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

Supreme Court briefNov 19, 2018

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No. 18-587

In the Supreme Court of the United States

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUPPLEMENTAL BRIEF FOR THE PETITIONERS

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

TABLE OF CONTENTS

Page

Appendix — Court of appeals opinion (Nov. 8, 2018) ........... 1a

TABLE OF AUTHORITIES

Cases:

General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) ................. 9

Gratz v. Bollinger, 537 U.S. 1044 (2002) ............................. 11

Grutter v. Bollinger, 539 U.S. 306 (2003) ............................ 11

Heckler v. Chaney, 470 U.S. 821 (1987) ................................. 2

I.C.C. v. Brotherhood of Locomotive Eng’rs,

482 U.S. 270 (1987)................................................................ 6

Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29 (1983) ...................................... 10

Reno v. American-Arab Anti-Discrimination

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

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

(5th Cir. 2015), aff ’d, 136 S. Ct. 2271 (2016) ................... 3, 4

Trump v. Hawaii, 138 S. Ct. 2392 (2018) .............................. 6

United States v. Booker, 543 U.S. 220 (2005) ..................... 11

United States v. Fanfan, 542 U.S. 956 (2004)..................... 11

United States v. Windsor :

568 U.S. 1066 (2012) .......................................................... 8

570 U.S. 744 (2013) ........................................................ 8, 9

Village of Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252 (1977) ........................................... 6

Statutes and rules:

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

et seq. ...................................................................................... 2

(I)

Statutes and rules—Continued:

Page

Immigration and Nationality Act, 8 U.S.C. 1101

et seq. ...................................................................................... 3

8 U.S.C. 1252(b)(9) ............................................................ 3

8 U.S.C. 1252(g) ................................................................. 3

6 U.S.C. 202(5) (2012 & Supp. V 2017) ................................ 10

28 U.S.C. 1254(1) ..................................................................... 8

Fed. R. Civ. P.:

Rule 12(b)(1) ...................................................................... 1

Rule 12(b)(6) ...................................................................... 2

Sup. Ct. R.

Rule 10 ................................................................................ 7

Rules 10-16 ......................................................................... 8

Rule 10(c) ........................................................................... 8

Rule 11 ................................................................................ 7

Rule 15.8 ............................................................................. 1

Miscellaneous:

Stephen M. Shapiro et al., Supreme Court Practice

(10th ed. 2013) ................................................................. 9, 11

In the Supreme Court of the United States

No. 18-587

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUPPLEMENTAL BRIEF FOR THE PETITIONERS

This supplemental brief, filed pursuant to Rule 15.8

of this Court, brings to the Court’s attention the opinion

of the court of appeals in these related cases, which was

issued after the filing of the government’s petition for a

writ of certiorari before judgment, and addresses its impact on the pending petition.

1. On January 9, 2018, the district court entered a

preliminary injunction requiring the Department of

Homeland Security (DHS) to maintain its policy of immigration enforcement discretion known as Deferred

Action for Childhood Arrivals (DACA) for the pendency

of these cases challenging the agency’s decision to rescind the policy. Pet. App. 1a-70a. In the same order,

the court granted in part and denied in part the government’s motion to dismiss under Federal Rule of Civil

Procedure 12(b)(1) and certified the ruling for interlocutory appeal. Pet. App. 69a-70a. On January 12, the

(1)

court granted in part and denied in part the government’s Rule 12(b)(6) motion and again certified its decision for interlocutory appeal. Id. at 71a-90a. The government filed a timely notice of appeal, id. at 91a-95a,

and, on January 25, the Ninth Circuit granted permission to appeal both orders, id. at 96a. More than eight

months later, on November 5, the government filed a petition for a writ of certiorari before judgment in these

cases to ensure that this Court could consider this important dispute this Term.

2. Three days later, the court of appeals affirmed the

preliminary injunction and the orders resolving the government’s motion to dismiss. App., infra, (App.) 1a-97a.

a. The court of appeals first determined that DHS’s

decision to rescind DACA is reviewable under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.

App. 23a-45a. The court acknowledged that an agency’s

decision not to enforce “is a decision generally committed to an agency’s absolute discretion.” App. 25a (quoting Heckler v. Chaney, 470 U.S. 821, 831 (1985)). But the

court reasoned that “an agency’s nonenforcement decision is outside the scope of the Chaney presumption” if

it is “based solely on a belief that the agency lacked the

lawful authority to do otherwise.” App. 29a. And the

court determined that DACA’s rescission, as reflected in

the initial rescission memorandum, rested exclusively on

“a belief that DACA was unlawful,” not on concerns about

maintaining the policy in the face of the then-ongoing litigation or any other exercise of the agency’s discretion.

App. 35a; see App. 35a-42a. The court observed that the

Acting Secretary did not use the words “litigation risk”

or “discretion” in the memorandum and that the noted

considerations—i.e., rulings in the ongoing litigation

and the Attorney General’s advice—were “more readily

understood as supporting a legal conclusion (DACA is

illegal) than a pragmatic one (DACA might be enjoined).” App. 35a-36a, 40a.

b. The court of appeals also concluded that the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq.,

did not require that any challenge to the rescission be

raised only at the behest of an individual alien after a final

order of removal. App. 42a-45a. The court recognized

that 8 U.S.C. 1252(g) was designed to “give some measure of protection to ‘no deferred action’ decisions” by

channeling any review of such decisions into the INA’s

review scheme. App. 43a (quoting Reno v. AmericanArab Anti-Discrimination Comm., 525 U.S. 471, 485

(1999) (AADC)). But it reasoned that the protection

reached only “individual ‘no deferred action’ decisions,” not a “programmatic shift like the DACA rescission.” Ibid. And it concluded that 8 U.S.C. 1252(b)(9)

only applies to claims seeking review of a final order of

removal. App. 45a n.19.

c. Turning to the merits, the court of appeals affirmed the district court’s nationwide preliminary injunction, reasoning that respondents were likely to succeed on their arbitrary-and-capricious claim because

DHS’s decision was based on an erroneous legal conclusion that DACA was unlawful. App. 45a-60a.

The court of appeals acknowledged that the Fifth

Circuit had held unlawful the related policies known as

Deferred Action for Parents of Americans and Lawful

Permanent Residents (DAPA) and expanded DACA.

App. 49a, 55a (citing Texas v. United States, 809 F.3d 134

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

Ninth Circuit’s view, however, the Fifth Circuit had

“concluded that DAPA conflicted with the INA largely

for a reason that is inapplicable to DACA”—specifically,

that the INA provides “ ‘an intricate process for illegal

aliens to derive a lawful immigration classification from

their children’s immigration status.’ ” App. 51a-52a (citation omitted). It reasoned that “there is no analogous

provision in the INA defining how immigration status

may be derived by undocumented persons who arrived

in the United States as children.” App. 52a.

Moreover, the court of appeals reasoned that, contrary to the Fifth Circuit’s analysis, a deferred-action

policy of DACA’s significance was not inconsistent with

Congress’s enumeration of only “narrow classes of aliens eligible for deferred action,” Texas, 809 F.3d at 179.

See App. 53a-54a. The Ninth Circuit stated that, because the statutory grants of deferred-action eligibility

“were added to the statute books piecemeal over time,”

no inference could be drawn about the permissibility of

designating vastly larger classes of aliens. App. 53a.

And it concluded that, in any event, DACA was not a

policy of “economic and political” significance, because

as of September 2017, DACA had only 689,000 participants, while approximately 4.3 million aliens may have

been eligible for DAPA. App. 54a (citation omitted).

The court of appeals thus concluded that “DACA was

a permissible exercise of executive discretion.” App.

56a-57a. Because, in the Ninth Circuit’s view, DACA’s

rescission was based entirely on DHS’s contrary belief,

the court determined that respondents “are likely to

succeed in demonstrating that the rescission must be

set aside.” App. 57a. In a footnote, the court refused to

consider the “impact, if any, on this case” of the June 22

memorandum from current Secretary of Homeland Security Kirstjen Nielsen “ ‘provid[ing] additional explanation of the basis for the DACA rescission,’ ” suggesting

that the memorandum was an impermissible “ ‘post-hoc

rationalization[]’ ” for DHS’s decision that is not part of

the record of this case and “leav[ing] it to the district

court in the first instance to determine [its] admissibility.” App. 57a-58a n.24 (citation omitted).

d. The court of appeals also affirmed the resolution

of the government’s motion to dismiss respondents’

claims on the merits. App. 61a-78a. The court held that

respondents’ notice-and-comment claim was correctly

dismissed because DACA’s rescission was a “[g]eneral

statement[] of policy * * * advis[ing] the public prospectively of the manner in which the agency proposes

to exercise a discretionary power,” which is exempt from

notice-and-comment procedures. App. 61a (citations and

internal quotation marks omitted); see App. 61a-65a.

And it further held that respondents’ due-process claim

based on an asserted protected interest in indefinite

DACA renewals was correctly dismissed because DHS

had consistently stated that it retained discretion to terminate any grant of deferred action or the policy itself.

App. 65a-68a.

The court of appeals concluded, however, that the

district court had correctly refused to dismiss respondents’ arbitrary-and-capricious claim, information-sharing policy claim, and equal-protection claim. App. 61a,

68a-77a. The court of appeals reasoned that respondents’ arbitrary-and-capricious claim should not be dismissed “[f ]or the reasons stated above in discussing [respondents’] likelihood of success” on that claim. App. 61a.

As to the information-sharing policy claim, the court

found that respondents plausibly alleged both a protected

interest in DHS’s indefinite retention of its informationsharing policy and a change in that policy notwithstanding DHS’s public assurances to the contrary. App. 68a-

73a. The court concluded that such a change would

“shock[] the conscience.” App. 73a (citations omitted).

Finally, the court of appeals concluded that respondents plausibly alleged an equal-protection claim under

the standard described in Village of Arlington Heights

v. Metropolitan Housing Development Corp., 429 U.S.

252, 265-267 (1977). App. 73a-77a. The court reasoned

that respondents’ equal-protection claim does not “implicate the concerns motivating th[is] Court in AADC,”

like “inhibiting prosecutorial discretion, allowing continuing violations of immigration law, and impacting foreign relations.” App. 75a-76a. And it distinguished

Trump v. Hawaii, 138 S. Ct. 2392 (2018), on the grounds

that respondents had provided more “evidence of discriminatory motivation, including the rescission order’s

disparate impact on Latinos and persons of Mexican

heritage, as well as the order’s unusual history.” App.

76a-77a.

e. Judge Owens concurred in the judgment. App.

79a-87a. Judge Owens agreed with the majority’s affirmance of the motion-to-dismiss rulings, but he disagreed that the court “may review the rescission of

DACA for compliance with the APA.” App. 79a. He explained that this Court’s decision in I.C.C. v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987)

(BLE), “makes clear that when determining the scope

of permissible judicial review, courts consider only the

type of agency action at issue, not the agency’s reasons

for acting.” App. 83a; see BLE, 482 U.S. at 283. He observed that DHS’s decision to “rescind a non-enforcement

policy in the immigration context is the type of administrative action” that this Court has recognized is “ ‘committed to agency discretion by law.’ ” App. 79a-80a (citation omitted). And he rejected the majority’s conclusion

that the court could still review DHS’s decision if it were

based solely on DHS’s understanding of the INA, reasoning that “BLE plainly prohibits [the court] from doing so.” App. 82a.

Nevertheless, Judge Owens explained that he would

affirm the preliminary injunction and remand for the

district court to consider whether respondents’ equalprotection claim provides an alternative ground for enjoining the rescission. App, infra, 84a-85a. He acknowledged that respondents “did not seek a preliminary injunction on their Equal Protection claim,” but he reasoned that the court of appeals could “affirm an injunction issued on legally erroneous grounds where remand

for consideration of alternative grounds is warranted.”

App. 84a. And he concluded that such consideration was

warranted here. App. 86a.

3. The court of appeals’ decision significantly strengthens the argument for granting certiorari in these cases.

The court of appeals affirmed the district court’s orders

in every respect, and thus the cases continue to present

both questions in the government’s petition. The Ninth

Circuit’s analysis also largely echoes the reasoning of

the district court, and it is therefore incorrect for largely

the same reasons. See Pet. 17-31. Importantly, however,

as a result of the court of appeals’ decision, the Court no

longer needs to grant certiorari before judgment. The

Court can now consider the present petition as one for

certiorari after judgment and, if it grants the petition,

review the judgment of the court of appeals. Accordingly, the petition need only satisfy the criteria for certiorari under Rule 10, rather than the heightened standard imposed by Rule 11. And there is little question that

the court of appeals “has decided an important question

of federal law that has not been, but should be, settled

by this Court.” Sup. Ct. R. 10(c).

Although the government’s petition in these cases

was filed as one for certiorari before judgment, the issuance of the court of appeals’ intervening decision does

not deprive the Court of the authority to grant it. If

granted, the writ of certiorari would still be directed to

the court of appeals, and this Court could still exercise

jurisdiction pursuant to 28 U.S.C. 1254(1) (“Cases in the

courts of appeals may be reviewed by the Supreme

Court by * * * writ of certiorari granted upon the petition of any party * * * before or after rendition of

judgment or decree.”). This Court’s Rules do not establish any additional requirements, other than inclusion of

the court of appeals’ opinion (attached as an appendix

to this brief ), for a petition for a writ of certiorari after

judgment. See Sup. Ct. R. 10-16.

Granting this petition would be consistent with the

course of proceedings in United States v. Windsor,

570 U.S. 744 (2013), the most analogous example of

which the government is aware. In Windsor, the government petitioned for a writ of certiorari before judgment. Before the Court considered that petition, however, the court of appeals rendered its opinion. The government then filed a supplemental brief, to which it attached a copy of the court of appeals’ opinion, requesting that its petition be considered as a petition for a writ

of certiorari after judgment. U.S. Supp. Br. at 7 & App.,

Windsor, supra (No. 12-307).

The Court granted certiorari in Windsor, 568 U.S.

1066 (2012), over the opposition of another party to the

proceedings, see Supp. Br. for Resp. Bipartisan Legal

Advisory Grp. of the U.S. House of Representatives at

10-12, Windsor, supra (No. 12-307), and reviewed the

court of appeals’ decision, 570 U.S. at 751-752. Although

there was significant disagreement in that case about

the government’s ability to petition for review of a decision with which it agreed, see id. at 781-782 (Scalia, J.,

dissenting), no Justice questioned the Court’s decision

to grant a petition for a writ of certiorari filed before

the court of appeals’ decision. The Court granted certiorari in similar circumstances in General Electric Co. v.

Gilbert, 429 U.S. 125 (1976). See Stephen M. Shapiro et

al., Supreme Court Practice § 2.5, at 87 n.36 (10th ed.

2013) (discussing procedures in Windsor and General

Electric). The Court should likewise grant certiorari

and review the court of appeals’ decision here.

4. a. At the same time, the court of appeals’ decision

also strengthens the case for granting certiorari before

judgment in Trump v. National Ass’n for the Advancement of Colored People, No. 18-588 (filed Nov. 5, 2018)

(NAACP).

As noted, the Ninth Circuit concluded that DACA’s

rescission was based solely on the unlawfulness of the

policy, and it refused to consider the explanation contained in Secretary Nielsen’s June 22 memorandum, describing the memorandum as post hoc rationalization.

App. 35a, 57a n.24. Each of those steps was error. The

initial rescission memorandum indicates that DHS’s decision was also based on the legal and practical implications of maintaining the DACA policy in light of DHS’s

concerns about its legality and the then-ongoing litigation challenging DAPA and expanded DACA. See Pet.

23-24; see also Pet. App. 117a (explaining that DACA

“should be terminated,” not that it must). And the June

22 memorandum contained a “further explanation” of

why DHS’s decision to rescind DACA “was, and remains, sound,” Pet. App. 121a, by the official vested

with the responsibility for “[e]stablishing national immigration enforcement policies and priorities,” 6 U.S.C.

202(5) (2012 & Supp. V 2017). It is not irrelevant post

hoc rationalization. See Motor Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (explaining that “courts may not accept appellate counsel’s

post hoc rationalizations for agency action,” but must

consider only “the basis articulated by the agency itself ”).

