Petition for Writ of Certiorari — Department of Homeland Security, et al., Petitioners v. Regents of the University of California, et al.
Supreme Court briefNov 5, 2018
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No.
In the Supreme Court of the United States
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
ET AL., PETITIONERS
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney
General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
JONATHAN Y. ELLIS
Assistant to the Solicitor
General
MARK B. STERN
ABBY C. WRIGHT
THOMAS PULHAM
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
This dispute concerns the policy of immigration enforcement discretion known as Deferred Action for
Childhood Arrivals (DACA). In 2016, this Court affirmed, by an equally divided Court, a decision of the
Fifth Circuit holding that two related Department of
Homeland Security (DHS) discretionary enforcement
policies, including an expansion of the DACA policy,
were likely unlawful and should be enjoined. See
United States v. Texas, 136 S. Ct. 2271 (per curiam). In
September 2017, DHS determined that the original
DACA policy was unlawful and would likely be struck
down by the courts on the same grounds as the related
policies. DHS thus instituted an orderly wind-down of
the DACA policy. The questions presented are as follows:
1. Whether DHS’s decision to wind down the DACA
policy is judicially reviewable.
2. Whether DHS’s decision to wind down the DACA
policy is lawful.
(I)
PARTIES TO THE PROCEEDING
Petitioners are the Donald J. Trump, President of
the United States; Jefferson B. Sessions III, Attorney
General of the United States; Kirstjen M. Nielsen, Secretary of Homeland Security; U.S. Department of Homeland Security; and the United States.
Respondents are the Regents of the University of California; Janet Napolitano, President of the University of
California; the State of California; the State of Maine; the
State of Maryland; the State of Minnesota; the City of San
Jose; Dulce Garcia; Miriam Gonzalez Avila; Saul Jimenez
Suarez; Viridiana Chabolla Mendoza; Norma Ramirez; Jirayut Latthivongskorn; the County of Santa Clara; and
Service Employees International Union Local 521.
(II)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Statutory provisions involved ...................................................... 2
Statement ...................................................................................... 2
Reasons for granting the petition ............................................. 14
I.
The questions presented warrant this Court’s
immediate review ......................................................... 15
II. The decisions below are wrong ................................... 17
A. DACA’s rescission is unreviewable under
the APA .................................................................. 17
B. DACA’s rescission is lawful .................................. 23
1. The rescission is reasonable in light of
DHS’s serious doubts about the legality of
the DACA policy ............................................. 23
2. The rescission is reasonable in light of
DHS’s additional and independent policy
concerns ........................................................... 27
3. The rescission is reasonable in light of
DHS’s correct determination that DACA
is unlawful ........................................................ 28
4. The rescission does not violate equal
protection or due process ............................... 30
III. The Court should grant certiorari before
judgment in all three cases ......................................... 32
Conclusion ................................................................................... 34
Appendix A — District court order denying FRCP
12(b)(1) dismissal and granting
provisional relief (Jan. 9, 2018) .................. 1a
Appendix B — District court order granting in part
defendants’ motion to dismiss under
FRCP 12(b)(6) (Jan. 12, 2018) .................. 71a
Appendix C — Notice of appeal (Jan. 16, 2018) .................. 91a
Appendix D — Court of appeals order (Jan. 25, 2018) ....... 96a
(III)
IV
Table of Contents—Continued:
Page
Appendix E — Memorandum on Exercising
Prosecutorial Discretion with Respect
to Individuals Who Came to the United
States as Children (June 15, 2012) .......... 97a
Appendix F — Memorandum on Exercising
Prosecutorial Discretion with Respect
to Individuals Who Came to the United
States as Children and with Respect to
Certain Individuals Who Are the
Parents of U.S. Citizens or Permanent
Residents (Nov. 20, 2014) ....................... 102a
Appendix G — Memorandum on Rescission of Deferred
Action for Childhood Arrivals
(Sept. 5, 2017) ........................................... 111a
Appendix H — Memorandum from Secretary Kirstjen
M. Nielsen (June 22, 2018) ..................... 120a
Appendix I — Statutory provisions .................................. 127a
TABLE OF AUTHORITIES
Cases:
Arizona v. United States, 567 U.S. 387 (2012) ........... 2, 3, 19
Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281 (1974) ........................................... 24
Casa de Maryland v. Department of Homeland Sec.,
284 F. Supp. 3d 758 (D. Md. 2018) ...................................... 8
Dames & Moore v. Regan, 453 U.S. 654 (1981) .................. 17
FCC v. Fox Television Stations, Inc., 556 U.S. 502
(2009) .................................................................................... 23
Harlow v. Fitzgerald, 457 U.S. 800 (1982) .......................... 28
Heckler v. Chaney, 470 U.S. 821 (1985) ...................... passim
I.C.C. v. Brotherhood of Locomotive Eng’rs,
482 U.S. 270 (1987)........................................................ 18, 21
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ..................... 22
V
Cases—Continued:
Page
Lincoln v. Vigil, 508 U.S. 182 (1993) ................................... 18
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29 (1983) .................................... 23, 26, 29
Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471 (1999) ..........................3, 19, 22, 30, 31
Texas v. United States:
86 F. Supp. 3d 591 (S.D. Tex.), aff ’d,
809 F.3d 134 (5th Cir. 2015), aff ’d,
136 S. Ct. 2271 (2016) .................................................. 5
809 F.3d 134 (5th Cir. 2015), aff ’d,
136 S. Ct. 2271 (2016) .............................5, 6, 24, 25, 29
Texas v. United States, No. 18-cv-68,
2018 WL 4178970 (S.D. Tex. Aug. 31, 2018)............... 16, 25
Thunder Basin Coal Co. v. Reich, 510 U.S. 200
(1994) .................................................................................... 22
Trump v. Hawaii, 138 S. Ct. 2392 (2018) ............................ 31
United States v. Armstrong, 517 U.S. 456
(1996) ........................................................................ 19, 28, 30
United States v. Nixon, 418 U.S. 683 (1974)....................... 17
United States v. Texas, 136 S. Ct. 2271 (2016) ............... 6, 16
Wayte v. United States, 470 U.S. 598 (1985) ...................... 20
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).............................................................. 17
Constitution, statutes, regulation, and rules:
U.S. Const.:
Art. III .............................................................................. 31
Amend. V (Due Process Clause) .................................... 30
Administrative Procedure Act,
5 U.S.C. 551 et seq................................................................. 5
5 U.S.C. 701(a)(2)....................................9, 17, 18, 19, 127a
5 U.S.C. 706(2)(A) .................................................. 23, 128a
VI
Statutes, regulation, and rules—Continued:
Page
Federal Food, Drug, and Cosmetic Act,
21 U.S.C. 301 et seq. ............................................................ 20
Immigration and Nationality Act,
8 U.S.C. 1101 et seq. .............................................................. 2
8 U.S.C. 1103(a)(1)............................................................. 2
8 U.S.C. 1158(b)(1)(A) ....................................................... 3
8 U.S.C. 1182(a) (2012 & Supp. V 2017) .......................... 2
8 U.S.C. 1227(a) (2012 & Supp. V 2017) .......................... 2
8 U.S.C. 1229b.................................................................... 3
8 U.S.C. 1252 .................................................9, 17, 21, 129a
8 U.S.C. 1252(b)(9) ................................................ 22, 138a
8 U.S.C. 1252(g) ..................................................... 21, 143a
Railway Labor Act, 45 U.S.C. 151 et seq. ............................ 21
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. ............. 8, 12
6 U.S.C. 202(5) (2012 & Supp. V 2017) ................ 3, 19, 28, 29
28 U.S.C. 1254(1) ................................................................... 15
28 U.S.C. 1292(b) ............................................................. 11, 12
28 U.S.C. 2101(e) ................................................................... 16
8 C.F.R. 274a.12(c)(14) ............................................................ 3
Fed. R. Civ. P.:
Rule 12(b)(1) .......................................................... 9, 10, 12
Rule 12(b)(6) ................................................................ 9, 12
Sup. Ct. R. 11 ......................................................................... 16
Miscellaneous:
S. 1291, 107th Cong., 1st Sess. (2001) .................................... 4
S. 1545, 108th Cong., 1st Sess. (2003) .................................... 4
S. 2075, 109th Cong., 1st Sess. (2005) .................................... 4
S. 2205, 110th Cong., 1st Sess. (2007) .................................... 4
S. 3827, 111th Cong., 2d Sess. (2010) ..................................... 4
VII
Miscellaneous—Continued:
Page
Stephen M. Shapiro et al., Supreme Court Practice
(10th ed. 2013) ..................................................................... 17
The White House, Remarks by the President on
Immigration (June 15, 2012), https://go.usa.gov/
xnZFY .................................................................................. 26
U.S. Citizenship & Immigration Servs.,
U.S. Dep’t of Homeland Sec.:
Deferred Action for Childhood Arrivals:
Frequently Asked Questions (Mar. 8, 2018),
https://go.usa.gov/xngCd ........................................ 4, 5
Frequently Asked Questions: Recession of
DACA (Sept. 5, 2017), https://go.usa.gov/
xPVmE ......................................................................... 7
Guidance on Rejected DACA Requests
(Feb. 14, 2018), https://go.usa.gov/xPVmG .......... 7, 31
In the Supreme Court of the United States
No.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
ET AL., PETITIONERS
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT
The Solicitor General, on behalf of the United States
Department of Homeland Security and other federal
parties, respectfully petitions for a writ of certiorari before judgment to the United States Court of Appeals for
the Ninth Circuit.
