Blue Star Families is a national, nonprofit organization that exists to support active-duty members,
veterans, and their families from all ranks and services—including National Guard and Reserve. BSF
strengthens military families and connects America
to the Armed Forces through a robust array of morale, empowerment, education and employment programs. Additionally, BSF’s annual Military Family
Lifestyle Survey creates opportunities to support the
health and sustainability of our all-volunteer Force
by increasing dialogue and understanding between
the military community and broader American society.
Blue Star Families exists to support military families, regardless of their documented legal status. We,
5
therefore, join with the MMAA in advocating for a
ruling that would affirm the need for government
agencies to consider how their policy choices would
harm the military by stigmatizing and otherwise
negatively affecting service members and their families.
MVA is a nonprofit organization dedicated to creating community belonging and advancing equality
for minority veterans, including veterans of color,
women
veterans,
LGBTQ
veterans,
and
(non)religious minority veterans. MVA is built on
four fundamental values: inclusivity, advocacy, allyship, and education. By advocating for the needs of
veteran communities without a majority voice, MVA
strives to improve the lives of veterans who may otherwise be forgotten.
Swords to Plowshares is a community-based notfor-profit organization that provides needs assessment and case management, employment and training, housing, and legal assistance to veterans in the
San Francisco Bay Area. Swords to Plowshares promotes and protects the rights of veterans through advocacy, public education, and partnerships with local,
state, and national entities.
STATEMENT
On September 5, 2017, the Government issued a
brief memorandum rescinding the Deferred Action for
Childhood Arrivals program (DACA). Since 2012,
DACA, implemented by the Department of Homeland
Security (DHS), has conferred life-changing benefits
to nearly 800,000 non-citizens. In addition to DACA’s
promise of a reduced likelihood of removal, these
benefits include numerous advantages under existing
policies, such as the ability to obtain employment
6
lawfully. See 8 C.F.R. § 274a.12(c)(14). DACA has
permitted its recipients to remain in the United
States with their families and obtain a 91% employment rate, benefitting not only DACA recipients, but
also strengthening and maintaining their families.
The American people also rely on DACA to enhance U.S. national security through military readiness. As of September 2017, when the Government
rescinded DACA, over 800 DACA recipients were actively serving in the U.S. military under the Military
Accessions Vital to the National Interest program
(MAVNI). That program allows the military to recruit non-citizens who have skills “vital to the national interest,” including health care professionals
and individuals with specific language and cultural
skills. See 10 U.S.C. § 504(b)(2). The U.S. military
has relied on the efforts of these non-citizens, including DACA recipients, to further such vital national
interests that promote national security and protect
Americans.
The Government overlooked such reliance interests when rescinding DACA. The rescission memorandum contains just one sentence explaining the
Government’s rationale for changing its existing policy: “Taking into consideration the Supreme Court’s
and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017, letter from the Attorney General, it is clear that the June 15, 2012,
DACA program should be terminated.” Regents Pet.
App. 117a.
Numerous parties brought actions alleging that
the Government’s decision to rescind DACA was unlawful on several grounds, including that the rescission was arbitrary and capricious under the Adminis-
7
trative Procedure Act (APA). Three of these cases are
now before the Court: Department of Homeland Security v. Regents of the University of California, No. 18587 (Regents), in the Ninth Circuit; McAleenan v. Batalla Vidal, No. 18-589 (Batalla Vidal), in the Eastern District of New York; and Trump v. NAACP,
No. 18-588 (NAACP), in the District Court for the
District of Columbia. The courts below have uniformly agreed to enjoin or vacate the Government’s decision to rescind DACA.
In Regents, the Ninth Circuit affirmed a preliminary injunction requiring, among other things, that
the Government “allow[] DACA enrollees to renew
their enrollments.” Regents Pet. App. 66a; Regents
Pet. Supp. App. 45a-46a. The Eastern District of
New York preliminarily enjoined the rescission of
DACA on similar terms. Batalla Vidal Pet. App. 126128a. Both courts concluded that the Government’s
rescission of DACA was likely arbitrary and capricious, determining that the Government’s sole rationale for rescinding DACA relied on a legally erroneous premise. Regents Pet. App. 42a; Batalla Vidal
Pet. App. 91a. In Batalla Vidal, the court further explained that the Government “acted arbitrarily and
capriciously by ending [the DACA] program without
taking any account of reliance interests that program
has engendered.” Batalla Vidal Pet. App. 113-117a.
In NAACP, the District Court for the District of
Columbia granted partial summary judgment against
the Government and vacated the rescission of DACA,
holding that it violated the APA’s substantive requirements. The court emphasized that the “Department’s failure to give an adequate explanation of
its legal judgment was particularly egregious here in
light of the reliance interests involved,” which “en-
8
gendered the reliance of hundreds of thousands of
beneficiaries, many of whom had structured their education, employment, and other life activities on the
assumption that they would be able to renew their
DACA benefits.” NAACP Pet. App. 54a. The court
stayed its mandate for ninety days “to allow the
agency an opportunity to better explain its rescission
decision.” Id. at 3a.
In response, on June 22, 2018, DHS Secretary
Kirstjen M. Nielsen issued a second memorandum
“declin[ing] to disturb the Duke memorandum’s rescission of the DACA policy.” Regents Pet. App. 121a.
