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

No. 18-587

IN THE

Supreme Court of the United States

_______________

UNITED STATES DEPARTMENT OF HOMELAND

SECURITY, ET AL.,

Petitioners,

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,

Respondents.

_______________

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

_______________

Brief in Opposition for Respondents Dulce Garcia,

Miriam Gonzalez Avila, Saul Jimenez Suarez,

Viridiana Chabolla Mendoza, Norma Ramirez,

Jirayut Latthivongskorn, the County of Santa Clara,

and Service Employees International Union Local 521

_______________

STUART F. DELERY

MATTHEW S. ROZEN

HALEY S. MORRISSON

ANDREW J. WILHELM

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

MARK D. ROSENBAUM

JUDY LONDON

PUBLIC COUNSEL

610 South Ardmore Avenue

Los Angeles, CA 90005

(213) 385-2977

THEODORE J. BOUTROUS, JR.

COUNSEL OF RECORD

ETHAN D. DETTMER

KIRSTEN GALLER

JONATHAN N. SOLEIMANI

KELSEY J. HELLAND

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tboutrous@gibsondunn.com

Counsel for Respondents Dulce Garcia, Miriam Gonzalez Avila,

Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez,

and Jirayut Latthivongskorn

(Additional Counsel Listed on Inside Cover)

LUIS CORTES ROMERO

BARRERA LEGAL GROUP, PLLC

19309 68th Avenue South,

Suite R102

Kent, WA 98032

(253) 872-4730

LAURENCE H. TRIBE

HARVARD LAW SCHOOL*

1575 Massachusetts Avenue

Cambridge, MA 02138

(617) 495-1767

LEAH M. LITMAN

UNIVERSITY OF CALIFORNIA,

IRVINE SCHOOL OF LAW*

401 E. Peltason Drive

Irvine, CA 92697

(949) 824-7722

ERWIN CHEMERINSKY

UNIVERSITY OF CALIFORNIA,

BERKELEY SCHOOL OF LAW*

215 Boalt Hall

Berkeley, CA 94720

(510) 642-6483

Additional Counsel for Respondents Dulce Garcia, Miriam Gonzalez

Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma

Ramirez, and Jirayut Latthivongskorn

*Affiliation for identification purposes only

STACEY M. LEYTON

ERIC P. BROWN

ALTSHULER BERZON LLP

177 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151

Counsel for Respondents County

of Santa Clara and Service Employees International Union Local

521

JAMES R. WILLIAMS

GRETA S. HANSEN

LAURA S. TRICE

MARCELO QUIÑONES

OFFICE OF THE COUNTY COUNSEL

COUNTY OF SANTA CLARA

70 West Hedding Street

East Wing, Ninth Floor

San Jose, CA 95110

(408) 299-5900

Counsel for Respondent County of

Santa Clara

QUESTIONS PRESENTED

The Deferred Action for Childhood Arrivals

(DACA) program enables nearly 700,000 undocumented individuals who were brought to the United

States as children to live and work here without fear

of deportation, so long as they play by the rules. In

September 2017, the Acting Secretary of Homeland

Security, on the advice of the Attorney General, abruptly decided to terminate the program.

Respondents brought suit to challenge that decision. The district court granted respondents’ motion

for a preliminary injunction and also denied the government’s motion to dismiss for lack of jurisdiction.

The court of appeals affirmed.

The questions presented are:

1. Whether either the Administrative Procedure

Act (APA), 5 U.S.C. § 701(a)(2), or a particular provision of the Immigration and Nationality Act (INA),

8 U.S.C. § 1252(g), precludes judicial review of the

Acting Secretary’s decision to terminate the DACA

program.

2. Whether the district court abused its discretion in entering a preliminary injunction, based on its

conclusion that respondents are likely to succeed on

the merits of their claim that the decision to end

DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in violation of the APA, 5 U.S.C. § 706(2)(A), and its balancing of the equities.

ii

TABLE OF CONTENTS

Page

OPINIONS BELOW .................................................... 2

JURISDICTION .......................................................... 3

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

REASONS FOR DENYING THE PETITION .......... 12

A. Only One Court Of Appeals Has

Considered The Questions Presented .......... 12

B. The Decision Below Is Preliminary And

Interlocutory And Would Not Present

The Full Dispute........................................... 17

C. There Is No Urgent Need For This

Court’s Review .............................................. 20

D. The Government’s Merits Arguments

Do Not Justify Review .................................. 25

1. The Court Of Appeals Properly

Affirmed The District Court’s

Reviewability Determination................ 26

2. The Court Of Appeals Correctly

Affirmed

The

Preliminary

Injunction .............................................. 28

CONCLUSION .......................................................... 35

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. Evans,

514 U.S. 1 (1995) .................................................. 15

Ashcroft v. ACLU,

542 U.S. 656 (2004) .............................................. 17

Batalla Vidal v. Duke,

295 F. Supp. 3d 127 (E.D.N.Y. 2017) .................. 13

Batalla Vidal v. Nielsen,

279 F. Supp. 3d 401 (E.D.N.Y. 2018)

............................................................ 10, 14, 19, 23

Beame v. Friends of the Earth,

434 U.S. 1310 (1977) ............................................ 22

Braxton v. United States,

500 U.S. 344 (1991) .............................................. 25

Brown v. Chote,

411 U.S. 452 (1973) .............................................. 19

Byrd v. United States,

138 S. Ct. 1518 (2018) .......................................... 19

Califano v. Sanders,

430 U.S. 99 (1977) ................................................ 26

Casa de Md. v. DHS,

284 F. Supp. 3d 758 (D. Md. 2018) ............ 4, 13, 14

iv

Citizens to Pres. Overton Park, Inc. v.

Volpe,

401 U.S. 402 (1971) .............................................. 26

DHS v. Regents of Univ. of Cal.

138 S. Ct. 1182 (2018) ...................................... 9, 20

Elonis v. United States,

135 S. Ct. 2001 (2015) .......................................... 18

Encino Motorcars LLC v. Navarro,

136 S. Ct. 2117 (2016) .................................... 29, 32

Gonzalez v. O Centro Espirita

Beneficente Uniao do Vegetal,

546 U.S. 418 (2006) .............................................. 21

Heckler v. Chaney,

470 U.S. 821 (1985) .............................................. 26

INS v. St. Cyr,

533 U.S. 289 (2001) .............................................. 26

Martin v. Blessing,

134 S. Ct. 402 (2013) ............................................ 25

Mont. Air Chapter No. 29 v. Fed. Labor

Relations Auth.,

898 F.2d 753 (9th Cir. 1990) ................................ 11

NAACP v. Trump,

298 F. Supp. 3d 209 (D.D.C. 2018)

................... …………………9, 13, 14, 20, 27, 31, 32

NAACP v. Trump,

315 F. Supp. 3d 457 (D.D.C. 2018) .... 10, 14, 19, 33

v

NAACP v. Trump,

321 F. Supp. 3d 143 (D.D.C. 2018) ................ 10, 23

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) ............................................ 21

Nat’l Treasury Emps. Union v. Horner,

854 F.2d 490 (D.C. Cir. 1988) .............................. 27

Reno v. Am.-Arab Anti-Discrimination

Comm.,

525 U.S. 471 (1999) .................................... 3, 27, 28

Ruckelshaus v. Monsanto Co.,

463 U.S. 1315 (1983) ............................................ 22

SEC v. Chenery Corp.,

332 U.S. 194 (1947) .............................................. 31

Spears v. United States,

555 U.S. 261 (2009) .............................................. 14

Texas v. United States,

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

...................................................... 13, 14, 24, 31, 32

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) .......... 5, 15, 16, 28, 30

Texas v. United States,

136 S. Ct. 2271 (2016) ...................................... 5, 15

In re United States,

138 S. Ct. 443 (2017) .............................................. 6

Va. Military Inst. v. United States,

508 U.S. 946 (1993) .............................................. 17

vi

Volpe v. D.C. Fed’n of Civic Ass’ns,

405 U.S. 1030 (1972) ............................................ 25

Wong v. United States,

373 F.3d 952 (9th Cir. 2004) ................................ 28

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) .............................................. 18

