throbber
Nos. 18-587, 18-588, 18-589
`
`In the Supreme Court of the United States
`__________________
`DEPARTMENT OF HOMELAND SECURITY, et al., Petitioners,
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
`Respondents.
`__________________
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et
`al., Petitioners,
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`COLORED PEOPLE, et al., Respondents
`__________________
`KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND
`SECURITY, et al., Petitioners,
`v.
`MARTIN JONATHAN BATALLA VIDAL, et al., Respondents.
`__________________
`On Writs of Certiorari to the United States Courts of
`Appeals for the Ninth, District of Columbia, and
`Second Circuits
`__________________
`BRIEF FOR AMICUS CURIAE IMMIGRATION
`REFORM LAW INSTITUTE IN SUPPORT OF THE
`PETITIONERS
`__________________
`CHRISTOPHER J. HAJEC*
`IMMIGRATION REFORM LAW INSTITUTE
`25 Massachusetts Ave., NW, Suite 335
`Washington, DC 20001
`(202) 232-5590
`chajec@irli.org
`*Counsel of Record
`Counsel for Amicus Curiae
`
`August 26, 2019
`
`Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
`
`

`

`i
`TABLE OF CONTENTS
`TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii
`INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1
`SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 1
`ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`I. Because DACA Was Invalid, The Courts Below
`Could Not Reinstate It, And Respondents Lack
`Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`II. DACA Is Invalid . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`A. The Immigration and Nationality Act does
`not authorize DACA . . . . . . . . . . . . . . . . . . . . 4
`B. The DACA program is a substantive rule
`that did not go through the procedural
`requirements of 5 U.S.C. § 553 . . . . . . . . . . . 11
`CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
`
`

`

`ii
`TABLE OF AUTHORITIES
`
`CASES
`Action on Smoking & Health v. Civil
`Aeronautics Bd.,
`713 F.2d 795 (D.C. Cir. 1983). . . . . . . . . . . . . . . . 3
`Arizona Dream Act Coal. v. Brewer,
`818 F.3d 101 (9th Cir. 2016). . . . . . . . . . . . . . . . . 1
`Arizona v. Inter Tribal Council of Ariz., Inc.,
`133 S. Ct. 2247 (2013). . . . . . . . . . . . . . . . . . . . . 11
`Chrysler Corp. v. Brown,
`441 U.S. 281 (1979). . . . . . . . . . . . . . . . . . . . . . . . 5
`City of Los Angeles v. Adams,
`556 F.2d 40 (D.C. Cir. 1977). . . . . . . . . . . . . . . . . 7
`Crowell v. Benson,
`285 U.S. 22 (1932). . . . . . . . . . . . . . . . . . . . . . . . 11
`Guevara v. Holder,
`649 F.3d 1086 (9th Cir. 2011). . . . . . . . . . . . . . . . 9
`Kamen v. Kemper Fin. Servs.,
`500 U.S. 90 (1991). . . . . . . . . . . . . . . . . . . . . . . . . 4
`Lujan v. Defs. of Wildlife,
`504 U.S. 555 (1992). . . . . . . . . . . . . . . . . . . . . . . . 3
`Mada-Luna v. Fitzpatrick,
`813 F.2d 1006 (9th Cir. 1987). . . . . . . . . . . . 12, 13
`Manhattan Gen. Equip. Co. v. Comm’r of
`Internal Revenue, 297 U.S. 129 (1936). . . . . . . . . 5
`
`