OPINIONS BELOW
The order of the district court granting respondents’
motion for a preliminary injunction and denying the
government’s motion to dismiss under Federal Rule of
Civil Procedure 12(b)(1) (App. 1a-70a) is reported at
279 F. Supp. 3d 1011. The order of the district court
granting in part and denying in part the government’s
motion to dismiss under Rule 12(b)(6) (App. 71a-90a) is
reported at 298 F. Supp. 3d 1304.
(1)
2
JURISDICTION
On January 9, 2018, the district court denied the government’s Rule 12(b)(1) motion, entered a preliminary
injunction, and certified its Rule 12(b)(1) decision for interlocutory appeal. On January 12, 2018, the district
court granted in part and denied in part the government’s Rule 12(b)(6) motion and certified its decision for
interlocutory appeal. The government filed a notice of
appeal of both the January 9 and January 12 orders on
January 16, 2018 (App. 91a-95a). The Ninth Circuit
granted permission to appeal both the January 9 and
January 12 orders on January 25, 2018. App. 96a. The
court of appeals’ jurisdiction over the appeal of the preliminary injunction rests on 28 U.S.C. 1292(a)(1). The
court of appeals’ jurisdiction over the appeal of the certified rulings rests on 28 U.S.C. 1292(b). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) and
28 U.S.C. 2101(e).
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions are set forth in the
appendix to this petition. App. 127a-143a.
STATEMENT
1. a. The Immigration and Nationality Act (INA),
8 U.S.C. 1101 et seq., charges the Secretary of Homeland Security “with the administration and enforcement” of the immigration laws. 8 U.S.C. 1103(a)(1). Individual aliens are subject to removal if, inter alia,
“they were inadmissible at the time of entry, have been
convicted of certain crimes, or meet other criteria set
by federal law.” Arizona v. United States, 567 U.S. 387,
396 (2012); see 8 U.S.C. 1182(a) (2012 & Supp. V 2017);
see also 8 U.S.C. 1227(a) (2012 & Supp. V 2017). As a
3
practical matter, however, the federal government cannot remove every removable alien, and a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 567 U.S. at 396.
For any alien subject to removal, Department of
Homeland Security (DHS) officials must first “decide
whether it makes sense to pursue removal at all.” Arizona, 567 U.S. at 396. After removal proceedings begin,
government officials may decide to grant discretionary
relief, such as asylum or cancellation of removal. See
8 U.S.C. 1158(b)(1)(A), 1229b. And, “[a]t each stage” of
the process, “the Executive has discretion to abandon the
endeavor.” Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 483 (1999) (AADC). In making
these decisions, like other agencies exercising enforcement discretion, DHS must engage in “a complicated
balancing of a number of factors which are peculiarly
within its expertise.” Heckler v. Chaney, 470 U.S. 821,
831 (1985). Recognizing the need for such balancing,
Congress has provided that the “Secretary [of Homeland Security] shall be responsible for * * * [e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. 202(5) (2012 & Supp. V 2017).
b. In 2012, DHS announced the policy known as
Deferred Action for Childhood Arrivals (DACA). See
App. 97a-101a. Deferred action is a practice in which
the Secretary exercises discretion to notify an alien of
her decision to forbear from seeking his removal for a
designated period. AADC, 525 U.S. at 484. Under DHS
regulations, aliens granted deferred action may apply
for and receive work authorization for the duration of
the deferred-action grant if they establish economic necessity. 8 C.F.R. 274a.12(c)(14). A grant of deferred
4
action does not confer lawful immigration status or provide any defense to removal. DHS retains discretion to
revoke deferred action unilaterally, and the alien remains removable at any time.
DACA made deferred action available to “certain
young people who were brought to this country as children.” App. 97a. The INA does not provide any exemptions or special relief from removal for such individuals.
And, dating back to at least 2001, bipartisan efforts to
provide such relief legislatively had failed.1 Under the
DACA policy, following successful completion of a background check and other review, an alien would receive
deferred action for a period of two years, subject to renewal. App. 99a-100a. The policy made clear that it
“confer[red] no substantive right, immigration status or
pathway to citizenship,” because “[o]nly the Congress,
acting through its legislative authority, can confer these
rights.” App. 101a.
DHS explained that information provided in the
DACA request process would be protected from disclosure for the purpose of immigration enforcement proceedings unless certain criteria related to national security or public safety were satisfied, or the individual met
the requirements for a Notice to Appear. USCIS, DHS,
Deferred Action for Childhood Arrivals: Frequently
Asked Questions (Mar. 8, 2018), https://go.usa.gov/xngCd.
DHS also stated, however, that this information-sharing
policy “may be modified, superseded, or rescinded at
any time without notice,” and that it “may not be relied
See, e.g., S. 1291, 107th Cong., 1st Sess. (2001); S. 1545,
108th Cong., 1st Sess. (2003); S. 2075, 109th Cong., 1st Sess. (2005);
S. 2205, 110th Cong., 1st Sess. (2007); S. 3827, 111th Cong., 2d Sess.
(2010).
1
5
upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” Id. at 6.
