`
`No. 18-589
`================================================================================================================
`
`In The
`Supreme Court of the United States
`--------------------------------- ♦ ---------------------------------
`CHAD WOLF, ACTING SECRETARY
`OF HOMELAND SECURITY, ET AL.,
`Petitioners,
`
`v.
`
`MARTÍN JONATHAN BATALLA VIDAL, ET AL.,
`Respondents.
`
`--------------------------------- ♦ ---------------------------------
`On Writ Of Certiorari Before Judgment
`To The United States Court Of Appeals
`For The Second Circuit
`--------------------------------- ♦ ---------------------------------
`MOTION FOR LEAVE TO FILE
`SUPPLEMENTAL BRIEF AFTER ORAL
`ARGUMENT, AND SUPPLEMENTAL BRIEF
`--------------------------------- ♦ ---------------------------------
`MICHAEL J. WISHNIE
` Counsel of Record
`MUNEER I. AHMAD
`MARISOL ORIHUELA
`JEROME N. FRANK LEGAL
` SERVICES ORGANIZATION
`P.O. Box 209090
`New Haven, CT 06520
`(203) 432-4800
`michael.wishnie@yale.edu
`KAREN C. TUMLIN
`Cooperating Attorney
`JEROME N. FRANK LEGAL
` SERVICES ORGANIZATION
`P.O. Box 209090
`New Haven, CT 06520
`(323) 316-0944
`Counsel for Batalla Vidal
` Non-State Respondents
`
`TRUDY S. REBERT
`NATIONAL IMMIGRATION
` LAW CENTER
`P.O. Box 721361
`Jackson Heights, NY 11372
`(646) 867-8793
`ARACELI MARTÍNEZ-OLGUÍN
`MAYRA B. JOACHIN
`NATIONAL IMMIGRATION
` LAW CENTER
`3450 Wilshire Blvd.
`#108-62
`Los Angeles, CA 90010
`(213) 639-3900
`AMY S. TAYLOR
`PAIGE AUSTIN
`MAKE THE ROAD NEW YORK
`301 Grove Street
`Brooklyn, NY 11237
`(718) 418-7690
`
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`1
`
`MOTION FOR LEAVE TO FILE
`SUPPLEMENTAL BRIEF AFTER ORAL
`ARGUMENT, AND SUPPLEMENTAL BRIEF
`Pursuant to Supreme Court Rules 25.6 and 25.7,
`
`non-State respondents Martín Batalla Vidal, et al.,
`move for leave to file a supplemental brief presenting
`new information that was not available at the time of
`oral argument.
`
`First, this case involves whether the decision to
`
`terminate DACA must be vacated because, among
`other reasons, the Department of Homeland Security
`did not adequately assess the relevant reliance inter-
`ests when it terminated the program. See Br. of DACA
`Recipient Respondents at 34 (“Here, the government
`never considered the ‘disruption’ its policy ‘would have
`on the lives of DACA recipients, let alone their families,
`employers and employees, schools and communities.’ ”)
`(citing Regents Pet. App. 60a); see also Transcript of
`Oral Argument at 23-24. The COVID-19 pandemic, and
`resulting mobilization of resources, provide a vivid il-
`lustration of some of the reliance interests engendered
`by the program that the agency failed to consider –
`namely, those borne by healthcare and other essential
`service providers that employ DACA recipients. While
`the agency could not have predicted the pandemic, at
`the very least it was required to give adequate consid-
`eration to the significant adverse consequences of ter-
`mination for these and other key societal actors who
`rely on and benefit from the work of DACA recipients.
`It failed to do so.
`
`
`
`2
`
`Second, the question of whether DACA recipients
`
`would be deported if the program were terminated was
`raised at oral argument. Tr. at 48-9. The federal gov-
`ernment recently clarified its plans regarding the
`deportation of DACA recipients with final orders of
`removal.
`
`Respectfully submitted,
`TRUDY S. REBERT
`NATIONAL IMMIGRATION
` LAW CENTER
`P.O. Box 721361
`Jackson Heights, NY 11372
`(646) 867-8793
`ARACELI MARTÍNEZ-OLGUÍN
`MAYRA B. JOACHIN
`NATIONAL IMMIGRATION
` LAW CENTER
`3450 Wilshire Blvd. #108-62
`Los Angeles, CA 90010
`(213) 639-3900
`AMY S. TAYLOR
`PAIGE AUSTIN
`MAKE THE ROAD NEW YORK
`301 Grove Street
`Brooklyn, NY 11237
`(718) 418-7690
`April 2, 2020
`
`MICHAEL J. WISHNIE
` Counsel of Record
`MUNEER I. AHMAD
`MARISOL ORIHUELA
`JEROME N. FRANK LEGAL
` SERVICES ORGANIZATION
`P.O. Box 209090
`New Haven, CT 06520
`(203) 432-4800
`michael.wishnie@yale.edu
`KAREN C. TUMLIN
`Cooperating Attorney
`JEROME N. FRANK LEGAL
` SERVICES ORGANIZATION
`P.O. Box 209090
`New Haven, CT 06520
`(323) 316-0944
`Counsel for Batalla Vidal
` Non-State Respondents
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`SUPPLEMENTAL BRIEF FOR RESPONDENTS
`MARTÍN JONATHAN BATALLA VIDAL ET
`AL. ....................................................................
