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

Supreme Court briefOct 4, 2019

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

IN THE

Supreme Court_________

of the United States

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

Petitioners,

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,

Respondents.

_________

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,

Petitioners,

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, ET AL.,

Respondents.

_________

KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL.,

Petitioners,

MARTIN JONATHAN BATALLA VIDAL, ET AL.,

Respondents.

_________

On Writs of Certiorari to the

United States Courts of Appeals for the Ninth,

District of Columbia, and Second Circuits

_________

BRIEF OF AMERICAN COUNCIL ON EDUCATION AND

43 OTHER HIGHER EDUCATION ASSOCIATIONS AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

_________

NEAL K. KATYAL

Counsel of Record

JESSICA L. ELLSWORTH

STEPHANIE J. GOLD

MITCHELL P. REICH

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

Counsel for Amici Curiae American Council on Education and 43 Other Higher Education Associations

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... iii

STATEMENT OF INTEREST .................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................. 2

ARGUMENT ............................................................... 5

I. THE RESCISSION OF DACA WILL

INFLICT PROFOUND HARMS ON

COLLEGES AND UNIVERSITIES,

THEIR STUDENTS,

AND

THE

COUNTRY AS A WHOLE .................................. 5

A. America’s Colleges and Universities

Thrive on a Diverse Student Body

and a Reputation for Inclusiveness ............... 5

B. Prior to DACA, Many of the Nation’s Most Promising Students

Faced Severe Challenges to Enrollment in or Completion of Undergraduate and Graduate Programs ................ 8

C. DACA Has Made It Substantially

Easier for Dreamers to Enroll in

Postsecondary Institutions and Has

Carried Enormous Benefits for Colleges, Universities, and the Country........... 16

D. The Rescission of DACA Would Reverse the Gains the Program Has

Enabled......................................................... 24

II. THE RESCISSION IS REVIEWABLE ............ 28

A. The APA Does Not Make the Rescission Unreviewable ................................. 29

(i)

TABLE OF CONTENTS—Continued

Page

B. The INA Does Not Withdraw Jurisdiction to Consider the Rescission............... 33

CONCLUSION .......................................................... 37

ADDENDUM—LIST OF AMICI CURIAE ............... 1a

iii

TABLE OF AUTHORITIES

Page(s)

CASES:

Arizona v. United States,

567 U.S. 387 (2012) ................................................ 6

Citizens to Preserve Overton Park, Inc. v.

Volpe,

401 U.S. 402 (1971).............................................. 29

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019) .................................... 29, 30

Fisher v. Univ. of Texas at Austin,

570 U.S. 297 (2013) ................................................ 7

Gill v. Paige,

226 F. Supp. 2d 366 (E.D.N.Y. 2002) .................. 28

Grutter v. Bollinger,

539 U.S. 306 (2003) ................................................ 7

Heckler v. Chaney,

470 U.S. 821 (1985) ............................ 30, 31, 32, 33

ICC v. Bhd. of Locomotive Eng’rs,

482 U.S. 270 (1987) .............................................. 32

Jennings v. Rodriguez,

138 S. Ct. 830 (2018) ...................................... 34, 35

Mach Mining, LLC v. EEOC,

135 S. Ct. 1645 (2015) .......................................... 36

Massachusetts v. EPA,

549 U.S. 498 (2007) .............................................. 33

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) .............................................. 35

Nielsen v. Preap,

139 S. Ct. 954 (2019) ............................................ 34

TABLE OF AUTHORITIES—Continued

Page(s)

Reno v. Am.-Arab Anti-Discrimination

Comm.,

525 U.S. 471 (1999) ............................ 33, 34, 35, 36

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) .......................... 31, 32

United States v. Texas,

136 S. Ct. 2271 (2016) .................................... 30, 32

United Student Aid Funds, Inc. v. DeVos,

237 F. Supp. 3d 1 (D.D.C. 2017) .......................... 28

Weyerhauser Co. v. U.S. Fish & Wildlife Serv.,

139 S. Ct. 361 (2018) ............................................ 29

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) .............................................. 29

STATUTES:

5 U.S.C. § 701(a)(2) ................................................. 29

8 U.S.C. § 1252(b)(9) ............................... 5, 33, 34, 35

8 U.S.C. § 1252(g) ................................... 5, 33, 34, 36

Administrative Procedure Act .................... 28, 29, 30

Immigration and Nationality Act .................... 28, 33

OTHER AUTHORITIES:

Leisy Janet Abrego, “I Can’t Go to College

Because I Don’t Have Papers”: Incorporation Patterns of Latino Undocumented

Youth, 4 Latino Stud. 212 (2006),

https://www.academia.edu/3684916/Abreg

o_Leisy._2006._I_can_t_go_to_college_beca

use_I_don_t_have_papers_Incorporation_

Pat-

TABLE OF AUTHORITIES—Continued

Page(s)

terns_of_Latino_Undocumented_Youth._L

atino_Studies_4_3_212-231 ................................. 15

Am. Council on Educ., Immigration PostElection Q&A: DACA Students, “Sanctuary Campuses,” and Institutional or

Community Assistance (Dec. 2016),

https://www.acenet.edu/Documents/ACEIssue-Brief-Immigration-DACASanctuary-Campus.pdf ........................................ 19

Am. Council on Educ., Protect Dreamers

Higher Education Coalition: Who Are the

Dreamers?, https://www.acenet.edu/PolicyAdvocacy/Pages/Immigration/ProtectDreamers-Higher-EducationCoalition.aspx ...................................................... 20

Jeanne Batalova et al., Migration Policy

Inst., DACA at the Two-Year Mark: A National and State Profile of Youth Eligible

and Applying for Deferred Action (Aug.

2014), https://www.migrationpolicy.org/

research/daca-two-year-mark-nationaland-state-profile-youth-eligible-andapplying-deferred-action ..................................... 15

Ike Brannon & Logan Albright, The Economic and Fiscal Impact of Repealing

DACA, Cato Inst.: Cato At Liberty (Jan.

18, 2017), https://www.cato.org/blog/

economic-fiscal-impact-repealing-daca ......... 24, 27

Alexandra A. Chaidez & Sanjana L. Narayana, Harvard Senior Becomes First

TABLE OF AUTHORITIES—Continued

Page(s)

DACA Recipient to Win Rhodes Scholarship, Harvard Crimson (Nov. 19, 2018) .............. 21

John Coyle, The Legality of Banking the

Undocumented, 22 Geo. Immigr. L.J. 21

(2007) .................................................................... 11

Deferred Action for Childhood Arrivals

(DACA) Data Tools, Migration Policy Inst.,

https://www.migrationpolicy.org/programs

/data-hub/deferred-action-childhoodarrivals-daca-profiles ............................................. 9

Economic News Release, Bureau of Labor

Statistics, U.S. Dep’t of Labor, College Enrollment and Work Activity of Recent High

School and College Graduates Summary

(Apr. 25, 2019), https://www.bls.gov/news.

release/hsgec.nr0.htm .......................................... 14

Enrollment Trends, Inst. for Int’l Educ.

(2018), https://www.iie.org/Research-andInsights/Open-Doors/Data/InternationalStudents/Enrollment ............................................. 6

Roberto G. Gonzales & Angie M. BautistaChavez, Am. Immigration Council, Two

Years and Counting: Assessing the Growing Power of DACA (June 2014),

http://www.immigrationpolicy.org/sites/def

ault/files/research/two_years_and_countin

g_assessing_the_growing_power_of_daca_f

inal.pdf ........................................................... 14, 17

Roberto G. Gonzales & Leo R. Chavez,

“Awakening to a Nightmare”: Abjectivity

and Illegality in the Lives of Undocumented

vii

TABLE OF AUTHORITIES—Continued

Page(s)

1.5-Generation Latino Immigrants in the

United States, 53 Current Anthropology

255 (2012), https://pdfs.semanticscholar.org

/4515/9747881c9cd7961b282a9066c3e7f4b1

a93a.pdf ................................................................ 16

Roberto G. Gonzales et al., Becoming

DACAmented: Assessing the Short-Term

Benefits of Deferred Action for Childhood

Arrivals (DACA), 58 Am. Behavioral Scientist 1852 (Nov. 2014)................................ passim

Emily Greenman & Matthew Hall, Legal

Status and Educational Transitions for

Mexican and Central American Immigrant

Youth, 91 Social Forces 1475 (2013),

https://www.ncbi.nlm.nih.gov/pmc/articles/

PMC3816545/pdf/sot040.pdf ............................... 14

Neeta Kantamneni et al., Academic and

Career Development of Undocumented College Students: The American Dream?,

64 Career Development Quarterly 318

(2016) .............................................................. 10, 13

Neeta Kantamneni et al., DREAMing Big:

Understanding the Current Context of Academic and Career Decision-Making for

Undocumented Students, 43 J. Career

Dev. 483 (2016) ........................................ 12, 13, 17

Letter from More than 800 Colleges and

Universities to Speaker Ryan et al. (Oct.