Statutes

5 U.S.C. § 701(a)(2) ............................................. 25, 26

5 U.S.C. § 706(2)(A) ............................................... 6, 29

6 U.S.C. § 202(5) .................................................... 3, 16

8 U.S.C. § 1182(h)...................................................... 16

8 U.S.C. § 1182(i) ....................................................... 16

8 U.S.C. § 1227(d)(2) ................................................... 3

8 U.S.C. § 1229b ........................................................ 16

8 U.S.C. § 1229c......................................................... 16

8 U.S.C. § 1252 .................................... 7, 16, 26, 27, 28

8 U.S.C. § 1255 .......................................................... 16

28 U.S.C. § 1254(1) ...................................................... 3

28 U.S.C. § 1292(b) ...................................................... 9

Rules

Sup. Ct. R. 10(a) ........................................................ 12

vii

Sup. Ct. R. 11............................................................. 20

Other Authorities

Donald J. Trump (@realDonaldTrump),

Twitter (Jan. 22, 2018, 8:30 p.m.),

https://tinyurl.com/yajslj5l ................................... 24

Exclusive: Trump Threatens

Government Shutdown Over Border

Wall Funding, Politico (Nov. 28,

2018), https://tinyurl.com/ya6bsgpr .................... 25

Interview by John Dickerson with

Kirstjen Nielsen, Sec’y, Dep’t of

Homeland Sec., “CBS This Morning”

(Jan. 16, 2018), https://tinyurl.com/

y8ekmzar .............................................................. 22

Oversight of the United States

Department of Homeland Security:

Hearing before the S. Comm. on the

Judiciary, 115th Cong. (2018) ............................. 22

Pelosi Statement on Immigration

Priorities (Dec. 1, 2018),

https://tinyurl.com/y8ya2hz3 ............................... 24

READ: President Trump’s Full

Exchange With Reporters, CNN.com

(Jan. 24, 2018) ................................................ 22, 24

Remarks by President Trump in Press

Conference After Midterm Elections

(Nov. 7, 2018),

https://tinyurl.com/y8ab6pjc ................................ 24

1

BRIEF IN OPPOSITION

This case is about whether nearly 700,000 young

adults who came to the United States as children and

have lived their entire lives here will be subject to removal because the government decided to rescind the

Deferred Action for Childhood Arrivals (DACA) program. Since 2012, DACA has allowed these individuals, known as “Dreamers,” to obtain an education,

work, and contribute to our Nation. The program has

been an unqualified success, and DACA recipients

have relied on the federal government’s repeated

promises of protection from removal.

In September 2017, the government reversed

course and announced the termination of DACA. The

Dreamers’ fate has captured the attention of the administration, Congress, and millions of Americans

who worry about the devastating impact that terminating DACA will have on families, schools, communities, and our economy.

Respondents—including individual DACA recipients whose stories “embod[y] the American Dream,”

App. to U.S. Supp. Br. (Supp. App.) 5a—brought this

lawsuit to challenge the government’s decision to end

DACA. The district court entered a preliminary injunction to freeze the DACA program in place, protecting the livelihood and well-being of the nearly 700,000

current DACA recipients, while the courts determine

whether the rescission was lawful. The court of appeals affirmed those rulings.

This Court should deny review. The decision below

is preliminary and interlocutory. Only one court of

appeals has addressed the issue. That court was not

presented with, and did not decide, all aspects of the

2

questions presented. Indeed, the government concedes there is no way to bring the full dispute before

this Court without ignoring the appellate process and

leapfrogging the court of appeals in two additional

cases addressing similar, though not identical, challenges to the decision to end DACA.

This Court should reject this attempt to upset the

normal appellate process. If the Court waited until

next Term, there would likely be multiple appellate

decisions addressing all the issues that the government asks this Court to review. Those decisions

would substantially assist this Court.

And there is no urgency here. The government

cannot credibly claim it is being harmed by the preliminary injunction when it never sought a stay.

DACA recipients contribute to society and have been

carefully vetted. Their presence in this country while

the courts determine their rights harms no one. Nothing about the merits warrants immediate review.

This Court should not upset time-honored appellate

procedures, especially when the President said that

he supports allowing the Dreamers to remain in the

country, and signaled willingness to work with Congress to achieve that widely-shared goal. The petition

should be denied.

OPINIONS BELOW

The district court’s order granting respondents’

motion for a preliminary injunction and denying the

government’s motion to dismiss for lack of jurisdiction

(Pet. App. 1a-70a) is reported at 279 F. Supp. 3d 1011.

The district court’s order granting in part and denying

in part the government’s motion to dismiss for failure

to state a claim (Pet. App. 71a-90a) is reported at 298

F. Supp. 3d 1304.

3

The decision of the court of appeals affirming the

district court’s orders (Supp. App. 1a-87a) is reported

at 908 F.3d 476.

JURISDICTION

The petition for a writ of certiorari before judgment was filed on November 5, 2018. The court of appeals entered judgment on November 8, 2018. The

government filed a supplemental brief on November

19, 2018, asking the Court to convert the petition into

a petition for a writ of certiorari. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATEMENT

1. Deferred action is “a regular practice” in

which the government elects not to seek removal of

individuals “for humanitarian reasons or simply for

its own convenience.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84 & n.8 (1999)

(AADC). Congress has recognized this established

practice in the Immigration and Nationality Act

(INA). See 8 U.S.C. § 1227(d)(2); see also 6 U.S.C.

§ 202(5).

Over many decades, presidential administrations

of both parties have used deferred action to permit

certain categories of individuals to remain in the

United States. Pet. App. 5a-8a. Deferred action programs have become “a well-accepted feature of the

[E]xecutive’s enforcement of our immigration laws.”

Id. at 8a.

In 2012, Secretary of Homeland Security Janet

Napolitano established DACA. Pet. App. 9a. The program permits young people who were brought to the

United States as children to lawfully live and work in

this country. Id. Qualifying individuals may obtain

work authorization and a social security number, and

4

travel overseas and lawfully return to the United

States. Id. at 12a.

DACA has allowed nearly 800,000 people to come

out of the shadows and build productive and fulfilling

lives in the United States. Compl. ¶ 128. 1 Dreamers

have relied on DACA’s promise to advance their education, serve in the U.S. military, start businesses,

have families, and make many other life-changing decisions. Id. ¶¶ 37, 41, 48-98. Like so many other

Dreamers, the individual respondents here—Dulce

Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez,

Norma Ramirez, and Jirayut Latthivongskorn—

achieved remarkable success through hard work,

fierce determination, and incredible resilience. Id.

¶¶ 4, 6-9. 2 Because of DACA, they have been able to

pursue careers as lawyers, medical professionals, and

teachers, advancing their commitment to serve their

communities. Id. ¶¶ 53-55, 62-98. Without DACA,

they will face possible deportation and risk losing

their families, community connections, and livelihoods. Id. ¶¶ 48-49, 63, 76, 83, 91, 128.

DACA enjoys widespread support from the public

and from members of both political parties. “An overwhelming percentage of Americans”—up to 87 percent—“support protections for ‘Dreamers.’” Casa de

Md. v. DHS, 284 F. Supp. 3d 758, 767, 779 (D. Md.

2018). Hundreds of America’s most important business leaders signed a letter stating that the program

is “vital to the future of our companies and our economy.” Compl. ¶ 132. And political leaders including

1

“Compl.” refers to the complaint filed in Garcia v. United

States, No. 3:17-cv-5380 (N.D. Cal. Sept. 18, 2017).

After the Complaint was filed in September 2017, Viridiana

Chabolla Mendoza was granted Lawful Permanent Resident status.