Later, in 2014, DHS created a new policy of enforcement discretion referred to as Deferred Action for Parents of Americans and Lawful Permanent Residents
(DAPA). App. 102a-110a. Through a process expressly
designed to be “similar to DACA,” DAPA made deferred action available for certain individuals who had a
child who was a U.S. citizen or lawful permanent resident. App. 107a. At the same time, DHS also expanded
DACA by extending the deferred-action period from
two to three years and by loosening the age and residency criteria. App. 106a-107a.
c. Soon thereafter, Texas and 25 other States
brought suit in the Southern District of Texas to enjoin
DAPA and the expansion of DACA. The district court
issued a nationwide preliminary injunction, finding a
likelihood of success on the claim that the DAPA and
expanded DACA memorandum was a “ ‘substantive’
rule that should have undergone the notice-andcomment rule making procedure” required by the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.
Texas v. United States, 86 F. Supp. 3d 591, 671 (S.D.
Tex. 2015); see id. at 607, 647, 664-678.
The Fifth Circuit affirmed the injunction, holding
that the DAPA and expanded DACA policies likely violated both the APA and the INA. Texas v. United
States, 809 F.3d 134, 146, 170-186 (2015). The court of
appeals concluded that plaintiffs had “established a substantial likelihood of success on the merits of their procedural claim” that DAPA and expanded DACA were
invalidly instituted without notice and comment. Id. at
6
178. The court also concluded, “as an alternate and additional ground,” that the policies were substantively
contrary to law. Ibid. The court observed that the INA
contains an “intricate system of immigration classifications and employment eligibility,” and “does not grant
the Secretary discretion to grant deferred action and
lawful presence on a class-wide basis to 4.3 million otherwise removable aliens.” Id. at 184, 186 n.202. It also
noted that Congress had repeatedly declined to enact
legislation “closely resembl[ing] DACA and DAPA.”
Id. at 185.
After briefing and argument, this Court affirmed the
Fifth Circuit’s judgment by an equally divided Court,
United States v. Texas, 136 S. Ct. 2271, 2272 (2016) (per
curiam), leaving the nationwide injunction in place.
d. In June 2017, Texas and other plaintiff States in
the Texas case announced their intention to amend their
complaint to challenge the original DACA policy. D. Ct.
Doc. 64-1, at 238-240 (Oct. 6, 2017).2 They asserted that
“[f ]or the[] same reasons that DAPA and Expanded
DACA’s unilateral Executive Branch conferral of eligibility for lawful presence and work authorization was
unlawful, the original June 15, 2012 DACA memorandum is also unlawful.” Id. at 239.
On September 5, 2017, rather than confront litigation challenging DACA on essentially the same grounds
that had succeeded in Texas before the same court for
the DAPA and expanded DACA policies, DHS decided
to wind down DACA in an orderly fashion. App. 111a119a. In the rescission memorandum, then-Acting Secretary of Homeland Security Elaine Duke explained
that, “[t]aking into consideration the Supreme Court’s
Citations to the district court docket are to Regents of the University of California v. DHS, No. 17-cv-5211.
2
7
and the Fifth Circuit’s rulings in the ongoing litigation,”
as well as the Attorney General’s view that the DACA
policy was unlawful and that the “potentially imminent”
challenge to DACA would “likely * * * yield similar results” as the Texas litigation, “it is clear that the June
15, 2012 DACA program should be terminated.” App.
116a-117a. The Acting Secretary accordingly announced that, “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,”
the original DACA memorandum was “rescind[ed].”
App. 117a.
The rescission memorandum stated, however, that
the government “[w]ill not terminate the grants of previously issued deferred action * * * solely based on the
directives in this memorandum” for the remaining twoyear periods. App. 118a. The memorandum also explained that DHS would “provide a limited window in
which it w[ould] adjudicate certain requests for DACA.”
App. 117a. Specifically, DHS would “adjudicate—on an
individual, case by case basis—properly filed pending
DACA renewal requests * * * from current beneficiaries that have been accepted by the Department as of the
date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this
memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.” App.
117a-118a.
DHS has also made clear that the “informationsharing policy has not changed in any way since it was
first announced, including as a result of the Sept. 5,
2017” DACA rescission. USCIS, DHS, Guidance on Rejected DACA Requests (Feb. 14, 2018), https://go.usa.gov/
xPVmG (DHS Information-Sharing Guidance); see
8
USCIS, DHS, Frequently Asked Questions: Rescission
of DACA (Sept. 5, 2017), https://go.usa.gov/xPVmE.
e. Shortly after DHS’s decision to rescind DACA,
respondents brought these five related suits in the
Northern District of California challenging the rescission of DACA. Collectively, they allege that the termination of DACA is unlawful because it is arbitrary and
capricious under the APA; violates the APA’s requirement for notice-and-comment rulemaking as well as the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq.; denies
respondents equal protection and due process; and permits the government to use information obtained through
DACA in a manner inconsistent with principles of due
process and equitable estoppel. See App. 21a-22a. Similar challenges were filed in the Eastern District of New
York and in the District of Columbia. See, e.g., Batalla
Vidal v. Nielsen, No. 16-cv-4756 (E.D.N.Y. filed Sept.
19, 2017); NAACP v. Trump, No. 17-cv-1907 (D.D.C.
filed Sept. 18, 2017). A summary of the proceedings in
the Northern District of California (Regents) follows in
this petition. A summary of the proceedings in the other
district courts can be found in the government’s petitions
in those cases, filed simultaneously with this one.3
2. In Regents, the government filed the administrative record in October 2017. Litigation ensued in which
respondents obtained orders from the district court directing a vast expansion of the administrative record, in
addition to immediate discovery. See, e.g., D. Ct. Doc.
79 (Oct. 17, 2017). The government sought review of
The government largely prevailed in a similar challenge to the
rescission filed in the District of Maryland. See Casa de Maryland
v. Department of Homeland Sec., 284 F. Supp. 3d 758 (2018). An
appeal of that decision is pending before the Fourth Circuit.
3
9
those orders in a mandamus petition in the court of appeals, which a divided panel of the Ninth Circuit denied.
875 F.3d 1200 (2017). After granting a stay of the district court’s orders, 138 S. Ct. 371 (2017), this Court
granted the government’s petition for a writ of certiorari, vacated the Ninth Circuit’s judgment, and remanded for further proceedings. 138 S. Ct. 443 (2017)
(per curiam). On remand, the district court stayed its
orders requiring expansion of the administrative record
and authorizing discovery “pending further order.”
D. Ct. Doc. 225, at 1 (Dec. 21, 2017).
While the litigation over the record proceeded, the
government filed a motion to dismiss all five suits under
Federal Rule of Civil Procedure 12(b)(1) and (6). D. Ct.
Doc. 114 (Nov. 1, 2017). At the threshold, the government argued that respondents’ claims are not reviewable because DHS’s decision to rescind DACA is committed to agency discretion by law, see 5 U.S.C. 701(a)(2);
and because judicial review of the denial of deferred action, if available at all, is barred under the INA prior to
the issuance of a final removal order, see 8 U.S.C. 1252.
The government also argued that respondents’ arbitraryand-capricious claims fail because DHS rationally explained the decision to wind down the discretionary
DACA policy given the Acting Secretary’s conclusion
that the policy is unlawful and the imminent risk of its
being invalidated in the Texas case. Finally, the government argued that respondents’ other claims are
without merit because the rescission of DACA is exempt
from notice-and-comment requirements; does not violate principles of equal protection or due process; and
does not change or affect the policies governing the use
of aliens’ personal information.
10
Respondents opposed the government’s motion to
dismiss and filed a motion for a preliminary injunction,
seeking to prevent the government from rescinding the
DACA policy. D. Ct. Doc. 111 (Nov. 1, 2017); D. Ct. Doc.