The Nielsen memorandum stated, “I am keenly
aware that DACA recipients have availed themselves
of the policy in continuing their presence in this country and pursuing their lives,” but concluded “I do not
believe that the asserted reliance interests outweigh
the questionable legality of the DACA policy and the
other reasons for ending the policy discussed above.”
Id. at 125a. Secretary Nielsen’s memorandum did
not mention, much less address, the reliance interests
of DACA family members, or how the U.S. military
relies on DACA to advance national security, which
in turn serves the interests of the American people.
On August 3, 2018, the NAACP court concluded
the Nielsen memorandum did not alter the court’s
earlier conclusions. NAACP Pet. App. 80a-109a. The
Government petitioned for writs of certiorari in all
three cases. The Court granted certiorari and consolidated the cases for briefing and oral argument.
SUMMARY OF ARGUMENT
This Court should affirm the decisions below,
which correctly enjoined or vacated the Government’s
decision to rescind DACA on the basis of arbitrary
9
and capricious agency action in violation of the APA.
The Government provided a legally deficient rescission rationale because, among other reasons, it failed
to address how “longstanding [DACA] policies may
have engendered serious reliance interests that must
be taken into account.” Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2126 (2016). For example,
the Government did not adequately consider the “serious reliance interests” of DACA beneficiaries who
have enlisted in the military and are pursuing a path
to citizenship, the interests of military family members who are direct or indirect beneficiaries of DACA,
and the interests of the American people, who rely on
a military that has been significantly strengthened
by the DACA program.
ARGUMENT
The courts below have uniformly—and correctly—
preliminarily or permanently set aside the Government’s rescission of DACA on the basis of arbitrary
and capricious agency action. This Court should affirm.
I. The Government Must Consider Serious Re-
liance Interests When Changing Existing
Policy.
The APA directs that arbitrary and capricious
Government actions be set aside as unlawful. 5
U.S.C. § 706(2)(A). While “[a]gencies are free to
change their existing policies,” they must “provide a
reasoned explanation for the change.” Encino, 136 S.
Ct. at 2125. If the explanation for the policy change
“entirely fail[s] to consider an important aspect of the
problem,” it will not survive arbitrary-and-capricious
review. Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983).
10
To survive such review, the Government must
demonstrate it is “cognizant that longstanding policies may have engendered serious reliance interests
that must be taken into account.” Encino, 136 S. Ct.
at 2126. The Government also must explain its reason “for disregarding facts and circumstances that
underlay or were engendered by the prior policy.”
FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515-16 (2009).
In Encino, this Court set aside a policy change for
failure to consider serious reliance interests. There,
the Court recognized that the retail automobile and
truck industry had “significant reliance interests” in
an agency’s prior position that service advisors were
exempt from certain overtime pay provisions. 136 S.
Ct. at 2126. These significant reliance interests included the compensation plans negotiated between
dealerships and service advisors, which the Court
recognized “could necessitate systemic, significant
changes” under the agency’s revised policy. Ibid.
The Court also observed that dealerships who failed
to compensate their service advisors under the revised policy could face significant liability. Ibid.
Where, as in Encino, significant reliance interests
are present, the agency must provide “a more reasoned explanation for its decision to depart from its
existing enforcement policy.” Ibid. And where an
agency’s proffered rationale “f[a]ll[s] short of the
agency’s duty to explain why it deemed it necessary
to overrule its previous position,” the agency’s change
in position is arbitrary and capricious and therefore
unlawful under the APA. Id. at 2126-27.
11
II. DACA Engendered Serious Reliance Inter-
ests on the Part of Non-Citizens Enlisted in
the Military, Their Families, and the American People.
DACA offers more than deferred removal, and the
program affects more than its direct beneficiaries.
DACA recipients and their families benefit from numerous pre-exiting policies, which they would not
have access to but for DACA. DACA recipients are
eligible for employment authorization documents,
commonly known as work permits, and recipients
with specialized medical or linguistic and cultural
skills are eligible to enlist through MAVNI. For
those who have enlisted, the military offers the opportunity to serve their adopted country and a path
to citizenship. This policy keeps families with noncitizens together and, as explained in depth below,
offers the possibility of deferred action or parole in
place regardless of DACA eligibility.
For the American people, DACA has facilitated
the military readiness on which the country depends,
such as enabling the military to approach its recruiting and retention goals by leveraging immigrant and
minority communities with unique skills vital to the
national interest. DACA has promoted these expectations for more than five years.
A.
Foreign-Born Recruits Are Integral
to the U.S. Military and Vital to Its
Mission.