2

5

Speaker of the House Paul Ryan and Senator Lindsay

Graham have urged the government not to “pull the

rug out” from Dreamers who relied on the program.

Id. ¶¶ 41-47.

2. The current administration originally supported DACA and the Dreamers. In March 2017, Secretary of Homeland Security John Kelly stated that

DACA embodies a “commitment … by the government

towards … Dreamer[s].” Compl. ¶ 46 (first alteration

in original). In April 2017, the President said that the

“dreamers should rest easy” because the “policy of

[his] administration [is] to allow the dreamers to

stay.” Id. ¶ 47 (alterations in original).

But on September 4, 2017, the administration reversed course. Attorney General Jefferson B. Sessions

III sent a one-page letter to Acting Secretary of Homeland Security Elaine Duke, stating that “DACA was

effectuated by the previous administration through

executive action, without proper statutory authority”

and “was an unconstitutional exercise of authority by

the Executive Branch.” Pet. App. 116a (internal quotation marks omitted). The following day, he announced the decision to end DACA. As a reason, he

cited the Fifth Circuit’s decision (affirmed by an

equally divided Court) approving an injunction

against a different deferred action program—Deferred Action for Parents of Americans and Lawful

Permanent Residents (DAPA). Dkt. 64-1 at 251 (citing remarks referring to Texas v. United States, 809

F.3d 134 (5th Cir. 2015), aff ’d, 136 S. Ct. 2271, 2272

(2016) (per curiam) (Texas I)). 3

“Dkt.” refers to the electronic docket for Regents of the University of California v. DHS, No. 3:17-cv-05211 (N.D. Cal.).

3

6

Acting Secretary Duke issued a memorandum formally rescinding DACA. Pet. App. 17a. The memorandum instructed the agency to stop approving new

DACA applications and to allow individuals’ DACA

status to expire beginning March 5, 2018. Id. at 117a18a. Her reasoning was brief: Citing the “Supreme

Court’s and the Fifth Circuit’s rulings [in Texas I], and

the September 4, 2017 letter from the Attorney General,” she concluded that the “program should be terminated.” Id. at 117a. The memorandum did not analyze “litigation risk” and did not weigh DACA’s widespread benefits against the many harms that would

result if DACA were rescinded. Acting Secretary

Duke also said—contrary to the President’s and prior

Secretaries’ statements—that “DACA was fundamentally a lie.” Dkt. 121-2 at 1869.

3. Respondents filed five related lawsuits challenging the decision to rescind DACA. Respondents

contend, inter alia, that DACA’s rescission (1) is unlawful under the APA because it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A); (2) violates

the APA’s notice-and-comment rulemaking requirement; (3) denies DACA recipients equal protection of

the laws; and (4) deprives DACA recipients of constitutionally protected property and liberty interests in

violation of due process. Pet. App. 19a-22a. Because

DACA was to expire in March 2018, respondents requested a preliminary injunction. Dkt. 111.

After an initial dispute about the administrative

record (see In re United States, 138 S. Ct. 443 (2017)

(per curiam)), the district court rejected the government’s arguments that no court can review the decision to end DACA. Pet. App. 1a-70a; id. at 26a-33a.

The court held that the Secretary’s decision is not

7

“committed to agency discretion by law” under the

APA, 5 U.S.C. § 701(a)(2), because it is a “major policy

decision” based on the agency’s “interpretation of the

INA”—a “quintessential[ly]” reviewable legal question for which “there is law to apply.” Pet. App. 28a30a. The court also held that 8 U.S.C. § 1252(g) does

not bar judicial review, Pet. App. 30a-33a, because

that provision applies only to the “three discrete decisions” named in the statute—decisions to “commence

proceedings, adjudicate cases, or execute removal orders against any alien,” 8 U.S.C. § 1252(g)—and the

decision to end DACA is none of those. Rather, it is

an “across-the-board cancellation of a nationwide program” done “prior to the commencement of any removal proceedings.” Pet. App. 31a-32a.

The district court granted preliminary injunctive

relief. Pet. App. 41a-69a. It found respondents likely

to succeed on their APA claim that DACA’s rescission

is arbitrary and capricious because neither of the government’s asserted reasons for ending DACA withstood scrutiny. First, the court rejected the government’s argument that “the agency lacked authority to

implement DACA.” Id. at 42a. Citing guidance from

the Office of Legal Counsel—guidance on which the

government itself has relied and has never repudiated—the court explained that DACA is a permissible

exercise of the Executive’s broad immigration enforcement authority. Id. at 42a-43a. The court noted that

“the government [had] ma[de] no effort” in this litigation “to challenge any of the … reasons why DACA

was and remains within the authority of the agency,”

id. at 48a; it simply cited the Fifth Circuit’s decision

in the DAPA case, which is distinguishable on multiple grounds, id. at 51a-52a.

8

Second, the district court rejected the government’s post hoc rationalization that litigation risk was

a sufficient reason to end DACA. Pet. App. 55a-62a.

The court explained that this was not the reason relied upon by the decision-makers: The Attorney General’s stated reason for ending DACA was his belief

that it is illegal, and the Acting Secretary’s memorandum relied on that determination, without separately

“consider[ing] whether defending the program in

court would (or would not) be worth the litigation

risk.” Id. at 56a. The agency never assessed litigation

risk or weighed it against countervailing benefits,

such as “DACA’s programmatic objectives” and “the

reliance interests of DACA recipients.” Id. at 58a.

The agency’s about-face, without a reasoned explanation was a paradigmatic example of arbitrary and capricious agency action. Id. at 60a-61a.

The district court concluded that the equities

strongly favor a preliminary injunction. Pet. App.

62a-66a. The government “d[id] not dispute” that respondents—especially the individual DACA recipients—will face irreparable injury absent temporary

injunctive relief. Id. at 62a-63a. And the court concluded that the “public interest will be served by

DACA’s continuation,” because the rescission would

“result in hundreds of thousands of individuals losing

their work authorizations and deferred action status,”

tearing apart families and removing productive workers from the national economy. Id. at 65a.

The preliminary injunction directs the government

“to maintain the DACA program,” except that the government need not accept new applications and foreign

travel requests. Pet. App. 66a-67a. The government

may exercise its discretion “on an individualized basis

for each renewal application” and may “remove any

9

individual, including any DACA enrollee, who it determines poses a risk to national security or public

safety, or otherwise deserves, in its judgment, to be

removed.” Id. at 66a.

The district court granted the government’s motion to dismiss respondents’ notice-and-comment and

rescission-based substantive due process claims, but

denied the motion with respect to respondents’ substantive APA, equal protection, and information-sharing-based substantive due process claims. Pet. App.

71a-90a.

4. The government appealed the preliminary injunction order. Pet. App. 91a-95a. With permission

from the district court and court of appeals, the government and respondents each filed interlocutory appeals of the motion to dismiss order. See C.A. No. 1815128, Dkt. 1; C.A. No. 18-15133, Dkt. 6; C.A. No. 1815134, Dkt. 1; see also 28 U.S.C. § 1292(b). The government did not seek—and never has sought—a stay

of the preliminary injunction.

Not content with the normal appellate process, the

government filed a petition for a writ of certiorari before judgment, which this Court denied. DHS v. Regents of Univ. of Cal., 138 S. Ct. 1182 (2018).

5. In the meantime, another district court in the

District of Columbia entered an order vacating the

Acting Secretary’s memorandum rescinding DACA

and giving the government 90 days to provide a “fuller

explanation for the determination that the program

lacks statutory and constitutional authority.” NAACP

v. Trump, 298 F. Supp. 3d 209, 245 (D.D.C. 2018).

The court stayed its order pending the government’s

response. Id.

10

In response, Secretary of Homeland Security

Kirstjen Nielsen issued a memorandum on June 22,

2018, in which she “decline[d] to disturb” the Acting

Secretary’s rescission decision because, in her view,

that decision “was, and remains, sound.” Pet. App.