More important for present purposes, however, the

court of appeals’ errors confirm that the Court should

grant the government’s petition in NAACP. The government previously suggested that, by granting that petition, the Court would eliminate any argument that Secretary Nielsen’s memorandum is not squarely before

this Court and would bring directly before the Court the

NAACP court’s consideration of the impact of that

memorandum on the resolution of this dispute. See

NAACP Pet. 15-17. The Ninth Circuit’s refusal to undertake that analysis strengthens the argument for following

the government’s suggested approach.

b. As for Nielsen v. Batalla Vidal, No. 18-589 (filed

Nov. 5, 2018), the government’s petitions explained that

the cases at issue there replicate, in many respects, the

cases at issue here, and the district courts have thus far

resolved the overlapping challenges to the rescission in

a substantially similar manner. See Pet. 33; Batalla Vidal Pet. 16-17. The government previously suggested

that the Court grant certiorari in both sets of cases to

ensure that, if the Ninth Circuit had ruled for the government on any of the claims the government had lost

in Batalla Vidal, the Court would still be able to address any such claims in Batalla Vidal. Ibid. The Ninth

Circuit’s blanket affirmance of the district court’s orders removes that possible complication and therefore

eliminates that reason for granting the government’s

petition in Batalla Vidal.

The Court may still wish to grant the Batalla Vidal

petition to permit the parties in those cases to participate in the Court’s consideration of the overlapping issues. At a minimum, however, the Court should hold

the Batalla Vidal petition pending resolution of the

government’s petitions in these cases and in NAACP to

ensure that an order vacating the nationwide injunction

in these cases would have immediate effect on the identical injunction issued in the Batalla Vidal cases.

c. Granting certiorari before judgment in one or

both of the companion cases to ensure that the Court

receives a comprehensive presentation of the relevant

issues would be consistent with the Court’s past practice

in similar circumstances. See, e.g., United States v.

Fanfan, 542 U.S. 956 (2004) (No. 04-105) (granting certiorari before judgment in companion case to United

States v. Booker, 543 U.S. 220 (2005) (No. 04-104)); Gratz

v. Bollinger, 537 U.S. 1044 (2002) (No. 02-516) (granting

certiorari before judgment in companion case to Grutter

v. Bollinger, 539 U.S. 306 (2003) (No. 02-241)); see also

Shapiro § 2.4, at 86 (explaining that the Court has

granted certiorari before judgment “not only in cases of

great public emergency but also in situations where

similar or identical issues of importance were already

pending before the Court and where it was considered

desirable to review simultaneously the questions posed

in the case still pending in the court of appeals”). The

Court should follow the same path here.

* * * * *

For the foregoing reasons and those stated in the

petition for a writ of certiorari, the petitions in these

cases and in Trump v. National Ass’n for the Advancement of Colored People, No. 18-588 (filed Nov. 5, 2018),

should be granted and the cases consolidated for this

Court’s review. The petition in Nielsen v. Batalla Vidal,

No. 18-589 (filed Nov. 5, 2018), should either also be

granted and consolidated or, at a minimum, be held

pending resolution of the other petitions and any further proceedings in this Court.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

NOVEMBER 2018

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 18-15068

D.C. No. 3:17-cv-05211-WHA

REGENTS OF THE UNIVERSITY OF CALIFORNIA;

JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS

PRESIDENT OF THE UNIVERSITY OF CALIFORNIA,

PLAINTIFFS-APPELLEES

U.S. DEPARTMENT OF HOMELAND SECURITY;

KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS

ACTING SECRETARY OF THE DEPARTMENT OF

HOMELAND SECURITY, DEFENDANTS-APPELLANTS

No. 18-15069

D.C. No. 3:17-cv-05235-WHA

STATE OF CALIFORNIA; STATE OF MAINE; STATE OF

MINNESOTA; STATE OF MARYLAND,

PLAINTIFFS-APPELLEES

U.S. DEPARTMENT OF HOMELAND SECURITY;

KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS

ACTING SECRETARY OF THE DEPARTMENT OF

HOMELAND SECURITY; UNITED STATES OF AMERICA,

DEFENDANTS-APPELLANTS

(1a)

No. 18-15070

D.C. No. 3:17-cv-05329-WHA

CITY OF SAN JOSE, PLAINTIFF-APPELLEE

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

IN HIS OFFICIAL CAPACITY; KIRSTJEN NIELSEN,

IN HER OFFICIAL CAPACITY AS ACTING SECRETARY

OF THE DEPARTMENT OF HOMELAND SECURITY;

UNITED STATES OF AMERICA, DEFENDANTS-APPELLANTS

No. 18-15071

D.C. No. 3:17-cv-05380-WHA

DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL

JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA;

JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ,

PLAINTIFFS-APPELLEES

UNITED STATES OF AMERICA; DONALD J. TRUMP,

IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE

UNITED STATES; U.S. DEPARTMENT OF HOMELAND

SECURITY; KIRSTJEN NIELSEN, IN HER OFFICIAL

CAPACITY AS ACTING SECRETARY OF THE DEPARTMENT

OF HOMELAND SECURITY, DEFENDANTS-APPELLANTS

No. 18-15072

D.C. No. 3:17-cv-05813-WHA

COUNTY OF SANTA CLARA; SERVICE EMPLOYEES

INTERNATIONAL UNION LOCAL 521,

PLAINTIFFS-APPELLEES

DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS

PRESIDENT OF THE UNITED STATES; JEFFERSON B.

SESSIONS III, ATTORNEY GENERAL; KIRSTJEN NIELSEN,

IN HER OFFICIAL CAPACITY AS ACTING SECRETARY OF

THE DEPARTMENT OF HOMELAND SECURITY;

U.S. DEPARTMENT OF HOMELAND SECURITY,

DEFENDANTS-APPELLANTS

No. 18-15128

D.C. Nos. 3:17-cv-05211-WHA, 3:17-cv-05235-WHA,

3:17-cv-05329-WHA, 3:17-cv-05380-WHA,

3:17-cv-05813-WHA

REGENTS OF THE UNIVERSITY OF CALIFORNIA;

JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS

PRESIDENT OF THE UNIVERSITY OF CALIFORNIA;

STATE OF CALIFORNIA; STATE OF MAINE;

STATE OF MINNESOTA; STATE OF MARYLAND;

CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ

AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA

MENDOZA; JIRAYUT LATTHIVONGSKORN;

NORMA RAMIREZ; COUNTY OF SANTA CLARA; SERVICE

EMPLOYEES INTERNATIONAL UNION LOCAL 521,

PLAINTIFFS-APPELLEES

UNITED STATES OF AMERICA; DONALD J. TRUMP,

IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED

STATES; U.S. DEPARTMENT OF HOMELAND SECURITY;

KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS

ACTING SECRETARY OF THE DEPARTMENT OF

HOMELAND SECURITY, DEFENDANTS-APPELLANTS

No. 18-15133

D.C. Nos. 3:17-cv-05211-WHA, 3:17-cv-05235-WHA,

3:17-cv-05329-WHA, 3:17-cv-05380-WHA,

3:17-cv-05813-WHA

REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET

NAPOLITANO, IN HER OFFICIAL CAPACITY AS

PRESIDENT OF THE UNIVERSITY OF CALIFORNIA;

STATE OF CALIFORNIA; STATE OF MAINE;

STATE OF MINNESOTA; STATE OF MARYLAND;

CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ

AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA

MENDOZA; JIRAYUT LATTHIVONGSKORN;

NORMA RAMIREZ, PLAINTIFFS-APPELLANTS

UNITED STATES OF AMERICA; DONALD J. TRUMP,

IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED

STATES; U.S. DEPARTMENT OF HOMELAND SECURITY;

KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS

ACTING SECRETARY OF THE DEPARTMENT OF

HOMELAND SECURITY, DEFENDANTS-APPELLEES

No. 18-15134

D.C. Nos. 3:17-cv-05211-WHA, 3:17-cv-05235-WHA,

3:17-cv-05329-WHA, 3:17-cv-05380-WHA,

3:17-cv-05813-WHA

DULCE GARCIA; MIRIAM GONZALEZ AVILA;

SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA

MENDOZA; NORMA RAMIREZ; JIRAYUT

LATTHIVONGSKORN; COUNTY OF SANTA CLARA;

SERVICE EMPLOYEES INTERNATIONAL UNION

LOCAL 521, PLAINTIFFS-APPELLANTS

UNITED STATES OF AMERICA; DONALD J. TRUMP,

IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE

UNITED STATES; U.S. DEPARTMENT OF HOMELAND

SECURITY; KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY

AS ACTING SECRETARY OF THE DEPARTMENT OF

HOMELAND SECURITY, DEFENDANTS-APPELLEES

Filed:

Nov. 8, 2018

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

OPINION

Before: KIM MCLANE WARDLAW, JACQUELINE H.

NGUYEN, and JOHN B. OWENS, Circuit Judges.

Opinion by Judge WARDLAW; Concurrence by Judge

OWENS

WARDLAW, Circuit Judge:

It is no hyperbole to say that Dulce Garcia embodies

the American dream. Born into poverty, Garcia and

her parents shared a San Diego house with other families to save money on rent; she was even homeless for a

time as a child. But she studied hard and excelled

academically in high school. When her family could

not afford to send her to the top university where she

had been accepted, Garcia enrolled in a local community

college and ultimately put herself through a four-year

university, where she again excelled while working full-

time as a legal assistant. She then was awarded a scholarship that, together with her mother’s life savings,

enabled her to fulfill her longstanding dream of attending and graduating from law school. Today, Garcia maintains a thriving legal practice in San Diego, where she

represents members of underserved communities in civil,

criminal, and immigration proceedings.

On the surface, Dulce Garcia appears no different

from any other productive—indeed, inspiring—young

American. But one thing sets her apart. Garcia’s parents brought her to this country in violation of United

States immigration laws when she was four years old.

Though the United States of America is the only home

she has ever known, Dulce Garcia is an undocumented

immigrant.

Recognizing the cruelty and wastefulness of deporting productive young people to countries with which

they have no ties, the Secretary of Homeland Security

announced a policy in 2012 that would provide some

relief to individuals like Garcia, while allowing our

communities to continue to benefit from their contributions. Known as Deferred Action for Childhood Arrivals, or DACA, the program allows those noncitizens

who unwittingly entered the United States as children,

who have clean criminal records, and who meet various

educational or military service requirements to apply

for two-year renewable periods of deferred action—a

revocable decision by the government not to deport an

otherwise removable person from the country. DACA

also allows recipients to apply for authorization to work

in this country legally, paying taxes and operating in

the aboveground economy. Garcia, along with hundreds

of thousands of other young people, trusting the government to honor its promises, leapt at the opportunity.

But after a change in presidential administrations, in

2017 the government moved to end the DACA program.

Why? According to the Acting Secretary of Homeland

Security, upon the legal advice of the Attorney General,

DACA was illegal from its inception, and therefore could

no longer continue in effect. And after Dulce Garcia—

along with other DACA recipients and affected states,

municipalities, and organizations—challenged this conclusion in the federal courts, the government adopted the

position that its fundamentally legal determination that

DACA is unlawful is unreviewable by the judicial branch.

With due respect for the Executive Branch, we disagree. The government may not simultaneously both

assert that its actions are legally compelled, based on

its interpretation of the law, and avoid review of that

assertion by the judicial branch, whose “province and

duty” it is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The government’s decision to rescind DACA is subject to judicial

review. And, upon review, we conclude that plaintiffs

are likely to succeed on their claim that the rescission

of DACA—at least as justified on this record—is arbitrary, capricious, or otherwise not in accordance with

law. We therefore affirm the district court’s grant of

preliminary injunctive relief. 1

We also affirm in part the district court’s partial grant and partial denial of the government’s motion to dismiss for failure to state

a claim.

A. History of Deferred Action

The central benefit available under the DACA program is deferred action. Because much of this dispute

revolves around the legitimacy of that practice, we begin by reviewing the Executive Branch’s historical use

of deferred action.

The basic concept is a simple one: deferred action

is a decision by Executive Branch officials not to pursue deportation proceedings against an individual or

class of individuals otherwise eligible for removal from

this country. See 6 Charles Gordon et al., Immigration

Law & Procedure § 72.03[2][h] (2018) (“To ameliorate a

harsh and unjust outcome, the immigration agency may

decline to institute proceedings, may terminate proceedings, or may decline to execute a final order of deportation. This commendable exercise in administrative discretion . . . is now designated as deferred

action.”); Barahona-Gomez v. Reno, 236 F.3d 1115,

1119 n.3 (9th Cir. 2001) (“Deferred action refers to an

exercise of administrative discretion by the [immigration agency] under which [it] takes no action to proceed

against an apparently deportable alien based on a prescribed set of factors generally related to humanitarian

grounds.” (internal quotation marks omitted)); Hiroshi

Motomura, Immigration Outside the Law 29 (2014)

(noting that “deferred action is usually granted only for

limited periods of time and does not provide a path to

lawful permanent resident status or citizenship”).

Unlike most other forms of relief from deportation,

deferred action is not expressly grounded in statute.

It arises instead from the Executive’s inherent authority

to allocate resources and prioritize cases. Cf. 6 U.S.C.

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

with “[e]stablishing national immigration enforcement

policies and priorities”). As such, recipients of deferred

action “enjoy no formal immigration status.” Ariz.

Dream Act Coal. v. Brewer, 855 F.3d 957, 964 (9th Cir.

2017) (Brewer II). But despite its non-statutory origins, Congress has historically recognized the existence of deferred action in amendments to the Immigration and Nationality Act (INA), as well as other

statutory enactments. See 8 U.S.C. § 1227(d)(2) (“The

denial of a request for an administrative stay of removal

under this subsection shall not preclude the alien from

applying for . . . deferred action[.]”); REAL ID Act

of 2005, Pub. L. No. 109-13, § 202(c)(2), 119 Stat. 231,

313 (2005) (listing proof of “approved deferred action

status” as sufficient “evidence of lawful status” for the

issuance of a driver’s license). The Supreme Court

has also recognized deferred action by name, describing

the Executive’s “regular practice (which ha[s] come to be

known as ‘deferred action’) of exercising discretion for

humanitarian reasons or simply for its own convenience.”

Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S.

471, 483-84 (1999) (AADC). Thus, “it is well settled that

the Secretary [of Homeland Security] can exercise deferred action.” Brewer II, 855 F.3d at 967.

Official records of administrative discretion in immigration enforcement date at least back to the turn of

the twentieth century, not long after the enactment of

the nation’s first general immigration statute in 1882.

See Act of Aug. 3, 1882, ch. 376, 22 Stat. 214. A 1909 Department of Justice circular regarding statutorily authorized denaturalization instructed that “as a general

rule, good cause is not shown for the institution of

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proceedings . . . unless some substantial results are

to be achieved thereby in the way of betterment of the

citizenship of the country.” U.S. Dep’t of Justice, Circular Letter No. 107 (Sept. 20, 1909) (quoted in Memorandum from Sam Bernsen, Gen. Counsel, INS, Legal

Opinion Regarding Service Exercise of Prosecutorial

Discretion at 4 (Jul. 15, 1976) (Bernsen Memorandum)).

The government’s exercise of deferred action in particular first came to light in the 1970s, as a result of

Freedom of Information Act litigation over the government’s efforts to deport John Lennon and Yoko Ono,

apparently based on Lennon’s “British conviction for marijuana possession.” Motomura, supra, at 28; see generally Shoba Sivaprasad Wadhia, Beyond Deportation:

The Role of Prosecutorial Discretion in Immigration

Cases 2-27 (2015). Then known as “nonpriority status,” the practice had been observed in secret within

the former Immigration and Naturalization Service

(INS) since at least the 1950s, but INS officials had

publicly denied its existence. See Leon Wildes, The

Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of

the Freedom of Information Act, 14 San Diego L. Rev.

42, 52-53 (1976); Wadhia, supra, at 16. After the Lennon case revealed the practice, the INS issued its first

public guidance on the use of deferred action, stating

that “[i]n every case where the district director determines that adverse action would be unconscionable

because of the existence of appealing humanitarian

factors, he shall recommend consideration for nonpriority.” Immigration and Naturalization Service, Operations Instructions § 103.1(a)(1)(ii) (1975) (quoted in

Wadhia, supra, at 17). Although the 1975 guidance

was rescinded in 1997, DHS officials continue to apply

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the same humanitarian factors in deciding whether to

grant an individual deferred action. 6 Gordon et al.,

supra, § 72.03[2][h] & nn.133-34; see also AADC,

525 U.S. at 484 n.8.

In addition to case-by-case adjudications, the Executive Branch has frequently applied deferred action

and related forms of discretionary relief programmatically, to entire classes of otherwise removable noncitizens. Indeed, the Congressional Research Service

has compiled a list of twenty-one such “administrative

directives on blanket or categorical deferrals of deportation” issued between 1976 and 2011. Andorra Bruno

et al., Cong. Research Serv., Analysis of June 15, 2012

DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the

United States as Children 20-23 (July 13, 2012); see

also id. at 9 (“The executive branch has provided blanket or categorical deferrals of deportation numerous

times over the years.”).