The United States has long relied on foreign-born
recruits to protect our country. From the Revolutionary War through the 1840s, half of the U.S. military’s
12
recruits were foreign born. 2 During the Civil War,
approximately 300,000 foreign-born members of the
military served in the Union Army. Ibid. These and
other foreign-born recruits account for half a million
of our country’s veterans, more than 700 of whom
have received Medals of Honor. Ibid. 3
Our country’s reliance on foreign-born recruits—
and specifically, non-citizens—has persisted in recent
decades. Between 1999 and 2010, “some 80,000 noncitizens enlisted across all four services, accounting
for 4 percent of all accessions” among the Army, Navy, Air Force, and Marine Corps. 4 As of June 2010
alone, approximately 16,500 non-citizens were actively serving in the military. Id. at 39. Another 5,255
non-citizens first enlisted in the military in 2016. 5
In light of our military’s seasoned reliance on the
foreign born, it is not surprising that our Government
has repeatedly recognized the importance of noncitizen recruits to the U.S. military. Nearly two dec2 Jie Zong & Jeanne Batalova, Immigrant Veterans in the United
States (May 16, 2019), https://www.migrationpolicy.org/article
/immigrant-veterans-united-states.
3 See also U.S. Citizenship and Immigration Servs., USCIS Fa-
cilities Dedicated to the Memory of Immigrant Medal of Honor
Recipients, https://www.uscis.gov/about-us/find-uscis-office/uscis
-facilities-dedicated-memory-immigrant-medal-honor-recipients
(last updated Jan. 24, 2014).
4 Dep’t of Def., Population Representation in the Military Services: Fiscal Year 2010 Summary Report, at 41, available at
https://www.cna.org/pop-rep/2010/summary
/PopRep10summ.pdf.
Dep’t of Def., Population Representation in the Military Services: Fiscal Year 2016 Summary Report, at 41, available at
https://www.cna.org/pop-rep/2016/summary/summary.pdf.
5
13
ades ago, President George W. Bush issued an Executive Order creating an incentive for non-citizens to
serve in the military in exchange for expedited naturalization. Exec. Order 13,269, 67 Fed. Reg. 45287
(July 3, 2002). Under this program, as of 2018, the
U.S. Citizenship and Immigration Services (USCIS)
reports that “[s]ince Oct. 1, 2001, USCIS has naturalized 129,587 members of the military.” 6 In 2008, the
Secretary of Defense authorized the MAVNI program,
designed to recruit non-citizens who have skills that
are “vital to the national interest,” including health
care professionals and individuals with specific language and cultural skills. See 10 U.S.C. § 504(b)(2).
Most recently, in 2014, the Department of Defense
provided a pathway for DACA recipients to enlist in
the military under MAVNI. 7 As of September 2017,
more than 800 highly skilled DACA recipients were
serving in the U.S. military through MAVNI. 8 Many
more await final background checks so that they too
can begin serving. These DACA recipients, along
with other MAVNI service members, possess “critical
skills” and are “vital” to protecting the American people.
6 U.S. Citizenship and Immigration Servs., Military Naturaliza-
tion
Statistics,
https://www.uscis.gov/military/militarynaturalization-statistics (last updated Dec. 6, 2018).
7 Memorandum from Jessica Wright, Undersecretary of Defense
for Personnel and Readiness, Military Accessions Vital to the
National Interest Program Changes (Sept. 25, 2014).
Jonah Bennett, Pentagon: Fewer Than 900 DACA Recipients
Are Currently Serving In The Military (Sept. 6, 2017),
https://stream.org/pentagon-fewer-than-900-daca-recipients-arecurrently-serving-in-the-military/.
8
14
B.
Enlistees Rely on DACA for Eligibility to be Employed by the Military
and for a Path to Citizenship.
DACA opened a path for certain non-citizens to
obtain work permits and to serve in the military if
they possess a “critical skill or expertise” that is both
“vital to the national interest” and useful to the
armed forces on a daily basis.
See 10 U.S.C.
§ 504(b)(2). For example, the military’s MAVNI recruiting program targets immigrants with critical
medical skills or expertise in certain foreign languages and cultures. 9 The program has recruited
10,400 immigrants from 2008 to 2016. 10,11 In 2016
alone, 359 MAVNI recruits were talented immigrants
who could not have participated in the program without DACA. 12
9
Dep’t
of
Def.,
MAVNI
Fact
Sheet,
https://dod.defense.gov/news/mavni-fact-sheet.pdf.
1,
U.S. Gov’t Accountability Office, Immigration Enforcement:
Actions Needed to Better Handle, Identify, and Track Cases Involving Veterans 7 (2019).
10
11 MAVNI recruiting was indefinitely suspended at the end of
fiscal year 2016 pending the implementation of increased security protocols. See Dep’t of Homeland Security, MAVNI Program
Status for Fiscal Year 2017 (Dec. 2, 2016), https://www.ice.gov
/doclib/sevis/pdf/bcm-1612-02.pdf. As discussed below, many
MAVNI recruits still await the completion of their background
checks so that they can begin serving.
12 New American Economy, Outside the Wire: How Barring the
DACA-Eligible Population from Enlisting Weakens our Military
(Nov. 8, 2017), https://research.newamericaneconomy.org/report
/outside-the-wire-how-barring-the-daca-eligible-population-fromenlisting-weakens-our-military/; see also Dep’t of Def., MAVNI
Fact Sheet, 1.
15
DACA beneficiaries rely on military service to
provide a path to citizenship. The United States has
long granted citizenship to non-citizens in exchange
for their military service. See Exec. Order 13,269, 67
Fed. Reg. 45287 (July 3, 2002). By permitting DACA
beneficiaries to enlist in the military, the Government has provided them the opportunity to earn citizenship by serving honorably for one year under 8
U.S.C. § 1439(a), or by serving honorably on active
duty for a shorter period under 8 U.S.C. § 1440(a). 13
More than 129,000 immigrants earned their citizenship through military service between the attacks on
September 11, 2001, and the end of last year. U.S.