19, 2017), https://www.acenet.edu/

Documents/Letter-to-Congress-on-DACAOct-2017.pdf ......................................................... 21

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Letter from President Eisgruber and Microsoft President Smith to Congress Regarding the Deferred Action for Childhood

Arrivals (DACA) Program (Jan. 11, 2018),

https://president.princeton.edu/blogs/letter

-president-eisgruber-and-microsoftpresident-smith-congress-regardingdeferred-action ..................................................... 21

Silva Mathema, What DACA Recipients

Stand to Lose—and What States Can Do

About It, Ctr. for Am. Progress (Sept. 13,

2018), https://www.americanprogress.org/

issues/immigration/reports/2018/09/

13/458008/daca-recipients-stand-losestates-can/ ................................................ 19, 25, 26

Gilbert Mendoza & Chesterfield Polkey,

States Offering Driver’s Licenses to Immigrants, Nat’l Conference of State Legislatures (July 25, 2019), http://www.ncsl.org/

research/immigration/states-offeringdriver-s-licenses-to-immigrants.aspx.................. 26

NAFSA: Ass’n of Int’l Educators, Restoring

U.S. Competitiveness for International

Students and Scholars (June 2006),

https://www.nafsa.org/sites/default/files/ek

tron/uploadedFiles/NAFSA_Home/Resourc

e_Library_Assets/Public_Policy/restoring_

u.s.pdf ..................................................................... 7

NAFSA International Student Economic

Value Tool, NAFSA,

https://www.nafsa.org/policy-and-

TABLE OF AUTHORITIES—Continued

Page(s)

advocacy/policy-resources/nafsainternational-student-economic-value-tool ........... 8

Nat’l Immigration Law Ctr., Access to Driver’s Licenses for Immigrant Youth Granted

DACA, https://www.nilc.org/issues/driverslicenses/daca-and-drivers-licenses/ (last

updated May 31, 2015) ........................................ 16

Nat’l Immigration Law Ctr., Stories in Defense of Deferred Action for Childhood Arrivals, https://www.nilc.org/issues/

daca/daca-fifth-anniversary-stories/ ............. 22, 23

Zenen Jaimes Pérez, Ctr. for Am. Progress,

Removing Barriers to Higher Education

for Undocumented Students (Dec. 2014),

https://www.luminafoundation.org/files/re

sources/removing-barriers-forundocumented-students.pdf ........................ passim

Protect Dreamers Higher Education Coalition: Faces of Dreamers, Am. Council on

Educ.: Higher Educ. Today (Oct. 5, 2017),

https://www.higheredtoday.org/2017/10/05

/protect-dreamers-higher-educationcoalition-faces-dreamers/ ..................................... 22

REAL ID Frequently Asked Questions, Dep’t

of Homeland Sec., https://www.dhs.gov/

real-id-frequently-asked-questions (last

updated Aug. 14, 2018) ........................................ 26

Alene Russell, Am. Ass’n of State Colls. and

Univs., State Policies Regarding Undocumented College Students: A Narrative of

Unresolved Issues, Ongoing Debate and

TABLE OF AUTHORITIES—Continued

Page(s)

Missed Opportunities (Mar. 2011),

https://www.aascu.org/uploadedFiles/AAS

CU/Content/Root/PolicyAndAdvocacy/

PolicyPublications/PM_

UndocumentedStudents-March2011.pdf ............ 11

TheDream.US, 2018 Progress Report (2018),

https://www.thedream.us/impact/ourdata/ ... 21, 23

TheDream.US, Featured Scholar Stories,

https://www.thedream.us/impact/ourscholar-stories-2/ .................................................. 22

TheDream.US, In Their Own Words: Higher

Education, DACA, and TPS (Oct. 2018),

https://www.thedream.us/wpcontent/uploads/2018/10/TheDream.USIn-Their-Own-Words-Report-Oct-2018-12.pdf ................................................................ 26, 27

The UndocuScholars Project, Inst. for Immigration, Globalization, & Educ., Univ. of

California, Los Angeles, In the Shadows of

the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform (2015),

https://www.luminafoundation.org/files/re

sources/in-the-shadows.pdf ........................... 17, 19

United We Dream, A Portrait of Deferred

Action for Childhood Arrivals Recipients:

Challenges and Opportunities Three-Years

Later (Oct. 2015), https://unitedwedream.

org/wp-content/uploads/2015/10/DACAreport-final-1.pdf.................................................. 18

TABLE OF AUTHORITIES—Continued

Page(s)

Evelyn Valdez-Ward, The End of DACA

Would Be a Blow to Science, Sci. Am.:

Voices (Dec. 12, 2018),

https://blogs.scientificamerican.com/voices/

the-end-of-daca-would-be-a-blow-toscience/ ................................................................. 22

Tom K. Wong et al., 2019 National DACA

Study (Sept. 2019),

https://cdn.americanprogress.org/content/u

ploads/2019/09/18122133/New-DACASurvey-2019-Final-1.pdf .................... 17, 20, 21, 24

World University Rankings 2020, Times

Higher Educ.,

https://www.timeshighereducation.com/wo

rld-university-rankings/2020/worldranking#!/page/0/length/25/sort_by/

rank/sort_order/asc/cols/stats ................................ 5

Xueying Han & Richard P. Applebaum,

Ewing Marion Kauffman Found., Will

They Stay or Will They Go? International

STEM Students Are Up for Grabs

(July 2016), https://files.eric.ed.gov/

fulltext/ED570660.pdf ........................................... 8

Jie Zong et al., Migration Policy Inst., A

Profile of Current DACA Recipients by

Education, Industry, and Occupation

(Nov. 2017), https://www.migrationpolicy.

org/research/profile-current-dacarecipients-education-industry-andoccupation ............................................................ 24

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Sejal Zota, Unauthorized Immigrants’ Access to Higher Education: Fifty States, Different Directions, 79 Popular Gov’t 46

(2009) .................................................................... 10

STATEMENT OF INTEREST

Amici are 44 associations of colleges, universities,

educators, trustees, and other representatives of

several thousand institutions of higher education in

the United States. Amici represent public, independent, large, small, urban, rural, denominational,

non-denominational, graduate, and undergraduate

institutions and faculty. Each amicus is deeply

concerned about the harms that the rescission of the

Deferred Action for Childhood Arrivals (“DACA”)

policy will inflict on America’s institutions of higher

education, their students, and the global standing

and reputation of the country’s colleges and universities.

Amicus American Council on Education (“ACE”) is

the major coordinating body for American higher

education. Its more than 1,700 members reflect the

extraordinary breadth and contributions of four-year,

two-year, public and private colleges and universities. ACE members educate two out of every three

students in accredited, degree-granting U.S. institutions. ACE participates as amicus curiae on occasions such as this where a case presents issues of

substantial importance to higher education in the

United States.

The Addendum contains information on the other

amici on this brief.1

No party or counsel for a party authored this brief in whole or

in part. No party, counsel for party, or person other than amici

curiae or counsel made any monetary contribution intended to

fund the preparation or submission of this brief. All parties

have consented to the filing of this brief.

(1)

INTRODUCTION AND

SUMMARY OF ARGUMENT

America’s colleges and universities are among the

finest in the world. They help preserve our country’s

democratic values; ensure its economic strength; and

contribute to our Nation’s influence and global

standing. One of the central reasons for the excellence of our postsecondary schools is their ability to

attract and enroll talented, motivated, and curious

students, regardless of their circumstances, whether

born in this country or born abroad.

Yet, prior to DACA, colleges and universities were

effectively unable to enroll hundreds of thousands of

the most deserving and meritorious students in the

United States.