To take one early example, in 1956 President Eisenhower extended immigration parole to over thirty

thousand Hungarian refugees who were otherwise

unable to immigrate to the United States because of

restrictive quotas then in existence. See White House

Statement on the Termination of the Emergency Program for Hungarian Refugees (Dec. 28, 1957). The

power to parole—that is, to allow a noncitizen physically to enter the country, while treating that person as

“at the border” for purposes of immigration law—is

established by statute, but the version of the INA in

existence when President Eisenhower acted did not

explicitly authorize programmatic exercises of the

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parole power. 2 Immigration and Nationality Act of

1952, Pub. L. No. 82-414, § 212(d)(5), 66 Stat. 163, 188.

See generally 6 Gordon et al., supra, § 62.01. Subsequent presidents made use of similar categorical parole

initiatives. Wadhia, supra, at 30.

Another salient example is the Family Fairness program, established by the Reagan Administration and

expanded under President George H.W. Bush. The

Immigration Reform and Control Act of 1986 (IRCA)

had provided a pathway to legal status for hundreds of

thousands of undocumented noncitizens, but did not

make any provision for their close relatives unless

those individuals separately qualified under the Act’s

criteria. See generally 3 Gordon et al., supra, § 38.06.

President Reagan’s INS Commissioner interpreted

IRCA not to authorize immigration benefits for anyone

outside the statutory criteria, but nevertheless exercised executive discretion to defer the deportation of

the minor children of noncitizens legalized under the

statute. Alan C. Nelson, Comm’r, INS, Legalization

& Family Fairness: An Analysis (Oct. 21, 1987).

And in 1990, the INS instituted “significant liberalizations” of the policy by granting one-year periods

of extended voluntary departure to children and spouses of individuals legalized under IRCA who could establish admissibility, continuous residency, and a clean

Indeed, there is evidence that “Congress originally intended that

parole would be used on a case-by-case basis on behalf of individual

aliens.” Cong. Research Serv., Review of U.S. Refugee Resettlement Programs & Policies 8 (1980); see also S. Rep. No. 89-748,

at 17 (1965). The statute was amended in 1980 to expressly prohibit

categorical grants of parole. Refugee Act of 1980, Pub. L. No. 96-212,

§ 203(f ), 94 Stat. 102, 108; see 8 U.S.C. § 1182(d)(5).

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criminal record. INS Reverses Family Fairness Policy, 67 No. 6 Interpreter Releases 153 (Feb. 5, 1990);

see also 3 Gordon et al., supra, § 38.06. Contemporary

estimates by INS officials of the number of people

potentially eligible ranged as high as 1.5 million. 3 See

Immigration Act of 1989 (Part 2): Hearings Before

the Subcomm. on Immigration, Refugees & Int’l Law of

the H. Comm. on the Judiciary, 101st Cong. 49, 56

(1990) (testimony of Gene McNary, Comm’r, INS).

Extended voluntary departure, the mechanism through

which these individuals were allowed to remain in the

United States is, like deferred action, a creature of executive discretion not specifically authorized by statute. See Hotel & Rest. Emps. Union, Local 25 v.

Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc)

(opinion of Mikva, J.).

Since then, the immigration agency has instituted

categorical deferred action programs for self-petitioners

under the Violence Against Women Act; applicants for T

and U visas (which are issued to victims of human trafficking and of certain crimes, respectively); foreign students unable to fulfill their visa requirements after Hurricane Katrina; and widowed spouses of United States

citizens who had been married less than two years.

None of these deferred action programs was expressly

authorized by statute at the time they were initiated.

There is some controversy surrounding this number. See generally Unconstitutionality of Obama’s Executive Actions on

Immigration: Hearing Before the House Comm. on the Judiciary, 114th Cong. 84-85 (2015) (written testimony of Professor

Stephen H. Legomsky). But even the lowest reported contemporary estimate was that 100,000 people would actually benefit from

the program, indicating a major policy initiative. See INS Reverses Family Fairness Policy, supra.

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B. The DACA Program

DACA was announced in a June 15, 2012, memorandum from Secretary of Homeland Security Janet Napolitano, 4 entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the

United States as Children.” Secretary Napolitano explained that the nation’s immigration laws “are not

designed . . . to remove productive young people to

countries where they may not have lived or even speak

the language,” especially where “many of these young

people have already contributed to our country in significant ways,” and, because they were brought here as

children, “lacked the intent to violate the law.” She

therefore determined that “[p]rosecutorial discretion,

which is used in so many other areas, is especially justified here.”

The Napolitano memorandum thus laid out the basic

criteria of the DACA program, under which a noncitizen will be considered for a grant of deferred action if

he or she:

• came to the United States under the age of sixteen;

• has continuously resided in the United States for

at least five years preceding [June 15, 2012] and

is present in the United States on [June 15, 2012];

• is currently in school, has graduated from high

school, has obtained a general education development certificate, or is an honorably discharged

veteran of the Coast Guard or Armed Forces of

the United States;

Napolitano is a party to this appeal in her current capacity as

President of the University of California.

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• has not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, nor otherwise poses a threat to

national security or public safety; and

• is not above the age of thirty [on June 15, 2012]. 5

DACA applicants must submit extensive personal

information to DHS, along with fees totaling nearly

$500. Applicants also submit to biometric screening in

which they are photographed and fingerprinted, enabling extensive biographical and biometric background

checks. If those checks come back clean, each application is then evaluated for approval by DHS personnel

on a case-by-case basis.

If approved into the DACA program, an applicant is

granted a renewable two-year term of deferred action

—again, “a form of prosecutorial discretion whereby

the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the

United States.” Brewer II, 855 F.3d at 967. In addition to the deferral of removal itself, pre-existing DHS

regulations allow all deferred-action recipients to apply

for employment authorization, enabling them to work

legally and pay taxes. 8 U.S.C. § 1324a(h)(3) (empowering the Executive Branch to authorize the employment of noncitizens); 8 C.F.R. § 274a.12(c)(14) (providing that “[a]n alien who has been granted deferred action” is eligible for work authorization upon a showing

of “economic necessity for employment”). Indeed,

“DACA recipients are required to apply for employment authorization, in keeping with the Executive’s intention that DACA recipients remain ‘productive’ mem5

This criterion became known as the “age cap.”

16a

bers of society.” Ariz. Dream Act Coal. v. Brewer,

757 F.3d 1053, 1062 (9th Cir. 2014) (Brewer I) (emphasis

in original). Finally, DHS does not consider deferredaction recipients, including those benefitting from DACA,

to accrue “unlawful presence” for purposes of the INA’s

reentry bars.6 8 U.S.C. § 1182(a)(9)(B)(ii); see Brewer I,

757 F.3d at 1059.

In an attempt to build on the success of the DACA

program, in 2014 Secretary of Homeland Security Jeh

Johnson issued a separate memorandum that both an8 U.S.C. §§ 1182(a)(9)(B)(i)(I)-(II) establish a three-year and

ten-year bar on admission after specified periods of “unlawful presence.” Additionally, 8 U.S.C. § 1182(a)(9)(C) provides a permanent bar on admission for immigrants who have accrued an aggregate of more than one year of “unlawful presence” and who later attempt to cross the border clandestinely. As the district court noted below, DHS “excludes recipients of deferred action from being

‘unlawfully present’ because their deferred action is considered a

period of stay authorized by the government.” Regents of Univ. of

Cal. v. DHS, 279 F. Supp. 3d 1011, 1039 (N.D. Cal. 2018). As DHS

noted in its DACA Frequently Asked Questions (FAQs), “[f ]or purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be

unlawfully present during the period in which deferred action is in

effect.” Importantly, however, “deferred action does not confer

lawful status upon an individual, nor does it excuse any previous or

subsequent periods of unlawful presence.”

The FAQs are attached as an exhibit to the Regents complaint,

and are cited pervasively throughout the Garcia complaint. See

United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (explaining that for purposes of a motion to dismiss, “[c]ertain written instruments attached to pleadings may be considered part of the

pleading. Even if a document is not attached to a complaint, it

may be incorporated by reference into a complaint if the plaintiff

refers extensively to the document or the document forms the basis

of the plaintiff ’s claim.” (internal citation omitted)).

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nounced the related Deferred Action for Parents of

Americans and Lawful Permanent Residents program

(DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA by (1) removing

the age cap, (2) extending the term of deferred-action

and related work-authorization grants from two to

three years, and (3) moving up the cutoff date by which

an applicant must have been in the United States to

January 1, 2010. Twenty-six states challenged this extension in federal court, arguing that DAPA is unconstitutional. All of the policies outlined in the Johnson

memorandum were enjoined nationwide in a district

court order upheld by the Fifth Circuit and affirmed by

an equally divided Supreme Court. See United States

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

809 F.3d 134 (5th Cir. 2015); Texas v. United States,

86 F. Supp. 3d 591 (S.D. Tex. 2015); see also Neil v.

Biggers, 409 U.S. 188, 192 (1972) (affirmance by an

equally divided court has no precedential value). The

original DACA program remained in effect.

In 2017, a new presidential administration took office, bringing with it a change in immigration policy.

On February 20, 2017, then-Secretary of Homeland Security John Kelly issued a memorandum that set out

the administration’s new enforcement priorities, stating that “the Department no longer will exempt classes

or categories of removable aliens from potential enforcement.” However, the memorandum explicitly left

DACA and DAPA in place. In a second memorandum

issued June 15, 2017, after “consider[ing] a number of

factors, including the preliminary injunction in the

[Texas] matter, the ongoing litigation, the fact that

DAPA never took effect, and our new immigration

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enforcement priorities,” Secretary Kelly rescinded

DAPA as an “exercise of [his] discretion.”

Then, on June 28, 2017, Texas Attorney General

Ken Paxton wrote to United States Attorney General

Jefferson B. Sessions III threatening that if the federal

government did not rescind DACA by September 5,

2017, Paxton would amend the complaint in the Texas

litigation to challenge DACA as well as DAPA.

On September 4, 2017, the day before Paxton’s

deadline, Attorney General Sessions sent his own letter

to Acting Secretary of Homeland Security Elaine

Duke. The Attorney General’s letter “advise[d] that

the Department of Homeland Security . . . should

rescind” the DACA memorandum based on his legal

opinion that the Department lacked statutory authority

to have created DACA in the first place. He wrote:

DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’[s] repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.

The Attorney General further opined that “[b]ecause

the DACA policy has the same legal and constitutional

defects that the courts recognized as to DAPA, it is

likely that potentially imminent litigation would yield

similar results with respect to DACA.”

The very next day, following the Attorney General’s

directive, Acting Secretary Duke issued a memorandum rescinding DACA. The memorandum begins with

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a “Background” section that covers DACA, DAPA, the

Texas litigation, Secretary Kelly’s previous memoranda, Texas Attorney General Paxton’s threat, and the

Attorney General’s letter. Then, in the section titled

“Rescission of the June 15, 2012 DACA Memorandum,”

the Duke memorandum states:

Taking into consideration the Supreme Court’s and

the Fifth Circuit’s rulings in the ongoing litigation,

and the September 4, 2017 letter from the Attorney

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

program should be terminated. In the exercise of

my authority in establishing national immigration

policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June

15, 2012 memorandum.

The Duke memorandum further states that although

DHS would stop accepting initial DACA requests effective immediately, the agency would provide a onemonth window in which renewal applications could be

filed for current DACA beneficiaries whose benefits

were set to expire before March 5, 2018. It also states

that DHS would not terminate existing grants of deferred action under DACA “solely based on the directives in this memorandum.”

Thus, beginning on

March 5, 2018, each DACA recipient’s grant of deferred action would be allowed to expire at the end of

its two-year term. As of September 4, 2017—the day

before the rescission—approximately 689,800 individuals were enrolled in DACA.

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C. Procedural History

The rescission of DACA instantly sparked litigation

across the country, including the cases on appeal here.

Suits were filed in the Northern District of California

by the Regents of the University of California, a group

of states led by California, the City of San Jose, the

County of Santa Clara and Service Employees International Union Local 521, and a group of individual

DACA recipients led by Dulce Garcia. The complaints

included claims that the rescission was arbitrary and

capricious under the Administrative Procedure Act

(APA); that it was a substantive rule requiring noticeand-comment rulemaking under the APA; that it violated the due process and equal protection rights protected by the U.S. Constitution; and that DHS was

equitably estopped from using the information provided on DACA applications for enforcement purposes.

The cases were consolidated before Judge William

Alsup in the District Court for the Northern District of

California and proceeded to litigation.

On October 17, 2017, the district court ordered the

government to complete the administrative record,

holding that the record proffered by the government

was incomplete in several respects. Seeking to avoid

providing additional documents, the government filed a

petition for mandamus. In arguing its mandamus petition, the government took the position that the legality of the rescission should stand or fall based solely on

the reasons and the record already provided by the

government.

We denied the mandamus petition,

stating that “the notion that the head of a United

States agency would decide to terminate a program

giving legal protections to roughly 800,000 people

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based solely on 256 pages of publicly available documents is not credible, as the district court concluded.”

In re United States, 875 F.3d 1200, 1206 (9th Cir. 2017)

(footnotes omitted).

The government next petitioned the Supreme Court

for the same mandamus relief; the Court did not reach

the merits of the administrative record dispute, but instead instructed the district court to rule on the government’s threshold arguments challenging reviewability of its rescission decision before requiring the

government to provide additional documents. In re

United States, 138 S. Ct. 443, 445 (2017). Thus, the

administrative record in this case still consists of a scant

256 publicly available pages, roughly three-quarters of

which are taken up by the three published judicial

opinions from the Texas litigation.

Returning to the district court, the government

moved to dismiss the consolidated cases on jurisdictional grounds and for failure to state a claim, while the

plaintiffs moved for a preliminary injunction. The district court granted the request for a nationwide preliminary injunction, holding that most of the plaintiffs

had standing; 7 that neither the APA nor the INA

barred judicial review; and that plaintiffs were likely to

succeed on their claim that the decision to rescind

DACA was arbitrary and capricious. The district

court therefore entered a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients.

Two states were dismissed from the case with leave to amend.

That decision is not challenged on appeal.

22a

In a separate order, the court partially granted and

partially denied the government’s motion to dismiss.

The court dismissed plaintiffs’ notice-and-comment and

Regulatory Flexibility Act claims; a due process claim

premised on an entitlement to deferred action; and the

equitable estoppel claim. The court denied the motion

as to plaintiffs’ equal protection claim and a due

process claim premised on an alleged change in DHS’s

information-sharing policy.

The district court certified the issues addressed

in both its orders for interlocutory review under

28 U.S.C. § 1292(b). We granted the government’s

petition for permission to appeal the orders. Plaintiffs cross-appealed, asserting that the district court

erroneously dismissed their notice-and-comment and

due process claims.

II.

“We review the district court’s decision to grant or

deny a preliminary injunction for abuse of discretion.”

Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir.

2017) (quoting Sw. Voter Registration Educ. Project v.

Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per

curiam)). Within this inquiry, “[w]e review the district court’s legal conclusions de novo, the factual findings underlying its decision for clear error.” Id. (quoting K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 969

(9th Cir. 2015)). A district court’s decision on a motion

to dismiss for lack of subject matter jurisdiction or for

failure to state a claim is also reviewed de novo. See,

e.g., Davidson v. Kimberly-Clark Corp., 889 F.3d 956,

963 (9th Cir. 2017).

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III.

The threshold question in this case is in many ways

also the most pivotal: is Acting Secretary Duke’s decision to rescind the DACA program reviewable by the

courts at all? The government contends that both the

APA and the INA bar judicial review; we address each

statute in turn.

A. Reviewability under the APA

The APA provides for broad judicial review of agency

action: “A person suffering legal wrong because of

agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute, is

entitled to judicial review thereof.” 5 U.S.C. § 702.

Thus, as a general matter, the Supreme Court has consistently articulated “a ‘strong presumption’ favoring

judicial review of administrative action.” Mach Mining,

LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (quoting

Bowen v. Mich. Acad. of Family Physicians, 476 U.S.

667, 670 (1986)); see also, e.g., Lincoln v. Vigil, 508 U.S.

182, 190 (1993) (“[W]e have read the APA as embodying a

‘basic presumption of judicial review.’ ”) (quoting Abbott

Labs. v. Gardner, 387 U.S. 136, 140 (1967)).

However, the APA also forecloses judicial review

under its procedures to the extent that “agency action

is committed to agency discretion by law.” 5 U.S.C.

§ 701(a)(2).8 “This is a very narrow exception” that

This bar does not affect a plaintiff ’s ability to bring freestanding constitutional claims. See Webster v. Doe, 486 U.S. 592, 601-05

(1988); Padula v. Webster, 822 F.2d 97, 101 (D.C. Cir. 1987) (“[E]ven where agency action is ‘committed to agency discretion by law,’

review is still available to determine if the Constitution has been

violated.” (quoting Doe v. Casey, 796 F.2d 1508, 1517-18 n.33 (1986),

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comes into play only “in those rare instances where

statutes are drawn in such broad terms that in a given

case there is no law to apply.” Citizens to Preserve

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

(internal quotation marks omitted), abrogated on other

grounds by Califano v. Sanders, 430 U.S. 99 (1977); see

also Heckler v. Chaney, 470 U.S. 821, 830 (1985)

(“[R]eview is not to be had if the statute is drawn so

that a court would have no meaningful standard against

which to judge the agency’s exercise of discretion.”).