205 (Nov. 22, 2017).
3. On January 9, 2018, the district court denied the
motion to dismiss to the extent it was based on Rule
12(b)(1), and entered a preliminary injunction requiring
the government to “maintain the DACA program on a
nationwide basis.” App. 66a; see App. 1a-70a.
The district court first ruled that the rescission of
DACA was not committed to agency discretion by law.
The court acknowledged that an agency’s decisions “not
to prosecute or initiate enforcement actions are generally not reviewable as they are ‘committed to an agency’s absolute discretion.’ ” App. 27a (quoting Chaney,
470 U.S. at 831). But it concluded that the rescission of
DACA was different because it involved a “broad enforcement polic[y],” rather than an “ ‘individual enforcement decision’ ”; it rescinded a policy of enforcement
discretion, instead of announcing a new one; and the
“main” rationale for rescinding the prior policy was its
“supposed illegality,” which the court concluded it was
authorized to assess. App. 28a-30a (citation omitted).
The court also concluded that the INA did not preclude
review because “plaintiffs do not challenge any particular removal but, rather, challenge the abrupt end to a
nationwide deferred-action and work-authorization program.” App. 30a-31a.
The district court then ruled that respondents were
entitled to a preliminary injunction, concluding that
they had demonstrated a likelihood of success on their
claims that the rescission of DACA was arbitrary and
capricious. App. 41a-62a. The court acknowledged that
11
“a new administration is entitled to replace old policies
with new policies so long as they comply with the law,”
App. 2a, and the court did not dispute that DACA was a
discretionary non-enforcement policy that was neither
mandated nor specifically authorized by statute. It
nonetheless concluded that respondents were likely to
succeed because “the agency’s decision to rescind
DACA was based on a flawed legal premise” and because the government’s “supposed ‘litigation risk’ rationale” was an invalid “post hoc rationalization” and,
“in any event, arbitrary and capricious.” App. 42a.
Finding that respondents had satisfied the remaining equitable requirements for an injunction, App. 62a66a, the district court ordered the government, “pending final judgment” or other order, “to maintain the
DACA program on a nationwide basis on the same
terms and conditions as were in effect before the rescission on September 5, 2017.” App. 66a. The court specifically directed that the government must “allow[]
DACA enrollees to renew their enrollments.” Ibid.4
The district court sua sponte certified its order for
interlocutory appeal under 28 U.S.C. 1292(b), to the ex-
The district court identified certain “exceptions” to its injunction
—namely, “(1) that new applications from applicants who have
never before received deferred action need not be processed;
(2) that the advance parole feature need not be continued for the
time being for anyone; and (3) that defendants may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.” App. 66a-67a. The court
also specified that “[n]othing in [its] order” would prohibit DHS
from “remov[ing] any individual, including any DACA enrollee, who
it determines poses a risk to national security or public safety, or
otherwise deserves, in its judgment, to be removed.” App. 67a.
4
12
tent it denied the “questions interposed by the government in its motion to dismiss under [Rule] 12(b)(1).”
App. 70a.
4. On January 12, 2018, the district court issued a
further order granting in part and denying in part the
government’s motion to dismiss to the extent it was
based on Rule 12(b)(6). App. 71a-90a. The court declined to dismiss respondents’ arbitrary-and-capricious
claims “[f ]or the same reasons” stated in its January 9
order. App. 72a. It declined to dismiss the equalprotection claim, concluding that respondents’ allegations “raise a plausible inference that racial animus towards Mexicans and Latinos was a motivating factor in
the decision to end DACA.” App. 87a; see App. 83a-87a.
And it declined to dismiss the claim that DHS violated
substantive due process by allegedly “chang[ing] its
policy” on the use of personal information “provided by
DACA recipients,” reasoning that such a change would
“ ‘shock[] the conscience.’ ” App. 79a-81a (citation omitted). The court dismissed respondents’ remaining
claims, including with respect to notice-and-comment,
the Regulatory Flexibility Act, procedural due process,
equitable estoppel, and equal protection based on a fundamental right to a job. App. 72a-79a, 81a-83a, 87a. The
court again sua sponte certified its order for interlocutory appeal pursuant to 28 U.S.C. 1292(b). App. 89a.
5. Days later, the government filed notices of appeal
of the district court’s orders, App. 91a-95a, petitioned
the Ninth Circuit for interlocutory appeal of the district
court’s decisions resolving the government’s motion to
dismiss under Rule 12(b)(1) and (6), and filed a petition
for a writ of certiorari before judgment in this Court.
13
The court of appeals granted the government’s petition for interlocutory appeal and consolidated the appeals. App. 96a; see 18-15133 C.A. Doc. 3 (January 26,
2018). On February 26, 2018, this Court denied the government’s certiorari petition “without prejudice,” stating that it “assumed that the Court of Appeals will proceed expeditiously to decide this case.” 138 S. Ct. 1182.
But while briefing in the Ninth Circuit was completed
on April 17 and oral argument was held on May 15, the
court of appeals has not yet issued a decision as of the
printing of this petition.5
6. In June 2018, current Secretary of Homeland Security Kirstjen Nielsen issued a memorandum in response to the district court in NAACP v. Trump, supra,
providing further explanation of DHS’s decision to rescind DACA. App. 120a-126a. Secretary Nielsen concluded that “the DACA policy properly was—and
should be—rescinded, for several separate and independently sufficient reasons.” App. 122a. First, the
Secretary agreed that “the DACA policy was contrary
to law” and explained that “[a]ny arguable distinctions
between the DAPA and DACA policies” were not “sufficiently material” to convince her otherwise. Ibid.; see
App. 122a-123a. Second, the Secretary reasoned that,
in any event, “[l]ike Acting Secretary Duke, [she]
lack[s] sufficient confidence in the DACA policy’s legality to continue this non-enforcement policy, whether the
courts would ultimately uphold it or not.” App. 123a.
On October 17, 2018, the government informed the court of appeals that, “in order to ensure review by the Supreme Court during
its current Term,” it intended to file a petition for a writ of certiorari
before judgment if the court of appeals did not issue its judgment
by October 31. 18-15068 C.A. Doc. 198.
5
14
She noted that “[t]here are sound reasons for a law enforcement agency to avoid discretionary policies that
are legally questionable.” App. 122a-123a. Third, the
Secretary offered several “reasons of enforcement policy to rescind the DACA policy,” regardless of whether
the policy is “illegal or legally questionable.” App. 123a.
The Secretary also explained that, although she “do[es]
not come to these conclusions lightly,” “neither any individual’s reliance on the expected continuation of the
DACA policy nor the sympathetic circumstances of
DACA recipients as a class” outweigh the reasons to
end the policy. App. 125a. The government promptly
informed the court of appeals of Secretary Nielsen’s
memorandum. 18-15068 C.A. Doc. 184 (June 22, 2018).
REASONS FOR GRANTING THE PETITION
These cases concern the Executive Branch’s authority to revoke a discretionary policy of non-enforcement
that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens. The DACA policy
is materially indistinguishable from the related policies
that the Fifth Circuit held were contrary to federal immigration law in a decision that four Justices of this
Court voted to affirm. No one contends that the policy
is required by federal law. And, in fact, consistent with
the view of the Department of Justice, DHS has decided
that the policy is unlawful and should be adopted only
by legislative action, not unilateral executive action.