`

`iii
`
`Massachusetts v. EPA,
`549 U.S. 497 (2007). . . . . . . . . . . . . . . . . . . . . . . . 5
`Matter of C-T-L-,
`25 I. & N. Dec. 341 (B.I.A. 2010) . . . . . . . . . . . . . 1
`Matter of Silva-Trevino,
`26 I. & N. Dec. 826 (B.I.A. 2016) . . . . . . . . . . . . . 1
`Mistretta v. United States,
`488 U.S. 361 (1989). . . . . . . . . . . . . . . . . . . . . . . 10
`NRDC v. United States Forest Serv.,
`421 F.3d 797 (9th Cir. 2005). . . . . . . . . . . . . . . . 11
`Nat’l Ass’n of Mfrs. v. United States Dep’t of Labor,
`no. 95-0715, 1996 U.S. Dist. LEXIS 10478
`(D.D.C. July 22, 1996) . . . . . . . . . . . . . . . . . . . . 11
`Pacific Gas & Electric Co. v. Federal Power Com.,
`506 F.2d 33 (D.C. Cir. 1974). . . . . . . . . . . . . . . . 12
`Paulsen v. Daniels,
`413 F.3d 999 (9th Cir. 2005). . . . . . . . . . . . . . . . . 3
`Save Jobs USA v. U.S. Dep’t of Homeland Sec.,
`No. 16-5287 (D.C. Cir., filed Sept. 28, 2016) . . . . 1
`Succar v. Ashcroft,
`394 F.3d 8 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . 5
`Sure-Tan, Inc. v. Nat’l Labor Relations Bd.,
`467 U.S. 883 (1984). . . . . . . . . . . . . . . . . . . . . . . 10
`Texas v. United States,
`86 F. Supp. 3d 591 (S.D. Tex. 2015). . . . . . . . . . . 8
`
`

`

`iv
`
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015). . . . . . . . . . . . 8, 9, 14
`Transohio Sav. Bank v. Dir., Office of Thrift
`Supervision, 967 F.2d 598 (D.C. Cir. 1992) . . . . . 3
`Trump v. Hawaii,
`138 S. Ct. 2392 (2018). . . . . . . . . . . . . . . . . . . . . . 1
`United States v. Hays,
`515 U.S. 737 (1995). . . . . . . . . . . . . . . . . . . . . . . . 4
`United States v. Texas,
`136 S. Ct. 2271 (2016). . . . . . . . . . . . . . . . . . . . . . 1
`Univ. of the D.C. Faculty Ass’n/NEA v. D.C. Fin.
`Responsibility & Mgmt. Assistance Auth.,
`163 F.3d 616 (D.C. Cir. 1998). . . . . . . . . . . . . . . . 5
`Washington All. of Tech. Workers v. U.S. Dep’t
`of Homeland Sec.,
`74 F. Supp. 3d (D.D.C. 2014) . . . . . . . . . . . . . . . . 1
`Whitman v. Am. Trucking Ass’ns,
`531 U.S. 457 (2001). . . . . . . . . . . . . . . . . . . . . . . 10
`Woodall v. Commissioner,
`964 F.2d 361 (5th Cir. 1992). . . . . . . . . . . . . . . . . 8
`STATUTES
`5 U.S.C. § 553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
`5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`5 U.S.C. § 706(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`6 U.S.C. § 202(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
`
`

`

`v
`8 U.S.C. § 1103(a)(3) . . . . . . . . . . . . . . . . . . . . . . 6, 11
`8 U.S.C. § 1158(d)(5) . . . . . . . . . . . . . . . . . . . . . . . . . 6
`8 U.S.C. § 1182(n). . . . . . . . . . . . . . . . . . . . . . . . . . . 10
`8 U.S.C. § 1184(g). . . . . . . . . . . . . . . . . . . . . . . . . . . 10
`8 U.S.C. § 1188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
`8 U.S.C. § 1225(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 5
`8 U.S.C. § 1225(b)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . 5
`8 U.S.C. § 1228(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . 6
`8 U.S.C. § 1229a . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
`8 U.S.C. § 1324a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
`8 U.S.C. § 1324a(h)(3) . . . . . . . . . . . . . . . . . . 9, 10, 11
`8 U.S.C. § 1324a(h)(3)(B) . . . . . . . . . . . . . . . . . . . . . 10
`RULE
`Fed. R. Civ. P. 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . 3
`OTHER AUTHORITIES
`80 Fed. Reg. at 10,294 . . . . . . . . . . . . . . . . . . . . . . . 10
`H.R. Rep. No. 99-682 (1986) . . . . . . . . . . . . . . . . . . . 9
`H.R. Rep. No. 104-725 (1996) (Conf. Rep.) . . . . . . . . 8
`Michael X. Marinelli, INS Enforcement of the
`Immigration Reform and Control Act of 1986:
`Employer Sanctions During the Citation Period,
`37 Cath. U. L.R. 829 (1988) . . . . . . . . . . . . . . . . . 8
`
`