Citizenship and Immigration Servs., Military Naturalization Statistics.
DACA also enables its beneficiaries who have
skills vital to the national interest an opportunity to
serve in the U.S. military and to become lawful citizens of the country in which they were raised. Beneficiaries wanting to serve and undertake the benefits
and responsibilities of citizenship enlisted. After enlisting, they organized their lives around the com13 On October 13, 2017, the Department of Defense announced
that instead of requiring a single day of active-duty service it
would require 180 days before certifying honorable service under 8 U.S.C. § 1440(a). Dep’t of Def., DoD Announces Policy
Changes to Lawful Permanent Residents and the Military Accessions Vital to the National Interest (MAVNI) Pilot Program (Oct.
13, 2017), https://www.defense.gov/Newsroom/Releases/Release
/Article/1342317/dod-announces-policy-changes-to-lawfulpermanent-residents-and-the-military-acc/. Citizenship granted
under either 8 U.S.C. § 1439 or 8 U.S.C. § 1440 could be revoked
if the soldier was “separated from the Armed Forces under other
than honorable conditions before the person ha[d] served honorably for a period or periods aggregating five years.” 8 U.S.C.
§§ 1439(f), 1440(c).
16
mitment to hold themselves constantly ready to serve
as soon as their background investigations finished.
Rescinding DACA undermines the reliance interests inherent in the life-changing demands of military
service, as well as the path to citizenship offered
through the MAVNI program. Like all non-citizens—
including otherwise lawful permanent residents—
DACA beneficiaries who enlisted are unable to begin
basic training until their background investigations
are completed. 14
Less than two months before
DACA’s rescission, NPR reported that more than
4,000 MAVNI recruits were awaiting basic training. 15
Without DACA’s protection, DACA recruits awaiting
training or who have not served long enough to apply
for citizenship will lose their eligibility to participate
in MAVNI. They also risk losing their work permits
and a range of military employment benefits, including health care, home loans, and educational funds,
that generally vest only after a recruit begins or completes a specified term of active-duty service. See 38
U.S.C. §§ 3311, 3702; 32 C.F.R. § 199.3. In addition
to
threatening
enlistees’
ability
to
access
these benefits, DACA’s rescission even threatens enlistees with the prospect of being deported.
This threat was not eliminated by the grandfathering provisions in the DACA rescission memorandum. DHS announced that it would not terminate
previously issued deferred action determinations or
14 See Dep’t of Def., DoD Announces Policy Changes to Lawful
Permanent Residents and the Military Accessions Vital to the
National Interest (MAVNI) Pilot Program (Oct. 13, 2017).
15 Tom Bowman, Citizenship For Military Service Program Un-
der Fire, NPR (July 11, 2017), https://www.npr.org/2017/07/11
/536630223/citizenship-for-military-service-program-under-fire.
17
work permits based on the rescission. Regents Pet.
App. 118a. It also announced that, if requested within 30 days, it would consider a one-time renewal of
DACA benefits for individuals whose periods of deferred action were set to expire within 180 days.
Ibid. But DACA benefits last only two years. Regents Pet. App. 99-100a. Military background checks
take up to three. See 10 U.S.C. § 513(b)(1)-(3). This
means that DACA beneficiaries face a very real prospect that they will lose their DACA benefits before
obtaining background clearance, getting scheduled
for training, and freeing themselves of the need for
DACA by completing the term of service necessary to
obtain citizenship. 16
This fear of deportation after DACA’s rescission is
not merely hypothetical. A recent report by the Government Accountability Office states that DHS has a
system of policies in place for deporting veterans—
and that the protections the system offers are not
consistently observed. U.S. Gov’t Accountability Office, Immigration Enforcement, 10-12. Although the
data is incomplete, available records show that “approximately 250 veterans were placed in removal
proceedings or removed from the United States from
fiscal years 2013 through 2018.” Id. at 16. At the
16 See, e.g., Alex Horton, The military looked to ‘dreamers’ to use
their vital skills. Now the U.S. might deport them., Washington
Post (Sept. 7, 2017), https://www.washingtonpost.com/news
/checkpoint/wp/2017/09/07/the-military-looked-to-dreamers-touse-their-vital-skills-now-the-u-s-might-deport-them/ (reporting
on plight of recruits like Zion Dirgantara, a MAVNI recruit
awaiting the completion of his background check who came to
the United States at the age of 12, did not know he lacked lawful status until he applied for a driver’s license, and now finds
himself alongside “hundreds of others in a race against time to
avoid deportation back to now unfamiliar nations”).
18
time of the study, about 115 of them had been ordered removed and only 25 had been granted relief or
protection from removal. Ibid. Recruits who have
not served are likely to receive less favorable treatment. Some have already fled the country to avoid
deportation to countries where they believe their lives
would be in danger. 17
C.
Enlistees’ Families Rely on DACA for
the Possibility of Parole in Place or
Deferred Action.