Yet as a result of nationwide preliminary injunctions issued by the District Courts in the Northern District of
California and the Eastern District of New York, DHS
has been required to keep the policy in place, now more
than a year since the agency’s decision.
In denying the government’s previous petition for a
writ of certiorari before judgment “without prejudice,”
15
this Court “assumed that the Court of Appeals will proceed expeditiously to decide this case.” 138 S. Ct. 1182
(2018). That has not happened. Although the court of
appeals heard oral argument on May 15, 2018, it has yet
to issue its decision. And while no one, respondents included, contends that the legality of DACA’s rescission
will be finally resolved without this Court’s review, absent prompt intervention from this Court, there is little
chance the Court would resolve this dispute for at least
another year.
Accordingly, the government today is filing petitions
for writs of certiorari before judgment to the Second,
Ninth, and D.C. Circuits, each of which has before it a
decision concluding that the rescission of DACA either
is or likely is unlawful. As explained below, those decisions are wrong and they warrant this Court’s immediate review. The government presents each of these petitions to ensure that the Court has an adequate vehicle
in which to resolve the questions presented in a timely
and definitive manner. The government respectfully
submits that the Court should grant each petition for a
writ of certiorari before judgment, consolidate these
cases for decision, and consider this important dispute
this Term.
I. THE QUESTIONS PRESENTED
COURT’S IMMEDIATE REVIEW
WARRANT
THIS
Congress has vested this Court with jurisdiction to
review “[c]ases in the courts of appeals * * * [b]y writ
of certiorari * * * before or after rendition of judgment
or decree.” 28 U.S.C. 1254(1) (emphasis added). “An
application * * * for a writ of certiorari to review a case
before judgment has been rendered in the court of appeals may be made at any time before judgment.”
16
28 U.S.C. 2101(e). This Court will grant certiorari before judgment “only upon a showing that the case is of
such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” Sup. Ct. R. 11.
These cases satisfy that standard.
An immediate grant of certiorari is necessary to obtain an appropriately prompt resolution of this important
dispute. Even if a losing party were immediately to
seek certiorari from a decision of one of the courts of
appeals, this Court would not be able to review that decision in the ordinary course until next Term at the earliest. In the interim, the government would be required
to retain a discretionary non-enforcement policy that
DHS and the Attorney General have correctly concluded is unlawful and that sanctions the ongoing violation of federal law by more than half a million people.
And the very existence of this litigation (and resulting
uncertainty) would continue to impede efforts to enact
legislation addressing the legitimate policy concerns
underlying the DACA policy.
Such a delay is untenable and unnecessary. This
Court is already familiar with the relevant issues in
light of its consideration on plenary review of United
States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). And
as the same district court that heard the Texas case has
recently held (and as explained below), the reasoning of
the Fifth Circuit’s decision in Texas holding DAPA and
the DACA expansion unlawful equally applies to DACA
itself. See Texas v. United States, No. 18-cv-68,
2018 WL 4178970, at *38 (S.D. Tex. Aug. 31, 2018). Only
this Court can resolve the conflict in the lower courts
and provide much-needed clarity to the government and
DACA recipients alike.
17
More than eight months ago, this Court recognized
the need for an “expeditious[]” resolution of this dispute
in its order denying without prejudice the government’s
earlier petition. 138 S. Ct. 1182. The Court has granted
certiorari before judgment to promptly resolve other
important and time-sensitive disputes. See, e.g., Dames
& Moore v. Regan, 453 U.S. 654, 668 (1981); United
States v. Nixon, 418 U.S. 683, 686-687 (1974); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584
(1952); cf. Stephen M. Shapiro et al., Supreme Court
Practice § 4.20, at 287-288 (10th ed. 2013) (collecting
cases where “[t]he public interest in a speedy determination” warranted certiorari before judgment). It
should follow the same course here.
II. THE DECISIONS BELOW ARE WRONG
Review is also warranted because the decisions below are incorrect. DHS’s decision to rescind DACA—a
policy of enforcement discretion—is a classic determination that is “committed to agency discretion by law,”
5 U.S.C. 701(a)(2), and therefore unreviewable under
the APA. Even if DHS’s prospective denial of deferred
action were reviewable, that could only be at the behest
of an individual alien after a final order of removal was
entered against the alien. See 8 U.S.C. 1252. In any
event, the decision to rescind the DACA policy is not
arbitrary and capricious, does not violate equal-protection
or due-process principles, and is not otherwise unlawful.
A. DACA’s Rescission Is Unreviewable Under The APA
1. a. The APA precludes review of agency actions
that are “committed to agency discretion by law.”
5 U.S.C. 701(a)(2). “Over the years,” this Court has interpreted that provision to apply to various types of
18
agency decisions that “traditionally” have been regarded as unsuitable for judicial review. Lincoln v.
Vigil, 508 U.S. 182, 191 (1993). Section 701(a)(2) precludes review of an agency’s decision not to institute enforcement actions, Heckler v. Chaney, 470 U.S. 821, 831
(1985); an agency’s refusal to reconsider a prior decision
based on an alleged “material error,” I.C.C. v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 282 (1987)
(BLE); and an agency’s allocation of funds from a lumpsum appropriation, Lincoln, 508 U.S. at 192. Such exercises of discretion, the Court has explained, often require “a complicated balancing of a number of factors
which are peculiarly within [the agency’s] expertise.”
Chaney, 470 U.S. at 831.
With respect to an agency’s enforcement discretion
in particular, an agency may “not only assess whether a
violation has occurred,” but “whether agency resources
are best spent on this violation or another”; whether enforcement in a particular scenario “best fits the agency’s overall policies”; and whether the agency “has
enough resources to undertake the action at all.”
Chaney, 470 U.S. at 831. In addition, the Court has
noted that when an agency declines to enforce, it “generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to
protect.” Id. at 832. In this way and others, agency enforcement discretion “shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long
been regarded as the special province of the Executive
Branch.” Ibid.
b. DHS’s decision to discontinue the DACA policy
falls comfortably within the types of agency decisions
19
that traditionally have been understood as “committed
to agency discretion.” 5 U.S.C. 701(a)(2). Like the decision to adopt a policy of selective non-enforcement,
the decision whether to retain such a policy can “involve[] a complicated balancing” of factors that are “peculiarly within [the] expertise” of the agency, including
determining how the agency’s resources are best spent
and how the policy fits with the agency’s overall policies.
Chaney, 470 U.S. at 831. Likewise, a decision to abandon an existing non-enforcement policy will not, in itself, bring to bear the agency’s coercive power over any
individual. Indeed, an agency’s decision to reverse a
prior policy of civil non-enforcement is akin to changes
in policy as to criminal prosecutorial discretion, which
regularly occur within the U.S. Department of Justice
both within and between presidential administrations,
and which have never been considered amenable to judicial review. See United States v. Armstrong, 517 U.S.
456, 464 (1996).
This presumption of nonreviewability applies with
particular force when it comes to immigration. As this
Court has recognized, the “broad discretion exercised
by immigration officials” has become a “principal feature of the removal system.” Arizona v. United States,
567 U.S. 387, 396 (2012); see 6 U.S.C. 202(5) (2012 &
Supp. V 2017). And, unlike in the ordinary criminal context, a decision not to enforce tolerates not merely past
misconduct but a “continuing violation of United States
law.” Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 490 (1999). Thus, in the absence
of a statutory directive “otherwise circumscribing” the
agency’s discretion, Chaney, 470 U.S. at 833, the Secretary’s decisions establishing DHS’s enforcement priorities for the Nation’s immigration laws are beyond a
20
court’s authority to review. There is no such directive
here.
c. The district courts’ reasons for finding DHS’s decision reviewable are unavailing.
