Respondents Brief — United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674)

No, 15-674

Supreme Court of the United States

UNITED STATES OF AMERICA, ET AL..,

Petitioners,

v.

STATE OF TEXAS, ET AL.,

Respondents.

-_—_— -— ——

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

INTERVENORS-RESPONDENTS JANE DOES’

BRIEF IN SUPPORT OF CERTIORARI

—

ADAM P. KOHSWEENEY THOMAS A. SAENZ

GABRIEL MARKOFF NINA PERALES

SAMUEL WILSON (Counsel of Record)

MALLORY JENSEN MEXICAN AMERICAN LEGAL

JUAN CAMILO MENDEZ DEFENSE AND EDUCATIONAL

O'MELVENY & MYERSLLP FUND

Two Embarcadero Center 110 Broadway, Ste. 300

San Francisco, CA 94111 San Antonio, TX 78205

(210) 224-5476

LINDA J. SMITH nperales@maldef.org

DLA PIPER LLP

2000 Avenue of the Stars

Los Angeles, CA 90067

Attorneys for Intervenors-Respondents Jane Does

i

QUESTIONS PRESENTED

On November 20, 2014, the Secretary of the De-

partment of Homeland Security issued a guidance

memorandum (Guidance) directing his subordinates

to consider discretionary grants of deferred action for

removable undocumented immigrants meeting cer-

tain specified criteria. The Guidance provides for

uniformity in the exercise of discretion across the

Department’s agencies and its employees authorized

to grant deferred action. Deferred action is a tempo-

rary forbearance from removal, and by itself conveys

no enforceable rights or benefits on its recipients.

The questions presented are:

1. Whether a State has Article III standing and a

justiciable cause of action under the Administrative

Procedure Act (APA), 5 U.S.C. § 500 et seq., to chal-

lenge the Secretary’s exercise of immigration en-

forcement discretion, simply because an increase in

the number of immigrants receiving deferred action

might ultimately increase the net costs of the State’s

driver's license program.

2. Whether the Guidance is arbitrary and capri-

cious or otherwise not in accordance with law.

3. Whether the Guidance was subject to the

APA's notice-and-comment procedures.

ii

LIST OF PARTIES AND RULE 29.6

STATEMENT

Petitioners and Respondents are as described in

the Petition. Pet. II.

Intervenors are three individuals who proceed

under the pseudonyms Jane Doe #1, Jane Doe #2,

and Jane Doe #3 in this litigation. They are undoc-

umented immigrant mothers of U.S. citizen children

and longtime residents of Texas, and they will be el-

igible to apply for deferred action if the Guidance is

implemented. Intervenors were parties in the pro-

ceeding below at the time of the filing of the Petition

and are respondents in this Court. S. Ct. Rule 12.6.

Intervenors first participated as amici curiae in

the court of appeals while simultaneously appealing

the district court’s denial of their January 2015 mo-

tion to intervene. On November 9, 2015, the same

three-judge panel of the court of appeals that af-

firmed the preliminary injunction unanimously re-

versed the denial of intervention. Texas v. United

States, 805 F.3d 653 (5th Cir. 2015).

On November 18, 2015, Intervenors moved to in-

tervene as parties in the injunction appeal to ensure

they could participate as parties in this Court. The

court of appeals granted the motion to intervene on

November 19, 2015, prior to the filing of the Petition

on November 20, 2015. Order, Texas v. United

States, No. 15-40238 (5th Cir. Nov. 19, 2015); see al-

so S. Ct. Rule 12.6 (“All parties to the proceeding in

the court whose judgment is sought to be reviewed

are deemed parties entitled to file documents in this

Court[.] ... All parties other than the petitioner are

considered respondents[.]”); INS v. Chadha, 462 U.S.

ili

919, 930 n.5 (1983) (Ninth Circuit’s grant of inter-

vention after judgment made former amici proper

parties for purposes of seeking review in this Court).

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................ccccceeeeeseseeees i

LIST OF PARTIES AND RULE 29.6

EE catesicicrietncensinsesimnsisticininensnncniinininiondechiiien il

ITI cintssiiisiicsnticepaiasiinniaittiansnadpeasinnasionam l

REASONS FOR GRANTING THE PETITION ....... 3

1.

Il.

THE PRELIMINARY INJUNCTION

IS CAUSING ONGOING INJURY TO

NATIONAL SECURITY, THE

PUBLIC FISC, AND MILLIONS OF

INDIVIDUALS LIVING IN MIXED-

STATUS FAMILIES. ................csccesessecseeeseeee 3

A. The Injunction Is Interfering

With The DHS Secretary’s

Decision To Focus DHS’s

Resources On The Removal Of

Serious Criminals, Terrorists,

And Other Threats To Public

B. While The Injunction Is In Place,

Potential Recipients Of Deferred

Action Remain Unable To Work

Legally And Support Their U.S.

tsrpm 8

THE COURT OF APPEALS’

DECISION UPENDS ESTABLISHED

LAW BY INSTALLING THE

FEDERAL COURTS AS THE

ARBITERS OF IMMIGRATION

I 15

Vv

TABLE OF CONTENTS

(continued)

Page

A. AState Cannot Base Standing On

The Incidental Effects Of A DHS

Guidance Statement For

Exercising Prosecutorial]

Discretion In Immigration

EES EE ne ane 16

B. Respondents’ Claims Are

Unreviewable Because Deferred

Action Is A Quintessential

Exercise Of Prosecutorial

Discretion, Not A Grant Of

Benefits Or Immigration Status ........ 23

C. The Deferred Action Guidance Is

A General Policy Statement Not

Subject To Notice-and-Comment

eli 27

D. The Secretary’s Decision To

Implement The Deferred Action

Guidance Was Lawful......................... 31

i eccentininpennenccnnnieiinnsintitnienninesindeimedai 36

vi

TABLE OF AUTHORITIES

Page(s)

CASES

Allen v. Wright,

I a a ell 20

Arizona v. United States,

Bs Mais IID on icccecnsininusevniiabetnniin 16, 23, 32

Chrysler Corp. v. Brown,

I 28

Clapper v. Amnesty Int7,

8 A EE passim

Georgia v. Tennessee Copper Co.,

a a intidednnleniion 22

Heckler v. Chaney,

I a 24, 25

Hollingsworth v. Perry,

Is I i ccs 3

Lexmark Int'l, Inc. v. Static Control

Components, Inc., 134 S. Ct. 1377

FERRERS RST CRESS a a beeen PEE CRE TERE, Dee 20

Lincoln v. Vigil,

I a ae leslie 28

Linda R.S. v. Richard D..,

a celeeaiaiiale 17

Lujan v. Defenders of Wildlife,

ff RS ae eer 16, 18, 20

Massachusetts v. EPA,

Be es Ge I oi cicictindtscncctetnsensusianontiees 21, 22, 23

vil

TABLE OF AUTHORITIES

(continued)

Morton v. Ruiz,

Sy NE I ian ccc eninienctnidicadniupadibbebinené 28

Reno v. American-Arab Anti-

Discrimination Comm.,

Be Ws GG CD cccccccccccccscccococcccoccsoncses 17, 24, 26

Sure-Tan, Inc. v. NLRB,

A i sic slneteindabeaminads 17

Toll v. Moreno,

I lt aeeeeinmaieiinemecaionl 15

Truax v. Raich,

I etree 9, 23

Valley Forge Christian Coll. v.

Americans United for Separation of

Church & State, Inc.,

I a ceslehasibinasobe 1

Wyoming v. Oklahoma,

ESERIES, eee ae ne ewe 17

STATUTES

I 27

I a 24

EEE STE CR RT 29, 32

aan sisal anbiieiilodiieabahin 32

a ss sca iccndasapnbinpeienanegunenete 29

yO ee iiriccnsrcccccecccntninecenessctensetin 33

Ie a alia hitaitcnstaipaniaabdieieentiaimatiia 32

Vili

TABLE OF AUTHORITIES

(continued)

Page(s)

I lt saa eelnitiiemanadenael lads 5

I ae eeambbeiiiliinnilie 32

Be ss cadet rindsteivinionmnddusaniogte 32, 34

I a reeninssnsinsesincisrloniseinasntésonanmast 35

Bi, te BEIT indctoninncnssupessncenanpsnedesonibininoepedzesnien 35

ee ie IED iicinciodeccscncceseresonnieneiicscnints 13

et I wii senciicdssccdinnnsupdemnmmmtnissncmabsaonneds 11

ae 11

A a cetera and peeibanmnineniinnniial 11

I ins alnariccnetamntshsciogmegiennmnannenineida 11

8 ae ESSER anaes Gena ne ener 11

I ol cecnadenemiontnnnonieninneieeis 11

sO i iicccncncesctsccctecscastoncsscnnsnsmmencees 11

| ES SAREE een a eo on 11

i Oe I OI INI: cccisdsicinscenscnsanmnssevinincboanbiniiadinen 12

I TT i ciereid lentes tpeidnainsbainnbaianan 13

Oe ni caccndnrnntenstindternbnneneneieieabonsennes 13

es ie I a itis ssteseaniatanndisenpindiidinncesecetndeee 22

Department of Homeland Security

Appropriations Act, Pub. L. No. 114-

EIR ST Ee oe 5

REGULATIONS

DG ie BU ccnccccccncscssenssonnniscoscsssensssovcssososnseoses 11

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

pee es SD” RE eran eee eree a: passim

ee Oe inci cnsenmiimnanenbunadiinniaroieeebieen 12

a le er SE ccociscncanptenenenttdiunenicadvcaddiaain 12

ee I sc oiceccnenintedpinndeitisienicccsenertenabecs 13

i I io occcstenhisnncondodbotniecnsuieinndensendtie 13

Employment Authorization to Aliens in

the United States, 46 Fed. Reg.