In Heckler v. Chaney, the Supreme Court analyzed

this exception in considering “the extent to which a decision of an administrative agency to exercise its ‘discretion’ not to undertake certain enforcement actions is

subject to judicial review under the [APA].” 470 U.S.

at 823. In Chaney, the Commissioner of the Food and

Drug Administration (FDA) declined to take investigatory and enforcement action against state prison officials’ use of drugs, which had been FDA-approved for

medical use, in human executions. Id. at 823-24. A

group of prisoners on death row had petitioned the

FDA, arguing that using the drugs to execute humans

was unlawful because they were only approved for

medical use, and not for executions. Id. Responding to

the petition, the Commissioner questioned whether the

FDA had jurisdiction to prohibit the use of drugs in executions, but went on to conclude that even if the

agency did have jurisdiction, it would “decline to exercise it under [the agency’s] inherent discretion to” do

so. Id. at 824. The inmates then sued the FDA, at-

aff ’d in part, rev’d in part on other grounds, Webster v. Doe,

486 U.S. 592 (1988))).

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tempting to invoke the APA’s framework for judicial

review. Id. at 825.

The Supreme Court held that the FDA Commissioner’s discretionary decision not to enforce the Food,

Drug, and Cosmetic Act against state prison officials

was unreviewable under the APA. Chaney, 470 U.S.

at 837-38. The Court identified a pre-APA “tradition”

under which “an agency’s decision not to prosecute or

enforce . . . is a decision generally committed to an

agency’s absolute discretion,” and concluded that “the

Congress enacting the APA did not intend to alter that

tradition.” Id. at 831-32. As the Court summed up

its holding, “[t]he general exception to reviewability

provided by § 701(a)(2) for action ‘committed to agency

discretion’ remains a narrow one, but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress

has indicated otherwise.” Id. at 838 (citation omitted).

That is, the normal presumption in favor of judicial

review is reversed when the agency action in question

is a refusal to enforce the substantive law.

Importantly for present purposes, the Court explicitly left open the question whether “a refusal by the

agency to institute proceedings based solely on the belief that it lacks jurisdiction” might be reviewable notwithstanding this general rule. Chaney, 470 U.S. at 833

n.4 (“[W]e express no opinion on whether such decisions

would be unreviewable under § 701(a)(2) . . . .”).9 This

Chaney’s footnote 4 reads in its entirety:

We do not have in this case a refusal by the agency to institute

proceedings based solely on the belief that it lacks jurisdiction.

Nor do we have a situation where it could justifiably be found

26a

reservation makes perfect sense. It is one thing to

read the APA’s exception for “agency action [] committed to agency discretion by law” as including the

Executive’s discretionary decisions to decline enforcement, given a pre-existing legal tradition that had

treated those decisions as unreviewable. It would be

quite another to say that an agency’s non-discretionary

belief that it lacked the power to enforce the law was

similarly “committed to agency discretion.” 5 U.S.C.

§ 701(a)(2); see Chaney, 470 U.S. at 833 n.4 (“[W]e note

that in those situations [involving a belief that the

agency lacked discretion,] the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion.’ ”).

Several years after Chaney, our court directly addressed the question that the Supreme Court had left

open. In Montana Air Chapter No. 29 v. Federal

Labor Relations Authority, a union representing civilian Air National Guard employees filed an unfair labor

practice charge against the National Guard Bureau,

but the Federal Labor Relations Authority (FLRA) refused to issue a complaint. 898 F.2d 753, 755 (9th Cir.

1990). The opinion letters issued by FLRA’s general

counsel indicated that he had “determined, according

that the agency has “consciously and expressly adopted a general

policy” that is so extreme as to amount to an abdication of its

statutory responsibilities. See, e.g., Adams v. Richardson,

156 U.S. App. D.C. 267, 480 F.2d 1159 (1973) (en banc). Although

we express no opinion on whether such decisions would be unreviewable under § 701(a)(2), we note that in those situations the

statute conferring authority on the agency might indicate that

such decisions were not “committed to agency discretion.”

Heckler v. Chaney, 470 U.S. 821, 833 n.4 (emphasis added).

27a

to his interpretation of the statutes and regulations,

that he lacked jurisdiction to issue an unfair labor practice complaint” under the circumstances. Id. at 757.

Acknowledging Chaney’s rule that “[a]n agency’s

decision not to take enforcement action . . . is presumed to be immune from judicial review,” we noted

that the Supreme Court had nevertheless “suggested

that discretionary nonenforcement decisions may be

reviewable when” the refusal to enforce is based on a

supposed lack of jurisdiction.

Id. at 756 (citing

Chaney, 470 U.S. at 833 n.4). We took the next logical

step, holding that Chaney’s presumption of nonreviewability “may be overcome if the refusal is based solely

on the erroneous belief that the agency lacks jurisdiction.” Id. at 754. Because “the General Counsel’s

decision not to issue an unfair labor practice complaint

was based on his belief that he lacked jurisdiction to

issue such a complaint,” we proceeded to “examine the

General Counsel’s statutory and regulatory interpretations to determine if his belief that he lacked jurisdiction was correct.” Id. at 757.10

The final piece of the APA reviewability puzzle is

the Supreme Court’s decision in City of Arlington v.

FCC, 569 U.S. 290 (2013). There, the Court was faced

with the question whether an agency’s determination of

We reject the government’s reading of Montana Air, under

which the Chaney presumption would be overcome only if the agency

action is based on a belief in a lack of jurisdiction, and the refusal

to enforce is so extreme as to become an abdication of the agency’s

statutory responsibilities. Both Chaney and Montana Air make

clear that these are two independent exceptions to the narrow rule

of nonreviewability, not two elements of a single test. Chaney,

470 U.S. at 833 n.4; Montana Air, 898 F.2d at 756.

28a

its own jurisdiction is entitled to the same deference as

any other agency interpretation under Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984). Writing for the Court, Justice Scalia explained in no uncertain terms that in the context of administrative agencies, “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a

mirage.” City of Arlington, 569 U.S. at 297. With respect to courts, the jurisdictional/nonjurisdictional divide

is a real and consequential one, because “[a] court’s

power to decide a case is independent of whether its

decision is correct . . . . Put differently, a jurisdictionally proper but substantively incorrect judicial

decision is not ultra vires.” Id. But the same is not

true with respect to agencies: “Both their power to

act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly,

no less than when they act beyond their jurisdiction,

what they do is ultra vires.” Id. Thus, the Court

concluded, “[t]he reality, laid bare, is that there is no

difference, insofar as the validity of agency action is

concerned, between an agency’s exceeding the scope of

its authority (its ‘jurisdiction’) and its exceeding authorized application of authority that it unquestionably

has.” Id. at 299 (emphasis in original). 11

The opinion is replete with equally emphatic—and equally

quotable—formulations of the same point. See, e.g., City of Arlington, 569 U.S. at 301 (“In sum, judges should not waste their

time in the mental acrobatics needed to decide whether an agency’s

interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.’ Once those labels are sheared away, it becomes clear

that the question in every case is, simply, whether the statutory

text forecloses the agency’s assertion of authority, or not.”).

29a

To summarize, Chaney holds that an agency’s refusal to enforce the substantive law is presumptively

unreviewable because that discretionary nonenforcement function is “committed to agency discretion”

within the meaning of the APA. Montana Air builds

upon the question left open by Chaney’s footnote four,

explaining that a nonenforcement decision is reviewable notwithstanding Chaney if the decision was based

solely on the agency’s belief that it lacked jurisdiction

to act. And City of Arlington teaches that there is no

difference between an agency that lacks jurisdiction to

take a certain action, and one that is barred by the substantive law from doing the same; the question “is always, simply, whether the agency has stayed within the

bounds of its statutory authority.” City of Arlington,

569 U.S. at 297 (emphasis omitted). The rule that

emerges is this: an agency’s nonenforcement decision

is outside the scope of the Chaney presumption—and is

therefore presumptively reviewable—if it is based solely

on a belief that the agency lacked the lawful authority

to do otherwise. That is, where the agency’s decision

is based not on an exercise of discretion, but instead on

a belief that any alternative choice was foreclosed by

law, the APA’s “committed to agency discretion” bar to

reviewability, 5 U.S.C. § 701(a)(2), does not apply.

This rule is fully consistent with the Supreme Court’s

decision in ICC v. Brotherhood of Locomotive Engineers

(BLE), which rejected the notion that “if the agency gives

a ‘reviewable’ reason for otherwise unreviewable action,

the action becomes reviewable.” 482 U.S. 270, 283

(1987). We have no quarrel with that statement in the

abstract, but as applied it simply begs the question: is

the agency action in question “otherwise unreviewable”?

30a

The BLE case concerned the reviewability of the

Interstate Commerce Commission’s denial of a motion

to reopen proceedings on grounds of material error.

Id. at 280. The Supreme Court held that category of

agency action presumptively unreviewable because it

“perceive[d] . . . a similar tradition of nonreviewability” to the one it had found in Chaney for nonenforcement decisions. Id. at 282. In reaching its holding,

the Court rejected an argument that there was nevertheless “law to apply”—and that therefore the action

was not committed to agency discretion—as the agency’s order had discussed the legal merits at length.

Id. at 280-81. What mattered was that the agency’s

“formal action” was one for which a tradition of nonreviewability was discernable, regardless of how the

agency explained its action.12 Id.

BLE thus stands for the proposition that if a particular type of agency action is presumptively unreviewable, the fact that the agency explains itself in terms

that are judicially cognizable does not change the categorical rule. Fair enough. But the categorical rule

The Court gave as an example a prosecutor’s refusal to institute criminal proceedings based on her “belief . . . that the law

will not sustain a conviction.” BLE, 482 U.S. at 283. Such a belief is not equivalent to a conclusion that the government lacked the

power to institute a prosecution in the first place. For one colorful

example, in Bond v. United States, prosecutors made the “surprising” decision to charge “an amateur attempt by a jilted wife to

injure her husband’s lover” under the federal statute implementing

the international Convention on Chemical Weapons. 134 S. Ct.

2077, 2083-84 (2014). While the Court ultimately interpreted the

statute not to encompass the charged conduct, id. at 2093-94, no

one suggested that the government’s aggressive decision to institute the prosecution was itself ultra vires.

31a

announced in Chaney does not encompass nonenforcement decisions based solely on the agency’s belief that

it lacked power to take a particular course; instead, the

Court explicitly declined to extend its rule to that

situation. Chaney, 470 U.S. at 833 n.4. And in Montana Air, we held that such decisions are reviewable.

898 F.2d at 754. BLE’s statement about “otherwise

unreviewable” agency decisions, 482 U.S. at 283, therefore has no application to the category of agency action

at issue here.

We believe the analysis laid out above follows necessarily from existing doctrine. And, just as importantly,

this approach also promotes values fundamental to the

administrative process.

First, the Montana Air rule does not impermissibly

encroach on executive discretion; to the contrary, it

empowers the Executive. If an agency head is mistaken

in her assessment that the law precludes one course of

action, allowing the courts to disabuse her of that incorrect view of the law does not constrain discretion,

but rather opens new vistas within which discretion can

operate. That is, if an administrator chooses option A

for the sole reason that she believes option B to be

beyond her legal authority, a decision from the courts

putting option B back on the table allows a reasoned,

discretionary policy choice between the two courses of

action. And if the agency’s view of the law is instead

confirmed by the courts, no injury to discretion results

because the status quo is preserved.

Moreover, allowing judicial review under these circumstances serves the critical function of promoting

accountability within the Executive Branch—not accountability to the courts, but democratic accountabil-

32a

ity to the people. Accountability in this sense is fundamental to the legitimacy of the administrative system: although they are “unelected . . . bureaucrats,” City of Arlington, 569 U.S. at 305, the heads of

cabinet-level departments like DHS “are subject to the

exercise of political oversight and share the President’s

accountability to the people.” Freytag v. Comm’r of

Internal Revenue, 501 U.S. 868, 886 (1991). Indeed,

the Constitution’s “Appointments Clause was designed

to ensure public accountability for . . . the making

of a bad appointment . . . .” Edmond v. United

States, 520 U.S. 651, 660 (1997); see also Elena Kagan,

Presidential Administration, 114 Harv. L. Rev. 2245,

2251-52 (2001) (“[A]ccountability” is one of the two

“principal values that all models of administration must

attempt to further.”); 1 Richard J. Pierce, Jr., Administrative Law Treatise 114 (5th ed. 2010) (“Agencies

are politically accountable because the President is accountable for the actions of agencies.”).

This democratic responsiveness is especially critical

for agencies exercising prosecutorial functions because,

as Justice Scalia explained in his oft-cited dissent in

Morrison v. Olson, “[u]nder our system of government,

the primary check against prosecutorial abuse is a

political one.” 487 U.S. 654, 728 (1988) (Scalia, J., dissenting). This check works because “when crimes are

not investigated and prosecuted fairly, nonselectively,

with a reasonable sense of proportion, the President

pays the cost in political damage to his administration.”

Id. at 728-29. In other words, when prosecutorial

functions are exercised in a manner that is within the

law but is nevertheless repugnant to the sensibilities of

the people, “the unfairness will come home to roost in

the Oval Office.” Id. at 729.

33a

But public accountability for agency action can only

be achieved if the electorate knows how to apportion

the praise for good measures and the blame for bad

ones. Without knowing the true source of an objectionable agency action, “the public cannot ‘determine

on whom the blame or the punishment of a pernicious

measure, or series of pernicious measures ought really

to fall.’ ” Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd., 561 U.S. 477, 498 (2010) (quoting The

Federalist No. 70, at 476 (Alexander Hamilton) (Jacob

E. Cooke ed. 1961)).

In then-Professor Kagan’s

words, “the degree to which the public can understand

the sources and levers of bureaucratic action” is “a fundamental precondition of accountability in administration.” Kagan, supra, at 2332.

The Montana Air rule promotes accountability by

ensuring that the public knows where to place blame

for an unpopular measure. When an agency justifies

an action solely with an assertion that the law prohibits

any other course, it shifts responsibility for the outcome from the Executive Branch to Congress (for making the law in question) or the courts (for construing

it). If the Executive is correct in its interpretation of

the law, then the public is correct to blame the other

two branches for any resulting problems. But if the

Executive is wrong, then it avoids democratic accountability for a choice that was the agency’s to make all

along. Allowing the judiciary—the branch ultimately

responsible for interpreting the law, see Marbury,

5 U.S. (1 Cranch) at 177—to review such decisions prevents this anti-democratic and untoward outcome. As

Judge Bates of the District Court for the District of

Columbia aptly put the point in confronting the very

issue we face here, “an official cannot claim that the

34a

law ties her hands while at the same time denying the

courts’ power to unbind her. She may escape political

accountability or judicial review, but not both.”

NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C.

2018).

We therefore must determine whether the Acting

Secretary’s decision to end DACA was based solely on

a belief that the program was unlawful, such that the

Chaney presumption does not apply. 13

Because we take this doctrinal course, we need not decide

whether the rescission of DACA would be reviewable absent the

exception reflected in Montana Air and Chaney’s footnote four.

But we do note several points. First, a literal reading of Chaney’s

language would not even encompass the decision to rescind DACA,

since Chaney by its own terms applies only to “agency decisions

not to undertake enforcement action.” 470 U.S. at 832 (emphasis

added). Nowhere does the opinion suggest the broader proposition that any decision simply related to enforcement should be presumed unreviewable. Our court’s dicta in Morales de Soto v.

Lynch, 824 F.3d 822, 827 n.4 (9th Cir. 2016), which addressed a

completely separate issue of jurisdiction under the INA, is not to

the contrary. Thus, to the extent that the Montana Air exception

might not seem a perfect fit for the rescission of DACA—which was

not exactly a decision not to enforce—the Chaney presumption

itself shares the same defect. There is no daylight between the

Chaney rule and the Montana Air exception in terms of the type of

agency action to which they apply. So if the rescission of DACA

were outside the Montana Air exception by virtue of not being

strictly a nonenforcement decision, it would also fall outside the

Chaney presumption of unreviewability in the first place.