First, it makes no difference that the rescission of
the DACA policy addressed a “broad enforcement
polic[y],” App. 28a, instead of an individual enforcement
decision. See Batalla Vidal App. 29a-30a. Agency decisions about how its “resources are best spent” or how
certain enforcement activity “best fits the agency’s
overall policies,” Chaney, 470 U.S. at 831, are just as
susceptible to implementation through broad guidance
as through case-by-case enforcement decisions. See,
e.g., Wayte v. United States, 470 U.S. 598, 601-603
(1985). And Chaney itself concerned the programmatic
determination whether to enforce the Federal Food,
Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., with respect to drugs used to administer the death penalty.
See 470 U.S. at 824-825.
Nor does it matter that DHS has eliminated a policy
of non-enforcement, rather than adopted one. App. 29a30a; Batalla Vidal App. 30a. A decision whether to retain a non-enforcement policy implicates all of the same
considerations about agency priorities and resources
that inform the decision to adopt such a policy in the
first instance. And because the rescission does not, by
itself, initiate removal proceedings, “like the FDA’s
non-enforcement decision in Chaney, there are no
agency proceedings here to provide a ‘focus for judicial
review,’ and DACA’s rescission does not itself involve
the exercise of coercive power over any person.”
NAACP App. 33a (citation omitted).
Finally, DHS’s decision is not reviewable simply because it rests on the agency’s view of the legality of the
21
DACA policy, among other independent reasons. App.
30a; Batalla Vidal App. 30a; NAACP App. 42a-43a. An
otherwise unreviewable agency action does not “become[] reviewable” because “the agency gives a ‘reviewable’ reason.” BLE, 482 U.S. at 283. In BLE, the ICC’s
decision not to reconsider a prior decision was therefore
unreviewable, even though the agency based that denial
on an interpretation of its legal obligations under the
Railway Labor Act, 45 U.S.C. 151 et seq. 482 U.S. at
276, 283. And in Chaney, the Food and Drug Administration’s decision not to enforce the misbranding prohibition did not become reviewable even though it was
based, in part, on the agency’s understanding of its authority to initiate such proceedings. 470 U.S. at 824.
The same is true here.
2. At a minimum, Congress has foreclosed district
courts from adjudicating collateral attacks on DHS’s
discretionary enforcement decisions and policies in the
manner pursued by respondents.
Under 8 U.S.C. 1252, judicial review of DHS enforcement decisions is generally available, if at all, only
through the review procedures of removal orders set
forth in that section. In particular, Section 1252(g)
states that “[e]xcept as provided in this section * * * no
court shall have jurisdiction to hear any cause or claim
by or on behalf of any alien arising from the decision or
action by the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this subchapter.”
Section 1252(g) is “designed to give some measure of
protection to ‘no deferred action’ decisions and similar
discretionary determinations, providing that if they are
reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside
22
the streamlined process that Congress has designed.”
AADC, 525 U.S. at 485. That design is also reflected in
8 U.S.C. 1252(b)(9), which channels into the review of
final removal orders “all questions of law and fact * * *
arising from any action taken * * * to remove an alien
from the United States.” See AADC, 525 U.S. at 483
(describing Section 1252(b)(9) is an “unmistakable ‘zipper’ clause”); see also Jennings v. Rodriguez, 138 S. Ct.
830, 839-841 (2018) (plurality opinion); id. at 853-857
(Thomas, J., concurring in part and concurring in the
judgment).
Even in instances where the statutory text less
clearly precludes review, this Court has held that, when
it is fairly discernible that Congress intends a particular
review scheme to be exclusive, a plaintiff is not permitted to circumvent that exclusive scheme by filing a
preemptive district-court action, but must instead present his or her claims or defenses in the manner and to
the extent permitted by that review scheme. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-209
(1994). The rescission of the DACA policy is precisely
the sort of “ ‘no deferred action’ decision[],” AADC,
525 U.S. at 485, and “part of the process by which
[the alien’s] removability will be determined,” Jennings, 138 S. Ct. at 841 (plurality opinion), that Congress intended to channel through the INA’s careful review scheme. Respondents cannot escape that scheme
simply by filing suit before the agency has initiated an
enforcement proceeding against the individual respondents. Respondents’ claims, “if they are reviewable at
all,” must be litigated in removal proceedings, not through
“separate rounds of judicial intervention” in federal district court. AADC, 525 U.S. at 485.
23
B. DACA’s Rescission Is Lawful
Even if DHS’s decision to rescind DACA is reviewable under the APA, it is plainly valid. Under the APA,
the decision must be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 706(2)(A). That standard
of review requires only that the “agency ‘examine the
relevant data and articulate a satisfactory explanation
for its action.’ ” FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 513 (2009) (citation omitted). “[A] court is
not to substitute its judgment for that of the agency.”
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). DHS’s decision to begin
an orderly wind-down of an indisputably discretionary
policy of non-enforcement based on serious doubts
about the legality of the policy, as well as the legal and
practical implications of maintaining such a policy without statutory authority, easily passes that test. The district courts’ contrary conclusions are unpersuasive.
1. The rescission is reasonable in light of DHS’s serious
doubts about the legality of the DACA policy
DHS reasonably rested its decision on the legal and
practical implications of maintaining a policy of nonenforcement (original DACA) that is materially indistinguishable from policies (DAPA and expanded DACA)
that were struck down by the Fifth Circuit in a decision
affirmed by this Court. Particularly in the face of the
threat by Texas and other States to challenge DACA,
that rationale alone provides a permissible reason for
initiating an orderly wind-down of the policy.
a. As an initial matter, the district courts in Regents
and Batalla Vidal erred in concluding that “[t]he Attorney General’s letter and the Acting Secretary’s memorandum can only be reasonably read as stating DACA
24
was illegal and that, given that DACA must, therefore,
be ended.” App. 56a (emphasis omitted); see Batalla
Vidal App. 110a. As the court in NAACP correctly recognized, DACA’s rescission is based on concerns that go
beyond the ultimate legality of DACA. Such concerns
are evident from the original rescission memorandum.
NAACP App. 56a; see Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)
(courts should uphold agency action based on any
ground that “may reasonably be discerned” from the
decision). And any doubt on that score is eliminated by
Secretary Nielsen’s subsequent statement that “regardless of whether the DACA policy is ultimately illegal, it was appropriately rescinded by DHS because
there are, at a minimum, serious doubts about its legality.” App. 123a.
b. That rationale is eminently reasonable. In Texas
v. United States, the Fifth Circuit concluded that DAPA
and expanded DACA were unlawful on both procedural
and substantive grounds. 809 F.3d 134, 178 (2015), aff ’d,
136 S. Ct. 2271 (2016); see id. at 147 n.11 (including the
“DACA expansions” within the opinion’s references to
“DAPA”). The entirety of the Fifth Circuit’s reasoning
applies equally to the original DACA policy. With respect to procedure, the Fifth Circuit concluded that the
memorandum creating DAPA and expanding DACA
was not exempt from notice-and-comment as a statement of policy based entirely on how the original DACA
policy had been implemented. See id. at 171-178.