Enlistees’ families also have relied on DACA. In
addition to families’ general interest in policies that
protect their relatives from deportation—and consequently keep families together—DACA grants family
members access to additional benefits as well.
USCIS offers consideration for parole in place or
deferred action to the families of service men and
women, with the goal of “[f]acilitating military morale
and readiness and supporting DoD recruitment policies.” U.S. Citizenship and Immigration Services,
Adjudicator’s Field Manual, Chapter 21.1(c). Parole
in place is a one-year period of authorization to stay
in the United States, subject to extensions as appropriate. Id. at Chapter 21.1(c)(1).
Alex Horton, Foreign-born recruits, promised citizenship by
the Pentagon, flee the country to avoid deportation, Washington
Post (July 17, 2017), https://www.washingtonpost.com/news
/checkpoint/wp/2017/07/17/foreign-born-recruits-promisedcitizenship-by-the-pentagon-flee-the-country-to-avoiddeportation/ (telling story of Ranj Rafeeq, an Iraqi Kurd who
translated for the U.S. military in 2005 and came to the United
States in 2012 hoping to join the Army after earning a graduate
degree in civil engineering but who fled to Canada in fear that
his path to citizenship would fail and that he would become a
target of the Islamic State if deported to Iraq).
17
19
Although a grant of parole in place is discretionary, the fact that an immediate family member serves
in the U.S. military “ordinarily weighs heavily in favor of parole in place,” so that a grant of parole in
place is generally appropriate absent a criminal conviction or other serious adverse factors. Ibid. Parole
in place is available only to individuals who are not
lawfully admitted to the United States. Ibid. Parolees are eligible to apply for work permits during the
period of their parole. Ibid.
Deferred action for family members of service
members is similar to parole in place, but it is available only to individuals who have been lawfully admitted to the United States and have overstayed their
authorized period of admission.
Id. at Chapter
21.1(c)(2)(A). Deferred action is available in two-year
increments and, like parole in place, makes the recipient eligible to apply for work permits. Id. at Chapter
21.1(c)(2)(C). Deferred action determinations are
“case-by-case, discretionary judgments based on the
totality of the evidence.” Id. at Chapter 21.1(c)(2)(A).
Although being an immediate family member of a
MAVNI recruit or other enlistee awaiting basic training is no guarantee of deferred action, it is considered
a strong positive factor. Ibid. On the other hand,
USCIS may terminate any period of deferred action
awarded to the family members of an enlistee awaiting basic training who later becomes disqualified
from military service. Ibid.
As explained above, DACA’s rescission placed enlistees at risk of becoming disqualified for employment and for participation in MAVNI. In so doing, it
also placed family members of enlistees at risk of losing their work permits and even of being deported.
20
This is true not only of family members who are direct beneficiaries of DACA, but also of family members who are beneficiaries of parole in place or of deferred action for families of service men and women.
As the USCIS Adjudicator’s Field Manual notes, “the
family members of such recruits often lose their lawful statuses because their statuses depend on those of
the recruits.” Ibid.
Immigrant families have sacrificed for the United
States by supporting their relatives in enlisting for
military service. They have counted on staying together and earning a living while their relatives were
on duty. Whether directly or indirectly, they relied
on DACA—and their reliance interests are serious.
D.
The U.S. Military Relies on NonCitizens, Including DACA Recipients,
to Protect the American People.
The serious consequences of DACA’s rescission extend to the American people, who rely on having a
strong, ready military to promote and defend U.S. national interests. Unraveling DACA will negatively
affect the military’s ability to recruit and retain highly qualified service members, which in turn jeopardizes the protection of the American people.
1. The American people rely on a strong, ready
U.S. military to promote and defend U.S. national interests. One critical component of a strong military is
ensuring that the military is able to recruit and retain enough soldiers, sailors, airmen, Marines, and
coast guardsmen to meet the myriad of challenges
these men and women are asked to tackle every day.
As a result, meeting annual accession goals is a critical component of ensuring military readiness.
21
In recent years, the U.S. military, and by extension its largest branch, the U.S. Army, has
“struggl[ed] to find candidates who meet [its] requirements.” 18 Because only 30% of potential recruits qualify to join the military, in 2017, the U.S.
Army Recruiting Command was “forced to lower its
recruiting standards in hopes of reaching its goal of
80,000 new soldiers.” Ibid. In 2016, 1.6% of Army
recruits placed in the bottom third of military exams,
ibid.—scores that typically lead the Army to deny enlistment— and only 56% of Army recruits were
deemed “high-quality personnel.” Dep’t of Def., Population Representation in the Military Services: Fiscal
Year 2016 Summary Report, at 3, 17. Yet as difficulties with military recruitment have risen, Congress
has directed the Army to increase its number of active-duty soldiers. Fanning, Immigration reform: An
Army recruitment opportunity (Jan. 8, 2018).
DACA recipients do not just add necessary numbers to the U.S. military; they also bring necessary
skills. As a statutory prerequisite to enlistment as
non-citizens without green cards, each of the hundreds of DACA recipients enlisted in the military
must possess “critical skill[s] . . . vital to the national
interest.” 10 U.S.C. § 504(b)(2). These and other
MAVNI recruits serve an important role in the military’s ability to protect the American people. As explained by Air Force Maj. Carla Gleason, a Pentagon
spokeswoman, “the unique skill sets these individuals
bring is one of the reasons the U.S. military is the
18 Eric Fanning, Immigration reform: An Army recruitment op-
portunity (Jan. 8, 2018), https://thehill.com/opinion/nationalsecurity/367839-immigration-reform-an-army-recruitmentopportunity.
