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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 2016

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A19. Public record. Not legal advice.