I A i cietearnousidinnie 10

Employment Authorization; Classes of Aliens

Eligible, 52 Fed. Reg. 46092 (Dec. 4, 1987)......... 34

OTHER AUTHORITIES

Adam B. Cox & Cristina M. Rodriguez,

The President and Immigration Law

Redux, 125 Yale L.J. 104 (2015) ..........000...0000..0ee 35

Adam Davidson, Do Illegal Immigrants

Actually Hurt the U.S. Economy?,

N.Y. Times Magazine (Feb. 12, 2013),

http://www.nytimes.com/2013/02/17/

magazine/do-illegal-immigrants-

actually-burt-the-us-

economy.html?pagewanted=

REFN RRR Rsk ene eae 12, 13

x

TABLE OF AUTHORITIES

(continued)

Page(s)

Applied Research Center, Shattered

Families: The Perilous Intersection of

Immigration Enforcement and the

Child Welfare System Executive

Summary (Nov. 2, 2011),

https://www.raceforward.org/research

/reports/shattered-families?arc=1 ......0.0.000.00000000-. 21

Center for American Progress,

Administrative Action on

Immigration Reform: The Fiscal

Benefits of Temporary Work Permits

(Sept. 2014),

https://cdn.americanprogress.org/wp-

content/uploads/2014/09/

OakfordAdminRelief. pdf ...........0.......ccccccccccceeeeeees 12

Center for American Progress,

Executive Action on Immigration Will

Benefit Texas’s Economy (Nov. 2014),

http://www.scribd.com/doc/248188359

/Economic-Benefits-of-Executive-

PO ene 13, 14

Center for American Progress, The

Economic Effects of Granting Legal

Status and Citizenship to

Undocumented Immigrants (Mar. 20,

2013),

https://cdn.americanprogress.org/wp-

content/uploads/2013/03/

EconomicEffectsCitizenship-1.pdf ....................... 12

xl

TABLE OF AUTHORITIES

(continued)

Dep't of Justice, Attorney General’s

Manual on the Administrative

ds aseoeouesevanns 28

Homeland Security Advisory Council,

Task Force on Secure Communities

Findings and Recommendations

(Sept. 2011),

https://www.dhs.gov/xlibrary/assets/

hsac-task-force-on-secure-

communities-findings-and-

recommendations-report. pdf .................. ccc ccceeeees 7,8

ICE ERO Annual Report, FY 2013,

https://www.ice.gov/doclib/about/office

s/ero/pdf/2013-ice-immigration-

PII Sasdddiriedeedncseichasittediomsisishideohadacesceadionsdasdeh oss 7

Joanna Dreby, Center for American

Progress, How Today’s Immigration

Enforcement Policies Impact

Children, Families, and Communities

(Aug. 20, 2012),

https://www.americanprogress.org/

issues/immigration/report/2012/08/20/

27082/how-todays-immigration-

enforcement-policies-impact-children-

families-and-communities/......................... 7,14, 15

Memorandum, Secure Communities

(Nov. 20, 2014),

https://www.dhs.gov/sites/default/files

/publications/14_1120_ memo_secure_

SRR RR ETC elon ay 7

xii

TABLE OF AUTHORITIES

(continued)

Page(s)

Michael V. Maciosek et al., Greater Use

Of Preventive Services In U.S. Health

Care Could Save Lives At Little Or

No Cost, 29 Health Affairs 1656

(2010),

https://www.minnpost.com/sites/

default/files/attachments/

12-3-10_KCC-Agenda-1%20copy.pdf ................... 13

Mike Corones, Tracking Obama’s

deportation numbers, Reuters

(Feb. 25, 2015),

http://blogs.reuters.com/data-

dive/2015/02/25/tracking-obamas-

a le 7

Nat'l Ass’n of Cmty. Health Ctrs.,

Impact of Community Health Centers

(Apr. 2007), |

http://www.nachc.com/client/

documents/research/ED_Report_

NE chetciaaalenisiaseustadulataed pueldiidsapaisielesinsisdnnsessiensiiscddoes 14

New Policy Aids Families of Aliens,

N.Y. TIMES, Mar. 5, 1990,

http://www.nytimes.com/

1990/03/05/nyregion/new-policy-aids-

a seoslbbnniiidnsalidans 10

Shoba Sivaprasad Wadhia, The Role of

Prosecutorial Discretion in

Immigration Law, 9 Conn. Pub. Int.

tl Mecca ese ee 32, 33

xill

TABLE OF AUTHORITIES

(continued)

Tex. Dep’t of Pub. Safety, Annual

Report: Fiscal Year 2014 (2014),

https://www.txdps.state.tx.us/director

_staff/public_information/

annualRptFY14.pdf.................ccccccceeseeeees

Tex. Dep't of Pub. Safety, Driver

License Division Fees,

https://www.txdps.state.tx.us/

DriverLicense/fees.htm ...............00c..c000ce0.-

Tex. Dep’t of Pub. Safety, Operating

Budget, Fiscal Year 2014 (2013),

https://www.dps.texas.gov/LBB/

operatingBudget.pdf................ ccc ccccceeceeeeeee

The White House Council of Economic

Advisors, The Economic Effects of

Administrative Action on

Immigration (Nov. 2014),

https://www.whitehouse.gov/sites/

default/files/docs/cea_2014_economic

_effects_of_immigration_executive

RE ELD LE IS ERIS i? he ED

USC Center for the Study of Immigrant

Integration, The Kids Aren't Alright —

But They Could Be: The Impact of

[DAPA] on Children (Mar. 2015),

http://dornsife.usc.edu/assets/sites/73

1/docs/DAPA_Impact_on_Children_

CORR Bereek Primal 01 OF .....00<...cccosccccesseses

Page(s)

pea 12,13

1

INTRODUCTION

By upholding a nationwide preliminary injunc-

tion blocking the Executive’s exercise of prosecutori-

al discretion in immigration enforcement, the court

of appeals has injected the judicial branch into a na-

tional policy disagreement between the Executive’

and certain States in contravention of the strict limi-

tations that “serve[] to prevent the judicial process

from being used to usurp the powers of the political

branches.” Clapper v. Amnesty Int'l, 133 S. Ct. 1138,

1146 (2013); see also Valley Forge Christian Coll. v.

Americans United for Separation of Church & State,

Inc., 454 U.S. 464, 472 (1982). The courts below had

no jurisdiction, the injunction was wrongly affirmed

on the merits, and the injury it is causing is severe.

This Court should grant the petition for writ of certi-

orari.

The court of appeals’ decision is based on a fun-

damental misconception of what the Deferred Action

Guidance does. The Guidance does not, as Respond-

ents have repeatedly claimed, affirmatively grant

legal immigration status and public benefits. Ra-

ther, it is nothing more than a set of guidelines the

Secretary has established to systematicaily channel

the exercise of his discretion, so as to ease the pro-

cess of identifying immigrants who are low priorities

for removal. Those immigrants who are individually

determined to meet the criteria are then subject to

deferred action, freeing up DHS’s limited resources

to pursue serious criminals, terrorists, and other

threats. Recipients of deferred action can separately

apply to the Secretary for work authorization, which

he can grant under a long-existing regulation prom-

ulgated by notice-and-comment rulemaking. But de-

2

ferred action itself confers nothing more than the

condition of being temporarily deprioritized for re-

moval during the period of time the Secretary choos-

es to refrain from removing the recipient.

The court of appeals incorrectly rejected these

facts, instead agreeing with Respondents that the

Guidance is a binding grant of benefits and a proper

subject for judicial review. That erroneous ruling

has created the crisis this Court should now resolve.