121a. Her memorandum purported to offer “further

explanation” for the rescission decision. Id.

The district court in NAACP reaffirmed its decision to vacate the rescission, concluding that Secretary Nielsen’s additional memorandum did not

“meaningful[ly] elaborat[e]” on the initial memorandum. NAACP v. Trump, 315 F. Supp. 3d 457, 471-73

(D.D.C. 2018). Consistent with the preliminary injunction here, the NAACP court allowed its order to

go into effect to the extent it required the government

to continue processing renewal applications but

stayed its order with respect to new applications. See

NAACP v. Trump, 321 F. Supp. 3d 143, 150 (D.D.C.

2018).

6. Without waiting for the court of appeals, the

government filed a second petition for a writ of certiorari before judgment in this case, Pet. 15, and similar

petitions in NAACP and a third similar case, Batalla

Vidal v. Nielsen, 279 F. Supp. 3d 401, 421-33

(E.D.N.Y. 2018). See U.S. Cert. Pets., Nos. 18-588, 18589.

The court of appeals affirmed in all key respects.

U.S. Supp. Br. 2-7. Like every court that has considered the question, the court of appeals concluded that

the rescission is judicially reviewable. Supp. App.

23a-45a. The court explained that the APA permits

review of “an agency’s nonenforcement decision” that

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

lawful authority to do otherwise”: If the “agency head

is mistaken in her assessment that the law precludes

11

one course of action,” the courts can correct that legal

error. Id. at 27a-31a (citing Mont. Air Chapter No. 29

v. Fed. Labor Relations Auth., 898 F.2d 753 (9th Cir.

1990)). The court concluded that the INA permits review of “programmatic” decisions regarding deferred

action “like the DACA rescission.” Id. at 43a.

On the merits, the court of appeals agreed with the

district court that the rescission was likely arbitrary

and capricious because it was based on the government’s erroneous belief that the program was unlawful. Supp. App. 35a-42a, 45a-57a. The court of appeals determined that Secretary Nielsen’s new memorandum was not properly before it, so any argument

about it would have to be presented to the district

court in the first instance. Id. at 57a n.24. The court

cautioned, however, that the memorandum did not

represent “fresh agency action” and that the government could not rely on “post-hoc rationalizations” for

the decision to end DACA. Id. Noting that the government had not challenged the district court’s weighing of the equities, the court affirmed the preliminary

injunction. Id. at 45a-46a, 58a-60a. The court also

held that “plaintiffs’ equal protection claim is a second, alternative ground for affirming the entry of the

injunction.” Id. at 77a n.31.

The court also affirmed dismissal of respondents’

notice-and-comment and rescission-based substantive

due process claims and denial of the government’s motion to dismiss respondents’ remaining claims. Supp.

App. 61a-77a.

Judge Owens concurred in the judgment. Supp.

App. 79a-87a. In his view, the rescission is an “immigration enforcement decision[]” that is categorically

“unreviewable” under the APA even if it rests on an

incorrect view of the law. Id. at 81a. Judge Owens

12

nonetheless would have affirmed the preliminary injunction based on respondents’ equal protection claim.

Id. at 84a.

7. After the court of appeals issued its decision,

the government filed a supplemental brief in this

Court seeking to convert its petition for certiorari before judgment into a petition for certiorari. U.S. Supp.

Br. 9.

REASONS FOR DENYING THE PETITION

The government asks this Court to intervene to decide a significant issue that the lower courts have not

yet fully addressed. In this case, neither the district

court nor the court of appeals has conclusively adjudicated respondents’ claims. And although five pending

cases present the legal questions here, only one court

of appeals has actually addressed some, but not all, of

the issues the government wants this Court to address. Three other courts of appeals are considering

the issue. There is no reason for this Court to ignore

normal processes and grant review now. There is no

harm to the government—it has never sought a stay

of these rulings—as the decision below simply freezes

DACA in place and allows the government to continue

exercising its usual enforcement discretion. And

there is a real prospect of a policy solution by the political branches that would make this Court’s intervention unnecessary. The petition should be denied.

A. Only One Court Of Appeals Has Considered

The Questions Presented

1. The Court ordinarily waits until the circuits

have divided to decide an important legal question.

Sup. Ct. R. 10(a). There is nothing even close to a circuit split here.

13

Five relevant cases are pending: Regents of Univ.

of Cal. v. DHS, No. 3:17-cv-05211 (N.D. Cal.); NAACP

v. Trump, No. 1:17-cv-1907 (D.D.C.); Casa de Md. v.

DHS, 8:17-cv-2942 (D. Md.); Batalla Vidal v. Nielsen,

1:16-cv-4756 (E.D.N.Y.); Texas v. United States, 1:18cv-68 (S.D. Tex.). Only one—this one—has been decided by a court of appeals. Appeals are pending in

three others, and the courts are proceeding expeditiously to decide them. 4 In the remaining case, which

challenges the creation of DACA (not its rescission),

the district court declined to issue a preliminary injunction to stop the DACA program, Texas v. United

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

(“Texas II”); the States did not appeal that decision

but instead are trying to obtain a final judgment,

Joint Discovery/Case Management Plan at 6, Texas II,

Dkt. 335.

Thus, it is likely that there will be additional appellate decisions within months. This Court could obtain the benefit of those courts’ decisions soon, and

have all of the government’s issues properly presented. There is no countervailing harm to the government should the Court do so. See pp. 21-23, infra.

All courts that have considered the issue have

found the decision to rescind DACA judicially reviewable. See NAACP v. Trump, 298 F. Supp. 3d 209, 23435 (D.D.C. 2018); Batalla Vidal v. Duke, 295 F. Supp.

3d 127, 148-50 (E.D.N.Y. 2017); Casa De Md. v. DHS,

284 F. Supp. 3d 758, 770 (D. Md. 2018). The district

court in Texas also concluded that the decision to start

See Batalla Vidal, No. 18-485 (2d Cir.), Dkt. 588 (oral argument scheduled for Jan. 25, 2019); Casa De Md., No. 18-1522 (4th

Cir.), Dkt. 55 (oral argument held Dec. 11, 2018); NAACP,

No. 18-5245 (D.C. Cir.), Dkt. 1756433 (briefing to be completed

by Jan. 22, 2019).

4

14

the DACA program is judicially reviewable. Texas II,

328 F. Supp. 3d at 706-09. There is no disagreement

among any courts about the first question presented

in this case.

On the merits, the district court decisions are more

varied, but most favor respondents’ position. The

NAACP court held on summary judgment that the rescission violated the APA for largely the same reasons

stated by the court of appeals here. 298 F. Supp. 3d at

237-43. The Batalla Vidal court preliminarily enjoined the rescission for largely the same reasons. Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 421-33

(E.D.N.Y. 2018). The Casa de Maryland court disagreed, holding that “[r]egardless of whether DACA is,

in fact, lawful or unlawful,” the government reasonably believed the program was unlawful and could terminate the program on that basis. 284 F. Supp. 3d at

768-79. The district court in Texas held that DACA

likely was unlawful because it violated the INA and

was adopted without notice-and-comment rulemaking. Texas II, 328 F. Supp. 3d at 712-36.

Of these decisions, only NAACP addressed Secretary Nielsen’s memorandum offering “additional justification” for the decision to rescind DACA, which

was not before the court of appeals here, Supp. App.

57a n.24. The NAACP court held that the memorandum failed to “meaningful[ly] elaborat[e]” on the decision to rescind DACA. 315 F. Supp. 3d at 471-72.

In the “absence of a pronounced conflict among the

circuits,” the Court “should not rush to answer a novel

question” that “could benefit from further attention in

the court of appeals.” Spears v. United States, 555

U.S. 261, 270 (2009) (Roberts, C.J., dissenting).