As a matter of substance, the Fifth Circuit held that
DAPA and expanded DACA were contrary to the INA
because (1) “[i]n specific and detailed provisions,” the
INA already “confers eligibility for ‘discretionary re-
25
lief,’ ” including “narrow classes of aliens eligible for deferred action,” Texas, 809 F.3d at 179 (citation omitted);
(2) the INA’s otherwise “broad grants of authority”
could not reasonably be construed to assign to the Secretary the authority to create additional categories of
aliens of “vast ‘economic and political significance,’ ” id.
at 183 (citation omitted); (3) DAPA and expanded
DACA were inconsistent with historical deferred-action
policies because they were not undertaken on a “ ‘countryspecific basis * * * in response to war, civil unrest, or
natural disasters,’ ” nor served as a “bridge[] from one
legal status to another,” id. at 184 (citation omitted);
and (4) “Congress ha[d] repeatedly declined to enact
the Development, Relief, and Education for Alien Minors Act (‘DREAM Act’), features of which closely resemble DACA and DAPA.” Id. at 185 (footnote omitted). Every one of those factors also applies to the original DACA policy. Indeed, the Southern District of
Texas recently determined, “guided by [that] Fifth Circuit precedent,” that the INA could not “ ‘reasonably be
construed’ ” to authorize the maintenance of that policy.
Texas, 2018 WL 4178970, at *38 (citation omitted); see
id. at *45-*47 (finding no material differences between
DAPA and DACA).6
In light of these similarities, DHS could permissibly
rescind the DACA policy based on the agency’s doubts
about the legality of the policy and its likely fate in the
courts. As Secretary Nielsen explained, “[a] central aspect of the exercise of a discretionary enforcement pol-
The Southern District of Texas nevertheless declined to issue a
preliminary injunction enjoining the DACA policy in light of, among
other things, Texas’s delay in seeking injunctive relief. See Texas,
2018 WL 4178970, at *57-*62.
6
26
icy is a judgment concerning whether DHS has sufficient confidence in the legality of such policy.” App.
123a. The “sound reasons” to insist upon such confidence “include the risk that [legally questionable] policies may undermine public confidence in and reliance on
the agency and the rule of law, and the threat of burdensome litigation that distracts from the agency’s
work.” Ibid. The arbitrary-and-capricious standard
does not allow a court “to substitute its judgment” for
such a “rational” explanation by a law-enforcement
agency. State Farm, 463 U.S. at 42-43.
c. Contrary to the district courts’ conclusions, DHS
did not fail to sufficiently consider the reliance interests
of DACA recipients. See App. 58a; Batalla Vidal App.
113a-114a; NAACP App. 106a-108a. When President
Obama announced DACA in 2012, he explained that it
was a “temporary stopgap measure,” not a “permanent
fix.” The White House, Remarks by the President on
Immigration (June 15, 2012), https://go.usa.gov/xnZFY.
And, by its own terms, DACA made deferred action
available for only two-year periods, which could “be terminated at any time at the agency’s discretion.” App.
104a. By choosing a gradual and orderly administrative
wind-down of the policy rather than risk an immediate
disruptive court-imposed one, DHS ensured that existing DACA grants would be permitted to expire according to their stated two-year terms and even permitted a
limited window for additional renewals. In any event,
as Secretary Nielsen explained, although the agency
was “keenly aware that DACA recipients have availed
themselves of the policy in continuing their presence in
this country and pursuing their lives,” it reasonably
found that any asserted reliance interests did not “outweigh the questionable legality of the DACA policy” or
27
the other factors the agency considered. App. 125a. As
she observed, “[t]hat is especially so because issues of
reliance would best be considered by Congress, which
can assess and weigh a range of options.” Ibid. The
APA provides no basis to second-guess that judgment.
2. The rescission is reasonable in light of DHS’s
additional and independent policy concerns
DHS’s decision to rescind DACA is independently
supported by several additional enforcement-policy
concerns. Secretary Nielsen explained that “regardless
of whether * * * the DACA policy [is] illegal or legally
questionable, there are sound reasons of enforcement
policy to rescind the DACA policy.” App. 123a. Those
reasons include the agency’s determination that
(1) “DHS should enforce the policies reflected in the
laws adopted by Congress and should not adopt public
policies of non-enforcement of those laws for broad classes and categories of aliens under the guise of prosecutorial discretion”; (2) “DHS should only exercise its
prosecutorial discretion not to enforce the immigration
laws on a truly individualized, case-by-case basis”; and
(3) “it is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent,
and transparent enforcement of the immigration laws
against all classes and categories of aliens,” especially
given that “tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years.” App. 123a-124a. Respondents may disagree with these assessments, but they cannot be dismissed as irrational.
The NAACP court criticized these reasons as nothing more than the Secretary’s “attempt to disguise * * *
objection[s] to DACA’s legality as * * * policy justification[s] for its rescission,” NAACP App. 100a, and too
28
“cursory” to serve as an independent basis for DHS’s
decision, id. at 102a-103a. That description, however,
runs directly counter to the Secretary’s explanation
that her policy concerns provided a “separate and independently sufficient” reason for her conclusion that the
DACA policy “properly was—and should be—rescinded.”
App. 122a. The presumption of regularity (and principles of inter-Branch comity) require courts to presume
that executive officials—and certainly Cabinet officials
—are acting in good faith “in the absence of clear evidence to the contrary.” Armstrong, 517 U.S. at 464 (citation omitted); cf. Harlow v. Fitzgerald, 457 U.S. 800,
807 (1982). Neither the fact that the Secretary’s policy
concerns may also inform her view on DACA’s legality,
nor the succinctness of her explanation, provides remotely sufficient evidence to overcome that presumption.7
3. The rescission is reasonable in light of DHS’s correct
determination that DACA is unlawful
Finally, DHS’s decision is also independently supported by its conclusion, informed by the Attorney General’s advice, that indefinitely continuing the DACA policy would itself have been unlawful. As detailed above,
the Fifth Circuit had already concluded that the DAPA
and expanded DACA policies were invalid in a decision
The NAACP court also reasoned that the Secretary’s “messaging” rationale (the third enforcement-policy reason) was an impermissible “post hoc rationalization.” See NAACP App. 94a-95a. But
the court itself acknowledged that the purpose of that proposition
of administrative law is “simply to prevent courts from considering
‘rationales offered by anyone other than the proper decisionmakers.’ ” Id. at 92a (citation omitted). There is no dispute that Secretary Nielsen is a “proper decisionmaker[]” for matters of immigration enforcement policies and priorities. Ibid.; see 6 U.S.C. 202(5)
(2012 & Supp. V 2017).
7
29
that four Justices of this Court voted to affirm. See
pp. 24-25, supra. And the Attorney General expressed
his agreement with the conclusion reached by the Fifth
Circuit in a decision that applies equally to the original
DACA policy. See App. 116a. DHS’s conclusion is correct: DACA is unlawful. Regardless, it cannot be that
DHS’s decision to rescind DACA on the basis of the Fifth
Circuit’s decision, this Court’s equally divided affirmance,
and the Attorney General’s opinion was the type of “clear
error of judgment,” State Farm, 463 U.S. at 43 (citation
omitted), that would make it arbitrary and capricious under the APA.
In Regents and Batalla Vidal, the district courts concluded that DHS could not rely on an assessment of
DACA’s legality unless it is correct as a matter of law.