While the injunction is pending, the Secretary can-

not properly focus DHS’s scarce resources on remov-

ing criminals and threats to national security; the

tax rolls are deprived of revenue and the economy

suffers; and millions of undocumented immigrants

like Intervenors are forced to remain in hiding and

work outside the legal economy, unable to properly

support their U.S. citizen children. These injuries

will continue unless and until this Court grants re-

view.

The court of appeals’ misunderstanding of the

Guidance was also the basis of its legal error. Con-

trary to the court’s ruling, Respondents have no

standing because the Guidance would, at most, have

incidental effects on them, but would not cause them

a judicially cognizable injury. Respondents’ APA

claims are unreviewable, for the Guidance confers no

status or benefits. The procedural APA claim fails,

because the Guidance is not binding. And the sub-

stantive APA claim fails since discretionary grants of

traditional deferred action, the only things the Guid-

ance does provide for, are perfectly compatible with

existing law.

The serious injury inflicted by the decision below

3

and its numerous legal errors show the truth of this

Court’s prior warnings: the judicial power is limited,

and it cannot be injected into “every sort of dispute,

but only those historically viewed as capable of reso-

lution through the judicial process.” Hollingsworth

v. Perry, 133 S. Ct. 2652, 2659 (2013) (quotations

omitted). The dispute presented between Respond-

ent States and the Executive in this case is not one

to which the judicial power can properly be applied.

This Court should grant the immediate review Peti-

tioners request.

REASONS FOR GRANTING THE PETITION

I. THE PRELIMINARY INJUNCTION IS

CAUSING ONGOING INJURY TO NATION-

AL SECURITY, THE PUBLIC FISC, AND

MILLIONS OF INDIVIDUALS LIVING IN

MIXED-STATUS FAMILIES

The preliminary injunction is hindering the Sec-

retary’s ability to enforce the immigration laws and

causing severe harm to both the economy at large

and millions of U.S. citizens, legal permanent resi-

dents (LPRs), and undocumented immigrants who

are members of mixed-status families. By endorsing

the district court’s unprecedented decision to inject

the judicial power into the Executive’s policymaking,

the court of appeals ensured that these harms will

continue indefinitely unless this Court grants re-

view.

The harms the injunction is causing are irrepara-

ble and should not be allowed to persist any longer

than the time it takes for this Court to review the

judgment below and issue a decision. Even if this

Court determines that the injunction was improperly

4

issued and must be dissolved, it cannot undo the lost

months in which Respondents have used the federal

judicial power to prevent the Executive from imple-

menting its discretionary enforcement power to pri-

oritize candidates for removal, and in which Interve-

nors and millions of others in their situation have

been forced to remain in the shadows, unable to le-

gally support their families. Every day that the in-

junction remains in place is another day that the

federal government cannot fully execute its immi-

gration policy, that the U.S. economy cannot maxim-

ize its productivity, and that millions of parents of

U.S. citizens and LPRs remain in fear of the unceas-

ing threat of removal, unable to seek lawful em-

ployment.

A. The Injunction Is Interfering With The

DHS Secretary’s Decision To Focus

DHS’s Resources On The Removal Of Se-

rious Criminals, Terrorists, And Other

Threats To Public Safetv

The Secretary issued the Guidance and the ac-

companying Prioritization Memorandum to focus

DHS resources on removing immigrants who are

threats to national security, public safety, and bor-

der security. See App. 41la-415a; App. 420a-425a.

The two memoranda work together. While the Prior-

itization Memorandum sets forth a principle for DHS

personnel to follow—that DHS’s limited resources

should be focused on removing serious criminals,

terrorists, and other immigrants that are high-

priorities for removal'—the Guidance allows that

! This principle embodies the Secretary's discretionary in-

terpretation of Congress’s general instructions that he should

5

principle to be put into practice. By providing crite-

ria for DHS personnel to use in identifying certain

low-priority individuals and a time period in which

the agency will refrain from removing them, DHS’s

enforcement resources can be allocated where they

are most needed. App. 415a-419a; App. 423a-426a.

The injunction interferes with this structure by

striking at the mechanism for implementing the Sec-

retary’s judgment: individual grants of deferred ac-

tion pursuant to the Guidance processes known as

DAPA and expanded DACA (DAPA). By preventing

the Secretary from using the eligibility criteria laid

out in the Guidance to guide the discretion of DHS

personnel making fact-specific determinations for

granting deferred action, the Secretary’s ability to

grant deferred action in a consistent manner to low-

priority immigrants is severely constrained, and his

attempts to put the Prioritization Memorandum’s

principle into practice are stymied.”

The court of appeals’ argument that the injunc-

tion does not technically require DHS to abandon the

Prioritization Memorandum ignores this practical

problem. App. 44a, 87a. The Secretary has chosen

focus enforcement resources on serious criminals and terrorists.

See 8 U.S.C. § 1226(c); Department of Homeland Security Ap-

propriations Act, Pub. L. No. 114-4, 129 Stat. 39, 41-43 (2015).

2 Thousands of DHS employees in a variety of agencies—

notably Immigration and Customs Enforcement, the Border

patrol, and Citizenship and Immigration Services—carry out

the Secretary's enforcement priorities and decide whether to

grant deferred action to individual immigrants. The Prioritiza-

tion Memorandum and Guidance are necessary to ensure that

the enforcement priorities and discretion to grant deferred ac-

tion are applied appropriately and in a uniform manner.

6

to exercise his discretion to grant deferred action to

specified low-priority immigrants as his method for

ensuring that these individuals will come forward,

identify themselves, and be counted. App. 415a-

419a; App. 91a (King, J., dissenting) (dissent). As

more low-priority immigrants are counted, regis-

tered, and granted deferred action, the total number

of unknown, unaccounted-for immigrants declines.

Having recorded their locations and determined that

they are low priorities for removal, DHS can shift its

enforcement resources away from these immigrants

and turn instead to apprehending high-priority tar-

gets for immediate removal.

The injunction halts this carefully designed ar-

rangement. With the Guidance enjoined, Interve-

nors and other immigrants in their situation have no

reasonable surety that self-identification will not re-

sult in detention or removal.? Despite the Prioritiza-

tion Memorandum refocusing resources on higher

priority individuals, Intervenors and others in their

position are still targeted for removal: “Nothing in

this memorandum should be construed to prohibit or

discourage the apprehension, detention, or removal

of aliens unlawfully in the United States who are not

identified as priorities herein.” App. 426a. Indeed,

3 The surety the Guidance provides is incomplete, of course,

since the “ultimate judgment as to whether an immigrant is

granted deferred action will be determined on a case-by-case

basis” and “deferred action “may be terminated at any time in

the agency's discretion.” App. 413a, 419a. But the experience

of 2012 DACA shows that undocumented immigrants who are

likely to fulfill the eligibility criteria will step forward to apply

when the Secretary implements a transparent process for mak-

ing discretionary grants of deferred action.

7

the current administration has removed more indi-

viduals each year than any other. App. 91a n.1 (dis-

sent); Mike Corones, Tracking Obama’s deportation

numbers, Reuters (Feb. 25, 2015). In the first six

months of 2011 alone, 46,000 parents of U.S. citizens

were removed. Joanna Dreby, Center for American

Progress, How Today’s Immigration Enforcement

Policies Impact Children, Families, and Communi-

ties 1 (Aug. 20, 2012). And in 2013, Immigrations

and Customs Enforcement removed 368,644 individ-

uals, of which 41 percent had never been convicted of

acrime. ICE ERO Annual Report, FY 2013, at 1-2.

Moreover, even if self-identification does not re-

sult in outright detention or removal, in the absence

of uniform deferred action guidance and criteria for

DHS employees to apply, Intervenors’ requests for

deferred action would likely be refused or, at mini-

mum, would be subject to inconsistent, unpredictable

treatment depending on the individual] DHS employ-

ee encountered. Thus, with the injunction in place,

Intervenors are unable to come forward and identify

themselves. Low-priority undocumented immigrants

will remain hidden, unknown to the Executive and

without a known address. They remain targets for

removal, hobbling DHS’s ability to effectively allo-

cate its resources and execute its objectives. Indeed,

it was to avoid these very problems of inconsistent

enforcement and spending enforcement resources on

low-priority immigrants—and the resulting inhibi-

tion of effective community policing they caused—

that forced the Secretary to revoke the controversial

“Secure Communities” program and replace it with

the Prioritization Memorandum. See Memorandum,

Secure Communities 1 (Nov. 20, 2014); Homeland

8

Security Advisory Council, Task Force on Secure

Communities Findings and Recommendations 16, 21

(Sept. 2011) (noting that Secure Communities “has

resulted in the arrest and deportation of minor of-

fenders” and that “enforcement against traffic of-

fenders and others arrested only for minor offenses

poses the greatest risks of undermining community

policing”). While the injunction remains in place,

DHS will continue to be impeded in its attempts to

effectively allocate its enforcement resources.