The “Dreamers”—undocumented

immigrants brought here as children, through no

fault of their own, who attended high school or

served in the military and have amassed no serious

criminal record—faced a battery of severe impediments to attending or completing college or graduate

school. Unable to receive federal loans, work legally,

or qualify for most state tuition benefits, Dreamers

were foreclosed from nearly every avenue for financing their education. Without driver’s licenses or

work permits, Dreamers could not easily commute to

school or complete many courses of study. Forced to

live in the shadows, they often had to bear the serious emotional strains and anxiety of their undocumented status alone.

DACA has not removed all of these barriers, but it

has made it newly possible for countless Dreamers to

get a postsecondary education and unlock the potential such an education affords. Dreamers can now

qualify for many work-study programs, take on high-

quality jobs, receive a range of state tuition benefits,

and otherwise find the means to pay for tuition.

They can drive to work, school, and internships.

When they graduate, they can qualify for occupational licenses and work legally in high-quality

sectors. In short, while policymakers and politicians

remain unwilling or unable to address their predicament legislatively, DACA has offered Dreamers

cautious hope that they can live the American

Dream, and become part of this country’s everevolving story of innovators, inventors, entrepreneurs, and leaders.

The statistics bear out the profound difference

DACA has made for its recipients, for U.S. colleges

and universities, and for the country as a whole.

College enrollment rates have increased dramatically

for DACA-eligible individuals, and completion rates

have skyrocketed. Amici have seen up-close the

tremendous contributions these individuals have

made to our campuses as they prepare for and live

lives of impact across America.

Dreamers are Rhodes Scholars, scientists, and

campus leaders; they are sources of inspiration and

insight for their peers; and they are unparalleled

ambassadors for our schools abroad. In the words of

one college president: “Dreamers set the bar very

high academically, inspiring other students to reach

higher as well.” Dreamers are also highly productive

members of the Nation’s economy, contributing over

a quarter of a trillion dollars in economic growth,

thanks in large part to their ability to earn an advanced education.

The rescission of DACA would reverse all of these

gains. In an instant, it would send a message of

exclusion that would irreparably harm our institutions’ ability to recruit and retain foreign-born students. It would tear at the fabric of our campus

communities. Most importantly, it would pull the

rug out from under the Dreamers themselves, who

have upended their lives—taking out loans, earning

degrees, and taking the risk of revealing their undocumented status—in reliance on DACA. As one

DACA recipient stated, rescission would mean that

“all the hard work I have put into my goals would be

for nothing, and I would be back to the bottom where

I started.”

There are many problems with the government’s

legal defense of this harsh and destructive policy.

But the higher education community is particularly

troubled by the government’s threshold claim that its

decision is wholly exempt from judicial review.

Sanctioning that remarkable argument would

threaten to immunize from legal scrutiny numerous

other major decisions disguised as “enforcement

policies” that impact our higher education system.

The government’s nonreviewability argument is

untenable. The narrow “tradition of nonreviewability” for civil non-enforcement actions does not extend

to the rescission of DACA, which (1) is not an individual non-enforcement action (or a non-enforcement

action at all); (2) rests on a legal conclusion amenable to judicial review; and (3) will result in the revocation of tangible benefits, such as work authorization. Indeed, it is logically incoherent for the government to claim that DACA itself was reviewable—

and to endorse the Fifth Circuit’s holding to that

effect—but that DACA’s rescission is somehow

exempt from judicial scrutiny. The government’s

attempt to cram its rescission action into the narrow

limitations on judicial review embodied in 8 U.S.C.

§ 1252(b)(9) and (g) is equally unavailing: Its argument is flatly irreconcilable with those provisions’

text and ignores the limited construction this Court

has given both statutes.

The Court should not write the Administration a

blank check to make this monumental policy choice

without even a patina of judicial review. DACA has

been an unmitigated good for this country, its higher

education system, and the young persons whom it

has benefited. The lower courts’ judgments should

be affirmed.

ARGUMENT

I. THE RESCISSION OF DACA WILL

INFLICT

PROFOUND

HARMS

COLLEGES AND UNIVERSITIES, THEIR

STUDENTS, AND THE COUNTRY AS A

WHOLE.

A. America’s Colleges and Universities

Thrive on a Diverse Student Body and a

Reputation for Inclusiveness.

America’s higher education system is one of the

crown jewels of our democracy. The country’s colleges and universities regularly rank among the finest

in the world. See World University Rankings 2020,

Times Higher Educ.2 Americans of every background

have gained enrichment, social mobility, and eco-

https://www.timeshighereducation.com/world-universityrankings/2020/world-ranking#!/page/0/length/25/sort_by/rank/

sort_order/asc/cols/stats (all websites last visited Oct. 3, 2019).

nomic advancement by attending our postsecondary

schools. And, for decades now, the world’s leaders in

the sciences, humanities, arts, and politics have

come to the United States to be educated, work, and

contribute to our country’s progress.

One central ingredient in the success of our higher

education system is its historic openness and diversity. That openness is nowhere more evident than in

our tradition of enrolling and educating persons born

outside the United States. “The history of the United States is in part made of the stories, talents, and

lasting contributions of those who crossed oceans and

deserts to come here.” Arizona v. United States, 567

U.S. 387, 416 (2012). Many of the leading graduates

of our country’s colleges and universities were born

abroad. And today, more than 1 million enrollees in

our colleges and universities are international students. Enrollment Trends, Inst. for Int’l Educ.

(2018).3

Admitting and enrolling students born outside the

United States benefits colleges, universities, and the

country at large in numerous ways. For one, it

ensures that our colleges and universities enroll the

best, brightest, most motivated and curious undergraduate and graduate students. Schools can build

the strongest possible student body when they close

their doors to no one, and can select from the country

(and the world) as a whole, rather than being limited

to a subset of the population.

https://www.iie.org/Research-and-Insights/Open-Doors/Data/

International-Students/Enrollment.

Furthermore, enrolling a diverse class helps colleges and universities provide a better education to all

of their students. This Court has repeatedly recognized the “educational benefits that flow from a

diverse student body.” Fisher v. Univ. of Texas at

Austin, 570 U.S. 297, 308 (2013). Campus diversity

helps to create and maintain an “atmosphere which

is most conducive to speculation, experiment, and

creation.” Id. (internal quotation marks omitted). It

opens up students to new ideas and perspectives, and

breaks down “isolation and stereotypes.” Id. In

practical terms, it helps give students “the skills

needed in today’s increasingly global marketplace,”

which “major American businesses have made clear

* * * can only be developed through exposure to

widely diverse people, cultures, ideas, and viewpoints.” Grutter v. Bollinger, 539 U.S. 306, 330

(2003).

Enrolling foreign-born students is also critical in

enabling American schools to compete in the “global

competition” for international students and scholars.

NAFSA: Ass’n of Int’l Educators, Restoring U.S.

Competitiveness for International Students and

Scholars 1 (June 2006). 4 The finest international

students and scholars are most interested in coming

to a country when its schools are perceived as welcoming and open-minded. See id. at 5. For that

reason, other countries have made a concerted effort

in recent decades to attract the leading minds from

around the world into their universities. Id. at 4.

https://www.nafsa.org/sites/default/files/ektron/uploadedFiles/

NAFSA_Home/Resource_Library_Assets/Public_Policy/restorin

g_u.s.pdf.

Policies that welcome the immigrants who reside

within our borders are critical to preserving our

higher education system’s reputation for openness

and inclusion.

Moreover, attracting and enrolling foreign-born

students is greatly in the interest of the country at

large.

Foreign-born students contribute tens of

billions of dollars to the U.S. economy and support

hundreds of thousands of jobs each year. NAFSA

International Student Economic Value Tool, NAFSA

(estimating that foreign-born students contributed

$39 billion and supported 455,000 jobs during the

2017-2018 academic year).5 Many of these international students remain in our country to live, work,

and found businesses. See Xueying Han & Richard

P. Applebaum, Ewing Marion Kauffman Found., Will

They Stay or Will They Go? International STEM

Students Are Up for Grabs (July 2016). 6 Others

return home inculcated with American values of

democracy, tolerance, education, and the rule of law,

helping spread American ideals and strengthening

our country’s influence and national security.

B. Prior to DACA, Many of the Nation’s Most

Promising Students Faced Severe Challenges to Enrollment in or Completion of

Undergraduate and Graduate Programs.