Second, the D.C. Circuit has developed a line of cases explaining that while Chaney bars judicial review of a “single-shot nonenforcement decision,” on the other hand, “an agency’s adoption of a

general enforcement policy is subject to review.” OSG Bulk

Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998)

(quoting Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671,

35a

We take Attorney General Sessions literally at his

word when he wrote to Acting Secretary Duke that

“DACA was effectuated . . . without proper statutory authority,” and that DACA “was an unconstitutional exercise of authority by the Executive Branch.”

These are the reasons he gave for advising Acting Secretary Duke to rescind DACA. We therefore agree

with the district court that the basis for the rescission

was a belief that DACA was unlawful, and that the

discretionary “litigation risk” rationale pressed by the

government now is a mere post-hoc rationalization put

forward for purposes of this litigation. 14 Acting Secretary Duke’s September 5, 2017, rescission memorandum contains exactly one sentence of analysis:

Taking into consideration the Supreme Court’s and

the Fifth Circuit’s rulings in the ongoing litigation,

and the September 4, 2017 letter from the Attorney

674-75 (D.C. Cir. 1994)); see also Kenney v. Glickman, 96 F.3d

1118, 1123 (8th Cir. 1996); Nat’l Treasury Emps. Union v. Horner,

854 F.2d 490, 496-97 (D.C. Cir. 1988).

Thus, every one of the four courts that has considered the question has held that the rescission of DACA is reviewable under the

APA, although each has employed slightly different reasoning for

that conclusion. See NAACP v. Trump, 298 F. Supp. 3d 209,

226-34 (D.D.C. 2018); Casa de Md. v. DHS, 284 F. Supp. 3d 758,

769-70 (D. Md. 2018); Regents of Univ. of Cal. v. DHS, 279 F. Supp.

3d 1011, 1029-31 (N.D. Cal. 2018) (decision below); Batalla Vidal v.

Duke, 295 F. Supp. 3d 127, 147-52 (E.D.N.Y. 2017).

After hundreds of pages of briefing and over an hour of oral

argument, it remains less than clear how “litigation risk” differs

from a substantive belief that DACA is illegal. We take the term to

refer to a concern that DACA would be abruptly enjoined, regardless of whether the program was illegal or not. Of course, such a

concern is not independent of an on-the-merits assessment of

DACA’s legality.

36a

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

program should be terminated.

In the next sentence, the Acting Secretary went on

to announce the rescission itself:

In the exercise of my authority in establishing national immigration policies and priorities, except for

the purposes explicitly identified below, I hereby

rescind the June 15, 2012 memorandum.

The easy rejoinder to the government’s insistence

that the Acting Secretary rescinded DACA due to “litigation risks” is that the Acting Secretary did not mention “litigation risks” as a “consideration.” And both

“consideration[s]” actually enumerated by the Acting

Secretary are most naturally read as supporting a

rationale based on DACA’s illegality. The “ongoing litigation” referenced is of course Texas v. United

States, in which the Fifth Circuit upheld a preliminary

injunction against the related DAPA policy, and the

Supreme Court affirmed by an equally divided vote. 15

See Texas, 136 S. Ct. 2271 (2016); Texas, 809 F.3d 134

(5th Cir. 2015). The “rulings” in that case are propositions of law—taken alone, they are more readily understood as supporting a legal conclusion (DACA is

illegal) than a pragmatic one (DACA might be enjoined). The pragmatic interpretation requires extra

analytical steps (someone might sue to enjoin DACA,

and they might win) that are entirely absent from the

list of factors that the Acting Secretary stated she was

This conclusion is only bolstered by the fact that the government’s production of the “administrative record” in this case includes the entirety of the three published judicial opinions in the

Texas litigation.

37a

“taking into consideration” in making her decision.

Acting Secretary Duke easily could have included “the

prospect of litigation challenging DACA” in her list of

considerations; had she done so, then perhaps the reference to the Texas litigation could be read as supporting

a practical worry about an injunction. 16 Absent that,

however, the mention of the courts’ “rulings” is best read

as referencing the courts’ legal conclusions.

Attorney General Sessions’s September 4, 2017,

letter likewise focuses on the supposed illegality of

DACA, rather than any alleged “litigation risk.” Its

substantive paragraph states

DACA was effectuated . . . without proper statutory authority and with no established end-date,

after Congress’[s] repeated rejection of proposed

legislation that would have accomplished a similar

result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of

authority by the Executive Branch.

(emphases added).

These sentences unmistakably reflect the Attorney

General’s belief that DACA was illegal and therefore

beyond the power of DHS to institute or maintain.

The letter goes on to opine that “[b]ecause the DACA

policy has the same legal and constitutional defects

that the courts recognized as to DAPA [in the Texas liThe Acting Secretary did reference Texas Attorney General

Ken Paxton’s threat to amend the Texas suit to include DACA, but

she did so in the “Background” section of her memorandum. If

anything, the inclusion of the threat in the background portion renders its omission from the list of factors the Acting Secretary was

actually “[t]aking into consideration” all the more stark.

38a

tigation], it is likely that potentially imminent litigation

would yield similar results with respect to DACA.”

But in the context of the full paragraph, the reference

to “similar results” is best read not as an independent

reason for rescinding DACA, but as a natural consequence of DACA’s supposed illegality—which is the

topic of the paragraph as a whole. In the words of

Judge Garaufis of the District Court for the Eastern

District of New York, that reference “is too thin a reed

to bear the weight of Defendants’ ‘litigation risk’ argument.” Batalla Vidal v. Nielsen, 279 F. Supp. 3d

401, 429 (E.D.N.Y. 2018).

In any event, the Attorney General’s letter is relevant only to the extent it illuminates whether Acting

Secretary Duke—the official who actually rescinded

the DACA program—did so as an exercise of her discretion or because she understood her hand to be

forced by the law. In this connection, it is helpful to

compare the operative language used by Acting Secretary Duke to rescind DACA with that used by her predecessor, Secretary John Kelly, to rescind DAPA just

months before. In his June 15, 2017, memorandum,

Secretary Kelly wrote:

After consulting with the Attorney General, and in

the exercise of my discretion in establishing national

immigration enforcement policies and priorities, I

hereby rescind the November 20, 2014 memorandum [that established DAPA].

(emphasis added). Placed alongside Acting Secretary

Duke’s language, the parallels—and the differences—are

stark. Acting Secretary Duke’s memorandum reads:

39a

In the exercise of my authority in establishing national immigration policies and priorities, except for

the purposes explicitly identified below, I hereby

rescind the June 15, 2012 memorandum [that established DACA].

(emphasis added).

The obvious similarities between the two passages

strongly suggest that Acting Secretary Duke modeled

her language after that of Secretary Kelly’s memo.

And indeed, we know that the Acting Secretary considered the Kelly memorandum in reaching her decision, because the government has told us so. See

Petition for Writ of Mandamus, In re United States,

No. 17-72917 (9th Cir. Oct. 20, 2017) (stating that the

government’s proffered administrative record in this

case, which includes the Kelly memorandum, “consist[s] of the non-privileged materials considered by

the Acting Secretary in reaching her decision to rescind the DACA policy”); id. at 18 (taking the position

that only materials personally reviewed by the Acting

Secretary herself, not by subordinates, are “considered” by the Secretary).

Given that Acting Secretary Duke hewed so closely

to Secretary Kelly’s language in general, it is appropriate to draw meaning from the one major difference

between the two sentences: Secretary Kelly exercised his “discretion” in ending DAPA; Acting Secretary Duke merely exercised her “authority.” Cf., e.g.,

Jama v. ICE, 543 U.S. 335, 357 (2005) (“[W]hen the

legislature uses certain language in one part of the

statute and different language in another, the court assumes different meanings were intended.”). The point

is that with the example set by the Kelly memorandum

40a

in front of her, Acting Secretary Duke clearly would have

known how to express that the rescission was a discretionary act—if that were indeed the case.17 Furthermore, the near-verbatim language of the two rescission

memoranda suggests that the Acting Secretary adopted

the majority of Kelly’s wording, but actively rejected

describing the DACA rescission as an act of discretion.

This difference in language cuts strongly against any

suggestion that the rescission was discretionary.

The government counters that the memorandum

“focused from beginning to end principally on litigation

concerns, not the legality of DACA per se.” But as the

State plaintiffs point out, the memorandum’s references to these supposed “litigation concerns” were limited to a simple summary of the Texas litigation’s procedural history; appeared only in the “Background”

section of the memorandum; and were not referenced

in the Acting Secretary’s statement of what she was

“[t]aking into consideration.” See also note 16, supra.

The government also asserts that because the Acting Secretary wrote that DACA “should” rather than

must be ended, she did not view herself as bound to

act. But even on its face, “should” is fully capable of

expressing obligation or necessity. See, e.g., Should,

New Oxford American Dictionary (3d ed. 2010) (“used

to indicate obligation, duty, or correctness”); cf.

Should, Garner’s Dictionary of Legal Usage (3d ed.

2011) (“should . . . is sometimes used to create

Secretary Kelly’s references to the factors he considered,

which included obviously discretionary considerations such as “our

new immigration enforcement priorities,” provided a further model

for how to describe a discretionary decision, which Acting Secretary Duke also chose not to follow.

41a

mandatory standards”). The Acting Secretary’s use

of “should” instead of “must” cannot overcome the

absence of any discussion of potential litigation or the

“risks” attendant to it from the rescission memorandum’s statement of reasons, and the discrepancy between the rescission of DAPA as an act of “discretion”

and the rescission of DACA as an act of “authority.”

Finally, the government takes a quote from the Supreme Court to the effect that courts should “uphold a

decision of less than ideal clarity if the agency’s path

may reasonably be discerned,” Bowman Transp., Inc.

v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974),

and contorts it into an argument that the district

court’s “narrow reading of the Acting Secretary’s rationale is hardly the only one that ‘may reasonably be

discerned’ from the Acting Secretary’s memorandum.”

But Bowman is about finding a reviewable rationale in

an agency’s action versus finding no articulation of that

rationale. Bowman does not say—and it certainly

does not logically follow—that a court must ignore the

most natural reading of an agency’s statement of reasons just because it may also be “reasonably susceptible” to a (less compelling) reading that the government

would prefer. The government is in effect asking the

court to defer to agency counsel’s post-hoc rationalization, as long as there is some reading of the rescission

memorandum—never mind how strained—that would

support it. Bowman does not require this incongruous result.

We agree with the district court that the Acting

Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS.

Under Montana Air and Chaney’s footnote four, this

42a

conclusion brings the rescission within the realm of

agency actions reviewable under the APA. Unless the

INA itself deprives the courts of jurisdiction over this

case, we must proceed to evaluate the merits of plaintiffs’ arbitrary-and-capricious claim.

B. Jurisdiction under the INA

The government contends that the INA stripped the

district court of its jurisdiction in a provision that states:

Except as provided in this section [which sets out

avenues of review not applicable here] . . . no

court shall have jurisdiction to hear any cause or

claim by or on behalf of any alien arising from the

decision or action by the [Secretary of Homeland

Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

8 U.S.C. § 1252(g).

The Supreme Court has explicitly held that this section “applies only to three discrete actions that the

[Secretary] may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’ ” AADC, 525 U.S. at 482 (emphasis in

original). As the Court put it, “[i]t is implausible that

the mention of three discrete events along the road to

deportation 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.” Id.

The government attempts to expand Section 1252(g)

to encompass this case in two ways. First, it points

out that the AADC Court read that provision as Con-

43a

gress’s effort to shield executive decisions not to grant

deferred action from review outside the procedures

prescribed by the INA. The Court quoted a treatise

describing the practice of deferred action and the litigation that would result when the government declined

to grant deferred action: “Efforts to challenge the refusal to exercise such discretion on behalf of specific

aliens sometimes have been favorably considered by the

courts . . . .” Id. at 484-85 (quoting 6 Charles Gordon

et al., Immigration Law and Procedure § 72.03[2][h]

(1998)). Having reviewed these developments, the Court

concluded: “Section 1252(g) seems clearly designed to

give some measure of protection to ‘no deferred action’

decisions and similar discretionary determinations. . . .”

Id. at 485.

The government argues that AADC’s reasoning—

and therefore Section 1252(g)—applies to the rescission of DACA, which is itself in some sense a “no deferred action” decision. It seems quite clear, however,

that AADC reads Section 1252(g) as responding to litigation over individual “no deferred action” decisions,

rather than a programmatic shift like the DACA rescission. For example, the treatise passage AADC

quotes to set the scene for Congress’s action refers explicitly to “[e]fforts to challenge the refusal to exercise

[deferred action] on behalf of specific aliens. . . .”

Id. (emphasis added). And in any case, the holding of

AADC was explicit: “The provision applies only to

[the] three discrete actions” mentioned in the statute.

Id. at 482.

The government’s fallback argument is thus to cast

the rescission of DACA as an initial “action” in the

agency’s “commence[ment] [of ] proceedings.” 8 U.S.C.

44a

§ 1252(g). But AADC specifically rejected a broad

reading of the three discrete actions listed in Section

1252(g). “[D]ecisions to open an investigation, [or] to

surveil the suspected violator” are not included in

Section 1252(g)’s jurisdictional bar, AADC, 525 U.S. at

482, even though these actions are also “part of the

deportation process,” id., and could similarly be construed as incremental steps toward an eventual “commence[ment] [of ] proceedings,” 8 U.S.C. § 1252(g).

Indeed, in a case closely on point, our court rejected

the application of Section 1252(g) and allowed to proceed a challenge to INS guidance narrowly interpreting the terms of a “one-time legalization program” for

undocumented immigrants. See Catholic Soc. Servs.,

Inc. v. INS, 232 F.3d 1139, 1141 (9th Cir. 2000). We

noted that “[a]s interpreted by the Supreme Court in

[AADC], [Section 1252(g)] applies only to the three

specific discretionary actions mentioned in its text, not

to all claims relating in any way to deportation proceedings,” and held that the challenge was not barred.

Id. at 1150. The panel did not appear concerned by the

fact that it was possible to conceptualize that policy

choice by INS as an ingredient in a subsequent decision

to commence proceedings against particular individuals.

The government cites no cases applying the Section

1252(g) bar to a programmatic policy decision about deferred action; the two cases it does cite were challenges

to individual “no deferred action” decisions—that is, they

fall exactly within Section 1252(g) as interpreted by the

Court in AADC. See Vasquez v. Aviles, 639 F. App’x

898 (3d Cir. 2016); Botezatu v. INS, 195 F.3d 311 (7th Cir.

1999). Especially in light of the “ ‘strong presumption

in favor of judicial review of administrative action’ gov-

45a

erning the construction of jurisdiction-stripping provisions of IIRIRA,”18 ANA Int’l, Inc. v. Way, 393 F.3d

886, 891 (9th Cir. 2004) (quoting INS v. St. Cyr, 533

U.S. 289, 298 (2001)), we hold that Section 1252(g) does

not deprive courts of jurisdiction to review the DACA

rescission order. 19

IV.

Having concluded that neither the APA nor the INA

precludes judicial review, we turn to the merits of the

preliminary injunction. The district court held that

plaintiffs satisfied the familiar four-factor preliminary

injunction standard20 with respect to their claim under

the APA that the rescission of DACA was “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” See 5 U.S.C. § 706(2)(A). The

Section 1252(g) is one such provision. See AADC, 525 U.S. at

475 (describing § 1252(g)’s passage as part of IIRIRA).

In its response and reply brief, the government appears to argue that another provision of the INA, 8 U.S.C. § 1252(b)(9), also

stripped the district court of jurisdiction. Although ordinarily an

argument not raised in the opening brief would be waived, this argument is jurisdictional so we must consider it. See, e.g., Embassy

of the Arab Republic of Egypt v. Lasheen, 603 F.3d 1166, 1171 n.3

(9th Cir. 2010) (“[C]hallenges to subject matter jurisdiction cannot

be waived[.]”). But Section 1252(b)(9) does not bar jurisdiction

here, because it “appl[ies] only to those claims seeking judicial review of orders of removal.” Singh v. Gonzales, 499 F.3d 969, 978

(9th Cir. 2007) (citing St. Cyr, 533 U.S. at 313).

“A plaintiff seeking a preliminary injunction must establish

that he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.

7, 20 (2008).

46a

government takes issue with the district court’s conclusion on only one of the preliminary injunction factors:

the likelihood of success on the merits.

In an arbitrary-and-capricious challenge, “[i]t is wellestablished that an agency’s action must be upheld, if

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

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

Mut. Auto. Ins., 463 U.S. 29, 50 (1983); see also, e.g.,

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (Chenery II) (“[A] reviewing court . . . must judge the

propriety of [agency] action solely by the grounds

invoked by the agency.” (citing SEC v. Chenery Corp.,

318 U.S. 80 (1943) (Chenery I)).

Similarly, it is black letter law that where an agency

purports to act solely on the basis that a certain result

is legally required, and that legal premise turns out to

be incorrect, the action must be set aside, regardless of

whether the action could have been justified as an exercise of discretion. That principle goes back at least

as far as the Supreme Court’s seminal decision in

Chenery I, in which the Court stated:

If [agency] action rests upon an administrative

determination—an exercise of judgment in an area

which Congress has entrusted to the agency—of

course it must not be set aside because the reviewing court might have made a different determination

were it empowered to do so. But if the action is

based upon a determination of law as to which the

reviewing authority of the courts does come into

play, an order may not stand if the agency has

misconceived the law.