Awaiting “diverse opinions” from the federal appellate

15

courts “may yield a better informed and more enduring final pronouncement” that avoids unforeseen consequences for administrative law, immigration law,

and Executive authority beyond the immediate dispute. Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995)

(Ginsburg, J., dissenting). The questions presented

here should be vetted by the courts of appeals, and

they will be soon. If the Court denies certiorari now,

it should have ample opportunity to revisit the question next Term with the benefit of decisions from the

Second, Fourth, and D.C. Circuits. There is no reason

to act now.

2. The government contends (Pet. 16) that the

courts of appeals have disagreed over whether DACA

is lawful. The government made this same argument

in its prior petition for certiorari before judgment.

U.S. Pet., No. 17-1003, at 15-32. It was wrong then,

Individual Pls.’ Br. in Opp., at 15-16, and is wrong

now.

As before, the government wrongly assumes that

the Fifth Circuit’s analysis of the adoption of DAPA

applies equally to the rescission of DACA, despite

acknowledged differences between the programs and

the posture of the litigation. DAPA was a never-implemented deferred action program that would have

affected up to 4.3 million individuals. Pet. App. 54a;

Supp. App. 54a. The Fifth Circuit itself recognized

that “DACA and DAPA are not identical” and that

“any extrapolation from DACA [to DAPA] must be

done carefully.” Texas v. United States, 809 F.3d 134,

173-74 (5th Cir. 2015), aff ’d, 136 S. Ct. 2271, 2272

(2016). The lower courts here each correctly gave several reasons why the questions before them were not

the same as those before the Fifth Circuit. Pet. App.

50a-54a; Supp. App. 52a-55a; see note 5, infra. Given

16

these distinctions, the Court should not assume a circuit split before the Fifth Circuit has had a chance to

weigh in about the implications of its earlier decision.

Even if there were disagreement about DACA’s

lawfulness, this case would be a poor vehicle for considering it: The government conspicuously failed to

make a full argument below that DACA is unlawful.

The government’s justification for the rescission was

that DACA’s continued implementation posed a risk

of litigation—“not the legality of DACA per se.” C.A.

No. 18-15068, Dkt. 31, at 36-38; see also Dkt. 204 at

10-11, 14-21. The government told the district court

that it “need not agree with [the Acting Secretary’s]

determination [that DACA was unlawful] to uphold

her decision.” Dkt. 204 at 17. It told the court of appeals that the Acting Secretary could rely on her “assessment of DACA’s legality” even if it was not “correct as a matter of law.” C.A. No. 18-15068, Dkt. 31,

at 38-39. The government cited the Fifth Circuit’s

prior DAPA decision as evidence of litigation risk, but

conspicuously avoided defending that decision’s reasoning or offering any fully-developed argument that

DACA is unlawful. Id. at 17. 5 The government

For example, although the petition claims that “specific and

detailed provisions” of the INA preclude deferred action for

DACA recipients, Pet. 24, the government’s briefs on appeal cited

only statutes that support deferred action and similar relief, C.A.

No. 18-15068, Dkt. 31, at 2-5, 13, 17, 25-7, 34-38, and id., Dkt.

134, at 1, 15, 17, 24, 33 (citing, collectively, 6 U.S.C. § 202(5), 8

U.S.C. §§ 1182(h)-(i), 1229b-1229c, 1252, 1255). Further, although the Attorney General stated that he found “constitutional

defects” in DACA, Pet. App. 17a, the government’s briefs below

did not identify any relevant constitutional provisions. And the

government declined to endorse the Fifth Circuit’s holding (809

F.3d at 178) that DAPA was procedurally defective; instead, the

government told the district court that “INS deferred-action directives” are “policy statements exempt from notice and comment.” Dkt. 204 at 26-27.

5

17

“ma[de] no effort in its briefs to challenge any of the

… reasons why DACA was and remains within the authority of the agency.” Pet. App. 48a. Having made

that strategic decision below, the government should

not be allowed to change course now, especially when

it is asking this Court to decide the issues in the first

instance.

B. The Decision Below Is Preliminary And

Interlocutory And Would Not Present The

Full Dispute

1. Review is unwarranted now because the decision under review is preliminary and interlocutory.

The district court entered a preliminary injunction to

freeze the DACA program in place while the courts

address whether the government’s decision to rescind

it was lawful. This Court reviews that determination

for “abuse of discretion” and “uphold[s] the injunction”

if “the underlying … question is close.” Ashcroft v.

ACLU, 542 U.S. 656, 664-65 (2004). The district

court’s rulings about reviewability and likelihood of

success on the APA claim both are interlocutory. The

Court normally does not review interlocutory orders,

and for good reason; further development of the issues

often crystallizes the arguments in preparation for

this Court’s review. See Va. Military Inst. v. United

States, 508 U.S. 946 (1993) (Scalia, J., concurring in

denial of certiorari).

Importantly, the preliminary injunction at issue

here is based on only one of respondents’ claims for

relief—the substantive APA claim. The courts below

did not decide the ultimate merits of that claim, but

only found that respondents “have shown a likelihood

of success.” Pet. App. 41a; accord Supp. App. 46a.

And the court of appeals’ decision expressly contemplates further proceedings. It directs the district court

18

to determine “in the first instance” the relevance, if

any, of Secretary Nielsen’s memorandum offering “additional justification” for the decision to rescind

DACA. Supp. App. 57a n.24.

As the government recently told the Court, this

Court’s “general practice is ‘not to decide in the first

instance issues not decided below’” in the course of the

litigation. U.S. Mem. in Opp. to Mot. to Substitute, at

10, Michaels v. Whitaker, No. 18-496 (alteration omitted) (quoting Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189, 201 (2012)). That is especially true

where, as here, this Court would be the “first appellate tribunal” to decide the issue. Elonis v. United

States, 135 S. Ct. 2001, 2013 (2015). Granting certiorari now would require the Court to address Secretary

Nielsen’s memorandum without the benefit of views

from any federal appellate court, and would send an

unfortunate message to the lower courts about the

value of their work.

2. Further, respondents have another, independent ground that potentially supports the preliminary

injunction—the equal protection claim. Supp. App.

77a n.31, 87a. But no court has yet assess the likelihood that respondents will succeed on that claim. All

the court of appeals did is affirm the denial of the government’s motion to dismiss that claim. Id. at 73a74a, 77a. The panel majority also agreed with Judge

Owens that “plaintiffs’ equal protection claim is a second, alternative ground for affirming the entry of the

injunction,” id. at 77a n.31, but in doing so, neither

the panel majority nor Judge Owens actually determined whether respondents are likely to succeed on

that claim. Instead, Judge Owens explained that the

district court should decide on a full record—including

19

“whatever additional evidence Plaintiffs muster on remand”—whether Respondents can “demonstrat[e] a

likelihood of success on the merits” by “rais[ing] a presumption that unconstitutional animus” against Latinos was a “substantial factor in the rescission of

DACA.” Id. at 84a (Owens, J., concurring). That requires discovery and completion of the administrative

record, which were stayed pending appeal. Dkt. 266,

at 12. There is not yet a full record on this claim that

would permit meaningful review by this Court.

Because the district court has not yet expressed its

definitive view of respondents’ claims after full development of the record and briefing, granting certiorari

at this early stage would embroil this Court in piecemeal review without the ability to conclusively resolve

the “ultimate merits” of respondents’ claims. Brown v.

Chote, 411 U.S. 452, 457 (1973).

3. The government attempts to get Secretary

Nielsen’s memorandum before this Court by asserting

without explanation that it was “error” for the Ninth

Circuit not to consider it. U.S. Supp. Br. 9. But it is

well settled that appellate courts need not decide in

the first instance issues not decided below. E.g., Byrd

v. United States, 138 S. Ct. 1518, 1530 (2018).