For many years, American colleges and universities

faced a severe gap in their ability to include the more

than one million foreign-born “Dreamers” in their

https://www.nafsa.org/policy-and-advocacy/policy-resources/

nafsa-international-student-economic-value-tool.

https://files.eric.ed.gov/fulltext/ED570660.pdf.

student bodies and communities. Dreamers are

individuals who were brought to the United States as

children, resided here continuously, and attended

high school or served in the armed forces without

committing any serious crime. No. 18-587 Pet. App.

97a-98a; see Deferred Action for Childhood Arrivals

(DACA) Data Tools, Migration Policy Inst.7 These

individuals include countless students whose enrollment would markedly enrich college and university

campuses: high school valedictorians; promising

STEM candidates, leaders, or artists; and persons

who “embod[y] the American dream.” No. 18-587

Supp. Br. App. 5a.

Like “[m]ost young adults in the United States,”

Dreamers typically “aspire to some type of postsecondary education.” Roberto G. Gonzales et al.,

Becoming DACAmented: Assessing the Short-Term

Benefits of Deferred Action for Childhood Arrivals

(DACA), 58 Am. Behavioral Scientist 1852, 1854

(Nov. 2014) [hereinafter, “Becoming DACAmented”].

But prior to DACA, severe structural barriers made

it punishingly difficult for many Dreamers to afford,

enroll in, or successfully complete college or graduate

school.

The most daunting impediment many Dreamers

faced was financial. The vast majority of high school

graduates—and nearly every undocumented immigrant—cannot afford college without some form of

tuition assistance, financial aid, or part-time em-

https://www.migrationpolicy.org/programs/data-hub/deferredaction-childhood-arrivals-daca-profiles.

ployment. But prior to DACA, each of those avenues

was largely foreclosed to Dreamers.

Dreamers were largely barred from the most

straightforward path to college affordability: enrolling in a public college or university and paying the

lower rate charged for in-state residents. More than

30 States categorically prohibited undocumented

immigrants from qualifying as residents for in-state

tuition purposes. Zenen Jaimes Pérez, Ctr. for Am.

Progress, Removing Barriers to Higher Education for

Undocumented Students 5-6 (Dec. 2014) [hereinafter,

“Removing Barriers”].8 While a minority of States

permitted undocumented students to qualify for the

in-state rate, Dreamers often could not establish

their eligibility without providing their Social Security numbers or disclosing information that risked

revealing their undocumented status. Id. at 19, 24.

In practice, many undocumented immigrants were

thus compelled to pay the out-of-state rate at state

schools, which is on average 61% higher, and sometimes seven times as high, as the rate charged for instate residents. Id. at 5; see Neeta Kantamneni et

al., Academic and Career Development of Undocumented College Students: The American Dream?, 64

Career Development Quarterly 318, 319 (2016)

[hereinafter, “Academic and Career Development”].9

https://www.luminafoundation.org/files/resources/removingbarriers-for-undocumented-students.pdf.

In two states, even that higher rate was not an option: South

Carolina and Alabama banned undocumented students from

attending many public colleges altogether. See Sejal Zota,

Unauthorized Immigrants’ Access to Higher Education: Fifty

States, Different Directions, 79 Popular Gov’t 46, 50 (2009).

Nor could Dreamers qualify for federal or state

financial aid to fill the gap. Undocumented students

are “ineligible for all forms of federal financial aid,

including Pell Grants, the Federal Work-Study

Program, and federal loans.” Removing Barriers at

20. And nearly every State makes undocumented

immigrants ineligible for state education grants, too.

Id. at 6; see Alene Russell, Am. Ass’n of State Colls.

and Univs., State Policies Regarding Undocumented

College Students: A Narrative of Unresolved Issues,

Ongoing Debate and Missed Opportunities 4 (Mar.

2011).10

Private banks presented no better an option for

most undocumented students. Before DACA, few

financial institutions were willing to extend loans to

undocumented students and their parents. Removing Barriers at 21. And those that were would often

impose difficult-to-meet conditions, such as finding a

co-signer who was a U.S. citizen or lawful permanent

resident, and charging interest rates in excess of

twice the rate for federal student loans. Id.; see John

Coyle, The Legality of Banking the Undocumented,

22 Geo. Immigr. L.J. 21, 23 (2007) (“[U]ndocumented

immigrants * * * pay disproportionately more to

access basic financial services.”).

That left working part-time as the only realistic

way for most Dreamers to finance their education.

But before DACA, Dreamers could not legally work

in the United States. See Becoming DACAmented at

https://www.aascu.org/uploadedFiles/AASCU/Content/

Root/PolicyAndAdvocacy/PolicyPublications/PM_Undocumented

Students-March2011.pdf.

1854. They were thus “generally limited to low-wage

jobs,” where they were afforded minimal legal protections and few opportunities for advancement. Id.; see

Neeta Kantamneni et al., DREAMing Big: Understanding the Current Context of Academic and Career

Decision-Making for Undocumented Students, 43 J.

Career Dev. 483, 489 (2016) [hereinafter, “DREAMing Big”]. Getting to and from these jobs also was

not easy: Dreamers could not qualify for driver’s

licenses, and so, for many, a daily commute meant

exposing oneself to the risk of arrest, apprehension,

and deportation. Becoming DACAmented at 1855.

Moreover, even when Dreamers did have some

narrow pathway to college affordability open to

them, students often lacked the information and

institutional support necessary to capitalize on it.

Undocumented immigrants generally do not have the

“social networks [that] play an all-important role in

relaying key information” about schools, tuition

assistance, and work-study jobs. Id. As aspiring

“first-generation college students,” they usually

cannot rely on members of their immediate family to

provide such information. Removing Barriers at 19.

Moreover, high school college and career counselors

often “lack the training to navigate the specific

barriers faced by undocumented students,” and, prior

to DACA, most Dreamers were reluctant to share

with their counselors that they were undocumented

in the first place. Id. at 17-18, 23-24; see DREAMing

Big at 489-490.

Those Dreamers who could finance a postsecondary

education continued to face serious and unique

challenges upon arriving on campus. Removing

Barriers at 24-25. Many undocumented students

were told that they needed a second form of identification to acquire a student ID, and had their admissions revoked when they were unable to provide one.

See DREAMing Big at 488. Without driver’s licenses, Dreamers could not easily travel to and from

school, or take advantage of off-campus academic

and career opportunities. Id. at 489. When the

financial support they had relied on to enroll in

school dried up, many Dreamers found that they

needed to take semesters off to earn or save money to

finance more of their education. Removing Barriers

at 25.

Dreamers’ academic options were also constrained.

Many majors and fields of study “require hands-on

participation outside the classroom.”

Becoming

DACAmented at 1854. But, because of their undocumented status, Dreamers were excluded from many

study opportunities and nearly all paid internships.

Id. Some Dreamers reported changing majors because they found that background checks were

needed to gain practical training necessary to succeed in their chosen field of study. Academic and

Career Development at 323-324.

Dreamers also had to contend with the psychological and emotional toll of attending school in the

shadows. Id. at 324-325. Many Dreamers experienced deep anxiety or fear while grappling with the

financial, practical, and academic challenges of

attending school as an undocumented immigrant.

But many such students feared sharing their status

with peers or school administrators, and few institutional programs were in place to provide them support. Id.

The effects of these impediments were severe.

Before DACA, out of approximately 65,000 undocumented immigrants who graduated from high school

each year, only 7,000 to 13,000 individuals—or less

than 20%—enrolled in college. Id. at 319. That rate

was less than one-third the rate of college enrollment

among the general population of high school graduates. See Economic News Release, Bureau of Labor

Statistics, U.S. Dep’t of Labor, College Enrollment

and Work Activity of Recent High School and College

Graduates Summary (Apr. 25, 2019).11 One study

found that the likelihood of a high school graduate

from Mexico or Central America enrolling in college

was nearly four times higher if the graduate was a

documented rather than undocumented immigrant.

Emily Greenman & Matthew Hall, Legal Status and

Educational Transitions for Mexican and Central

American Immigrant Youth, 91 Social Forces 1475,

1490-92 (2013).12

Furthermore, those undocumented students who

did enroll in college had markedly worse outcomes

than their peers. Undocumented students were more

than three times as likely as their peers to “stop out”

of school (i.e., temporarily leave college with the

intention of returning). Roberto G. Gonzales &

Angie M. Bautista-Chavez, Am. Immigration Council, Two Years and Counting: Assessing the Growing

Power of DACA 7-8 (June 2014) [hereinafter, “Two

https://www.bls.gov/news.release/hsgec.nr0.htm.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3816545/pdf/

sot040.pdf.