Chenery I, 318 U.S. at 94 (emphasis added).

47a

This holding of Chenery I remains good law. See, e.g.,

United States v. Ross, 848 F.3d 1129, 1134 (D.C. Cir.

2017) (“Where a statute grants an agency discretion

but the agency erroneously believes it is bound to a

specific decision, we can’t uphold the result as an exercise of the discretion that the agency disavows.”); Safe

Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir.

2007) (setting aside agency action that was justified on

a “legally erroneous” basis, and remanding for further

consideration under other justifications). As the D.C.

Circuit flatly put it, “An agency action, however permissible as an exercise of discretion, cannot be sustained where it is based not on the agency’s own judgment but on an erroneous view of the law.” Sea-Land

Serv., Inc. v. DOT, 137 F.3d 640, 646 (D.C. Cir. 1998)

(internal quotation marks omitted) (quoting Prill v.

NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985)).

Thus, if the DACA rescission was based solely on an

erroneous legal premise, it must be set aside under

5 U.S.C. § 706(2)(A). We have already concluded, in

our discussion of reviewability, that the rescission was

indeed premised on the belief that the DACA program

was unlawful. We next must decide whether that legal

conclusion was correct. 21

Attorney General Sessions’s September 4, 2017,

letter expresses several possible bases for the agency’s

ultimate conclusion that DACA was unlawful. First,

The government does not argue that its conclusion is entitled to

Chevron deference, likely because “[d]eference to an agency’s interpretation of a statute is not appropriate when the agency wrongly

‘believes that interpretation is compelled by Congress.’ ” Gila River

Indian Cmty. v. United States, 729 F.3d 1139, 1149 (9th Cir. 2013)

(quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 798 (D.C. Cir. 2004)).

48a

the Attorney General states that “DACA was effectuated by the previous administration through executive

action . . . after Congress’[s] repeated rejection of

proposed legislation that would have accomplished a

similar result.” But our court has already explained

that “Congress’s failure to pass the [DREAM] Act does

not signal the illegitimacy of the DACA program,”

partly because “the DREAM Act and the DACA program are not interchangeable policies because they

provide different forms of relief ”: the DREAM Act

would have provided a path to lawful permanent resident status, while DACA simply defers removal.

Brewer II, 855 F.3d at 976 n.10; see Motomura, supra,

at 175 (“DACA is not the DREAM Act; as an interim

executive measure, it is limited in duration and provides no durable immigration status.”) (footnote omitted);

see also, e.g., DREAM Act of 2011, S. 952, 112th Cong.

(2011). Moreover, there is nothing inherently problematic about an agency addressing a problem for which

Congress has been unable to pass a legislative fix, so long

as the particular action taken is properly within the

agency’s power. This argument therefore provides no

independent reason to think that DACA is unlawful.

The Attorney General’s primary bases for concluding that DACA was illegal were that the program was

“effectuated . . . without proper statutory authority”

and that it amounted to “an unconstitutional exercise of

authority.” More specifically, the Attorney General

asserted that “the DACA policy has the same legal and

constitutional defects that the courts recognized as to

DAPA” in the Texas litigation.

The claim of “constitutional defects” is a puzzling

one because as all the parties recognize, no court has

49a

ever held that DAPA is unconstitutional. The Fifth

Circuit and district court in Texas explicitly declined to

address the constitutional issue. See Texas, 809 F.3d

at 154 (“We decide this appeal . . . without resolving the constitutional claim.”); Texas, 86 F. Supp. 3d at

677 (“[T]he Court is specifically not addressing Plaintiffs’ likelihood of success on . . . their constitutional claims . . . .”). Indeed, the government makes

no attempt in this appeal to defend the Attorney General’s assertion that the DACA program is unconstitutional. We therefore do not address it further.

With respect to DACA’s alleged “legal . . . defects,” the district court explained in great detail the

long history of deferred action in immigration enforcement, including in the form of broad programs; the fact

that the Supreme Court and Congress have both acknowledged deferred action as a feature of the immigration system; and the specific statutory responsibility of the Secretary of Homeland Security for “[e]stablishing national immigration enforcement policies

and priorities,” 6 U.S.C. § 202(5). The government

does not contest any of these propositions, which themselves go a long way toward establishing DACA’s legality. Instead, the government argues that the Fifth

Circuit’s reasons for striking down the related DAPA

policy would also apply to DACA.

The Fifth Circuit concluded that DAPA was unlawful on two grounds: first, that DAPA was in fact a

legislative rule and therefore should have been promulgated through notice-and-comment rulemaking; and

second, that DAPA was substantively inconsistent with

the INA. See Texas, 809 F.3d at 171-78, 178-86.

50a

With respect to the first holding, notice-and-comment

procedures are not required where the agency pronouncement in question is a “general statement[] of

policy.” 5 U.S.C. § 553(b)(3)(A). “The critical factor

to determine whether a directive announcing a new policy constitutes a rule or a general statement of policy is

the extent to which the challenged [directive] leaves

the agency, or its implementing official, free to exercise

discretion to follow, or not to follow, the [announced]

policy in an individual case.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987) (alterations in

original) (internal quotation marks omitted).

On its face, DACA obviously allows (and indeed requires) DHS officials to exercise discretion in making

deferred action decisions as to individual cases: Secretary Napolitano’s memorandum announcing DACA

specifically states that “requests for relief pursuant to

this memorandum are to be decided on a case by case

basis.” The Fifth Circuit in Texas held that DAPA

was a substantive rule notwithstanding similar discretionary language, based primarily on statistics regarding the approval rates of DACA applications. The

court read those statistics as revealing that DACA was

discretionary in name only—that is, that DHS personnel had no discretion to deny deferred action if the

DACA criteria were met. Texas, 809 F.3d at 172-73.

But as the dissenting judge in Texas pointed out,

DACA’s (then) 5% denial rate—which did not include

applications rejected for administrative deficiencies—is

consistent with a discretionary program given that applicants self-select: “It should be expected that only

those highly likely to receive deferred action will apply;

otherwise, applicants would risk revealing their immigra-

51a

tion status and other identifying information to authorities, thereby risking removal (and the loss of a sizeable fee).” Texas, 809 F.3d at 210 (King, J., dissenting).

Moreover, the denial rate has risen as the DACA

program has matured. DHS statistics included in the

record reveal that in fiscal year 2016, for example, the

agency approved 52,882 initial DACA applications and

denied 11,445; that is, 17.8% of the applications acted

upon were denied.22 As Judge King concluded, “Neither of these numbers suggests an agency on autopilot.” Texas, 809 F.3d at 210 n.44 (King, J., dissenting); see also Arpaio v. Obama, 27 F. Supp. 3d 185, 209

n.13 (D.D.C. 2014) (noting that these same statistics

“reflect that . . . case-by-case review is in operation”).23 In light of these differences, we do not agree

that DACA is a legislative rule that would require

notice-and-comment rulemaking.

As to the substantive holding in Texas, the Fifth

Circuit concluded that DAPA conflicted with the INA

largely for a reason that is inapplicable to DACA.

U.S. Citizenship & Immigration Services, Number of Form

I-821D, Consideration of Deferred Action for Childhood Arrivals,

by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal

Year 2012-2017 (March 31, 2017). The number of initial applications is the relevant metric because renewal applications are by

definition limited to the pool of those already approved for DACA

at least once. Therefore, one would expect an even lower denial

rate for renewals.

Judge King’s dissent also makes the critical observation that,

according to the declarations filed in that case, the reason DHS

could not point to specific instances in which DACA applicants met

the program criteria but were denied as a matter of discretion was

that DHS did not have the ability to track and sort the reasons for

DACA denials. Texas, 809 F.3d at 211 (King, J., dissenting).

52a

Specifically, the Fifth Circuit reasoned that the INA

provides “an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status” but that “DAPA would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration

status without complying with any of the requirements

. . . that Congress has deliberately imposed.” Texas,

809 F.3d at 179-80. As the district court in this case

noted, there is no analogous provision in the INA defining how immigration status may be derived by undocumented persons who arrived in the United States as

children. One of the major problems the Fifth Circuit

identified with DAPA is therefore not present here.

In resisting this conclusion, the government flips the

Fifth Circuit’s reasoning on its head, arguing that

“[i]nsofar as the creation of pathways to lawful presence was relevant, the fact that Congress had legislated

only for certain individuals similarly situated to DAPA

beneficiaries—and not DACA recipients—would make

DACA more inconsistent with the INA than DAPA.”

To the extent the government meant to draw on the

Texas court’s analysis, it gets it exactly backwards:

the whole thrust of the Fifth Circuit’s reasoning on this

point was that DHS was without authority because

“Congress has ‘directly addressed the precise question

at issue.’ ” Texas, 809 F.3d at 186 (quoting Mayo

Found. for Med. Educ. & Research v. United States,

562 U.S. 44, 52 (2011)). There is no argument that

Congress has similarly occupied the field with respect

to DACA; as the Attorney General himself noted, Congress has repeatedly rejected Dreamer legislation.

53a

The second major element of the Fifth Circuit’s

analysis on the substantive issues was that the INA

itself “prescribes . . . which classes of aliens can

achieve deferred action and eligibility for work authorization.” Texas, 809 F.3d at 186. The court drew the

implication that the statute must therefore preclude the

Executive Branch from granting these benefits to other

classes. Id. (pairing this notion with the pathway-tolawful-presence argument as the keys to its conclusion).

But “[t]he force of any negative implication . . .

depends on context.” Marx v. Gen. Revenue Corp.,

568 U.S. 371, 381 (2013). Indeed, “[w]e do not read the

enumeration of one case to exclude another unless it is

fair to suppose that Congress considered the unnamed

possibility and meant to say no to it.” Barnhart v.

Peabody Coal Co., 537 U.S. 149, 168 (2003). Here, the

express grants of deferred action cited by the Fifth

Circuit were not passed together as part of the original

INA; rather, they were added to the statute books

piecemeal over time by Congress. See Violence Against

Women Act of 2000, Pub. L. No. 106-386, div. B,

sec. 1503, § 1154(a)(1)(D)(i), 114 Stat. 1491 (codified at

8 U.S.C. § 1154(a)(1)(D)(i)) (specifying deferred action

for certain VAWA self-petitioners); USA PATRIOT

Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272,

361 (same, for family members of lawful permanent residents killed by terrorism); National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136,

§ 1703(c)-(d), 117 Stat. 1392, 1694-95 (same, for relatives of noncitizens killed in combat and posthumously

granted citizenship).

Given this context, we find it improbable that Congress “considered the . . . possibility” of all other

54a

potential uses for deferred action “and meant to say

no” to any other application of that tool by the immigration agency. Barnhart, 537 U.S. at 168. We think

the much more reasonable conclusion is that in passing

its seriatim pieces of legislation, instructing that this

and that “narrow class[]” of noncitizens should be eligible for deferred action, Texas, 809 F.3d at 179, Congress meant to say nothing at all about the underlying

power of the Executive Branch to grant the same remedy

to others. We do not read an “and no one else” clause

into each of Congress’s individual express grants of

deferred action.

Another element in the Fifth Circuit’s analysis was

that “DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and ‘we must be

guided to a degree by common sense as to the manner

in which Congress is likely to delegate a policy decision

of such economic and political magnitude to an administrative agency.’ ” Id. at 181 (quoting FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).

DACA, on the other hand, had 689,800 enrollees as of

September 2017. The government asserts that this

difference in size is “legally immaterial,” but that response is unconvincing. If the point is that the “economic and political magnitude” of allowing 4.3 million

people to remain in the country and obtain work authorization is such that Congress would have spoken to

it directly, then surely it makes a difference that one

policy has less than one-sixth the “magnitude” of the

other. Id. As the district court laconically put it,

“there is a difference between 4.3 million and 689,800.”

55a

Finally, the government finds “an insurmountable

obstacle to plaintiffs’ position” in that “the district

court’s injunction affirmed by the Fifth Circuit covered

both DAPA and expanded DACA.” It is true that the

Texas court also enjoined the expansions of DACA that

were announced in the same memorandum as the

DAPA program. See Texas, 809 F.3d at 147 n.11 (“The

district court enjoined implementation of the following

three DACA expansions, and they are included in the

term ‘DAPA’ in this opinion . . . .”). But no analysis

was devoted to those provisions by either the Fifth

Circuit or the Texas district court, and one of the keys

to the Fifth Circuit’s reasoning—that Congress had

supposedly occupied the field with respect to obtaining

immigration benefits through one’s children—does not

apply to either the original DACA program or its expansions. Under these circumstances, we do not find

the Texas courts’ treatment of the DACA expansions to

be strong persuasive authority, much less an “insurmountable obstacle.” Cf. Bryan A. Garner et al., The

Law of Judicial Precedent 170 (2016) (“An authority

derives its persuasive power from its ability to convince

others to go along with it.”).

In sum, the reality is (and always has been) that the

executive agencies charged with immigration enforcement do not have the resources required to deport

every single person present in this country without

authorization. Compare Bernsen Memorandum, supra,

at 1 (stating, in 1976, that “[t]here simply are not

enough resources to enforce all of the rules and regulations presently on the books”), with Memorandum from

John Morton, Assistant Secretary, DHS, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, at 1 (June 30,

56a

2010) (estimating that ICE has enough resources to

deport only 4% of the undocumented population in any

given year, and concluding that “ICE must prioritize

the use of its . . . removal resources to ensure the

removals the agency does conduct promote the agency’s highest enforcement priorities”) and Motomura,

supra, at 26 (“The letter of the law creates a large removable population, but whether an individual is actually targeted for removal has long depended on government discretion and bad luck.” (footnote omitted)).

Recognizing this state of affairs, Congress has explicitly charged the Secretary of Homeland Security with

“[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5).

It is therefore no surprise that deferred action has

been a feature of our immigration system—albeit one

of executive invention—for decades; has been employed

categorically on numerous occasions; and has been recognized as a practical reality by both Congress and the

courts. See, e.g., Brewer II, 855 F.3d at 967 (“[I]t is

well settled that the Secretary [of Homeland Security]

can exercise deferred action” as part of her statutory

authority “to administer and enforce all laws relating to

immigration and naturalization.”). In a world where

the government can remove only a small percentage of

the undocumented noncitizens present in this country

in any year, deferred action programs like DACA enable DHS to devote much-needed resources to enforcement priorities such as threats to national security,

rather than blameless and economically productive young

people with clean criminal records.

We therefore conclude that DACA was a permissible exercise of executive discretion, notwithstanding

57a

the Fifth Circuit’s conclusion that the related DAPA

program exceeded DHS’s statutory authority. DACA

is being implemented in a manner that reflects discretionary, case-by-case review, and at least one of the

Fifth Circuit’s key rationales in striking down DAPA is

inapplicable with respect to DACA. With respect for

our sister circuit, we find the analysis that seemingly

compelled the result in Texas entirely inapposite. And

because the Acting Secretary was therefore incorrect in

her belief that DACA was illegal and had to be rescinded,

plaintiffs are likely to succeed in demonstrating that the

rescission must be set aside. Chenery I, 318 U.S. at 94;

Safe Air for Everyone, 488 F.3d at 1101-02.

To be clear: we do not hold that DACA could not

be rescinded as an exercise of Executive Branch discretion. We hold only that here, where the Executive

did not make a discretionary choice to end DACA—but

rather acted based on an erroneous view of what the

law required—the rescission was arbitrary and capricious under settled law. The government is, as always,

free to reexamine its policy choices, so long as doing so

does not violate an injunction or any freestanding statutory or constitutional protection. 24

The government has submitted a letter pursuant to Federal

Rule of Appellate Procedure 28( j), informing us that the current

Secretary of Homeland Security, Kirstjen Nielsen, issued a new

memorandum regarding the DACA rescission on June 22, 2018.

In the memorandum, Secretary Nielsen “provide[d] additional explanation of the basis for the DACA rescission,” in response to an

order filed in a parallel lawsuit. The government’s letter does not

argue that the Nielsen memorandum represents fresh agency action that could possibly moot this appeal. We therefore leave it to

the district court in the first instance to determine the admissibility

of Secretary Nielsen’s letter given that it cannot possibly be a part

58a

Having concluded that the district court was correct

in its APA merits holding, we now turn to the question

of the appropriate remedy. The district court preliminarily enjoined the rescission of DACA with respect to

existing beneficiaries on a nationwide basis. The government asserts that this was error, and that a proper

injunction would be narrower.