See App. 42a; Batalla Vidal App. 91a-92a. Relying on
the Secretary’s broad discretion in “[e]stablishing national immigration enforcement policies and priorities,”
6 U.S.C. 202(5) (2012 & Supp. V 2017), and DHS’s “long
and recognized practice” of granting deferred action on
a programmatic basis, those courts concluded that
DACA is lawful. App. 45a; see App. 42a-48a; Batalla
Vidal App. 102a-104a. But the Fifth Circuit rejected
those precise considerations when offered in support of
the DAPA and expanded DACA policies. See Texas,
809 F.3d at 183.
In NAACP, the district court declined to pass on the
legality of DACA, but concluded that DHS did not adequately explain its own view. NAACP App. 49a-52a.
But, as explained above, the Fifth Circuit’s Texas decision provides a robust analysis of the legality of DAPA
and expanded DACA in a manner that applies with full
force to the original DACA policy. See pp. 24-25, supra.
The Duke and Nielsen memoranda make clear that
30
DHS agrees with the Fifth Circuit’s conclusion that the
DAPA and expanded DACA policies were unlawful under the INA and sees no meaningful distinctions. See
App. 122a (“Any arguable distinctions between the
DAPA and DACA policies are not sufficiently material
to convince me that the DACA policy is lawful.”); App.
117a. The law requires nothing more.
4. The rescission does not violate equal protection or
due process
The district courts also erred in failing to dismiss respondents’ claims that DHS’s actions violate equalprotection or due-process principles.
a. In Regents and Batalla Vidal, the district courts
declined to dismiss respondents’ claim that the rescission violates equal-protection principles incorporated in
the Due Process Clause of the Fifth Amendment. See
App. 83a-87a; Batalla Vidal App. 147a-157a.8 But that
claim is foreclosed by this Court’s decision in AADC,
which imposed a general bar on discriminatory-motive
claims in the immigration-enforcement context. Such
claims, the Court explained, “invade a special province
of the Executive—its prosecutorial discretion.” 525 U.S.
at 489; see Armstrong, 517 U.S. at 463-465. And in the
immigration context, this concern is “greatly magnified” because such claims “permit and prolong a continuing violation of United States law,” and also potentially
implicate foreign-policy concerns. AADC, 525 U.S. at
490. Although the district courts relied heavily on thencandidate Trump’s “campaign rhetoric” unconnected to
DACA or DACA recipients, App. 85a; Batalla Vidal
The NAACP court declined to reach the equal-protection challenge to the rescission in light of its statutory holding. See NAACP
App. 67a.
8
31
App. 152a-153a, neither court suggested that such
statements trigger AADC ’s sole potential exception, reserved for “a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome.” 525 U.S. at 491. Indeed,
even apart from AADC, the President’s statements are
wholly insufficient to suggest that Secretaries Duke and
Nielsen were motivated by racial animus in deciding to
rescind a policy sanctioning the ongoing violation of federal immigration law by 700,000 aliens, especially given
the serious questions about its legality.
b. The Regents court also found that the respondents
adequately stated a claim under substantive due process
based on DHS’s alleged change in its informationsharing policy for personal information gathered from
DACA requestors. App. 79a-81a. But there has been
no such change and respondents have failed to plausibly
allege otherwise. See DHS Information-Sharing Guidance; see also Batalla Vidal App. 159a-160a (dismissing
a similar claim on that basis); NAACP App. 71a-72a
(same). Nor would any change to the scope of exceptions to the information-sharing policy violate substantive due process, especially given DHS’s express reservation of rights to do so. See pp. 4-5, supra.9
The district courts also erred in enjoining the rescission of
DACA on a nationwide basis. For the reasons given by Justice
Thomas in his concurrence in Trump v. Hawaii, 138 S. Ct. 2392,
2424-2429 (2018), such relief exceeded the Article III power of the
court to remedy the concrete and particular injuries of the parties
before it; is inconsistent with longstanding equitable principles; and
undermines the sound administration of the federal court system.
9
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III. THE COURT SHOULD GRANT CERTIORARI BEFORE
JUDGMENT IN ALL THREE CASES
To ensure an adequate vehicle for the timely and definitive resolution of this dispute, the Court should
grant the government’s petitions in Regents, Batalla
Vidal, and NAACP, and consolidate the cases for further review.
A. This petition in Regents presents both of the
questions presented and all of the relevant claims, including that the rescission of DACA is arbitrary and capricious; denies respondents equal protection and due
process; and violates the APA’s requirement for noticeand-comment rulemaking. Although the district court’s
preliminary injunction rests only on respondents’
arbitrary-and-capricious claim, the district court addressed the remaining claims in its orders denying the
government’s motion to dismiss all of respondents’
claims on reviewability and merits grounds. By virtue
of the Ninth Circuit’s acceptance of the interlocutory
appeals of those orders and consolidation, a grant of
certiorari before judgment would bring before the
Court the entire case. Accordingly, this petition should
be granted.
B. As fully explained in the NAACP petition, the related cases before the D.C. Circuit also raise both questions presented. Respondents in those cases likewise
claim that the rescission is arbitrary and capricious; denies respondents equal protection and due process; and
violates the APA’s procedures concerning notice-andcomment rulemaking. In NAACP, however, respondents do not present some of the more tangential claims
against the rescission, including, for example, that the
rescission violates principles of equitable estoppel. The
district court, moreover, did not pass on any constitutional
33
challenges to the rescission. Nevertheless, the Court
should also grant certiorari in NAACP because that court
invited Secretary Nielsen’s supplemental memorandum,
and it is the only district court to have passed on the effect
of that memorandum on the questions presented.
C. Finally, as fully explained in the Batalla Vidal petition, the consolidated cases before the Second Circuit
at issue in Batalla Vidal in many ways replicate the consolidated cases before the Ninth Circuit at issue here.
The respondents in each set of cases present essentially
the same challenges to the rescission of DACA, and the
district courts entered identical nationwide preliminary
injunctions based exclusively on respondents’ arbitraryand-capricious claims. Because an order vacating the
injunction issued in Regents would have no practical
consequence unless the injunction in Batalla Vidal was
similarly vacated, the Court should at least hold the Batalla Vidal petition pending resolution of the other petitions. But to ensure that no developments in the lower
courts between the filing of this petition and the Court’s
resolution of the case undermine the Court’s ability to
provide a definitive resolution of this overall dispute,
the government respectfully submits that the Court
should also issue a writ of certiorari to the Second Circuit.
* * * * *
In 2012, DHS adopted a temporary, stop-gap policy of
enforcement discretion, allowing some 700,000 aliens to
remain in the United States even though existing laws
provided them no ability to do so. After a change in administrations, DHS announced that it was ending that policy based on serious doubts about its legality and the practical implications of maintaining it. Secretary Nielsen has
since made clear that DHS’s decision also rests on policy
considerations wholly apart from any legality concerns. It
34
is plainly within DHS’s authority to set the Nation’s immigration enforcement priorities and to end the discretionary DACA policy. By order of two district courts,
however, DHS has been required to maintain that policy
on a nationwide basis for over a year, even while efforts
by the President and others to provide a sound legal basis
for the policy through the legislative process have failed.
More than eight months ago, this Court recognized that
this dispute called for an expeditious resolution. That is
even more evident today. The Court should grant review
in these cases and ensure that it can provide a timely and
definitive resolution of the dispute this Term.
CONCLUSION
The petition for a writ of certiorari before judgment
should be granted.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney
General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
JONATHAN Y. ELLIS
Assistant to the Solicitor
General
MARK B. STERN
ABBY C. WRIGHT
THOMAS PULHAM
Attorneys
NOVEMBER 2018
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.