B. While The Injunction Is In Place, Poten-

tial Recipients Of Deferred Action Re-

main Unable To Work Legally And Sup-

port Their U.S. Citizen Children

The injunction is also causing ongoing harm to

public revenues, the broader economy, and mixed-

status families by preventing breadwinners from

supporting their U.S. citizen children in the legal

economy. Deferred action would make these immi-

grants eligible to apply for work authorization under

a long-established regulation. See 8 C.F.R. §

274a.12(c)(14). With work authorization, they could

receive a social security number, begin legal em-

ployment, pay the same taxes as U.S. citizens, and

possibly obtain private health insurance through

their employers. At the same time, they would re-

main largely ineligible for the very social programs

their taxes support. Furthermore, relieving the un-

ending fear of removal would have a massive posi-

tive humanitarian impact, not only on the potential

recipients of deferred action, but also on their U.S.

citizen children and family members.

9

1. The injunction is directly harming public rev-

enues by preventing the Secretary from granting

work authorization to the low-priority immigrants

who are the subject of the Guidance. Work authori-

zation is associated with deferred action, but it

comes from a separate legal source. Once granted, it

is entirely beneficial to the States and the Federal

Government: it ensures that the recipient is able to

support herself and opens a new source of tax reve-

nue but, with very few exceptions, does not itself al-

low the recipient to receive the benefits of the social

programs her taxes support.

Work authorization has long been accepted as a

non-controversial, necessary accompaniment to de-

ferred action. Staying removal without allowing

immigrants to work defeats the goal of allowing

them to contribute to society. Instead, immigrants

would be forced to remain in the shadow economy,

where their unlawful employment would depress

their wages, subject them to abuse by exploitative

employers, and harm the economy at large. J/nfra

I.B.2.

There is a long history of granting work authori-

zation to recipients of deferred action. A century

ago, this Court recognized the necessity of allowing

immigrants permitted to remain in the country to

work. See Truax v. Raich, 239 U.S. 33, 42 (1915)

(“{[Immigrants] cannot live where they cannot

work.”). The administration of President Reagan

nearly 30 years ago promulgated a regulation that

allows “[a]n alien who has been granted deferred ac-

tion, an act of administrative convenience to the gov-

ernment which gives some cases lower priority,” to

apply for work authorization “if the alien establishes

10

an economic necessity for employment.” 8 C.F.R. §

274a.12(c)(14).4 This established regulation, rather

than the Guidance itself, is the legal mechanism that

confers eligibility for lawful employment on recipi-

ents of deferred action. App. 417a-418a & n.4.

In 1990, the administration of President George

H.W. Bush granted temporary permission to remain

in the United States to a class of up to 1.5 million

undocumented immigrants who were family mem-

bers of lawful residents. New Policy Aids Families of

Aliens, N.Y. Times, Mar. 5, 1990. This program also

granted work authorization those immigrants. /d.

Similarly, in 1997, the Immigration and Naturaliza-

tion Service (“INS”) established a deferred action

program that applied to undocumented victims of

domestic violence who appeared to qualify for relief

under the Violence Against Women Act; grantees

could apply for work authorization. D.Ct. Dkt. 38-

11, Supplemental Guidance on Battered Alien Self-

Petitioning Process and Related Issues 3 (May 6,

1997). In 2001, the INS allowed applicants for T and

U visas to remain in the country through deferred

action and other means. D.Ct. Dkt. 38-12, Victims of

Tra, ficking and Violence Protection Act of 2000, Poli-

cy Memorandum #2 2 (Aug. 30, 2001). Again, recipi-

ents of deferred action were authorized to apply for

work authorization by Section 274a.12(c)(14). Jd. at

4. The administration of President George W. Bush

later allowed foreign students affected by Hurricane

Katrina to apply for deferred action, including eligi-

4 Either this regulation or its predecessor has been in effect

since 1981. 46 Fed. Reg. 25,079, 25,080 (May 5, 1981); App.

110a (dissent).

ll

bility for work authorization. D.Ct. Dkt. 38-13. All

of these instances of temporary relief from removal

included eligibility for lawful employment.

Thus, deferred action has traditionally provided a

means by which recipients become limited partici-

pants in the economic state: They can work lawfully,

contribute to the economy, and pay taxes, but they

are unlikely to receive any social security or other

benefits. Even though statutory law allows for recip-

ients of deferred action to become eligible for retire-

ment or disability insurance benefits (formally

known as Old Age, Survivor, and Disability Insur-

ance benefits) and Medicare, 8 U.S.C. § 1611(b)(2)

(insurance benefits); 8 U.S.C. § 1611(b)(3) (Medi-

care); 42 U.S.C. § 402(y); 8 C.F.R. § 1.3(vi); they, like

everyone else, must first pay into the system for 40

qualifying quarters, i.e., 10 years of employment. 42

U.S.C. §§ 414(a)(1), (a)(2); 42 U.S.C. § 423(c)(1)(A)

(requiring same for disability coverage); 42 U.S.C. §

426 (requiring same for Medicare). Additionally, re-

cipients would have to remain in the United States

until retirement age before taking any benefit. 42

U.S.C. § 402(a).

As in the past, because the Guidance only allows

for three-year grants of deferred action and those

grants can be revoked at any time, it is unlikely that

any recipient of deferred action under the Guidance

will realize a return on the social security taxes she

pays. App. 416a-418a. Additionally, because only

citizens, LPRs, and individuals “permanently resid-

ing in the United States under color of law” are eli-

gible for Supplemental Security Income, recipients of

deferred action are ineligible for the supplemental

payments reserved for low-income aged, blind, or

12

disabled persons. See 42 U.S.C. § 1381 et seq.; 20

C.F.R. §§ 416.202(b), 416.1618(b) (“color of law’

clause does not apply to recipients of deferred ac-

tion.)

2. The injunction is causing injury on a broader

economic level as well. The economic community is

in agreement that immigration (both documented

and undocumented) is a benefit both nationally and

locally. See Adam Davidson, Do Illegal Immigrants

Actually Hurt the U.S. Economy?, N.Y. Times Maga-

zine (Feb. 12, 2013). Banishing undocumented

workers to the shadow economy harms the larger

economy, while increasing their economic integration

produces positive effects. See Center for American

Progress, The Economic Effects of Granting Legal

Status and Citizenship to Undocumented Immi-

grants 2 (Mar. 20, 2013).

Currently, potential recipients of deferred action

earn less and pay less in taxes than they would if the

preliminary injunction were dissolved. The economic

benefit of integrating them into the economy would

be immediate if the injunction were lifted. As they

gain lawful employment, many would pay payroll

taxes for the first time, immediately boosting tax

revenue. See Center for American Progress, Admin-

istrative Action on Immigration Reform: The Fiscal

Benefits of Temporary Work Permits 2, 12 (Sept.

2014). Over 10 years, conservative estimates show

the Guidance raising the GDP by 0.4 percent—the

equivalent of adding $90 billion in real GDP by 2024.

See The White House Council of Economic Advisors,

The Economic Effects of Administrative Action on

Immigration 6 (Nov. 2014). This would lower the

deficit by $25 billion in that time. Jd. at 12. More

13

optimistic estimates have the Guidance increasing

the GDP by 0.9 percent and cutting $60 billion from

the deficit over a decade. Jd.

The injunction is also causing harm to State

treasuries, including those of Res,ondents. Around

594,000 DAPA-eligible parents currently live in Tex-

as. Center for American Progress, Executive Action

on Immigration Will Benefit Texas’s Economy (Nov.

2014). If these immigrants can receive work author-

ization, it would increase Respondent Texas's tax

revenue by $338 million over 5 years, while the av-

erage recipient would take home an additional

$1,900 annually. Id. And the increase in take-home

pay will likely be returned to the economy rapidly

because undocumented immigrants, like most work-

ers in relatively low-wage jobs, must spend much of

their earnings to make ends meet. See Davidson,

supra.

States are obligated under current law to provide

emergency medical care to individuals based on fi-

nancial and medical need regardless of immigration

status. See 8 U.S.C. § 1611(b)(1)(A); 42 U.S.C. §§

1395dd, 1396a(a); 42 C.F.R. §§ 440.220(c), 442.255.

When recipients of deferred action gain lawful em-

ployment and the corresponding increase in income,

they will be less reliant on emergency medical care

provided by hospitals and some will be able to obtain

employer-provided insurance or purchase private in-

surance. They would be more able to afford preven-

tive and primary care, both of which cost less and

promote better long-term health than emergency in-

tervention alone. See Michael V. Maciosek et al.,

Greater Use Of Preventive Services In U.S. Health

Care Could Save Lives At Little Or No Cost, 29

14

Health Affairs 1656, 1660 (2010); Nat'l Ass’n of

Comm. Health Ctrs., Impact of Community Health

Centers 2 (Apr. 2007) (regarding high relative costs

of emergency room care for injuries or diseases).