Years and Counting”].13 And at the time DACA was

announced in 2012, only 8% of Dreamers had completed a postsecondary education and received an

associate’s, bachelor’s, or advanced degree.

See

Jeanne Batalova et al., Migration Policy Inst., DACA

at the Two-Year Mark: A National and State Profile

of Youth Eligible and Applying for Deferred Action 16

(Aug. 2014).14

These grim prospects had profoundly negative consequences on Dreamers beginning as early as high

school.

Many Dreamers spent their childhoods

believing themselves to be largely or fully American.

See Becoming DACAmented at 1855. But upon

learning of the web of legal and practical snares that

would flow from their “illegality”—or witnessing

siblings and peers trying and failing to attend or

complete college—many Dreamers lost the motivation to learn. Leisy Janet Abrego, “I Can’t Go to

College Because I Don’t Have Papers”: Incorporation

Patterns of Latino Undocumented Youth, 4 Latino

Stud. 212, 220-224 (2006) [hereinafter “Incorporation

Patterns”].15

http://www.immigrationpolicy.org/sites/default/files/research/

two_years_and_counting_assessing_the_growing_power_of_dac

a_final.pdf.

https://www.migrationpolicy.org/research/daca-two-yearmark-national-and-state-profile-youth-eligible-and-applyingdeferred-action.

https://www.academia.edu/3684916/Abrego_Leisy._2006._

I_can_t_go_to_college_because_I_don_t_have_papers_Incorpora

tion_Patterns_of_Latino_Undocumented_Youth._Latino_Studie

s_4_3_212-231.

For some, the experience of “discover[ing]” their

illegality was akin to “awakening to a nightmare.”

Roberto G. Gonzales & Leo R. Chavez, “Awakening to

a Nightmare”: Abjectivity and Illegality in the Lives

of Undocumented 1.5-Generation Latino Immigrants

in the United States, 53 Current Anthropology 255,

262 (2012).16 It meant realizing that they, unlike the

peers with whom they spent their childhoods, would

be barred from unlocking the opportunities that only

a college education can afford, and living as full and

productive members of American society. Id.

C. DACA Has Made It Substantially Easier for

Dreamers to Enroll in Postsecondary Institutions and Has Carried Enormous Benefits for Colleges, Universities, and the

Country.

DACA has not removed every impediment that

previously stood in the way of Dreamers, but it has

dramatically improved the educational outcomes for

DACA students, and it has carried enormous benefits

for colleges, universities, and the country as a whole.

DACA has made it newly possible for many

Dreamers to afford, attend, and complete college and

graduate school. DACA makes it possible for recipients to apply for work authorization and apply for a

Social Security card. In all 50 States and the District of Columbia, it also enables recipients to apply

for driver’s licenses. See Nat’l Immigration Law Ctr.,

Access to Driver’s Licenses for Immigrant Youth

https://pdfs.semanticscholar.org/4515/9747881c9cd7961b282

a9066c3e7f4b1a93a.pdf.

Granted DACA.17 And it allows Dreamers to come

out of the shadows and reveal their undocumented

status without immediate fear of deportation. Id.

Together, these benefits have opened up vital new

avenues for Dreamers to fund their education. Most

significantly, DACA has enabled Dreamers to pay for

their tuition with earnings from part-time employment, institutional work-study jobs, or paid internships. DREAMing Big at 486. Having a driver’s

license also means that DACA recipients can commute to work and school and select from a wider

range of job prospects. Two Years and Counting at 3.

Taken together, these tools have had a dramatic

effect on Dreamers’ ability to pay for college: 80% of

DACA recipients report that DACA enabled them to

earn more money to help pay for their tuition, Tom

K. Wong et al., 2019 National DACA Study, at 2

(Sept. 2019), 18 and 72.3% of DACA recipients enrolled in college now report that they have paid work

experience, as compared with 28% of undocumented

college students who are not DACA recipients, The

UndocuScholars Project, Inst. for Immigration,

Globalization, & Educ., Univ. of California, Los

Angeles, In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of

https://www.nilc.org/issues/drivers-licenses/daca-and-driverslicenses/ (last updated May 31, 2015).

https://cdn.americanprogress.org/content/uploads/2019/09/181

22133/New-DACA-Survey-2019-Final-1.pdf.

Immigration Reform 9 (2015) [hereinafter, “In the

Shadows of the Ivory Tower”].19

DACA has also improved Dreamers’ financial aid

options. Although DACA recipients remain ineligible

for federal student financial aid, they can now fill out

the Free Application for Federal Student Aid and

receive a calculation of their Estimated Family

Contribution, which enables students to apply for

need-based institutional aid that was previously

unavailable. Removing Barriers at 12. Some States

have changed their residency requirements to permit

all undocumented students, or all DACA recipients,

to qualify for in-state tuition or education grants. Id.

In addition, some scholarship organizations have

expanded their eligibility criteria to include DACA

recipients. United We Dream, A Portrait of Deferred

Action for Childhood Arrivals Recipients: Challenges

and Opportunities Three-Years Later 22 (Oct. 2015)

[hereinafter, “Portrait of DACA Recipients”].20 This

too has made an appreciable difference: Over 31% of

DACA recipients have reported that DACA enabled

them to qualify for education support, scholarships,

and financial aid. Id. at 21.

DACA has also made private education loans a

more viable option. Banks are far more willing to

open bank accounts for individuals with a Social

Security number. Becoming DACAmented at 1863.

https://www.luminafoundation.org/files/resources/in-theshadows.pdf.

https://unitedwedream.org/wp-content/uploads/2015/10/

DACA-report-final-1.pdf.

And almost half of DACA recipients have obtained

their first bank account since receiving DACA. Id.

DACA has improved Dreamers’ opportunities while

in college, as well. Because DACA recipients can

legally work and drive, it is possible for them to

pursue internships and other hands-on programs

critical for academic success. Over 40% of DACA

recipients have obtained internships, as compared to

16% of the non-DACA undocumented population. In

the Shadows of the Ivory Tower at 10; see also Becoming DACAmented at 1863. In addition, most DACA

recipients are now able to obtain driver’s licenses

and safely drive to and from campus, shortening

their weekly commutes by an average of two hours.

In the Shadows of the Ivory Tower at 10-11. DACA

recipients can also study abroad without fear that on

return to the United States they will be denied entry.

See Am. Council on Educ., Immigration Post-Election

Q&A: DACA Students, “Sanctuary Campuses,” and

Institutional or Community Assistance 4 (Dec.

2016).21

DACA has reduced the emotional toll of college

enrollment for Dreamers, too. For the first time,

many Dreamers can speak openly about their undocumented status, increasing their sense of belonging,

and reducing the pressures and anxieties previously

endemic to enrollment in college without legal status. In the Shadows of the Ivory Tower at 11; Becoming DACAmented at 1866.

https://www.acenet.edu/Documents/ACE-Issue-BriefImmigration-DACA-Sanctuary-Campus.pdf.

Finally, DACA has improved Dreamers’ job prospects upon graduation. It has made it newly possible for Dreamers to receive occupational licensing.

In many States, DACA recipients are now eligible to

become members of the legal bar, to be certified as

teachers, and to be licensed as physicians—all avenues previously closed to them. See Silva Mathema,

What DACA Recipients Stand to Lose—and What

States Can Do About It, Ctr. for Am. Progress (Sept.

13, 2018) [hereinafter, “What DACA Recipients

Stand to Lose”].22 And, of course, Dreamers can now

work legally when they graduate postsecondary

school, enabling them to take full advantage of their

degrees and move upward on the social and economic

ladder.