`
`1
`
`
`
`TABLE OF AUTHORITIES
`OTHER AUTHORITIES
`Matthew Albence, Acting Dir., Immigr. & Cus-
`toms Enforcement, Public Safety Media Brief-
`ing (Jan. 23, 2020) ..................................................... 4
`Resources and Authorities Needed to Protect and
`Secure the Homeland: Hearing Before the S.
`Comm. on Homeland Sec. and Governmental
`Affairs, 116th Cong. (2020) ....................................... 4
`
`
`BRIEFS
`Brief for 109 Cities, Counties, et al. as Amicus
`Curiae Supporting Respondents .............................. 3
`Brief for Ass’n of Am. Medical Colleges as Ami-
`cus Curiae Supporting Respondents .................... 1, 2
`Brief for Nineteen Coll. and Univ. as Amicus Cu-
`riae Supporting Respondents ................................... 3
`Brief for SEIU, AFL-CIO, and AFSCME as Ami-
`cus Curiae Supporting Respondents ........................ 3
`Brief for United We Dream as Amicus Curiae
`Supporting Respondents ........................................... 3
`
`
`
`1
`
`SUPPLEMENTAL BRIEF FOR RESPONDENTS
`MARTÍN JONATHAN BATALLA VIDAL ET AL.
`Batalla Vidal-Respondents submit this brief to ad-
`
`vise the Court of the bearing on this matter of the
`COVID-19 pandemic and the current national state of
`emergency. Batalla Vidal-Respondents argue that the
`decision to terminate DACA must be vacated because,
`among other reasons, the agency did not adequately
`assess the relevant reliance interests when it termi-
`nated the program. The public health crisis now con-
`fronting our nation illuminates the depth of those
`interests as borne by employers, civil society, state and
`local governments, and communities across the coun-
`try, and especially by healthcare and other essential
`services providers. Furthermore, it throws into sharp
`relief DACA recipients’ important contributions to the
`country and the significant adverse consequences of
`eliminating their ability to live and work without fear
`of imminent deportation. These are the very conse-
`quences the agency failed to consider.
`
`Healthcare providers on the frontlines of our
`
`nation’s fight against COVID-19 rely significantly
`upon DACA recipients to perform essential work. Ap-
`proximately 27,000 DACA recipients are healthcare
`workers—including nurses, dentists, pharmacists,
`physician assistants, home health aides, technicians,
`and other staff—and nearly 200 are medical students,
`residents, and physicians. Brief for Ass’n of Am. Medi-
`cal Colleges as Amicus Curiae Supporting Respond-
`ents at 2-3. The pandemic sheds new light on the
`reliance interests of healthcare providers and the
`
`
`
`2
`
`public health consequences of ignoring those interests,
`presciently identified by the Association of American
`Medical Colleges and 32 allied organizations in their
`amicus brief:
`
`The country [is not] prepared to fill the loss
`that would result if DACA recipients were ex-
`cluded from the health care workforce. The
`number of physicians in the United States has
`not kept pace with our growing and aging pop-
`ulation and a commensurate increase in pa-
`tients. . . . These shortages will be felt most
`keenly in medically underserved areas, such
`as rural settings and poor neighborhoods –
`precisely the areas in which DACA recipients
`are likeliest to work.
`
`The risk of a pandemic also continues to grow,
`since infectious diseases can spread around
`the globe in a matter of days due to increased
`urbanization and international travel. . . . To
`ensure health security, the country needs a ro-
`bust health workforce. Rescinding DACA,
`however, would deprive the public of domesti-
`cally educated, well-trained, and otherwise
`qualified health care professionals. . . .
`
`Id. at 4-5; see also id. at 16-24.
`
`The record contains additional evidence of DACA
`
`recipients’ involvement in providing healthcare. For
`example, plaintiff-respondent Jirayut (“New”) Lat-
`thivongskorn is a resident physician at the Zuckerberg
`San Francisco General Hospital and Trauma Center,
`having graduated from the University of California,
`San Francisco School of Medicine. J.A. at 916-931.