22
world’s premier fighting force.” 19 Former Secretary of
the Army Eric Fanning has likewise explained that
MAVNI recipients serve an important role in forming
“a skilled, diverse military force with high levels of
integrity that can adapt to today’s emerging threats.”
Fanning, Immigration reform: An Army recruitment
opportunity (Jan. 8, 2018). Removing protections for
these vital service members and subjecting such service members to discharge runs counter to American
interests in protecting our country.
Research and practice have confirmed that noncitizen service members, such as DACA recipients,
meet critical needs for the military. As the Center for
Naval Analyses (CNA) observed, “noncitizens are []
an attractive recruiting resource” because “a substantial share of the recruitable U.S. non-citizen population comes from diverse backgrounds and potentially
possesses language and cultural skills that are of
strategic interest to the U.S. military.” 20 Recognizing
the importance of such language and cultural skills,
Former Secretary of the Air Force Deborah Lee
James emphasized, “diversity of background, experience, demographics, perspective, thought and even
organization are essential to our ultimate success.” 21
Former Secretary of the Navy Ray Mabus echoed this
19 Lolita Baldor, Problems for Pentagon’s immigrant recruit pro-
gram, AP NEWS (Sept. 30, 2018), https://www.apnews.com
/84530d3799004a0a8c15b3d11058e030.
20 Molly F. McIntosh et al., Non-Citizens in the Enlisted U.S.
Military, at 57 (Nov. 2011), available at https://www.cna.org
/CNA_files/PDF/D0025768.A2.pdf.
21 Memorandum from Deborah Lee James, Secretary of the Air
Force, Air Force Diversity & Inclusion (Mar. 4, 2015), available
at
https://www.af.mil/Portals/1/documents/SECAF
/FINALDiversity_Inclusion_Memo1.pdf.
23
sentiment, explaining “[a] more diverse force is a
stronger force.” 22 As succinctly stated by Secretary
Fanning, “[o]ur nation’s military is stronger when it
reflects the diversity it aims to defend.” Fanning,
Immigration reform: An Army recruitment opportunity (Jan. 8, 2018). Today, the military continues to
target recruits who are “more diverse linguistically
and culturally than citizen recruits . . . [because they
are] particularly valuable as the U.S. faces the challenges of the Global War on Terrorism.” 23
CNA projects that non-citizens likely will play a
crucial role in meeting recruitment goals in coming
years, and thus recommends that “the services should
develop strategies to recruit non-citizens more effectively.” McIntosh et al., Non-Citizens in the Enlisted
U.S. Military, at 2 (Nov. 2011). Notably, “non-citizen
recruits are significantly and substantially less likely
than citizen recruits to attrite in the first term.” Ibid.
After three years, “attrition rates for non-citizens are
between nine and 20 percentage points lower than
those for white citizens, the largest demographic
group in the military.” Air Force News, The U.S. Military Helps Naturalize Non-Citizens (2019). Other
analysts have similarly estimated that the attrition
rate for non-citizens is more than 10% lower than for
22 Chief of Naval Personnel Public Affairs, SECNAV Releases
Updated Diversity, Inclusion Policy Statement (Feb. 25, 2016),
available at https://www.navy.mil/submit/display.asp?story_id
=93282.
Air Force News, The U.S. Military Helps Naturalize NonCitizens
(2019),
https://www.military.com/join-armedforces/eligibility-requirements/the-us-military-helps-naturlizenon-citizens.html.
23
24
citizens, “meaning that noncitizens are more likely to
serve in the military for extended periods of time.” 24
The Department of Defense’s data has reinforced
the significance of the American people’s interest in
the military’s ability to recruit and retain noncitizens, including DACA recipients. In 2016, the
Department of Defense reported that “the majority of
non-citizen [non-prior service] accessions are highquality recruits, with Tier 1 education credentials
and an [Armed Forces Qualification Test] score in the
top 50 percentiles.” Dep’t of Def., Population Representation in the Military Services: Fiscal Year 2016
Summary Report, at 42. In the Army, the Department of Defense observed that 4.8% of accessions in
2016 were non-citizens, and “[a] higher percentage of
non-citizen accessions in the Army were high quality
compared to citizen accessions (66 percent versus 54
percent).” Id. at 41-42. That same year, hundreds of
DACA recipients newly enlisted in the Army. New
American Economy, Outside the Wire: How Barring
the DACA-Eligible Population from Enlisting Weakens our Military (Nov. 8, 2017).
The military’s reliance on programs such as DACA
to protect the American people is not limited to those
DACA recipients who currently serve in the military.
Analysts have estimated that the military could target many more DACA recipients to improve military
readiness. Of the 45 languages the military has
deemed “vital to military success,” the New American
Economy estimated that “[m]ore than 169,000 mem24 Muzaffar Chishti, et al., Immigrants in the Military: Evolving
Recruitment Needs Can Accommodate National Security Concerns (May 2019), https://www.migrationpolicy.org/sites/default
/files/publications/MPI-Noncitizens-Military-Final.pdf.