3. Millions of U.S. citizen and LPR children are

forced to live in worse circumstances than they

would if the Guidance had been implemented as

planned. See USC Center for the Study of Immi-

grant Integration, The Kids Aren't Alright — But

They Could Be: The Impact of [DAPA] on Children 1-

2 (Mar. 2015) (“The Kids Aren't Alright”) (estimating

there are 6.3 million children, including 5.5 million

U.S. citizens, with a parent who would be eligible for

deferred action under DAPA). The average parent

receiving deferred action and work authorization

will see an approximately 8.5 percent increase in

earnings, which will help provide for his or her chil-

dren. See Executive Action on Immigration Will

Benefit Texas’s Economy, supra. In California alone,

DAPA could lift 40,000 children above the poverty

line. The Kids Aren't Alright, supra, at 4.

Moreover, implementing the Guidance will re-

move the constant fear that a family will be split by

removal. In the first half of 2011, 46,000 parents of

U.S. citizen children were removed. Dreby, supra at

1. The removal of a parent devastates families and

often results in the placement of children in foster

care. Id. at 9-10. In 2012, 5,100 children in foster

care could not be reunited with their parents be-

cause the parents had been removed or detained. Jd.

at 10. And even if only one parent is removed, there

is a corresponding increase in poverty levels. Jd. at

9-10. Children in single-parent homes are at least

four times more likely to live in poverty than chil-

15

dren with married parents. Jd.

Only this Court’s immediate review can put an

end to the serious injuries being perpetuated by the

preliminary injunction.

Il. THE COURT OF APPEALS’ DECISION UP-

ENDS ESTABLISHED LAW BY IN-

STALLING THE FEDERAL COURTS AS

THE ARBITERS OF IMMIGRATION POLI-

CY DISPUTES

The court of appeals’ decision is not only causing

harm by allowing the nationwide injunction to re-

main in place. It is also wrong as a matter of estab-

lished law. In misconstruing the Guidance as an af-

firmative grant of legal immigration status and pub-

lic benefits to millions of undocumented immigrants,

the court below misapplied the constitutional re-

quirement of Article II] standing and incorrectly

held that the Guidance was a reviewable agency ac-

tion both substantively unlawful and subject to no-

tice-and-comment rulemaking. This decision sets a

dangerous precedent that, unless immediately re-

viewed by this Court, will allow aggrieved parties,

both individuals and states, to use the courts to in-

terfere in discretionary federal policymaking, there-

by constraining the Executive’s performance of its

constitutional duty to enforce the laws of the United

States to the best of its ability. For this reason as

well, the Court should grant certiorari and review

the decision below.

16

A. A State Cannot Base Standing On The

Incidental Effects Of A DHS Guidance

Statement For Exercising Prosecutorial

Discretion In Immigration Enforcement

1. Respondents lack standing to bring suit in

federal court to challenge the Executive’s immigra-

tion enforcement policy choices. “The Government of

the United States has broad, undoubted power over

the subject of immigration and the status of aliens,”

Arizona v. United States, 132 S. Ct. 2492, 2498

(2012); accord Toll v. Moreno, 458 U.S. 1, 10 (1982),

and the States cannot use the federal courts to inter-

fere with the exercise of this power. “The law of Ar-

ticle III standing, which is built on separation-of-

powers principles, serves to prevent the judicial pro-

cess from being used to usurp the powers” that the

Executive wields in the area of immigration policy

and enforcement. Clapper, 133 S. Ct. at 1147. For

these reasons, a litigant must make a special show-

ing of Article II] standing to challenge a federal im-

migration policy. Cf. id. (“[WJe have often found a

lack of standing in cases where the Judiciary has

been requested to review actions of the political

branches in the field{] of . . . foreign affairs[.]”).

A litigant must demonstrate the existence of an

“injury [that] must affect the plaintiff in a personal

and individual way.” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 n.1 (1992). The injury must be

“concrete, particularized, and actual or imminent...

[and] threatened injury must be certainly impending

to constitute injury in fact[.]” Clapper, 133 S. Ct. at

1147 (emphasis original, quotations and citations

omitted). This jurisdictional limitation is particular-

ly acute here, where the immigration enforcement

17

policy at issue concerns the Secretary's exercise of

his discretion to defer removals of immigrants “for

humanitarian reasons or simply for [his] own con-

venience.” Reno v. American-Arab_ Anti-

Discrimination Comm., 525 U.S. 471, 483-84 (1999).

As this Court has held, deferred action is a form of

“prosecutorial discretion,” id. at 484 n.9, and “a pri-

vate citizen lacks a judicially cognizable interest in

the prosecution or nonprosecution of another.” Lin-

da R.S. v. Richard D., 410 U.S. 614, 619 (1973). The

same rule applies to Respondents, who “have no ju-

dicially cognizable interest in procuring enforcement

of the immigration laws.” Sure-Tan, Inc. v. NLRB,

467 U.S. 883, 897 (1984).

In their pleadings, Respondents alleged a host of

generalized grievances but freely admitted that they

brought suit because they disagree with the Secre-

tary’s policy decisions in an area of exclusive federal

authority. D.Ct. Dkt. 14 44 61-63, 69. This is insuf-

ficient for standing. Respondents alleged neither

that they were targeted by the Guidance nor that

they suffered the kind of concrete, particularized in-

jury that could possibly give rise to a judicially cog-

nizable interest in this suit. Contra Wyoming v. Ok-

lahoma, 502 U.S. 437, 442-46 (1992) (standing found

where Wyoming challenged a Oklahoma law specifi-

cally and overtly intended to reduce purchases of

Wyoming coal and tax paid to Wyoming). There is

no standing to bring a suit for the overt purpose of

using the federal judicial power to dispute the Exec-

utive’s discretionary policymaking decisions in the

area of immigration enforcement.

2. Respondents cannot avoid this result by claim-

ing that the Guidance would have incidental effects

18

on them. The district court and court of appeals

found standing based on a single injury, crediting

Respondent Texas’s claims that the Guidance’s im-

plementation would require its Department of Public

Safety to expend funds to handle an anticipated in-

crease in driver’s license applications. App. 20a-21a,

35a; D.Ct. Dkt. 64-43. Even if the increase in costs

Texas complains of is not illusory, it is far too atten-

uated to be a basis for standing to challenge the

Guidance. “When ... a plaintiffs asserted injury

arises from the government’s allegedly unlawful

regulation (or lack of regulation) of someone else,

much more is needed.” Lujan, 504 U.S. at 562 (em-

phasis original); App. 105a (dissent) (“I am skeptical

that an incidental increase in state costs is sufficient

to confer standing for the purposes of Article III.”).

Texas’s alleged future injury closely resembles

the “speculative chain of possibilities” that was in-

sufficient for standing in Clapper. See Clapper, 133

S. Ct. at 1148-49. Here, the costs Texas projects will

only occur if (1) the Guidance results in a marked

increase in the number of removable immigrants re-

ceiving deferred action; (2) those immigrants then

apply to the Secretary for and receive work authori-

zation; (3) a significant number of those immigrants

subsequently apply for Texas driver’s licenses using

their work authorization to prove they are lawfully

present; (4) the volume and timing of applications is

such that Texas is required (as opposed to simply

choosing) to expend significant resources on new

employees, equipment, and office space; and (5) Tex-

as does not offset the increased costs from the $25

fee it charges each applicant or reap the financial

and regulatory benefits of bringing unlicensed, unin-

19

sured drivers into compliance with its laws. D.Ct.

Dkt. 64-43 at 3-4; Tex. Dep’t of Pub. Safety, Driver

License Division Fees ($25 fee for “Limited Term

Driver License: For Temporary Visitors to U.S.”).

This is a “highly attenuated” chain of possibilities

that in large part depends on “guesswork as to how

independent decisionmakers will exercise their

judgment.” Clapper, 133 S. Ct. at 1148, 1150. More-

over, Texas’s alleged costs are themselves highly

speculative. Texas alleges that, to process the up to

520,000 additional license applications it estimates

would result from issuing the Guidance, it would

have to spend an additional $103 million over two

years to hire 640 new employees and open 168,000

square feet of office space. D.Ct. Dkt. 64-43 at 3-4.