The bottom-line effect of these improvements has

been dramatic. The percentage of DACA recipients

enrolled in postsecondary school is reportedly almost

40%, up from approximately 20% of DACA-eligible

students at the time the policy was announced. See

2019 National DACA Study at 5; Am. Council on

Educ., Protect Dreamers Higher Education Coalition:

Who Are the Dreamers?.23 The percentage of DACA

recipients with associate’s, bachelor’s, or master’s

degrees has also markedly increased, with one study

reporting that as many as 60% of DACA recipients

have postsecondary degrees, as compared to 8% of

the DACA-eligible population in 2012. 2019 National DACA Study at 6. Indeed, a staggering 95% of

https://www.americanprogress.org/issues/immigration/reports

/2018/09/13/458008/daca-recipients-stand-lose-states-can/.

https://www.acenet.edu/Policy-Advocacy/Pages/Immigration/

Protect-Dreamers-Higher-Education-Coalition.aspx.

DACA recipients report that they intend to pursue

more education because of DACA, or have already

done so. Id. at 5.

Colleges and universities have reaped innumerable

benefits from the markedly increased presence of

Dreamers on their campuses. As Princeton President Christopher Eisgruber has explained, “DACA

recipients are among our most accomplished and

respected students.” Letter from President Eisgruber and Microsoft President Smith to Congress

Regarding the Deferred Action for Childhood Arrivals (DACA) Program (Jan. 11, 2018).24 “Colleges

and universities have seen these remarkable people

up close, in our classrooms and as our colleagues and

friends. Despite the challenges they face, they have

made incredible contributions to our country and its

economy and security.” Letter from More than 800

Colleges and Universities to Speaker Ryan et al., at 1

(Oct. 19, 2017).25

Countless stories bear out that statement. Sheila,

a DACA recipient, graduated summa cum laude and

at the top of her class at Rutgers, and went on to

work as a digital strategist at IBM. TheDream.US,

2018 Progress Report, at 3 (2018). 26 Jin Park, a

Harvard senior with a concentration in molecular

biology, became the first DACA recipient to win a

https://president.princeton.edu/blogs/letter-presidenteisgruber-and-microsoft-president-smith-congress-regardingdeferred-action.

https://www.acenet.edu/Documents/Letter-to-Congress-onDACA-Oct-2017.pdf.

https://www.thedream.us/impact/ourdata/.

Rhodes Scholarship. Alexandra A. Chaidez & Sanjana L. Narayana, Harvard Senior Becomes First

DACA Recipient to Win Rhodes Scholarship, Harvard

Crimson (Nov. 19, 2018). Carlos Mendez-Dorantes,

who was brought to the United States from Mexico

when he was ten years old, is a PhD student and

Ford Foundation Fellow studying cancer treatments

at the City of Hope Comprehensive Cancer Center in

Duarte, California. Evelyn Valdez-Ward, The End of

DACA Would Be a Blow to Science, Sci. Am.: Voices

(Dec. 12, 2018).27

These stories could easily be multiplied. See Protect Dreamers Higher Education Coalition: Faces of

Dreamers, Am. Council on Educ.: Higher Educ.

Today (Oct. 5, 2017) (collecting stories of Dreamers

and their accomplishments) 28 ; TheDream.US, Featured Scholar Stories (collecting stories of DACA

recipients who have received academic scholarships) 29 ; Nat’l Immigration Law Ctr., Stories in

Defense of Deferred Action for Childhood Arrivals

[hereinafter, “Stories in Defense of DACA”] (collecting

additional stories of DACA recipients).30 President

Pat McGuire of Trinity Washington University—a

school at which 70% of Dreamers have Latin honors,

and where Dreamers make up more than half of the

https://blogs.scientificamerican.com/voices/the-end-of-dacawould-be-a-blow-to-science/.

https://www.higheredtoday.org/2017/10/05/protect-dreamershigher-education-coalition-faces-dreamers/.

https://www.thedream.us/impact/our-scholar-stories-2/.

stories/.

https://www.nilc.org/issues/daca/daca-fifth-anniversary-

Phi Beta Kappa class—put the point succinctly:

“Dreamers set the bar very high academically, inspiring other students to reach higher as well.” 2018

Progress Report at 10.

Attending school alongside Dreamers improves the

education of their classmates in numerous ways.

Dreamers invariably overcame daunting obstacles to

reach campus: Their families fled poverty, violence,

or persecution; they often grew up in households that

spoke little English; they struggled with the legal

and practical impediments endemic to life as an

undocumented immigrant; and they had the courage

to disclose their status in order to achieve their

ambitions and attain a better life. Attending school

with these remarkable individuals exposes other

students to global challenges of which they may have

been unaware, supplies them perspectives they never

before encountered, and helps imbue in them values

of tolerance, respect, and compassion.

One

Georgetown University student wrote:

I never interacted much with undocumented immigrants growing up, but since college I have. Several of my good friends at Georgetown University are

undocumented, and I can never imagine all the fear

and hurt their families have been through because

of their status. * * * I can’t imagine what

Georgetown would be like without them. Certainly

a worse place to go to school.

Stories in Defense of DACA.

Finally, increasing enrollment of DACA recipients

in colleges and universities has had positive effects

for the U.S. economy at large. DACA recipients with

postsecondary degrees have greater purchasing

power: They are able to buy cars, take out mortgag-

es, and invest in the economy. See 2019 National

DACA Study at 2. They are also more productive

members of the U.S. workforce, filling better and

higher-paying jobs. See Jie Zong et al., Migration

Policy Inst., A Profile of Current DACA Recipients by

Education, Industry, and Occupation, at 8 (Nov.

2017) (comparing job profiles of DACA recipients and

other similarly aged undocumented immigrants). 31

In total, the Cato Institute has estimated that DACA

will add $60 billion in tax revenue and $280 billion

in economic growth over the next decade, in large

part because it has enabled DACA recipients to build

skills through college and graduate school. Ike

Brannon & Logan Albright, The Economic and Fiscal

Impact of Repealing DACA, Cato Inst.: Cato At

Liberty (Jan. 18, 2017).32

D. The Rescission of DACA Would Reverse the

Gains the Program Has Enabled.

If the rescission of DACA is permitted to go into

effect, these gains would be reversed almost immediately, and our colleges and universities, their students, and the country at large would severely suffer.

First, DACA’s rescission would irreparably damage

the reputation of America’s higher education system

in the eyes of the world. DACA has been a symbol of

tolerance and openness of our university campuses.

It has shown other foreign-born students that they

are welcome on our campuses, and that our colleges

https://www.migrationpolicy.org/research/profile-currentdaca-recipients-education-industry-and-occupation.

https://www.cato.org/blog/economic-fiscal-impact-repealingdaca.

and universities value and celebrate the contributions of those individuals who overcome adversity to

come to this country. The rescission of DACA would

serve as a profound symbol of exclusion, sending a

message that the United States does not value even

the most deserving and sympathetic foreign-born

individuals within its own borders.

Rescinding DACA would also upset the lives of tens

of thousands of DACA recipients who have relied on

this program. DACA recipients reordered their lives

with the legitimate expectation that they would be

able to live and work in this country legally. These

young people came out of the shadows, enrolled in

school, took out private student loans, worked hard

to earn advanced degrees, started jobs, started

families, and made countless other life decisions of

tremendous import, all in reliance on DACA. The

rescission would subvert all of that. Many Dreamers

would once again be rendered unable to pay for their

education or pay off the private loans they have

taken out. DACA recipients would immediately be

disqualified from employment, the principal means

by which most DACA recipients have paid tuition.

DACA recipients would lose their access to in-state

tuition rates in at least three States—Virginia,

Massachusetts, and Ohio—and become categorically

barred from attending public college in South Carolina and Alabama. See What DACA Recipients Stand

to Lose.

Rescission would also result in the revocation of

many Dreamers’ driver’s licenses. Only 13 States

and the District of Columbia make driver’s licenses

available to undocumented immigrants who are not

beneficiaries of some form of relief from deportation.

See Gilbert Mendoza & Chesterfield Polkey, States

Offering Driver’s Licenses to Immigrants, Nat’l

Conference of State Legislatures (July 25, 2019).33

Those driver’s licenses cannot qualify as REAL IDs

under federal law, and so are of limited use; starting

in October 2020, for example, they will not permit

recipients to board commercial airlines. See REAL

ID Frequently Asked Questions, Dep’t of Homeland

Sec.34 With limited geographic mobility, many DACA

recipients would once again be unable to complete

school, continue their jobs, or fulfill many day-to-day

tasks.

Rescission would also dramatically devalue the

education Dreamers have worked diligently to attain. Dreamers with advanced degrees—doctors,

lawyers, scientists, engineers, MBAs, teachers, and

more—would be unable to work legally in this country and unable to qualify for occupational licenses in

most States. See What DACA Recipients Stand to

Lose. Years of education would be squandered.