25
bers of the DACA-eligible population—or more than
one in seven of them—speak one of these languages
at home.” Ibid. This organization further concluded
that “a substantial portion of the DACA-eligible population has language or workforce training that could
help address the military’s recruitment challenges.”
Ibid. The authors thus concluded that “[t]here is a
strategic advantage to having [DACA recipients]
serve in the military, as they will have cultural and
linguistic expertise which could be of critical importance.” Ibid.
Unraveling of DACA protections will likely dissuade these many qualified recipients from enlisting
in the military due to the lengthy delays in accession
and uncertainty surrounding shipment dates, making
it difficult for the military to meet its recruiting
goals. Upon rescission of DACA, the military is likely
to find that a large number of potential high-quality
recruits are ineligible for accession or have left the
United States. Thus, a policy with the stated goal of
improving the country’s national security is likely to
undermine that goal by impairing military readiness.
2. In addition to recruitment and retention, another key component of a strong military is morale.
As precedent has shown in other contexts, however,
ignoring the reliance interests of DACA recipients
could significantly damage the relationship of currently serving DACA recipients to the military, undermining their morale and negatively impacting
unit cohesion, thus curbing the military’s ability to
recruit and retain additional non-citizens and immigrants unaffected by DACA.
For example, history has shown that discriminatory policies such as Don’t Ask Don’t Tell (DADT)—
26
which prohibited military service by openly lesbian,
gay, and bisexual people—diminished morale among
active and prospective LGB service members. One
analysis studying the negative effects of DADT estimated that in 2004 alone, “nearly 1,000 active duty
LGB soldiers would have been retained if they had
been able to serve and be open about their sexual orientation.” 25 Even more would have joined but for
DADT. See ibid. And evidence suggests that discriminatory policies like DADT affected morale and
recruitment and retention even among those who
were not directly subject to it, such as service members or prospective service members with LGB relatives. 26 Repeal of DADT corrected this: As explained
by then-Secretary of Defense Chuck Hagel upon
DADT’s repeal, permitting service members to “serve
openly, with full honor, integrity, and respect . . .
makes our military and our nation stronger.” 27
A discriminatory policy like DACA rescission here
would likely have the same detrimental effects on
25 See, e.g., Gary J. Gates, The Williams Inst., Effects of “Don’t
Ask, Don’t Tell” on Retention Among Lesbian, Gay and Bisexual
Military
Personnel
(2007),
available
at
https://williamsinstitute.law.ucla.edu/wp-content/uploads/GatesEffectsOfDontAskDontTellOnRetention-Mar-2007.pdf; accord
26 See Paul Vincent Courtney, Prohibiting Sexual Orientation
Discrimination in Public Accommodations: A Common Law Approach, 163 U. Pa. L. Rev. 1497, 1534 (2014-2015)
(“[D]iscrimination harms not only the dignity of the immediate
victim of the discriminatory act but also the dignity and autonomy of those who, fearing such discrimination, feel forced to
comply with heterosexual norms.”).
27 Dep’t of Def., Remarks by Secretary Hagel at the Lesbian, Gay,
Bisexual, Transgender Pride Month Event in the Pentagon Auditorium (June 25, 2013), http://archive.defense.gov/transcripts
/transcript.aspx?transcriptid=5262.
27
military morale as DADT did. The negative effects of
rescission would spread to a broader population of
non-citizens, immigrants, and others who simply seek
to serve their Nation with honor and dignity, volunteering to face extreme hardships, endure lengthy
deployments and separation from family and friends,
and to willingly make the ultimate sacrifice of their
lives.
Another insidious effect of declining morale and
reduced recruitment and retention of non-citizens
will be that fewer foreign-born service members will
advance to senior-enlisted positions, resulting in a
less diverse military leadership to the military’s detriment. Ongoing concern over diversity in the military’s leadership recently prompted Congress to establish what became the Military Leadership Diversity Commission (MLDC), an independent body comprised of current and former military officers, senior
enlisted personnel, and civilians. 28 As the MLDC reported, “[i]ncluding a broad range of men and women
from different backgrounds can increase the likelihood that the U.S. military ‘knows the enemy’ and is
better able to work with international partners by
adding to the cultural and linguistic knowledge base
from which U.S. forces may draw.” Id. at 17. 29
28 From Representation to Inclusion: Diversity Leadership for the
21st-Century
Military,
Final
Report
xvi
(2011),
https://www.hsdl.org/?view&did=11390.
See also Dep’t of Def., Defense Language Transformation
Roadmap
3
(Jan.
2005)
https://apps.dtic.mil/dtic/tr/
fulltext/u2/b313370.pdf (describing the need for expertise on
“less-commonly-taught languages” in order to sustain coalitions,
pursue regional stability, and conduct multi-national missions.).
29
28
The U.S. military has shared MLDC’s concerns
over the importance of diversity to national security.