Even in the unlikely scenario that 520,000 individu-

als would secure deferred action and then work au-

thorization in the space of a year, and then all simul-

taneously apply for Texas driver’s licenses, this

would be a less-than-10 percent increase over the

almost 5.4 million licenses (and 1.4 million identifi-

cation cards) Texas issued in fiscal 2014, when the

driver license division had no more than 1,808 full-

time employee positions and its total budget was

$119 million. See Tex. Dep't of Pub. Safety, Annual

Report: Fiscal Year 2014 6, 10 (2014). Additionally,

the projected 520,000 additional applications would

bring $13 million in licensing fees for Texas, revenue

that would offset much (if not all) of the increased

costs Texas actually incurred. Cf. Tex. Dep’t of Pub.

Safety, Operating Budget for Fiscal Year 2014

111.A.38, III.A.40, IV.D.5 (Dec. 1, 2013) (estimating

that fiscal 2014 would see $125.3 million in revenue

on 6.1 million licenses and identification cards is-

20

sued, on less than $124 million in total costs).

As a result, Texas is unable to demonstrate the

kind of “certainly impending” threatened injury-in-

fact that is required for Article III standing. Clap-

per, 133 S. Ct. at 1147; see also Allen v. Wright, 468

U.S. 737, 756-59 (1984), abrogated on other grounds

by Lexmark Int, Inc. v. Static Control Components,

Inc., 134 S. Ct. 1377 (2014). But even if it could sat-

isfy the injury element of standing, Texas's injury is

not fairly traceable to the Guidance. The injury

Texas claims is not the normal, ministerial cost of

processing applications (since those costs are offset

by the $25-per-application fee), but the costs of hir-

ing new employees and expanding facilities to pro-

cess an anticipated increase in license applications.

But it is Texas’s own choice whether it makes these

expenditures instead of other administrative ad-

justments to meet the projected less-than-10 percent

increase in application volume. Texas cannot “in-

cur[] certain costs as a reasonable reaction to a risk

of harm” and thereby “manufacture standing . . .

based on [its] fears of a hypothetical future harm

that is not certainly impending.” Clapper, 133 S.

Ct. at 1151.

As the dissent noted, the court of appeals’ stand-

ing ruling has no logical limit and would install the

federal courts as the arbiters of most discretionary

federal policymaking decisions. App. 106a. (dissent);

cf. Lujan, 504 U.S. at 581 (Kennedy, J., concurring)

(“[T]he requirement of concrete injury confines the

Judicial Branch to its proper, limited role in the con-

stitutional framework of Government.”). Almost any

policy can be construed as imposing some kind of in-

cidental financial cost on a State program—or at

21

least, as here, a willing declarant can be found to

claim such a cost. In the field of immigration policy

alone, allowing the court of appeals’ ruling to stand

would open the Secretary’s decisions to second-

guessing by the judiciary.

Indeed, if Texas can use the incidental costs of is-

suing driver's licenses to assert standing to chal-

lenge a policy of granting deferred action to parents

of U.S. citizen children, California (for example)

could claim standing to challenge a theoretical DHS

policy to increase removals of those same immi-

grants, since removing more parents of U.S. citizen

children would likely impose more costs on Califor-

nia’s foster care system. See Applied Research Cen-

ter, Shattered Families: The Perilous Intersection of

Immigration Enforcement and the Child Welfare

System - Executive Summary 4-6 (Nov. 2, 2011) (es-

timating at least 5,100 children in foster care whose

parents had been detained or removed). Further-

more, although the court dismissed such concerns,

App. 33a-36a, there is no reason why its ruling

would not allow Respondents to challenge the grants

of deferred action the Secretary makes on a case-by-

case basis, so long as a single State could link those

grants to some incidental expenditure of State funds.

3. Massachusetts v. EPA, 549 U.S. 497 (2007), far

from providing a special or relaxed basis for jurisdic-

tion, further demonstrates that Respondents lack

standing. Massachusetts held that the State had

standing to seek judicial review of the EPA’s denial

of a petition to regulate greenhouse gases, in part

because,“[gliven [its] procedural right and Massa-

chusetts’ stake in protecting its quasi-sovereign in-

terests, the Commonwealth is entitled to special so-

22

licitude in our standing analysis.” /d. at 520.

Respondent Texas has neither a procedural right

nor any quasi-sovereign interests implicated by the

Guidance. The procedural right in Massachusetts

was specifically granted by Congress to, inter alia,

allow the particular type of suit at issue: a suit to re-

view the denial of a Clean Air Act rulemaking peti-

tion. Massachusetts, 549 U.S. at 516; 42 U.S.C. §

7607(b)(1). Here, the only statutory cause of action

Texas can assert is the general right under the APA

to seek review of an agency’s final actions. But the

generic APA cause of action is not the kind of proce-

dural right contemplated by this Court in Massachu-

setts. “If the APA provides the requisite procedural

right to file suit—as the majority indicates[]|—and a

state need only assert a ‘quasi-sovereign interest’ to

get ‘special solicitude,’ then states can presumably

challenge a wide array of federal regulatory actions.”

App. 103a (dissent). Indeed, this Court would have

had no reason even to mention Section 7607(b)(1) in

Massachusetts, given that the APA lurked in the

background in that case as well. App. 102a n.13

(dissent).

Massachusetts also dealt with specific quasi-

sovereign interests not at stake here: the State’s spe-

cial interests, not shared by private citizens, in pro-

tecting its territory—the physical land itself—from

loss or harm. See Massachusetts, 549 U.S. at 518-19

(quoting Georgia v. Tennessee Copper Co., 206 U.S.

230 (1907)). Moreover, those interests were directly

tied to the procedural right Congress had provided in

preempting the State’s police powers. In enacting

the Clean Air Act, Congress both preempted Massa-

chusetts from enacting its own regulations of air pol-

23

lution and provided it a corresponding cause of ac-

tion to challenge Executive decisionmaking. Massa-

chusetts, 549 U.S. at 519-20. The same is not true

here, where regulating the admission and exclusion

of immigrants, and the conditions under which they

remain in the United States, has always been a fed-

eral power, and Texas has not been provided a cause

of action to challenge federal immigration enforce-

ment decisions. “The authority to control immigra-

tion—to admit or exclude aliens—is vested solely in

the Federal government.” Truax, 239 U.S. at 42; see

Arizona, 132 S. Ct. at 2506-07. Texas has no judi-

cially cognizable interest in this case and lacks

standing to challenge the Guidance.

B. Respondents’ Claims Are Unreviewable

Because Deferred Action Is A Quintes-

sential Exercise Of Prosecutorial Discre-

tion, Not A Grant Of Benefits Or Immi-

gration Status

The court below also erred in holding that Re-

spondents’ suit is reviewable under the APA. Under

the majority's logic, all grants of deferred action are

reviewable, simply because the recipients can then

apply for work authorization, which allows them to

participate in the legal economy and removes one

barrier to eligibility for certain federal benefits. This

contradicts both established law and the traditional

practice of granting deferred action and work au-

thorization on a classwide basis.

1. Respondents’ suit is not reviewable under the

APA because the Guidance is nothing more than the

memorialization of the Secretary’s decision to focus

enforcement resources on high priorities for removal

24

by identifying and deferring action for certain low-

priority immigrants. Reno, 525 U.S. at 483-85. Ju-

dicial review is not permitted where “agency action

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

701(a)(2). That rule includes suits seeking to chal-

lenge deferred action, because “an agency’s decision

not to take enforcement action should be presumed

immune from judicial review under § 701(a)(2).”

Heckler v. Chaney, 470 U.S. 821, 832 (1985).

The court of appeals cited this rule in acknowl-

edging that Respondents’ suit would be unreviewa-

ble if the Guidance constituted a nonenforcement

policy. See App 43a, 69a n.156. It nonetheless held

that Respondents’ suit was reviewable because, in its

view, “[djeferred action . . . is much more than non-

enforcement: It would affirmatively confer ‘lawful

presence’ and associated benefits on a class of unlaw-

fully present aliens.” App. 44a. This is incorrect.

What the Guidance sets forth is a nonenforcement

policy and nothing more, a systematic process by

which certain immigrants can apply to the Secretary

for consideration for the very same kind of deferred

action that the Executive has granted over the past

half-century. Supra Part I.B.1.

Contrary to the court of appeals’ holding, the

DAPA and DACA-processes in the Guidance confer

no benefits beyond the revocable decision to tempo-

rarily postpone the recipients’ removal. App. 419a

(the Guidance “confers no substantive right, immi-

gration status or pathway to citizenship”). In the

case of work authorization, that “benefit,” as already

discussed, arises from 8 C.F.R. § 274a.12(c)(14)),

which was promulgated by notice-and-comment

rulemaking during the administration of President

25

Reagan. The other “benefits” the court of appeals

focused on are not part of DAPA. Rather, deferred

action permits individuals to apply for work authori-

zation, and they then must contribute a portion of

their earning to programs for which they realistical-

ly are never going to be eligible, either because they

will not have worked the requisite 10 years, or be-

cause they do not remain in the United States long

enough to take benefits, or because they are still in-

eligible for benefits since they are not “qualified al-

iens” under federal law. Supra I.B.1.