The government ultimately recognizes (Pet. 32)

that there is no way “[t]o ensure an adequate vehicle

for the timely and definitive resolution of this dispute”

without simultaneously seeking certiorari before

judgment from district court decisions in two other

cases: NAACP, in which the court vacated the memorandum rescinding DACA, 315 F. Supp. 3d at 471-73;

and Batalla Vidal, which involves a preliminary injunction with the same terms as the preliminary injunction here, 279 F. Supp. 3d at 421-33. In particu-

20

lar, the government seeks certiorari in NAACP because that court has “passed on the effect of [Secretary

Nielsen’s] memorandum on the questions presented,”

Pet. at 33, while the district court and court of appeals

here did not. But granting certiorari in those cases

would not solve the problem of piecemeal, interlocutory review: Batalla Vidal is likewise preliminary and

interlocutory, and NAACP “defer[red] ruling” on the

constitutional claims in that case, 298 F. Supp. 3d at

246. None of these cases presents a full record on any

equal protection claim.

More significantly, certiorari before judgment is an

extraordinary measure reserved only for cases of such

“imperative public importance” that the Court’s “immediate” review is necessary. Sup. Ct. R. 11. The

Court has already denied that extraordinary remedy

once, 138 S. Ct. 1182, and nothing has changed that

would make it any more appropriate now than it was

in February. Regardless of whether the Court grants

certiorari here, therefore, this Court should deny certiorari before judgment in NAACP and Batalla Vidal.

And rather than engage in piecemeal review, it should

also deny certiorari here.

C. There Is No Urgent Need For This Court’s

Review

The government rushed this case to this Court by

filing a second petition for certiorari before the court

of appeals even issued its decision, all in the hopes of

“ensur[ing] review by [the Court] during its current

Term.” Pet. 13 n.5. The decision has now issued, but

there is still no circuit split on the issues presented,

no court of appeals decision presenting the full dispute, and no harm to the government. There is accordingly no urgency justifying this Court’s immediate review.

21

1. The government’s main complaint is that the

preliminary injunction requires it to “sanction[] an ongoing violation of federal immigration law” by each

DACA recipient. Pet. 14. But the injunction does not

compel the government to “sanction” the unlawful

presence of anyone. It expressly preserves the government’s authority to exercise “fair discretion … on an

individualized basis for each renewal application,”

and “to remove any individual, including any DACA

enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its

judgment, to be removed.” Pet. App. 66a.

And the government is routinely required to “sanction” what it perceives to be ongoing violations of federal law pending appellate review. E.g., Nat’l Ass’n of

Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 627 (2018) (noting

“nationwide stay” of enforcement of Waters of the

United States Rule). It is often enjoined from enforcing federal laws against conduct that it believes to be

unlawful. E.g., Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 423 (2006) (affirming injunction against enforcement of Controlled

Substances Act). The government’s belief in the correctness of its own position does not defeat the policy

of delaying review until these issues have been considered by the other courts of appeals.

2. More fundamentally, the government’s conduct is not consistent with its current expressions of

harm.

The injunction merely freezes the situation that

has been in place for more than five years, including

under the current administration, and with the current President’s support. See Compl. ¶ 47 (President

confirming that his “policy” is “to allow the dreamers

to stay”). The current administration purposefully

22

continued DACA for more than eight months before

rescinding it. Pet. App. 115a-16a. The government

has never sought a stay of the preliminary injunction

in this case. That fact alone demonstrates that the

preliminary injunction causes no harm. 6

Further, the Secretary of Homeland Security

stated publicly—and repeated to Congress under

oath—that removal of DACA recipients would “not [be

a] priority of enforcement for ICE” “should the program end.”

Interview by John Dickerson with

Kirstjen Nielsen, Sec’y, Dep’t of Homeland Sec., “CBS

This Morning” (Jan. 16, 2018), https://tinyurl.com/

y8ekmzar; see Oversight of the United States Department of Homeland Security: Hearing before the S.

Comm. on the Judiciary, 115th Cong. (2018) (statement of Kristjen Nielsen). After the government’s

prior petition was filed, the President said he “certainly [has] the right” to keep DACA in place after

March 2018 (contrary to the petition’s argument that

DACA is unlawful), and that he very well “might” do

so. See READ: President Trump’s Full Exchange With

Reporters, CNN.com (Jan. 24, 2018), https://tinyurl.com/ydcafdtr (CNN Statement). These statements “blunt [the government’s] claim of urgency,”

Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1317-18

(1983) (Blackmun, J., in chambers), and “vitiate[]

much of the force” of its claimed harm, Beame v.

Friends of the Earth, 434 U.S. 1310, 1313 (1977) (Marshall, J., in chambers).

Indeed, it was not until August of this year—when the court

in NAACP went beyond maintaining the status quo for current

DACA recipients and vacated the decision rescinding DACA in

full—that the government asked any court to stay any part of

any order regarding DACA.

6

23

The government cannot credibly claim harm when

the current administration willingly permitted the

Dreamers to stay for over a year; and stated that it

will continue to do so, either by treating recipients as

a low enforcement priority or by extending DACA; and

has forgone opportunities to avoid any purported

harm through a stay.

3. The truth is that the government has no demonstrable basis for demanding “immediate determination” by this Court because the continuation of

DACA harms no one. DACA recipients are vetted to

ensure they pose no “threat to national security or

public safety”; have not been convicted of a felony, or

multiple or significant misdemeanors; and fulfill educational and work-related criteria. Pet. App. 9a.

Their continued presence does not injure the United

States, and does not warrant short-circuiting appellate review.

Any conceivable hardship on the government is

muted, moreover, because the orders in this case, Batalla Vidal, and NAACP, currently are in effect only

with respect to existing DACA recipients. See Pet.

App. 66a-67a; Batalla Vidal, 279 F. Supp. 3d at 437;

NAACP v. Trump, 321 F. Supp. 3d 143, 150 (D.D.C.

2018). These are individuals the government has already vetted and permitted to remain in this country,

and who have already relied on the government’s

promises to start families, pursue employment and

education, and invest in their communities. Every

court to consider these reliance interests has concluded they strongly outweigh any interest in hastening DACA’s end. See Pet. App. 62a-66a; Batalla

Vidal, 279 F. Supp. 3d at 434; NAACP, 321 F. Supp.

3d. at 147-49. Even the district court in the Texas

24

case, which stated the view that DACA was likely unlawful, left the program in place pending its ultimate

resolution of the merits because of the significant reliance interests of DACA recipients and the “great

risk” to them and their families should the case be

wrongly decided on “only a preliminary injunction record.” 328 F. Supp. 3d at 742.

4. At the same time the Solicitor General claims

an urgent need for resolution by this Court, the President and the leadership of the new Congress have

both expressed their desire to pursue a political solution that will permit the Dreamers to remain in the

United States. See, e.g., Remarks by President Trump

in Press Conference After Midterm Elections (Nov. 7,

2018), https://tinyurl.com/y8ab6pjc (“THE PRESIDENT: I think we could really do something having

to do with DACA.”); Pelosi Statement on Immigration

Priorities (Dec. 1, 2018), https://tinyurl.com/y8ya2hz3

(“Our House Democratic Majority will once again pass

the Dream Act.”).

Here, the government’s petition would potentially

preempt the political process (in addition to preempting the work of the other three courts of appeals). And

it would do so in contravention of the President’s

statements that his policy is to protect the Dreamers,

that he favors a political resolution of their status, and

that he has the “right” to keep DACA in place and (absent a political solution) may well do so. See Compl.

¶ 47; CNN Statement; Donald J. Trump (@realDonaldTrump), Twitter (Jan. 22, 2018, 8:30 p.m.),

https://tinyurl.com/yajslj5l (“I want a big win for everyone, including Republicans, Democrats and DACA

... Should be able to get there. See you at the negotiating table!”). While the government contends that

25

this litigation is “imped[ing] efforts to enact legislation” addressing DACA, Pet. 16, and the President has

threatened to delay negotiations unless this Court

grants review and holds that DACA is unlawful, Jake

Sherman & Anna Palmer, Exclusive: Trump Threatens Government Shutdown Over Border Wall Funding,

Politico

(Nov.