The general rule regarding the scope of preliminary

injunctive relief is that it “should be no more burdensome

to the defendant than necessary to provide complete

relief to the plaintiffs before the court.” L.A. Haven

Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir.

2011) (internal citation omitted). But “[t]here is no

general requirement that an injunction affect only the

parties in the suit.” Bresgal v. Brock, 843 F.2d 1163,

1169 (9th Cir. 1987); see also id. at 1170-71 (“[A]n injunction is not necessarily made overbroad by extending

benefit or protection to persons other than prevailing

parties in the lawsuit—even if it is not a class action—if

such breadth is necessary to give prevailing parties the

relief to which they are entitled.”) (emphasis in original).

It is also important to note that the claim underlying

the injunction here is an arbitrary-and-capricious challenge under the APA. In this context, “[w]hen a reviewing court determines that agency regulations are unlawof the administrative record in this case, and its impact, if any, on

this case. And to the extent the Nielsen memorandum is offered as

an additional justification of the original DACA rescission, we do not

consider it in our review of Acting Secretary Duke’s decision because

it is well-settled that “we will not allow the agency to supply post-hoc

rationalizations for its actions . . . .” San Luis & Delta-Mendota

Water Auth. v. Jewell, 747 F.3d 581, 603 (9th Cir. 2014).

59a

ful, the ordinary result is that the rules are vacated—

not that their application to the individual petitioners is

proscribed.” Nat’l Mining Ass’n v. U.S. Army Corps

of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (internal

citation omitted). As Justice Blackmun explained while

“writing in dissent but apparently expressing the view

of all nine Justices on this question,” id.:

The Administrative Procedure Act permits suit to

be brought by any person “adversely affected or aggrieved by agency action.” In some cases the

“agency action” will consist of a rule of broad applicability; and if the plaintiff prevails, the result is

that the rule is invalidated, not simply that the court

forbids its application to a particular individual.

Under these circumstances a single plaintiff, so long

as he is injured by the rule, may obtain “programmatic” relief that affects the rights of parties not

before the court.

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 913 (1990)

(Blackmun, J., dissenting) (citation omitted).

A final principle is also relevant: the need for uniformity in immigration policy. See Hawaii v. Trump,

878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds,

138 S. Ct. 2392 (2018) (“Because this case implicates

immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”).

As the Fifth Circuit stated when it affirmed the nationwide injunction against DAPA, “the Constitution

requires an uniform Rule of Naturalization; Congress

has instructed that the immigration laws of the United

States should be enforced vigorously and uniformly;

and the Supreme Court has described immigration policy

as a comprehensive and unified system.” Texas,

60a

809 F.3d at 187-88 (emphases in original) (citations and

internal quotation marks omitted). Allowing uneven

application of nationwide immigration policy flies in the

face of these requirements.

In its briefing, the government fails to explain how

the district court could have crafted a narrower injunction that would provide complete relief to the plaintiffs,

including the entity plaintiffs. Cf. Washington v.

Trump, 847 F.3d 1151, 1167 (9th Cir. 2017) (“[T]he

Government has not proposed a workable alternative

form of the TRO . . . that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders.”). Nor

does it provide compelling reasons to deviate from the

normal rule in APA cases, or to disregard the need for

uniformity in national immigration policy. The one

argument it does offer on this latter point—that “[d]eferred action is itself a departure from vigorous and

uniform enforcement of the immigration laws,” and that

“enjoining the rescission of DACA on a nationwide basis

. . . increases rather than lessens that departure”

—is a red herring. DACA is national immigration

policy, and an injunction that applies that policy to

some individuals while rescinding it as to others is

inimical to the principle of uniformity.

We therefore conclude that the district court did not

abuse its discretion in issuing a nationwide injunction.

Such relief is commonplace in APA cases, promotes uniformity in immigration enforcement, and is necessary to

provide the plaintiffs here with complete redress.

61a

VI.

We turn next to the district court’s treatment of the

government’s motion to dismiss for failure to state a

claim. The government moved to dismiss all of plaintiffs’ claims; the district court dismissed some claims

and denied the government’s motion as to others. We

take each claim in turn.25

A. APA:

Arbitrary-and-Capricious

For the reasons stated above in discussing plaintiffs’

likelihood of success on the merits, the district court

was correct to deny the government’s motion to dismiss

plaintiffs’ claim that the DACA rescission was arbitrary

and capricious under the APA. See 5 U.S.C. § 706(2)(A).

B. APA:

Notice-and-Comment

Plaintiffs also assert that the rescission of DACA is

in fact a substantive rule under the APA, and that it

therefore could not be validly accomplished without

notice-and-comment procedures.

As touched on above with respect to DACA itself, an

agency pronouncement is excluded from the APA’s

requirement of notice-and-comment procedures if it

constitutes a “general statement[] of policy.” 5 U.S.C.

§ 553(b)(3)(A). General statements of policy are those

that “advise the public prospectively of the manner in

which the agency proposes to exercise a discretionary

power.” Mada-Luna, 813 F.2d at 1012-13 (quoting

Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947)). “To qualify as a general

statement of policy . . . a directive must not estabPlaintiffs do not challenge the district court’s dismissal of their

equitable estoppel claim.

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lish a binding norm and must leave agency officials free

to consider the individual facts in the various cases that

arise and to exercise discretion.” Id. at 1015 (internal

quotation marks omitted); see also id. at 1013 (“The

critical factor to determine whether a directive announcing a new policy constitutes a rule or a general statement

of policy is the extent to which the challenged [directive]

leaves the agency, or its implementing official, free to

exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” (alterations in

original) (internal quotation marks omitted)).

The district court held that because DACA itself was a

general statement of policy that did not require notice

and comment, it could also be rescinded without those

procedures. This proposition finds support in MadaLuna, in which “we conclude[d] that [a deferred-action

Operating Instruction] constituted a general statement

of policy, and thus could be validly repealed and superseded without notice-and-comment proceedings.” Id.

at 1017. Plaintiffs contest this conclusion, arguing

that the DACA rescission was a binding rule, even

though DACA’s adoption was a general statement of

policy. They provide two bases for this assertion.

First, plaintiffs argue that the rescission is binding

because it requires DHS officials to reject new DACA

applications and (after a certain date) renewal applications. It is true that Acting Secretary Duke’s rescission memorandum makes rejections of DACA applications mandatory. But the relevant question under the

rescission memorandum is not whether DHS officials

retained discretion to accept applications for a program

that no longer existed; instead, the question is whether

DHS officials retained discretion to grant deferred

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action and collateral benefits outside of the (nowcancelled) DACA program.

For its part, the government asserts that the rescission memorandum made clear that, despite the rescission, “future deferred action requests will be ‘adjudicat[ed] . . . on an individual, case-by-case basis.’ ”

Mildly put, this assertion mischaracterizes the memorandum. The quoted language refers to the treatment

of only (a) initial applications pending on the date of the

rescission, and (b) renewal applications filed within the

one-month wind-down period. It does not refer to

how future requests for deferred action outside the

DACA program would be handled. Still, the rescission memorandum also did not forbid the agency from

granting such requests, and it acknowledged the background principle of deferred action as “an act of prosecutorial discretion meant to be applied only on an

individualized case-by-case basis.” And the memorandum closed by stating that “no limitations are placed by

this guidance on the otherwise lawful enforcement or

litigation prerogatives of DHS”—presumably including

granting deferred action on a case-by-case basis to

some people who would have been eligible for DACA.

If allowed to go into effect, the rescission of DACA

would undoubtedly result in the loss of deferred action

for the vast majority of the 689,800 people who rely on

the program. But the rescission memorandum does

not mandate that result because it leaves in place the

background principle that deferred action is available

on a case-by-case basis. 26 Plaintiffs’ primary arguThe Regents argue that “the agency’s discretion to grant deferred action on the basis of the DACA criteria has been eliminated.”

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ment against this conclusion is a citation to United States

ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa.

1977), which is said to be “the only other decision to

address an Executive Branch decision to terminate a

deferred-action program without undergoing notice-andcomment rulemaking.” But as the district court noted,

the key factor in that case was the contention that under the policy at issue, “ ‘discretion’ was exercised favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in each such case.”

Parco, 426 F. Supp. at 984. DACA, by contrast, explicitly contemplated case-by-case discretion, and its rescission appears to have left in place background principles of prosecutorial discretion.

Plaintiffs also argue that the DACA rescission is not

a general policy statement because it is binding as a

legal interpretation that a DACA-like program would

be illegal. But again, this argument answers the wrong

question. The Acting Secretary’s legal conclusion that

a DACA-like program is unlawful does not constrain

the discretion of line-level DHS employees to grant

deferred action on a case-by-case basis, and those employees lack authority to institute such an agency-wide

program in the first place. And plaintiffs do not point

to any reason why this Acting Secretary’s legal conclusion about DACA would bind subsequent Secretaries if

they were to disagree with its reasoning—just as ActThis is not quite right either. DHS’s authority to grant deferred

action under the DACA program has been eliminated, but the

DACA criteria themselves are some of those that have traditionally

guided immigration enforcement discretion. See Wadhia, supra,

at 57 (“DHS used traditional humanitarian factors to outline the

parameters for the DACA program, such as tender age and longtime residence in the United States.”).

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ing Secretary Duke reversed course from previous Secretaries who concluded DACA was legal. This is not a

“new ‘binding rule of substantive law,’ ” Mada-Luna,

813 F.2d at 1014, affecting the rights of the people and

entities regulated by the agency; it is an interpretation

of the agency’s own power, and plaintiffs do not explain

why it should be read as binding future DHS Secretaries. The district court correctly dismissed plaintiffs’

notice-and-comment claims.

C. Due Process:

Deferred Action

The Garcia plaintiffs—individual DACA recipients

—have brought a substantive due process claim alleging that the rescission deprived them of protected interests in their DACA designation, including the renewal of their benefits. The district court dismissed

this claim, holding that there is no protected entitlement in either the initial grant of deferred action under

DACA or the renewal of benefits for existing DACA

enrollees. On appeal, the Garcia plaintiffs challenge

this ruling only as it applies to the renewal of DACA

benefits, not as to the initial grant.

“A threshold requirement to a substantive or procedural due process claim is the plaintiff ’s showing of a

liberty or property interest protected by the Constitution.” Wedges/Ledges of Cal., Inc. v. City of Phoenix,

24 F.3d 56, 62 (9th Cir. 1994). It is possible to have a

property interest in a government benefit, but “a person clearly must have more than an abstract need or

desire for [the benefit]. He must have more than a

unilateral expectation of it. He must, instead, have a

legitimate claim of entitlement to it.” Bd. Of Regents

of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Although “a benefit is not a protected entitlement if gov-

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ernment officials may grant or deny it in their discretion,” Town of Castle Rock v. Gonzales, 545 U.S. 748,

756 (2005), a legitimate claim of entitlement may exist

where there are “rules or mutually explicit understandings that support [a plaintiff ’s] claim of entitlement to the

benefit . . . .” Perry v. Sindermann, 408 U.S. 593, 601

(1972); see also, e.g., Gerhart v. Lake Cty., 637 F.3d

1013, 1020 (9th Cir. 2011). The dispute here focuses

on whether such “mutually explicit understandings”

existed between the government and DACA recipients

with respect to the renewal of DACA benefits.

The Garcia plaintiffs assert that they and the government “ ‘mutually’ understood that DACA recipients

would be able to renew their benefits and protection on

an ongoing basis so long as they fulfilled the program’s

criteria.” But this argument is undercut by the DACA

FAQs published by DHS, which explicitly state that

“USCIS retains the ultimate discretion to determine

whether deferred action is appropriate in any given case

even if the [renewal] guidelines are met.” The FAQs

also state that any individual’s “deferred action may be

terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion,” and Secretary

Napolitano’s DACA memorandum claims that it “confers

no substantive right, immigration status or pathway to

citizenship.” Whether or not these provisions are legally

operative, they do not indicate that the government

shared plaintiffs’ expectation of presumptive renewal.

Attempting to overcome this facially discretionary

language, plaintiffs emphasize several factors. First,

they say, the very nature of the DACA project was

such that presumptive renewal was required to encourage people to participate; a two-year term with no

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presumption of renewal would not have been attractive

enough to outweigh the risks to the applicants. Moreover, Secretary Napolitano’s DACA memorandum itself states that grants of deferred action under DACA

will be “subject to renewal,” and the actual criteria for

renewal were “nondiscretionary” in nature.27 Finally,

the plaintiffs point to a more than 99% approval rate

for adjudicated DACA renewal applications. This, they

assert, is powerful evidence of a mutual understanding

of presumptive renewal.

All these points might have revealed a question of

fact as to whether a mutually explicit understanding of

presumptive renewal existed—thereby avoiding dismissal on the pleadings—if plaintiffs were bringing a

claim that, for example, their individual DACA renewals were denied for no good reason. But it is hard to

see how an expectation of renewal within the confines

of the existing DACA policy could have created a mutually explicit understanding that the DACA program

itself would not be terminated wholesale. That is, a

99% renewal rate under DACA provides no evidence

that the government shared an understanding that the

DACA program would continue existing indefinitely to

provide such renewals. None of plaintiffs’ cited authorities appear to address this kind of claim.

DHS’s DACA FAQs state that “[y]ou may be considered for

renewal of DACA if you met the guidelines for consideration of Initial DACA (see above) AND you: [1] Did not depart the United

States on or after Aug. 15, 2012, without advance parole; [2] Have

continuously resided in the United States since you submitted your

most recent request for DACA that was approved up to the present

time; and [3] Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise

pose a threat to national security or public safety.”

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While we may agree with much of what plaintiffs say

about the cruelty of ending a program upon which so

many have come to rely, we do not believe they have

plausibly alleged a “mutually explicit understanding”

that DACA—created by executive action in a politically

polarized policy area and explicitly couched in discretionary language—would exist indefinitely, including through

a change in presidential administrations. See Gerhart,

637 F.3d at 1020 (“A person’s belief of entitlement to a

government benefit, no matter how sincerely or reasonably held, does not create a property right if that belief is

not mutually held by the government.”). On that basis,

we affirm the district court’s dismissal.

D. Due Process:

Information-Sharing

Several of the complaints allege a different due process theory: DACA recipients had a protected interest based on the government’s representations that the

personal information they submitted with their applications would not be used for enforcement purposes,

and the government violated this interest by changing

its policy to allow such use. The district court held

that the plaintiffs had plausibly alleged facts that state

a claim under this theory.

As with their other due process claim, the question

whether DACA recipients enjoy a protected due process

right protecting them from having the government use

their information against them for enforcement purposes

turns on the existence of a “mutually explicit understanding[]” on that point between the government and

DACA recipients. Perry, 408 U.S. at 601; see also Gerhart, 637 F.3d at 1020. The DACA FAQs published by

DHS state the following information-use policy:

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Information provided in this request is protected

from disclosure to ICE and CBP for the purpose of

immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance

(www.uscis.gov/NTA). Individuals whose cases are

deferred pursuant to DACA will not be referred to

ICE. The information may be shared with national

security and law enforcement agencies, including

ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA,

to identify or prevent fraudulent claims, for national

security purposes, or for the investigation or prosecution of a criminal offense. The above information

sharing policy covers family members and guardians, in addition to the requestor. This policy, which

may be modified, superseded, or rescinded at any time

without notice, is not intended to, does not, and may

not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any

party in any administrative, civil, or criminal matter.

(emphasis added). The statement that applicant information “is protected from disclosure” to the enforcement arms of DHS is a strong commitment, and plaintiffs plausibly allege that DACA recipients reasonably

relied on it.

The government of course points to the express caveat that the information-sharing policy “may be modified, superseded or rescinded at any time.” But as the

district court held, this qualifier is ambiguous as to

whether it allows the government to change its policy

only prospectively, or also with respect to information

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already received—and this ambiguity presents a fact

question not amenable to resolution on the pleadings.

Plaintiffs’ interpretation that a policy change would only

apply prospectively is a plausible one, given that the policy is written in terms of what will happen to “[i]nformation provided in this request,” rather than DACAderived information generally. (emphasis added). It is

at least reasonable to think that a change in the policy

would apply only to those applications submitted after

that change takes effect. And while the government

also relies on the language stating that the policy does

not create enforceable rights, such a disclaimer by an

agency about what its statements do and do not constitute as a legal matter are not dispositive. See, e.g.,

Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022-23

(D.C. Cir. 2000) (declining to give legal effect to agency

statement that its guidance did “not represent final

Agency action, and cannot be relied upon to create any

rights . . . .”). Plaintiffs have plausibly alleged a mutually explicit understanding that DACA applicants’ information would be protected from disclosure.