The court of appeals avoided these facts by hold-

ing that “to be reviewable agency action, DAPA need

not directly confer public benefits—removing a cate-

gorical bar on receipt of those benefits and thereby

making a class of persons newly eligible for them

‘provides a focus for judicial review.” App. 46a

(quoting Heckler, 470 U.S. at 832). But because

work authorization applies equally to all recipients

of deferred action, this logic would render all grants

of deferred action (including ad hoc grants) reviewa-

ble in federal court. App. 117a (dissent) (“Under this

logic, any non-enforcement decision that triggers a

collateral benefit somewhere within the background

regulatory and statutory scheme is subject to review

by the judiciary.”). In this way, the ruling below es-

sentially redefines “deferred action” in a way that

directly conflicts with its longstanding, uncontrover-

sial meaning. It converts deferred action into a form

of immigration status conferring public benefits,

simply because there are collateral consequences of

deferred action that might theoretically make the

recipient eligible for benefits under some other law.

The sound historical underpinnings of the Secre-

26

tary’s practice of granting deferred action further

demonstrate the error of the courts below. In 1999,

this Court recognized and tacitly approved the use of

deferred action in Reno, describing it as “prosecuto-

rial discretion” and “a regular practice . . . of exercis-

ing [executive] discretion for humanitarian reasons

or simply for [the Executive’s] own convenience.”

Reno, 525 U.S. at 483-84 & 485 n.9. But at the time

of that ruling, Section 274a.12(c)(14) had been used

by the Executive for over a decade to grant work au-

thorization to recipients of deferred action, including

on a classwide basis. Supra Part I1.B.1. Had the

simple fact that deferred action allows recipients to

then apply for work authorization been sufficient to

demonstrate reviewability, it should have come up

before, if not in Reno then in some other case in the

many decades in which the same type of deferred ac-

tion at issue here has been in use.

2. The court of appeals also erred in holding that

Respondents’ suit is reviewable because DAPA be-

stows “lawful presence.” App. 43a-44a, 46a (“if de-

ferred action meant only nonprosecution, it would

not necessarily result in lawful presence”). Indeed,

throughout its opinion the court repeatedly referred

to the Guidance as granting “lawful presence,” which

it seemingly treated as a form of immigration status.

App. 49a, 65a, 75a-76a. But “lawful presence” is not,

and has never been, an immigration status. Instead,

the Guidance states that “Deferred Action does not

confer any form of legal status in this country, much

less citizenship; it simply means that, for a specified

period of time, an individual is permitted to be law-

fully present in the United States.” App. 413a (em-

phasis added). Being “lawfully present,” that is, be-

27

ing undocumented, known to the Executive and

temporarily allowed to remain in the country, is

nothing more than a description of the immigrant’s

condition after she receives deferred action. App.

222a (Higginson, J., dissenting) (“legal presence

simply reflects an exercise of discretion by a public

official” (citation and quotation omitted)); App. 114a

(dissent). It is not a status, benefit, or anything oth-

er than a way of describing the condition of an un-

documented immigrant who has been granted de-

ferred action and who, temporarily, is not being re-

moved. It was error for the court to treat “lawful

presence” as an affirmative grant of status rendering

Respondents’ APA claims reviewable.

C. The Deferred Action Guidance Is A Gen-

eral Policy Statement Not Subject To No-

tice-and-Comment Rulemaking

The court of appeals also erred in ruling for Re-

spondents’ procedural APA claim that the Guidance

could only be issued by notice-and-comment rule-

making. Even assuming arguendo that Respondents

have standing and the suit is reviewable, the Guid-

ance is still nothing more than a general policy

statement that guides the Secretary's discretionary

grants of deferred action as a means of implement-

ing the goals of the Prioritization Memorandum. As

such, it is exempted from notice-and-comment pro-

cedures. 5 U.S.C. § 553(b)(A).

As this Court has explained, “[t]he central dis-

tinction among agency regulations found in the APA

is that between ‘substantive rules’ on the one hand

and ‘interpretive rules, general statements of policy,

or rules of agency organization, procedure, or prac-

28

tice’ on the other,” with notice and comment being

required for the former group of rules, but not the

latter. Chrysler Corp. v. Brown, 441 U.S. 281, 301

(1979). The APA does not define what constitutes

either a “substantive rule” or a “general statement|[]

of policy,” but this Court has clarified that a sub-

stantive or legislative rule “affect[s] substantial in-

dividual rights and obligations.” Morton v. Ruiz, 415

U.S. 199, 232 (1974); see Chrysler Corp., 441 U.S. at

301-02. In contrast to substantive rules, this Court

has described “general statements of poiicy” as

“statements issued by an agency to advise the public

prospectively of the manner in which the agency

proposes to exercise a discretionary power.” Lincoln

v. Vigil, 508 U.S. 182, 197 (1993) (quoting Dep't ui

Justice, Attorney General’s Manual on the Adminis-

trative Procedure Act 30 n.3 (1947)).

The court below incorrectly held that the Guid-

ance was a substantive rule, and thus subject to no-

tice-and-comment procedures, because “DAPA would

not genuinely leave the agency and its employees

free to exercise discretion” and would instead “con-

fer{] lawful presence on 500,000 illegal aliens resid-

ing in Texas.” App. 64a-65a. However, as discussed,

the Guidance “confers no substantive right, immi-

gration status or pathway to citizenship,” but merely

allows for the temporary condition of being depriori-

tized for removal, a condition that can be rescinded

at any time, without warning or recourse. App.

419a. Though individuals such as Intervenors would

be affected by the Guidance since they could receive

deferred action under its guidelines, they have no

legal rights bestowed by the Guidance. And the

power of granting deferred action, without being

29

bound not to rescind it, is one that has long been ex-

ercised by the Secretary and his predecessors.

This inescapably leads to the conclusion that the

Guidance is a quintessential general statement of

Executive policy—albeit an important one that

would affect millions of undocumented immigrants.

In the Guidance, the Secretary did nothing more

than lay out a systematic process for exercising on a

large scale the traditional Executive power, oft ap-

proved by Congress, to defer removals of certain un-

documented immigrants. App. 414a-418a; 6 U.S.C.

§ 202(5); 8 U.S.C. § 1103(a)(1)-(3). As Petitioners ar-

gue, the Guidance is an embodiment of the Secre-

tary’ policy decision about how best to focus the

agency's limited enforcement resources: by refrain-

ing from taking action against a certain subset of

low-priority immigrants, in favor of channeling

funds to focus on removing immigrants who commit

crimes, and who threaten public safety or national

security. Pet. 29.

This point is dispositive—what is relevant to the

“substantive rule” inquiry is not whether individual

USCIS personnel have discretion to deny applica-

tions made under the Guidance, but that the Guid-

ance itself is an exercise of discretionary power. Pet.

29-30. As Petitioners point out, the availability of

discretion for lower-level employees, or lack thereof,

does not determine whether the Guidance is a

statement of policy. Rather, it is the Secretary’s ini-

tial exercise of discretion in interpreting the INA

and setting DHS priorities that make the Guidance a

statement of policy. See App. 412a-414a, 419a (em-

phasizing agency-level discretion). Proving this

point is the fact that the Secretary is not bound to

ee”

30

the policy: at any moment, he could issue a new

memo, reflecting a different decision on immigration

enforcement resource allocation and deferred action,

with no consequence or need for formal procedure.

However, even if the court of appeals was correct

that the question turns on whether lower-level

USCIS employees have discretion, the outcome is the

same. This is because, at every step of the imple-

mentation of the DAPA process and procedures laid

out in the Guidance, employees are required to exer-

cise discretion. DAPA sets forth factors for consider-

ation, not rules. The Guidance instructs USCIS em-

ployees to make determinations “on a case-by-case

basis,” and each determination involves some level of

discretion. App. 417a. Importantly, individual em-

ployees processing applications for deferred action

must determine which priority tier an immigrant fits

within, pursuant to the Prioritization Memorandum.

Moreover, regardless of whether the employee de-

termines in her discretion that an applicant is not a

priority for removal and satisfies all the other DAPA

criteria, she must still determine that there are “no

other factors that, in the exercise of discretion,

make{} the grant of deferred action inappropriate.”

App. 417a (emphasis added).

The court of appeals erred in ignoring this plain

language of discretion in favor of the disputed evi-

dence the district court relied upon—in particular,

the court’s erroneous conflation of DAPA and 2012

DACA. App. 55a-64a; App. 129a-146a (dissent). De-

spite acknowledging that “any extrapolation from

DACA must be done carefully,” App. 59a, the majori-

ty concluded that because DACA did not (in the ma-

jority’s view) allow for discretion, DAPA similarly

31

would not permit USCIS officials to exercise discre-

tion, and any statements to the contrary in the

Memo were merely pretextual. App. 62a-64a. But

as the dissent below cogently explained, the substan-

tive criteria for immigrants to qualify under DAPA is

different from that under DACA. App. 135a-136a.