`
`
`
`3
`
`Other DACA-recipient healthcare providers include
`Dr. Dalia Larios, a physician at Brigham and Women’s
`Hospital and Massachusetts General Hospital, Brief
`for Nineteen Coll. and Univ. as Amicus Curiae Sup-
`porting Respondents at 17; Dr. T.W., a surgeon, Brief
`for SEIU, AFL-CIO, and AFSCME as Amicus Curiae
`Supporting Respondents at 7-9; Jesus Contreras, a
`Houston-area paramedic, Brief for 109 Cities, Coun-
`ties, et al. as Amicus Curiae Supporting Respondents
`at 10; Yazmin I., a medical intern in St. Louis, Brief for
`United We Dream as Amicus Curiae Supporting Re-
`spondents at 15; Luis A., an intensive care nurse in Ar-
`kansas, id. at 26; Daniel C., a registered nurse in New
`Jersey, id. at 27; M.R., a homecare worker for the el-
`derly in California, SEIU, AFL-CIO, and AFSCME Am.
`Br. at 4-5; I.T., a surgical technician in El Paso, id. at
`15-17; and plaintiff-respondent Martín Jonathan Ba-
`talla Vidal, a physical therapist. J.A. at 909. DACA re-
`cipients are essential to protecting communities across
`the country endangered by COVID-19. Termination of
`DACA during this national emergency would be cata-
`strophic.1
`
`
`1 The COVID-19 pandemic also highlights DACA recipients’
`
`impact on the economy and the importance of their participation
`in public health measures. Millions of family members, including
`U.S. citizens, rely upon DACA recipients for their economic and
`physical well-being. Furthermore, the forbearance from immigra-
`tion enforcement that DACA affords promotes compliance by
`DACA recipients with stay-at-home orders and facilitates safe
`testing and treatment for COVID-19. These steps are essential to
`the public health measures now being taken to slow transmission
`of the virus and prevent the nation’s healthcare system from be-
`ing overwhelmed.
`
`
`
`4
`
`Petitioners recently have affirmed the significant
`
`risks faced by DACA recipients if termination of the
`program were upheld. In prior public statements, the
`President had averred that, upon the rescission of
`DACA, the administration would not target former
`DACA recipients for removal. J.A. at 496; see Tr. 48-9.
`Since Oral Argument, however, Petitioners have made
`clear that they plan to begin deporting DACA recipi-
`ents if the termination of the program is upheld. On
`January 23, the Acting ICE Director stated, in refer-
`ence to DACA recipients with final orders of removal,
`“If they get ordered removed, and DACA is done away
`with by the Supreme Court, we can actually effectuate
`those removal orders.” Matthew Albence, Acting Dir.,
`Immigr. & Customs Enforcement, Public Safety Media
`Briefing (Jan. 23, 2020). The Acting Secretary of DHS
`made similar statements while testifying before the
`Senate on March 4. Resources and Authorities Needed
`to Protect and Secure the Homeland: Hearing Before
`the S. Comm. on Homeland Sec. and Governmental Af-
`fairs, 116th Cong. (2020) (statement of Chad F. Wolf,
`Sec’y, Dep’t of Homeland Sec.) (“So when we get final
`orders of removal, we’re going to effectuate those.”).
`
`If the Court deems it appropriate, Batalla Vidal-
`
`Respondents would welcome the opportunity for sup-
`plemental briefing on the scope and relevance of
`third parties’ reliance interests, including to address
`whether remand to the agency for reconsideration of
`
`
`
`
`
`
`
`5
`
`its decision to terminate DACA is appropriate in light
`of the extraordinary public health emergency.
`
`Respectfully submitted,
`TRUDY S. REBERT
`NATIONAL IMMIGRATION
` LAW CENTER
`P.O. Box 721361
`Jackson Heights, NY 11372
`(646) 867-8793
`ARACELI MARTÍNEZ-OLGUÍN
`MAYRA B. JOACHIN
`NATIONAL IMMIGRATION
` LAW CENTER
`3450 Wilshire Blvd. #108-62
`Los Angeles, CA 90010
`(213) 639-3900
`AMY S. TAYLOR
`PAIGE AUSTIN
`MAKE THE ROAD NEW YORK
`301 Grove Street
`Brooklyn, NY 11237
`(718) 418-7690
`April 2, 2020
`
`MICHAEL J. WISHNIE
` Counsel of Record
`MUNEER I. AHMAD
`MARISOL ORIHUELA
`JEROME N. FRANK LEGAL
` SERVICES ORGANIZATION
`P.O. Box 209090
`New Haven, CT 06520
`(203) 432-4800
`michael.wishnie@yale.edu
`KAREN C. TUMLIN
`Cooperating Attorney
`JEROME N. FRANK LEGAL
` SERVICES ORGANIZATION
`P.O. Box 209090
`New Haven, CT 06520
`(323) 316-0944
`Counsel for Batalla Vidal
` Non-State Respondents
`
`
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