28,

2018),

https://tinyurl.com/ya6bsgpr, the President’s statements of

support for DACA and for a legislative fix speak

louder than these apparent attempts to influence this

Court’s ruling. This is an “unusual” case in which “the

ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has

ended.” Pet. App. 65a. This Court therefore should

give the political process a chance to work. See, e.g.,

Braxton v. United States, 500 U.S. 344, 347-48 (1991);

Volpe v. D.C. Fed’n of Civic Ass’ns, 405 U.S. 1030,

1030 (1972) (Burger, C.J., concurring in denial of certiorari) (noting “legislative action” could effectively

preclude review of questions presented to the Court

before it would be able to decide the case).

D. The Government’s Merits Arguments Do Not

Justify Review

The government also argues that certiorari is warranted because “[t]he decisions below are wrong.”

Pet. 17. But this Court does not sit as a “court of error

correction.” Martin v. Blessing, 134 S. Ct. 402, 405

(2013) (Alito, J., respecting the denial of certiorari).

The government’s merits arguments fail to demonstrate a compelling need for this Court’s involvement

at this stage.

26

1. The Court Of Appeals Properly Affirmed

The

District

Court’s

Reviewability

Determination

The government first argues that the APA, 5 U.S.C

§ 701(a)(2), and a particular provision of the INA,

8 U.S.C. § 1252(g), preclude judicial review of the Acting Secretary’s decision to end the DACA program.

Not so.

1. Section 701(a)(2) precludes APA review of

agency action that is “committed to agency discretion

by law.” The government contends that a “presumption of nonreviewability applies with particular force

when it comes to immigration.” Pet. 19. That is flatly

wrong: This Court has consistently applied a “strong

presumption in favor of judicial review of administrative action” in the immigration context. INS v. St.

Cyr, 533 U.S. 289, 298 (2001).

Rather, Section 701(a)(2) “is a very narrow exception” that is applicable only where “there is no law to

apply,” Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402, 410 (1971) (emphasis added), abrogated

on other grounds by Califano v. Sanders, 430 U.S. 99

(1977), meaning that “a court would have no … judicially manageable standards … for judging how and

when an agency should exercise its discretion,” Heckler v. Chaney, 470 U.S. 821, 830 (1985). This is not

one of those rare instances where there is no law to

apply. As the district court explained, “the new administration didn’t terminate DACA on policy

grounds”; it “terminated DACA over a point of

law.” Pet. App. 18a. “[D]etermining illegality is a

quintessential role of the courts.” Id. at 30a.

27

The government’s assertion that review is impossible because immigration enforcement decisions require “ ‘a complicated balancing’ of factors,” Pet. 19,

rings hollow given that the government ended DACA

“based solely on a belief that [it] lacked the lawful authority to do otherwise.” Supp. App. 29a (emphasis

added). Judicial review of that decision in no way “encroach[es] on executive discretion”; respondents seek

only to put “back on the table” the authority the government disclaimed so the government can continue

to exercise that authority or face “democratic accountability to the people” for declining to do so. Id. at 31a32a. Executive officials cannot “claim that the law

ties [their] hands while at the same time denying the

courts’ power to unbind [them]. [They] may escape

political accountability or judicial review, but not

both.” NAACP, 298 F. Supp. 3d at 249.

Ending a five-year old program that confers significant benefits on its recipients—including work authorization, non-accrual of unlawful presence, travel,

and the right to obtain a driver’s license—is a “major

policy decision” that is “quite different from day-today agency nonenforcement decisions” that courts

have sometimes found unreviewable. Nat’l Treasury

Emps. Union v. Horner, 854 F.2d 490, 496 (D.C. Cir.

1988). There is no tradition of withholding review in

these circumstances, and thus the “appropriate starting point” remains the “APA presumption of reviewability.” Id. at 496-97.

2. Section 1252(g) of Title 8 likewise does not bar

review. By its text, that provision applies to three specific types of decisions or actions: those taken “to commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g). This Court has interpreted those provisions narrowly, explaining that

28

judicial review is precluded only for those “three discrete actions.” AADC, 525 U.S. at 482. This case involves none of them. This is not a challenge to the

government’s decision to start the removal process

against a particular person, or to adjudicate an individual’s immigration case, or to actually remove an individual. Rather, it is a challenge to the decision to

end the DACA program.

The government seizes on AADC’s statement that

Section 1252(g) seems “designed to give some measure

of protection to ‘no deferred action’ decisions and similar discretionary determinations.” Pet. 21. But the

context makes clear that the statement referred only

to decisions involving a specific individual whose removal proceedings had already commenced. The government has cited no case where Section 1252(g) has

barred a policy challenge by a group of plaintiffs

against whom the government has not even begun removal proceedings. And the courts of appeals have

consistently cabined Section 1252(g) to the three circumstances enumerated and rejected its application

to programmatic challenges. See, e.g., Wong v. United

States, 373 F.3d 952, 965 (9th Cir. 2004); Texas I, 809

F.3d at 164. There is no imminent need for this Court

to review the issue.

2. The Court Of Appeals Correctly Affirmed

The Preliminary Injunction

The district court entered a preliminary injunction

after making an initial assessment of the merits, assessing irreparable injury, and weighing the equities.

The court of appeals, reviewing for abuse of discretion,

Supp. App. 22a, affirmed the district court’s analysis

in its entirety. Nothing about the court of appeals’ decision necessitates review.

29

1. The court of appeals upheld the preliminary

injunction because it agreed with the district court’s

conclusion that respondents are likely to prevail on

their claim that the rescission is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Supp. App. 45a (quoting 5 U.S.C.

§ 706(2)(A)). Here, the government provided three

justifications for DACA’s rescission, all of which fail

APA review.

a. The principal argument in the memorandum

rescinding DACA is that the Acting Secretary ended

DACA because continuing it would have been unlawful. Pet. 28. That view is contrary to the government’s

long-standing position that deferred action programs

are permissible, and so the agency was required to

“provide a reasoned explanation for the change.” Encino Motorcars LLC v. Navarro, 136 S. Ct. 2117, 2125

(2016). But the only legal analysis the Attorney General and Acting Secretary provided for their decision

was a citation to the Fifth Circuit’s decision about the

DAPA program. Dkt. 64-1 at AR251; Pet. App. 115a.

Before the district court and the court of appeals, the

government shifted its argument to litigation risk—

an argument that, according to the government, did

not depend on a showing that DACA is unlawful. See

Dkt. 204 at 17; see also Pet. 23-27. And the government declined to defend the Fifth Circuit’s ruling. See

note 4, supra.

Even though the government had not argued that

DACA is unlawful, the district court addressed and

correctly rejected that argument. See Pet. App. 42a54a. The court of appeals arrived at the same conclusion: “DACA was a permissible exercise of executive

discretion, notwithstanding the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s

30

statutory authority.” Supp. App. 56a-57a. The court

of appeals reviewed the numerous authorities that

have long justified deferred action programs. Id. at

8a-13a. The district court (Pet. App. 50a-54a) and the

court of appeals each explained why the Fifth Circuit’s

decision about DAPA is “entirely inapposite” to

DACA. Supp. App. 57a. 7 As the district court stated,

the government “ma[de] no effort” “to challenge any of

the … reasons why DACA was and remains within the

authority of the agency.” Pet. App. 48a. Under the

circumstances, the court of appeals had ample basis

to conclude that respondents “are likely to succeed in

demonstrating that the rescission must be set aside.”

Supp. App. 57a.

b. The government’s principal argument before

the courts below, repeated in its petition, Pet. 23-27,

is that DACA’s rescission was justified by litigation

risk. But that rationale appears “[n]owhere in the ad-

In brief: First, the Fifth Circuit’s procedural holding rested

on the district court’s factual finding that “DAPA would not genuinely leave the agency and its employees free to exercise discretion.” Texas I, 809 F.3d at 172-78. Here, by contrast, the district

court found ample evidence of “discretionary denials of DACA

applications,” Pet. App. 49a; see also Supp. App. 50a-51a. Second, the Fifth Circuit’s substantive holding—that DAPA exceeded the government’s statutory authority—rested in part on

its determination that granting deferred action to alien parents

of U.S. citizens conflicted with INA provisions that gave them an

alternate pathway to lawful presence. Supp. App. 51a-54a.