In describing strategies imperative to military readiness, Secretary Mabus observed that “[o]rganizations
that embrace myriad backgrounds and perspectives
will attract the best talent and remain ready” to protect the American people. Chief of Naval Personnel,
SECNAV Releases Updated Diversity, Inclusion Policy Statement (Feb. 25, 2016). Secretary Fanning
likewise observed that “most importantly, [the U.S.
military] need[s] teams of people who think differently from one another and yet are joined together in
common cause.” 30 He therefore advised that “we
must harness the power of diverse teams and draw
further from one of America’s greatest advantages:
our diverse population.” Ibid. As Secretary James
emphasized, “diversity and inclusion are not programs or initiatives; they are national security imperatives and critical force multipliers.” Secretary
James Memorandum (Mar. 4, 2015).
A reduction in the number of leaders acting as
prominent immigrant role models in the military
would create a negative feedback loop, further inhibiting the military’s ability to recruit and retain future
generations of foreign-born service members. But
this population is critical for the future health of the
U.S. military: Analysts have observed that immigrants are an important population to recruit in the
military because “immigration is projected to be the
only source of net growth in the U.S. population
30 Eric Fanning, Secretary of the Army: America’s Diversity is
Our Army’s Strength (Oct. 1, 2016), available
https://www.ausa.org/articles/secretary-armyamerica%E2%80%99s-diversity-our-army%E2%80%99sstrength.
at
29
among 18- to 24-year-olds in the coming decades.”
McIntosh et al., Non-Citizens in the Enlisted U.S.
Military, at 57. The number of potential recruits
multiplies when considering children of immigrants.
Nearly 1.9 million veterans are children of immigrants, accounting for 10% of all veterans. Zong &
Batalova, Immigrant Veterans in the United States.
Thus in coming years, “the segment of the population
most likely to enlist[] will come entirely from immigrants and the children of immigration.” 31
Rescinding policies such as DACA—which relinquish the protections of active and prospective service
members based on their country of origin—will impede the military’s ability to retain quality service
members for years to come. The immediate and future harms to the composition of the U.S. military
adversely affects military readiness and frustrates it
from reaching its goals, contrary to the interests of
the American people.
III. The Government Violated the APA When It
Rescinded DACA Without Considering Serious Reliance Interests.
Despite the breadth of reliance by DACA recipients, their families, and the military itself, the Duke
memorandum contained a single sentence purportedly explaining the Government’s rationale for changing its existing policy: “Taking into consideration the
Supreme Court’s and the Fifth Circuit’s rulings in the
ongoing litigation, and the September 4, 2017, letter
from the Attorney General, it is clear that the June
National Immigration Forum, For Love of Country: New
Americans Serving in our Armed Forces: Executive Summary
(Nov.
7,
2017),
https://immigrationforum.org/article/lovecountry-new-americans-serving-armed-forces-2/.
31
30
15, 2012, DACA program should be terminated.” Regents Pet. App. 117a. No other analysis regarding
the interests of those relying on the DACA program
were provided. In short, the Government did not
consider any reliance interests at all.
Secretary Nielsen’s memorandum, published more
than nine months after the rescission, merely consists of post-hoc rationalizations that cannot overcome the inadequacies of the original rescission
memorandum. See Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168-69 (1962) (agency
action may be “upheld, if at all, on the same basis articulated in the order by the agency itself”) (citing
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).
Even if the Nielsen memorandum were given weight,
the D.C. District Court correctly noted that it failed
to offer meaningful consideration of “DACA’s benefits
to DACA recipients and to society at large.” NAACP
Pet. App. 107a. The memorandum conveys only a
blanket recognition “that DACA recipients have
availed themselves of the policy in continuing their
presence in this country and pursuing their lives.”
Regents Pet. App. 125a. Nowhere does it consider the
indirect beneficiaries of DACA, the sacrifice and service of currently enlisted DACA recipients and their
families, or the serious risks posed to the American
public if the military lost access to a significant number of non-citizen recruits.
DACA has engendered serious reliance interests
for each of these stakeholders. Their interests deserved due consideration by the Government before
deciding to rescind that policy.
The Government’s bases for rescinding DACA fall
far short of the reasoned explanation the APA re-
31
quires. As in Encino, “[w]hatever potential reasons
the Department might have given, the agency in fact
gave almost no reasons at all” for rescinding DACA.
136 S. Ct. at 2127. “In light of the serious reliance
interests at stake, the [Government’s] conclusory
statements do not suffice to explain its decision.”
Ibid. The Government’s decision to rescind DACA is
entitled to no deference and should be held unlawful
under the APA.
CONCLUSION
For the foregoing reasons, the Supreme Court
should affirm the judgments and orders below.
Respectfully submitted.
PETER E. PERKOWSKI
Modern Military
Association of America
P.O. Box. 65301
Washington, DC 20035
peter@modermilitary.org
Counsel for Amicus
Curiae Modern Military
Association of America
CHARLES B. KLEIN
Counsel of Record
CLAIRE A. FUNDAKOWSKI
Winston & Strawn LLP
1700 K Street, N.W.
Washington, DC 20006
(202) 282-5000
cklein@winston.com
Counsel for Amici Curiae
HARVEY WEINER
Peabody & Arnold LLP
600 Atlantic Avenue
Boston, MA 02210
hweiner@peabodyarnold.com
Counsel for Amicus Curiae Jewish War Veterans of the USA
OCTOBER 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.