Many Dreamers would once again be forced to return

to low-paying, low-quality jobs, often in service

industries or jobs requiring manual labor. See

Becoming DACAmented at 1854, 1863.

One DACA recipient wrote that, if DACA is revoked, “all the hard work I have put into my goals

would be for nothing, and I would be back to the

bottom where I started.” TheDream.US, In Their

http://www.ncsl.org/research/immigration/states-offeringdriver-s-licenses-to-immigrants.aspx.

https://www.dhs.gov/real-id-frequently-asked-questions (last

updated Aug. 14, 2018).

Own Words: Higher Education, DACA, and TPS, at 8

(Oct. 2018).35 Said another: “I will have to go back to

hiding in the shadows. I will not be able to work,

drive, or go to school. I will not be able to feed myself. I will not be able to continue my pursuit of

happiness, essentially, I will not have [a] part in the

American Dream.” Id. at 13.

Rescission would also tear at the fabric of our academic communities. Many students would understandably be demoralized if their peers were forced

to leave campus, or faced the risk of being apprehended and deported at any moment. Individuals

who have become leaders on campus—student body

presidents, Rhodes Scholars, political activists—

would immediately face the Hobson’s choice of returning to the shadows or exposing themselves to the

threat of removal from the only country they have

ever known.

Rescission would radiate negative consequences

throughout the U.S. economy, as well. The wholesale

revocation of employment authorization for nearly

700,000 individuals, many of them now highly educated and highly sought-after by their employers,

would cause industries to suffer economic and fiscal

shocks. Id. at 5. And the country as a whole would

lose approximately a quarter of a trillion dollars in

economic growth and tens of billions of dollars in tax

revenue over the next decade. The Economic and

Fiscal Impact of Repealing DACA.

https://www.thedream.us/wp-content/uploads/2018/10/

TheDream.US-In-Their-Own-Words-Report-Oct-2018-1-2.pdf.

II.

THE RESCISSION IS REVIEWABLE.

In light of the profound harms that DACA’s rescission would inflict, it is critical that the Court subject

that decision to full judicial scrutiny. Yet the Government has advanced the remarkable proposition

that the decision is entirely unreviewable.

This claim is particularly concerning to the higher

education community for reasons that extend beyond

this litigation. Administrations often attempt to

enact sweeping policies of great significance to

colleges and universities through documents denominated as enforcement decisions. For instance, both

the current Administration and prior administrations have issued “Dear Colleague” letters that

effectively state the government’s legal position on a

question of education policy, backed by the threat of

legal sanctions or funding revocations. Courts have

regularly reviewed these policies. See, e.g., United

Student Aid Funds, Inc. v. DeVos, 237 F. Supp. 3d 1

(D.D.C. 2017); Gill v. Paige, 226 F. Supp. 2d 366

(E.D.N.Y. 2002). It is vital that the Court not immunize actions of this nature from judicial scrutiny.

Fortunately, the law does not support the government’s claim that its decision is exempt from judicial

review. The Administrative Procedure Act (“APA”)

does not revoke judicial authority to scrutinize the

rescission’s compliance with the law. And the government’s suggestion that the Immigration and

Nationality Act (“INA”) withdraws jurisdiction to

consider such claims is baseless.

A. The APA Does Not Make the Rescission

Unreviewable.

The government claims that the decision to rescind

DACA is unreviewable under 5 U.S.C. § 701(a)(2)

because it is “committed to agency discretion by law.”

U.S. Br. 17. This Court has “read the § 701(a)(2)

exception for action committed to agency discretion

‘quite narrowly,’ ” so as to “to give effect to the command that courts set aside agency action that is an

abuse of discretion, and to honor the presumption of

judicial review.” Dep’t of Commerce v. New York, 139

S. Ct. 2551, 2567-69 (2019) (citation omitted).

Review is unavailable under this provision, the

Court has held, only where there is “no law to apply”

and “no meaningful standard against which to judge

the agency’s exercise of discretion.” Id. at 2568-69

(quoting Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 410 (1971); Weyerhauser Co. v.

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

(2018)).

Here, there plainly is “law to apply.” Plaintiffs

argue that the government’s decision to rescind

DACA is arbitrary and capricious because it rests on

the erroneous conclusion that DACA is unlawful.

The prohibition on arbitrary and capricious decisionmaking is a foundational principle of administrative law. And determining whether DACA exceeds

the scope of DHS’s statutory authority is a “familiar

judicial exercise” well within this Court’s cognizance.

Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189,

196 (2012). Resolving plaintiffs’ claims would thus

involve reviewing a decision “for compliance with

* * * provisions of the [Immigration and Nationality]

Act, according to the general requirements of rea-

soned agency decisionmaking.” Dep’t of Commerce,

139 S. Ct. at 2569. That is a decision “subject to

judicial review.” Id. Indeed, this Court granted

certiorari, received briefing, and heard argument on

the legality of another broad deferred action policy

four Terms ago. See United States v. Texas, 136 S.

Ct. 2271 (2016) (mem.) (per curiam).

The government nonetheless claims that review is

unavailable on the strength of Heckler v. Chaney,

470 U.S. 821 (1985). In that case, this Court held

that the “decision not to take enforcement action * * *

has traditionally been ‘committed to agency discretion,’ ” and that “the Congress enacting the APA did

not intend to alter that tradition.” Id. at 832-833. In

the government’s view, DACA is akin to a decision

“not to institute enforcement actions,” the decision to

issue that policy was thus unreviewable, and the

decision to revoke that policy is therefore also an

enforcement decision immune from judicial scrutiny.

U.S. Br. 17. Each step of that analysis is faulty.

First, the Chaney Court identified a “tradition” of

exempting individual non-enforcement decisions

from judicial review. 470 U.S. at 832. It identified

no comparable tradition of exempting policies of nonenforcement like DACA from judicial scrutiny; on the

contrary, the Court suggested that “general

polic[ies]” of non-enforcement are reviewable, at least

where it is contended that those policies are an

“abdication of [the agency’s] statutory responsibilities.” Id. at 833 n.4 (internal quotation marks omitted).36 It was in part for this reason that the Fifth

The government suggests that the plaintiffs in Chaney

challenged a “programmatic determination” not to enforce a

Circuit held—in a decision affirmed 4-4 by this

Court—that a policy of granting deferred action was

reviewable. Texas v. United States, 809 F.3d 134,

165-168 (5th Cir. 2015). If that reviewability holding

was correct—and the government has said that it

“agrees with the robust analysis in the Fifth Circuit’s

* * * decision,” U.S. Br. 52—then neither DACA nor

its revocation is exempt from judicial review either.

Second, the logic and holding of Chaney have no

purchase where, as here, an agency rests its decision

on the view that it lacks legal authority. Chaney

explained that “an agency decision not to enforce” is

unreviewable principally because it “involves a

complicated balancing of a number of factors which

are peculiarly within its expertise.” 470 U.S. at 831.

The Court reasoned that “[t]he agency is far better

equipped than the courts to deal with the many

variables involved in the proper ordering of its

priorities.” Id. at 831-832. But evaluating an agency’s legal conclusion that it lacks authority to retain

a deferred action policy does not involve “balancing

* * * factors” or “ordering * * * priorities.” It entails a

straightforward judicial task. Likely for that reason,

Chaney itself indicated that its holding would not

extend to “a refusal by the agency to institute proceedings based solely on the belief that it lacks

jurisdiction.” Id. at 833 n.4; see id. at 839 (Brennan,

statute. U.S. Br. 21. That is simply incorrect. In Chaney, the

petitioners “requested the FDA to take various investigatory

and enforcement actions” against the States of Oklahoma and

Texas; when the FDA refused, they asked the courts for an

order requiring FDA “to take the same enforcement actions

requested in the prior petition.” 470 U.S. at 824-825.

J., concurring); id. at 841 n.1 (Marshall, J., concurring in judgment).