DACA, in contrast, fills a gap in the statute by indicating how

the government exercises its prosecutorial discretion with respect to a class of non-citizens whose fate was never directly decided by Congress. Id. Third, DAPA was challenged before it

took effect, whereas DACA has been in place for more than five

years, meaning that any legal challenge to DACA would have to

overcome the significant reliance interests that have developed

over those years, and the doctrine of laches. Pet. App. 57a.

7

31

ministrative record.” Pet. App. 56a. The reason “actually given” by the Attorney General and the Acting

Secretary was “DACA’s purported illegality”; neither

the Attorney General nor the agency ever “consider[ed] whether defending the program in court

would (or would not) be worth the litigation risk.” Id.

The discussion of litigation in the Acting Secretary’s

memorandum was “limited to a simple summary of

the Texas [I] litigation’s procedural history” that “appeared only in the ‘Background’ section of the memorandum” and “w[as] not referenced in the Acting Secretary’s statement of what she was ‘[t]aking into consideration.’” Supp. App. 40a (last alteration in original). The Attorney General “likewise focuse[d] on the

supposed illegality of DACA.” Id. at 37a. The court of

appeals thus rightly took “Attorney General Sessions

literally at his word” that “the basis for the rescission

was a belief that DACA was unlawful.” Id. at 35a.

Though the government now purports to find a litigation-risk rationale in the memorandum rescinding

DACA, it offers no evidence. It merely cites the

NAACP decision, which found a litigation-risk rationale in the Acting Secretary’s statement that

DACA should be “w[ound] … down in ‘an efficient and

orderly manner.’” 298 F. Supp. 3d at 241 (quoting Pet.

App. 116a). But that statement was made in light of

the decision to rescind DACA and was never offered

as a reason for rescinding it. Pet. App. 115a; see SEC

v. Chenery Corp., 332 U.S. 194, 196 (1947) (APA review is limited to the “grounds invoked by the

agency”).

In any event, both the court of appeals and the district court correctly determined that the government’s

post hoc “litigation risk” justification is itself arbitrary

and capricious. The government failed to consider the

32

“differences between DAPA and DACA that might

have led to a different result” in any litigation than in

Texas I. Pet. App. 57a; see note 5, supra. Those interests have already had an impact in Texas II, spurring

the district court there to deny a preliminary injunction despite its doubts about the lawfulness of DACA.

328 F. Supp. 3d at 740-42. Even if that lawsuit should

ultimately prevail, the court’s careful consideration of

the reliance interests of DACA recipients and their

families and its recognition of the need for care in “unscrambl[ing] the egg,” id., dispels any fear of the sort

of “imminent” judicial termination of DACA that the

government now claims it was seeking to avoid by

winding down the program, Pet. 9; see also NAACP,

298 F. Supp. 3d at 241-42.

Unlike the district court in Texas, the government

did not weigh any perceived litigation risks against

countervailing interests that could have warranted

defending DACA. Pet. App. 58a-60a. Those interests

include the “serious reliance interests” by DACA recipients, which are precisely the kinds of interests

that an agency “must … take[] into account” before

changing position. Encino Motorcars, 136 S. Ct. at

2126. The paucity of the government’s explanation for

its change in position meant the district court had ample basis for believing that respondents’ claims had

sufficient merit to justify preliminary injunctive relief.

c. The government’s final attempt to rationalize

the rescission (Pet. 24, 27-28) is to invoke Secretary

Nielsen’s subsequent memorandum, which purported

to offer “further explanation” for the initial decision to

rescind DACA in response to the remand order in

NAACP. Pet. App. 121a. But that memorandum “cannot possibly be a part of the administrative record in

33

this case.” Supp. App. 57a n.24. It was not authored

until after the decision under review, and the court of

appeals declined to consider it, instead directing the

district court to do so “in the first instance.” Id.

The memorandum also lacks any legal relevance to

this case. It not a “fresh agency action” (a Rescission

2.0) that can stand or fall on the Secretary’s new justifications. Supp. App. 57a n.24. It “provides almost

no meaningful elaboration on the Duke Memo’s assertion that DACA is unlawful,” and “fails to engage

meaningfully with the reliance interests and other

countervailing factors that weigh against ending the

program.” NAACP, 315 F. Supp. 3d at 471-72. And to

the extent the Secretary purported to offer “additional

and independent policy concerns” not identified in the

original memorandum rescinding DACA, Pet. 27, the

court of appeals rightly declined to consider those

“‘post-hoc rationalization[s].’” Supp. App. 57a n.24.

2. The preliminary injunction in this case also

rested on the district court’s assessment of irreparable

injury and weighing of the equities. The court rightly

concluded that respondents—especially the individual DACA recipients—would be irreparably harmed if

DACA were permitted to expire during the pendency

of this litigation. Pet. App. 62a-64a. The court also

found that the public interest favors temporary relief

to freeze the DACA program. Id. at 64a-66a. As the

President explained, “[no]body really want[s] to throw

out good, educated and accomplished young people

who have jobs, some serving in the military.” Id. at

65a.

The government never disputed these factors below and fails to do so here. Combined with the lower

courts’ preliminary assessment of the merits, the equities sufficiently justify the preliminary injunction.

34

The government has shown no error, let alone error

worthy of upsetting a political process that may soon

provide a long-term solution for the Dreamers.

35

CONCLUSION

The petition for a writ of certiorari should be denied. Should the Court grant the petition, it should

deny certiorari in Nos. 18-588 and 18-589.

Respectfully submitted.

STUART F. DELERY

MATTHEW S. ROZEN

HALEY S. MORRISSON

ANDREW J. WILHELM

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 955-8500

MARK D. ROSENBAUM

JUDY LONDON

PUBLIC COUNSEL

610 South Ardmore Avenue

Los Angeles, CA 90005

(213) 385-2977

LUIS CORTES ROMERO

BARRERA LEGAL GROUP, PLLC

19309 68th Avenue South,

Suite R102

Kent, WA 98032

(253) 872-4730

THEODORE J. BOUTROUS, JR.

ETHAN D. DETTMER

KIRSTEN GALLER

JONATHAN N. SOLEIMANI

KELSEY J. HELLAND

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

TBOUTROUS@GIBSONDUNN.COM

LAURENCE H. TRIBE

HARVARD LAW SCHOOL*

1575 Massachusetts Avenue

Cambridge, MA 02138

(617) 495-1767

LEAH M. LITMAN

UNIVERSITY OF CALIFORNIA,

IRVINE SCHOOL OF LAW*

401 E. Peltason Drive

Irvine, CA 92697

(949) 824-7722

ERWIN CHEMERINSKY

UNIVERSITY OF CALIFORNIA,

BERKELEY SCHOOL OF LAW*

215 Boalt Hall

Berkeley, CA 94720

(510) 642-6483

Counsel for Respondents Dulce Garcia, Miriam Gonzalez Avila,

Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez,

and Jirayut Latthivongskorn

*Affiliation for identification purposes only

36

STACEY M. LEYTON

ERIC P. BROWN

ALTSHULER BERZON LLP

177 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151

Counsel for Respondents County

of Santa Clara and Service Employees International Union Local

521

JAMES R. WILLIAMS

GRETA S. HANSEN

LAURA S. TRICE

MARCELO QUIÑONES

OFFICE OF THE COUNTY COUNSEL

COUNTY OF SANTA CLARA

70 West Hedding Street

East Wing, Ninth Floor

San Jose, CA 95110

(408) 299-5900

Counsel for Respondent County of

Santa Clara

December 17, 2018