The government argues in the alternative that plaintiffs have failed to plausibly allege that DHS actually

changed its policy. Plaintiffs’ allegations rest on a set of

FAQs about the DACA rescission that DHS published

the same day it issued the rescission memorandum, September 5, 2017. In those rescission FAQs, the previous

language stating that personal information “is protected

from disclosure” has been replaced with the following:

Information provided to USCIS in DACA requests

will not be proactively provided to ICE and CBP for

the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the

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issuance of a Notice to Appear or a referral to ICE

under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA).

(emphasis added).

The government’s first response—that the differing

language in the two FAQs does not actually reflect a

difference in policy—is hard to swallow. It does not

take much parsing of the text to see the significant difference between “protect[ing]” something from “disclosure” on the one hand, and merely declining to “proactively provide[]” it on the other. This is especially so

when the entities in question (and to which USCIS presumably would now provide information reactively) are

fellow components of the same umbrella agency.

Changing gears, the government also points to yet a

third set of FAQs, published months after the rescission and not part of the record in this case, which state:

Information provided to USCIS for the DACA process will not make you an immigration priority for

that reason alone. That information will only be

proactively provided to ICE or CBP if the requestor

meets the criteria for the issuance of a Notice To

Appear or a referral to ICE under the criteria set

forth in USCIS’ Notice to Appear guidance (www.

uscis.gov/NTA). This information-sharing policy

has not changed in any way since it was first announced, including as a result of the Sept. 5, 2017

memo starting a wind-down of the DACA policy.

USCIS, Guidance on Rejected DACA Requests: Frequently Asked Questions (Nov. 30, 2017) (emphases

added). The government notes that a district court

relied on FAQs containing this language in parallel litiga-

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tion to dismiss a nearly identical information-use due process claim. See Batalla Vidal v. Nielsen, 291 F. Supp.

3d 260, 279-81 (E.D.N.Y. 2018).

But this case is critically different because in Batalla

Vidal the plaintiffs had attached the new version of the

FAQs to their complaint. As the court there explained,

“Plaintiffs . . . have effectively pleaded themselves

out of court by relying on a document that contradicts

their otherwise-unsupported allegation of a change to

DHS’s information-use policy.” Id. at 280. By contrast, here the most recent FAQs were not attached to

or referenced in any of the complaints—indeed, they

postdate the filing of the complaints. Therefore, the

normal rule applies: materials outside the complaint

cannot be considered on a motion to dismiss. See United

States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

Even if it could be considered, this newest FAQ

would not conclusively resolve the question of fact surrounding DHS’s current information-sharing policy because it still contains the language that suggests a change

from the pre-rescission policy. See USCIS, Guidance,

supra (“[I]nformation will only be proactively provided

to ICE or CBP if the requestor meets the criteria

for the issuance of a Notice To Appear[.]”) (emphasis

added).28 Plaintiffs have plausibly alleged that DHS

has changed its policy.

Astonishingly, this sentence—which appears to represent a

change from the prior policy of affirmatively protecting information

from disclosure—is immediately adjacent to DHS’s assurance that

nothing has changed. Cf. George Orwell, Nineteen Eighty-Four

(1949), at 175 (“Oceania was at war with Eastasia: Oceania had always been at war with Eastasia.”).

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Finally, in order to state a substantive due process

claim, plaintiffs must allege conduct that “shock[s] the

conscience and offend[s] the community’s sense of fair

play and decency.” Sylvia Landfield Tr. v. City of L.A.,

729 F.3d 1189, 1195 (9th Cir. 2013) (quoting March v.

Cty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012)).

The government makes a passing argument that this

standard is not satisfied because the information-sharing

policy has always contained some exceptions, but as the

Garcia plaintiffs put it, “[a]pplicants accepted those

limited, acknowledged risks when they applied for

DACA. They did not accept the risk that the government would abandon the other assurances that were

‘crucial’ to ‘inducing them to apply for DACA.’ ” (alterations incorporated). We agree. Cf. Raley v. Ohio,

360 U.S. 423, 437-39 (1959) (holding that “convicting a

citizen for exercising a privilege which the State had

clearly told him was available to him” was “the most

indefensible sort of entrapment by the State” and violated due process); Cox v. Louisiana, 379 U.S. 559,

568-71 (1965) (due process violation where defendant

was convicted for leading a demonstration in a location

where the police chief had given him permission to do so).

Plaintiffs have stated a due process claim based on the

alleged change in DHS’s information-sharing policy.

E. Equal Protection

The district court also held that plaintiffs stated a

viable equal protection claim by plausibly alleging that

the DACA rescission disproportionately affected Latinos and individuals of Mexican descent and was motivated by discriminatory animus. See Arce v. Douglas,

793 F.3d 968, 977 (9th Cir. 2015) (holding a facially neutral action unconstitutional where “its enactment or the

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manner in which it was enforced were motivated by a

discriminatory purpose,” and reviewing the Arlington

Heights factors for assessing discriminatory purpose)

(citing Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 265-66 (1977)).

Because the district court denied the government’s

motion to dismiss plaintiffs’ equal protection claim at

the pleading stage, we take all of the complaints’ allegations as true, Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009), and construe them in the light most favorable to

the plaintiffs, Knievel v. ESPN, 393 F.3d 1068, 1072

(9th Cir. 2005). We agree with the district court that

plaintiffs plausibly alleged an equal protection claim.

Most significantly, plaintiffs allege that the rescission of DACA disproportionately impacts Latinos and

individuals of Mexican heritage, who account for 93% of

DACA recipients. See Arlington Heights, 429 U.S. at

266. The complaints also allege a history of animus

toward persons of Hispanic descent 29 evidenced by

both pre-presidential and post-presidential 30 stateThe government argues that the statements by the President

cited in the complaints do not provide sufficient evidence to plausibly allege discriminatory intent. The government first submits

that nationality, as opposed to ethnicity, is not an invidious classification, and that many of the cited comments go only to Mexican nationality. “Often, however, the two are identical as a factual matter:

one was born in the nation whose primary stock is one’s own ethnic

group.” St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 614 (1987)

(Brennan, J., concurring). And plaintiffs allege discriminatory intent not only toward “Mexican nationals,” but also toward “individuals of Mexican heritage, and Latinos.”

The district court took judicial notice of one such statement by

the President: “[o]n December 29, 2017, President Trump tweeted:

‘The Democrats have been told, and fully understand, that there

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ments by President Trump, who is alleged to have

decided to end DACA, even though the directive to the

Acting Secretary was issued from Attorney General

Sessions. Finally, the district court properly considered “the unusual history behind the rescission,” all of

which appeared in the record submitted by the government. See Arlington Heights, 429 U.S. at 267.

As the district court noted, “DACA received reaffirmation by the agency as recently as three months before

the rescission, only to be hurriedly cast aside on what

seems to have been a contrived excuse (its purported

illegality). This strange about-face, done at lightning

speed, suggests that the normal care and consideration

within the agency was bypassed.”

The government contends that the equal protection

claim is foreclosed by AADC, in which the Supreme

Court stated that “as a general matter . . . an alien

unlawfully in this country has no constitutional right to

assert selective enforcement as a defense against his

deportation.” 525 U.S. at 488. But in the context of

this case, the challenge to the rescission of DACA is

not raised “as a defense against [] deportation,” and is

not a claim of “selective enforcement.” Id. Rather, it

is a freestanding claim that the Executive Branch, motivated by animus, ended a program that overwhelmingly

benefits a certain ethnic group. Thus, the equal protection claim does not implicate the concerns motivating

can be no DACA without the desperately needed WALL at the

Southern Border and an END to the horrible Chain Migration &

ridiculous Lottery System of Immigration etc. We must protect

our Country at all cost!’ ” There were many similar statements

made by the President after he took the oath of office leading up to

the DACA rescission on September 5, 2017.

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the Court in AADC and underscored by the government: inhibiting prosecutorial discretion, allowing

continuing violations of immigration law, and impacting

foreign relations. The two cases cited by the government do not support its position, as both of them involved an individual noncitizen making an equal protection argument in an attempt to avoid his own deportation. See Kandamar v. Gonzales, 464 F.3d 65,

72-74 (1st Cir. 2006); Hadayat v. Gonzales, 458 F.3d

659, 665 (7th Cir. 2006). Plaintiffs’ challenge to the

rescission of DACA—which is itself discretionary—is

not such a case.

The government also contends that even if not totally barred by AADC, plaintiffs’ claims must be subject to the heightened pleading standard applied to

selective-prosecution claims in the criminal context.

See United States v. Armstrong, 517 U.S. 456, 463-65

(1996). But this argument meets the same objection:

as the district court held, plaintiffs’ challenge is not a

selective-prosecution claim. We are therefore not persuaded by the government’s arguments.

The Supreme Court’s recent decision in Trump v.

Hawaii, 138 S. Ct. 2392 (2018), does not foreclose this

claim. There, statements by the President allegedly

revealing religious animus against Muslims were “[a]t

the heart of plaintiffs’ case . . . .” Hawaii, 138 S. Ct.

at 2417. The Court assumed without deciding that it

was proper to rely on the President’s statements, but

nevertheless upheld the challenged executive order

under rational basis review. Id. at 2420, 2423. Here,

by contrast, plaintiffs provide substantially greater evidence of discriminatory motivation, including the rescission order’s disparate impact on Latinos and per-

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sons of Mexican heritage, as well as the order’s unusual

history. Moreover, our case differs from Hawaii in

several potentially important respects, including the

physical location of the plaintiffs within the geographic

United States, see Lopez-Valenzuela v. Arpaio, 770 F.3d

772, 781 (9th Cir. 2014) (en banc), the lack of a national

security justification for the challenged government action, and the nature of the constitutional claim raised.

Therefore, we conclude that plaintiffs have stated a

plausible equal protection claim.

VII.

The rescission of DACA—based as it was solely on a

misconceived view of the law—is reviewable, and plaintiffs are likely to succeed on their claim that it must be

set aside under the APA. We therefore affirm the district court’s entry of a preliminary injunction. 31 The

district court also properly dismissed plaintiffs’ APA

notice-and-comment claim, and their claim that the

DACA rescission violates their substantive due process

rights. The district court also properly denied the government’s motion to dismiss plaintiffs’ APA arbitrary-andcapricious claim, their claim that the new informationsharing policy violates their due process rights, and

their claim that the DACA rescission violates their

right to equal protection.

We do not disagree with the reasoning of Judge Owens’s concurring opinion that the likelihood of success on plaintiffs’ equal

protection claim is a second, alternative ground for affirming the

entry of the injunction.

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The Executive wields awesome power in the enforcement of our nation’s immigration laws.

Our

decision today does not curb that power, but rather

enables its exercise in a manner that is free from legal

misconceptions and is democratically accountable to

the public. Whether Dulce Garcia and the hundreds

of thousands of other young dreamers like her may

continue to live productively in the only country they

have ever known is, ultimately, a choice for the political

branches of our constitutional government. With the

power to make that choice, however, must come accountability for the consequences.

AFFIRMED.

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OWENS, Circuit Judge, concurring in the judgment:

As I believe that Plaintiffs’ Equal Protection claim

has some “likelihood of success on the merits,” I concur

in the judgment affirming the preliminary injunction.

The extraordinary practical impact of allowing DACA’s

rescission to take effect before a final adjudication of

its legality far outweighs the minimal practical impact

of keeping the program in place a bit longer. For that

reason, it is better now to risk incorrectly preserving

the status quo than to risk incorrectly disrupting it.1

However, I disagree with the portion of the majority’s

opinion that we may review the rescission of DACA for

compliance with the APA.2

Under 5 U.S.C. § 701(a)(2), “agency action [that] is

committed to agency discretion by law” is not subject

to judicial review for compliance with the APA. Since

The government appears to share this view. In its petition for

certiorari before judgment, the government asserted that “a primary purpose of the Acting Secretary’s orderly wind-down of the

DACA policy was to avoid the disruptive effects on all parties of

abrupt shifts in the enforcement of the Nation’s immigration laws.

Inviting more changes before final resolution of this litigation

would not further that interest.”

As for the government’s appeal from the motions to dismiss, I

dissent, for reasons stated here, from the majority’s holding to

affirm the district court’s denial of the motion to dismiss Plaintiffs’

APA arbitrary-and-capricious claim (Part VI-A). However, I concur in the majority’s holding to affirm the district court’s dismissal

of Plaintiffs’ APA notice-and-comment claim (Part VI-B). I also

concur in the judgment to affirm the district court’s ruling on

Plaintiffs’ Due Process claims (Part VI-C; Part VI-D). And, as explained here as well, I agree with the majority’s decision to affirm

the district court’s denial of the motion to dismiss the Equal Protection claim (Part VI-E) and hold that the Equal Protection claim

offers an alternative ground to affirm the preliminary injunction.

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Heckler v. Chaney, courts read § 701(a)(2) to preclude

judicial review of certain types of administrative action

that are “traditionally . . . ‘committed to agency

discretion.’ ” 470 U.S. 821, 832 (1985) (holding unreviewable the decision not to institute enforcement

proceedings); Lincoln v. Vigil, 508 U.S. 182, 192 (1993)

(same for the allocation of funds from a lump-sum

appropriation); Webster v. Doe, 486 U.S. 592, 599-600

(1988) (same for decisions of the Director of the Central Intelligence Agency to terminate an employee due

to national security interests); ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 281-82 (1987) (BLE) (same

for an agency’s refusal to grant reconsideration of an

action due to material error).

An agency decision to rescind a non-enforcement

policy in the immigration context is this type of administrative action. From Heckler, we know that agency

actions that “involve[] a complicated balancing of a

number of factors,” like allocating agency resources

and prioritizing agency policies, “are peculiarly within

[the agency’s] expertise,” and are therefore “general[ly] unsuitab[le] for judicial review.” 470 U.S. at 831.

And in Reno v. American-Arab Anti-Discrimination

Committee, 525 U.S. 471 (1999) (AADC), the Supreme

Court made clear that Executive Branch decisions that

implicate enforcement priorities in the context of immigration are among those that judges are least

equipped to review. Id. at 489-90. In AADC, the Court

explained that the concerns necessitating the Executive’s

“broad discretion” in criminal prosecutions are “greatly

magnified in the deportation context.” Id. (citing United

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

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In deciding to rescind an immigration policy of

non-enforcement, DHS thus acts with broad discretion

that courts cannot review absent clear congressional

authorization. Here, rather than authorize judicial review, the broad, discretion-granting language of the enabling statute reinforces that DHS’s enforcement decision

is not subject to APA review. See 6 U.S.C. § 202(5)

(“The Secretary shall be responsible for . . . [e]stablishing national immigration enforcement policies and

priorities.”); see also Webster, 486 U.S. at 599-600.

Perhaps recognizing that immigration enforcement

decisions exhibit the characteristics of unreviewable

agency actions, the majority decides that we should

nonetheless review the rescission of DACA because

these features are not actually at work here: Acting

Secretary Duke explained that DACA was rescinded

based on DHS’s belief that the program was unlawful.

The majority points to Heckler’s footnote 4, where the

Court left open the question whether courts may review agency action if “a refusal by the agency to institute proceedings [is] based solely on the belief that it

lacks jurisdiction.” Heckler, 470 U.S. at 833 n.4 (“[W]e

express no opinion on whether such decisions would be

unreviewable under § 701(a)(2) . . . .”). The majority concludes that the Supreme Court has not yet answered this question, and that our court, in Montana

Air Chapter No. 29 v. FLRA, 898 F.2d 753, 756-57

(9th Cir. 1990), has answered it in the affirmative: that

otherwise unreviewable agency action is reviewable when

the agency justifies its action by reference to its understanding of its jurisdiction. I respectfully disagree.

In Montana Air, we confronted the question left

open in Heckler’s footnote 4. Specifically, we held that a

82a

decision by the Federal Labor Relations Authority’s

General Counsel not to issue an unfair labor practice

complaint was reviewable only because his decision was

“based solely on his belief that he lacks jurisdiction to

issue such a complaint.” Id. at 756. But what we

held reviewable were the General Counsel’s “statutory

and regulatory interpretations to determine if his belief

that he lacked jurisdiction was correct.” Id. at 757.

Applying Chevron, we found “impermissible” the General Counsel’s interpretations of the statute under which

he acted. Id. at 758.

Here, by contrast, Plaintiffs do not ask that we apply Chevron to review whether Acting Secretary Duke

impermissibly interpreted 6 U.S.C. § 202(5) in concluding that the statute authorized the rescission of

DACA.3 Instead, Plaintiffs ask that we review for arbitrariness and capriciousness the procedures the agency

used to rescind DACA. But nothing in Montana Air

suggests that Heckler’s footnote 4 authorizes arbitraryand-capricious, rather than Chevron, review of ag

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