Third, the fact that a non-enforcement decision is

unreviewable does not necessarily (or even usually)

imply that the revocation of that decision is unreviewable, as well. In the ordinary course, decisions

to enforce and not to enforce differ in the most fundamental respect—most notably, the enforcement of

a statute entails the bringing to bear of the government’s coercive power. See id. at 832 (“when an

agency does act to enforce, that action itself provides

a focus for judicial review, inasmuch as the agency

must have exercised its power in some manner”). An

enforcement decision may involve other intrusions on

an individual’s liberty. Here, for instance, the revocation will have the consequence of withdrawing

tangible benefits, including work authorization, from

hundreds of thousands of undocumented immigrants, and disrupting the affairs of a wide swathe of

American society. The government has identified no

“tradition” of exempting decisions of this nature from

judicial review.

The government invokes the principle that an otherwise unreviewable action does not “become[ ]

reviewable” merely because the agency “gives a

‘reviewable’ reason” for its decision. U.S. Br. 23

(quoting ICC v. Bhd. of Locomotive Eng’rs, 482 U.S.

270, 283 (1987)). But that argument assumes as its

starting premise that the decision to issue or retain a

sweeping deferred action policy falls within the

“tradition of nonreviewability” as described in

Chaney. See Locomotive Eng’rs, 482 U.S. at 282. As

the Fifth Circuit and at least four Justices evidently

concluded in Texas, it does not.

Furthermore,

Chaney itself made clear that the tradition of nonreviewability applicable to civil non-enforcement

decisions does not extend to cases in which an agency’s “refusal * * * to institute proceedings [is] based

solely on the belief that it lacks jurisdiction.” 470

F.3d at 833 n.4. Far from retreating from that

statement, subsequent decisions of this Court have

reviewed the legal basis for agencies’ refusal to act.

See, e.g., Massachusetts v. EPA, 549 U.S. 498, 527528 (2007).

B. The INA Does Not Withdraw Jurisdiction

to Consider the Rescission.

The government also suggests that principles of

nonreviewability “apply with particular force” to this

case because it involves “enforcement of the immigration laws.” U.S. Br. 20. That is incorrect. The

only statutory provisions the government cites to

support this statement are 8 U.S.C. § 1252(g) and

(b)(9), and both are plainly inapplicable here.

Section 1252(g) channels jurisdiction over “any

cause or claim by or on behalf of any alien arising

from the decision or action * * * to commence proceedings, adjudicate cases, or execute removal orders

against any alien.” 8 U.S.C. § 1252(g). This provision is expressly limited to claims “by or on behalf of

any alien.” Id. It is therefore inapplicable to claims

brought by universities and States to vindicate their

own interests. Moreover, the Court has held that

Section 1252(g) “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. Am.-Arab AntiDiscrimination Comm. (AADC), 525 U.S. 471, 482

(1999) (emphases in original). The revocation of a

broad policy of granting deferred action is plainly not

one of the “three discrete actions” listed in AADC.

Indeed, it is farther removed from the three listed

actions than the examples the Court gave of decisions not covered by Section 1252(g), such as

“open[ing] an investigation” and “surveil[ing] the

suspected violator.” Id.

Section 1252(b)(9) is similarly irrelevant. That

provision states that “[j]udicial review of all questions of law and fact * * * arising from any action

taken or proceeding brought to remove an alien from

the United States under this subchapter shall be

available only in judicial review of a final order

under this section.” 8 U.S.C. § 1252(b)(9). In two

recent cases, the Court has rejected “expansive

interpretation[s]” of this provision that would have

“cramm[ed] judicial review” of any removal-related

actions “into the review of final removal orders.”

Jennings v. Rodriguez, 138 S. Ct. 830, 840 (2018); see

Nielsen v. Preap, 139 S. Ct. 954, 962 (2019). The

Court clarified that this provision is inapplicable at

least where aliens “are not asking for review of an

order of removal; they are not challenging the decision to detain them in the first place or to seek

removal; and they are not even challenging any part

of the process by which their removability will be

determined.” Jennings, 138 S. Ct. at 841; Nielsen,

139 S. Ct. at 962.

Respondents’ challenge to the DACA rescission

falls into none of those buckets. They are not challenging an “order of removal.” They are not challenging a “decision to detain them * * * or to seek

removal.” And the DACA rescission is not “even * * *

part of the process by which their removability will

be determined”; it is a deferred action policy that has

no bearing on “removability” at all, but rather addresses whom the government may seek to remove.

Indeed, it is difficult to comprehend how the rescission policy could “aris[e] from any action * * * to

remove an alien,” given that it precedes the initiation

of any removal action against a DACA recipient.37

Perhaps recognizing that its textual argument is

meritless, the government quickly pivots to purpose:

“[E]ven if those provisions do not directly preclude

review here,” it writes, they “confirm[ ] the importance Congress placed on shielding DHS’s discretion decisions from review.” U.S. Br. 21. It scarcely

needs repeating, however, that this Court does not

“disregard clear language simply on the view that

* * * Congress ‘must have intended’ something

broader.” Michigan v. Bay Mills Indian Cmty., 572

U.S. 782, 794 (2014). That admonition applies with

heightened force when it comes to limiting the

courts’ authority to review agency action or to exercise jurisdiction. Limitations on judicial review must

Contrary to the government’s suggestion (at 21), the rescission also falls outside the construction of Section 1252(b)(9)

espoused by Justice Thomas in his Jennings concurrence.

Justice Thomas argued that Section 1252(b)(9) “must at least

cover congressionally authorized portions of the deportation

process that necessarily serve the purpose of ensuring an alien’s

removal.” 138 S. Ct. at 854 (Thomas, J., concurring). The

rescission of DACA, however, does not “necessarily serve the

purpose of ensuring an alien’s removal”; on the contrary, it is

undisputed that many former DACA recipients will not be

removed or placed into removal proceedings. Nor is the rescission of DACA a “portion[ ] of the deportation process,” given

that it precedes even “the decision[ ] to open an investigation”

into an alien’s removability. AADC, 525 U.S. at 482.

be clearly expressed, not implied. Mach Mining,

LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (describing the “ ‘strong presumption’ favoring judicial review of administrative action”). And as Justice

Scalia wrote when rejecting a previous effort to

strain Section 1252(g) beyond its textual limits: “It

is implausible that [this provision] was a shorthand

way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetic to use synecdoche, but because that literary

device is incompatible with the need for precision in

legislative drafting.” AADC, 525 U.S. at 482.

So too here, had Congress truly placed “importance

* * * on shielding” policies like this one from judicial

review, it would have enacted a statute that accomplished that objective. It did not, and this Court

should not shield this consequential and profoundly

harmful policy decision from review based on vague

inferences of congressional purpose.

CONCLUSION

For the foregoing reasons, the judgments in Nos.

18-587, 18-588, and 18-589 should be affirmed.

Respectfully submitted,

NEAL K. KATYAL

Counsel of Record

JESSICA L. ELLSWORTH

STEPHANIE J. GOLD

MITCHELL P. REICH

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

Counsel for Amici Curiae American Council on Education and 43 Other Higher Education Associations

OCTOBER 2019

ADDENDUM

ADDENDUM—LIST OF AMICI CURIAE

American Council on Education

The Accreditation Council for Pharmacy Education

Accrediting Commission for Community and Junior

Colleges

ACT

American Association of Community Colleges

American Association of Colleges of Nursing

American Association of State Colleges and Universities

American Association of University Professors

American Indian Higher Education Consortium

American Speech-Language-Hearing Association

Association of American Colleges and Universities

Association of American Universities

Association of Community College Trustees

Association of Governing Boards of Universities and

Colleges

Association of Jesuit Colleges and Universities

Association of Public and Land-grant Universities

Coalition of Urban and Metropolitan Universities

College and University Professional Association for

Human Resources

College Board

Consortium of Universities of the Washington Metropolitan Area

Council for Advancement and Support of Education

Council for Christian Colleges & Universities

Council for Opportunity in Education

Council of Graduate Schools

Council of Independent Colleges

Council on Social Work Education

Educational Testing Service

EDUCAUSE

Higher Learning Commission

Hispanic Association of Colleges and Universities

Middle States Commission on Higher Education

National Association for College Admission Counseling

NAFSA: Association of International Educators

National Association of College and University

Business Officers

National Association of Diversity Officers in Higher

Education

National Association of Independent Colleges and

Universities

National Association of Student Financial Aid Administrators

National Collegiate Athletic Association

New England Commission of Higher Education

Northwest Commission on Colleges and Universities

Phi Beta Kappa

Student Affairs Administrators in Higher Education

The University Risk Management & Insurance

Association

WASC Senior College and University Commission

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.