Most importantly (among other errors pointed out by

the dissent), DACA does not refer DHS officials to

the enforcement priority tiers utilized by DAPA that

involve exercises of discretion in their own right, nor

does DACA include the catchall factor instructing

employees to assess, in their discretion, whether de-

ferred action would be “inappropriate.” The court of

appeals erred in concluding that the _yet-

unimplemented Guidance would leave officials una-

ble to exercise discretion and thus that notice-and-

comment rulemaking was required.

Lb. The Secretary’s Decision To Implement

The Deferred Action Guidance Was Law-

ful

Finally, this Court should grant certiorari to re-

view the court below’s erroneous conclusion that the

Guidance violates the law. In reaching this conclu-

sion, the court of appeals not only fundamentally

misapprehended what the Guidance is and what it

would accomplish, but also called into question the

validity of Section 274a.12(c)(14), the unrelated reg-

ulation that for decades has allowed the Secretary

and his predecessors to grant work authorization to

recipients of deferred action. Neither the Guidance

nor Section 274a.12(c)(14) conflicts with the INA or

any other law. Far from it, they comply fully with

Congress’s broad grants of authority as well as this

Court’s case law.

32

Congress has charged the Secretary “with the

administration and enforcement of [the INA] and all

other laws relating to the immigration and naturali-

zation of aliens[.]” 8 U.S.C. § 1103(a)(1). Moreover,

Congress has expressly assigned the Secretary the

responsibility for “{e]stablishing national immigra-

tion enforcement policies and priorities.” 6 U.S.C.

§ 202(5). One of the matters over which the Secre-

tary has authority is the removal of immigrants if

“they were inadmissible at the time of entry, have

been convicted of certain crimes, or meet other cri-

teria set by federal law.” Arizona, 132 S. Ct. at

2499; see 8 U.S.C. § 1182(a); 8 U.S.C. § 1227(a).

Similarly, Congress has strongly implied that the

Secretary has power to grant work authorization by

defining “unauthorized alien{s]” for purposes of the

unlawful employment statute as immigrants that

are not either lawfully admitted for permanent resi-

dence or “authorized to be so employed by this chap-

ter or by the [Secretary].” 8 U.S.C. § 1324a(h)(3).

If the Guidance actually granted a form of lawful

immigration status, as the court below appears to

have believed, it might conflict with the INA. See,

e.g., App. 7la-72a, 8la-82a. But, as made clear

above, the Guidance does nothing more than spell

out the criteria for making discretionary decisions to

temporarily refrain from removing certain low-

priority undocumented immigrants. This power is a

“principal feature of the removal system.” Arizona,

132 S. Ct. at 2499. The use of deferred action in one

form or another extends back over sixty years as

part of the discretion granted to the Executive to im-

plement the congressionally imposed requirements

of immigration law. Shoba Sivaprasad Wadhia, The

33

Role of Prosecutorial Discretion in Immigration Law,

9 Conn. Pub. Int. L.J. 243, 265 (2010). Congress has

also incorporated deferred action into recent

amendments to the INA by expressly approving, in

certain specific instances, the Secretary's preexisting

authority to grant deferred action. See, e.g., 8 U.S.C.

§ 1154(a)(1)(D)(i) (making certain children of domes-

tic violence victims “eligible for deferred action”).

Accordingly, the Guidance’s use of the traditional

tool of deferred action can hardly be considered in-

consistent with, or a violation of, the INA.

The court of appeals’ conclusion that DAPA vio-

lates the INA has three primary bases, all faulty.

First, the court incorrectly viewed the Guidance as

affirmatively granting recipients “lawful presence,”

which it apparently considered a new form of immi-

gration status that conflicts with those provided for

in the INA. App. 71a-72a, 8la-82a. But as described

above, the Guidance does no such thing. It only al-

lows recipients to be “lawfully present” for a tempo-

rary period. Undocumented immigrants who have

been granted deferred action are only “lawfully pre-

sent” in the sense that the Executive knows where

they are and has decided to defer their removal.

To be sure, in the INA “Congress has enacted an

intricate process” through which individuals may

“derive a lawful immigration classification from their

children’s immigration status.” App. 72a. But the

process is “directed at the requirements for legal sta-

tus, not the lawful presence permitted by DAPA.”

App. 148a (dissent, emphasis original). Similarly,

the Secretary’s ability to issue the Guidance is unaf-

fected by other INA provisions describing specific

situations in which the Secretary may grant deferred

34

action. App. 148a-150a (dissent). Deferred action,

whether under the Guidance or on an ad hoc basis,

is simply interstitial to the larger framework of im-

migration law, allowing the Secretary, where he

deems it necessary or helpful, to temporarily decline

to remove immigrants without providing them with

legal immigration status. The “lawful presence” the

court below found objectionable does not purport to

be a separate category of immigration status, and as

a result it does not conflict with the INA.

Second, the court below incorrectly believed that

the legality of the Guidance hinged on the number of

immigrants affected. The majority opinion takes the

view that DAPA affects 4.3 million people at a

stroke, and that such a sweeping change cannot

have been contemplated by the INA. App. 76a. Not

so. The Secretary has offered deferred prosecution

on a classwide basis on numerous other occasions.

Supra 1.B.1; Pet. 7-8.

Third, the court of appeals erred in ruling that

the Guidance is unlawful because it enables recipi-

ents to receive work authorization. See App. 75a-

76a, 8la. Work authorization is not granted by the

Guidance, as all recipients of deferred action are eli-

gible for work authorization under 8 C.F.R. §

274a.12(c)(14). And since at least 1986, the Secre-

tary and his predecessors have had statutory author-

ity to authorize employment for immigrants who

otherwise lack formal immigration status. See 8

U.S.C. § 1324a(h)(3); cf. 52 Fed. Reg. 46,092, 46,093

(Dec. 4, 1987). The court of appeals was wrong to

dismiss Section 1324a(h)(3) on the ground that it

dealt only with “[u]nlawful employment of aliens’—

an exceedingly unlikely place to find authorization

35

for DAPA.” App. 79a. That statute makes perfect

sense as a basis for granting work authorization: it

was enacted as part of a comprehensive scheme to

punish employers for hiring unauthorized workers,

and it expressly left the Secretary able to grant work

authorization. See Adam B. Cox & Cristina M.

Rodriguez, The President and Immigration Law Re-

dux, 125 Yale L.J. 104, 127-29 (2015). Moreover,

just several pages earlier in the court’s opinion, it

illogically used the INA’s very same “careful em-

ployment-authorization scheme” as a basis for hold-

ing DAPA unlawful. App. 75a-76a. This flawed rea-

soning calls for the Court’s review.

Respondents have not challenged the validity of

Section 274a.12(c)(14) in this case, but the court of

appeals’ decision has nonetheless thrown the Secre-

tary’s authority to grant work authorization into se-

rious question. This Court’s review is necessary to

confirm both that the Secretary’s past grants of de-

ferred action and separate grants of work authoriza-

tion are lawful, and that the potential use of work

authorization in conjunction with the Guidance is

entirely consistent with the INA. It would be con-

trary to Congress’s purpose in enacting the INA to

invalidate work authorization, either broadly or as

applied to the Guidance. As the INA itself notes,

self-sufficiency is one of the “basic principle[s] of

United States immigration law,” 8 U.S.C. § 1601(1),

and there is a “compelling governmental interest of

assuring that aliens be self-reliant in accordance

with national immigration policy.” 8 U.S.C. §

1601(7). Without the possibility of work authoriza-

tion, recipients of deferred action can hardly be self-

sufficient. The Court should grant review and affirm

36

both the Secretary’s lawful decision to exercise his

discretion in issuing the Guidance and his continued

ability to grant work authorization.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

ADAM P. KOHSWEENEY THOMAS A. SAENZ

GABRIEL MARKOFF NINA PERALES

SAMUEL WILSON (Counsel of Record)

MALLORY JENSEN MEXICAN AMERICAN

JUAN CAMILO MENDEZ LEGAL DEFENSE AND

O’MELVENY & MYERS LLP EDUCATIONAL FUND

Two Embarcadero Center 110 Broadway, Ste. 300

San Francisco,CA 94111 San Antonio, TX 78205

(210) 224-5476

LINDA J. SMITH nperales@maldef.org

DLA PIPER LLP

2000 Avenue of the Stars

Los Angeles, CA 90067

Attorneys for Intervenors-Respondents Jane Does

December 4, 2015