`

`vi
`from Jeh Charles Johnson,
`Memorandum
`Exercising Prosecutorial Discretion with Respect
`to Individuals Who Came to the United States as
`Children and with Respect
`to Certain
`Individuals Who are Parents of U.S. Citizens or
`Permanent Residents (Nov. 20, 2014) . . . . . . . . . 7
`Janet Napolitano, Exercising Prosecutorial
`Discretion with Respect to Individuals Who
`Came to the United States as Children (June 15,
`2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 13
`
`

`

`1
`INTEREST OF AMICUS CURIAE1
`The Immigration Reform Law Institute (“IRLI”) is
`a not for profit 501(c)(3) public interest law firm
`incorporated in the District of Columbia. IRLI is
`dedicated to litigating immigration-related cases on
`behalf of United States citizens, as well as
`organizations and communities seeking to control
`illegal immigration and reduce lawful immigration to
`sustainable levels. IRLI has litigated or filed amicus
`curiae briefs in many immigration-related cases before
`federal courts (including this Court) and administrative
`bodies, including Trump v. Hawaii, 138 S. Ct. 2392
`(2018); United States v. Texas, 136 S. Ct. 2271 (2016);
`Arizona Dream Act Coal. v. Brewer, 818 F.3d 101 (9th
`Cir. 2016); Washington All. of Tech. Workers v. U.S.
`Dep’t of Homeland Sec., 74 F. Supp. 3d 247 (D.D.C.
`2014); Save Jobs USA v. U.S. Dep’t of Homeland Sec.,
`No. 16-5287 (D.C. Cir., filed Sept. 28, 2016); Matter of
`Silva-Trevino, 26 I. & N. Dec. 826 (B.I.A. 2016); and
`Matter of C-T-L-, 25 I. & N. Dec. 341 (B.I.A. 2010).
`SUMMARY OF THE ARGUMENT
`The decisions of the courts below depended on the
`assumption that the program known as Deferred
`Action for Childhood Arrivals (“DACA”) both is
`substantively lawful and was implemented in a
`
`1 The parties have given blanket consent to the filing of amicus
`curiae briefs in this case. No counsel for a party in this case
`authored this brief in whole or in part, and no such counsel or
`party made a monetary contribution intended to fund the
`preparation of this brief. No person other than amicus curiae, its
`members, or its counsel made a monetary contribution to its
`preparation or submission.
`
`

`

`2
`procedurally lawful manner. If either assumption is
`untrue, an injunction of DACA’s rescission should
`restore not DACA, but the last lawful regulatory state
`of affairs—to wit, the status quo pre-DACA.
`In fact, neither of the above assumptions is true:
`DACA is both substantively and procedurally invalid.
`It is substantively invalid because it exceeds agency
`authority. It is procedurally invalid because it restricts
`agency discretion but did not go through the requisite
`notice and comment process. Thus, Respondents’
`requested relief should only result in the restoration of
`the status quo pre-DACA. Since the status quo pre-
`DACA would not benefit Respondents, their claims
`cannot be redressed by an injunction of DACA’s
`rescission. Accordingly, Respondents lack standing to
`maintain these actions, and the federal courts lack
`jurisdiction to hear them.
`This Court has an obligation to assure itself of its
`own jurisdiction, and that of lower courts. In fulfilling
`this obligation, this Court should find DACA both
`substantively and procedurally invalid, and dismiss
`these cases for lack of jurisdiction.
`ARGUMENT
`I. Because DACA Was Invalid, The Courts Below
`Could Not Reinstate It, And Respondents Lack
`Standing.
`As explained below, the DACA program is invalid.
`Courts must hold unlawful, rather than give effect to,
`invalid regulations. 5 U.S.C. § 706(2)(A), (C) (“The
`reviewing courts shall . . . hold unlawful and set aside
`agency action, findings and conclusions found to be . . .
`
`

`

`3
`arbitrary, capricious, an abuse of discretion, or
`otherwise not in accordance with the law . . . [or] in
`excess of statutory
`jurisdiction, authority, or
`limitations, or short of statutory right . . . “); Transohio
`Sav. Bank v. Dir., Office of Thrift Supervision, 967 F.2d
`598, 621 (D.C. Cir. 1992) (“Agency actions beyond
`delegated authority are ultra vires, and courts must
`invalidate them.”) (internal citation and quotation
`marks omitted).
`The effect of the invalidation of the rescission of
`DACA would be to reinstate the rule previously in
`force—but only if that previous rule were valid. See,
`e.g., Action on Smoking & Health v. Civil Aeronautics
`Bd., 713 F.2d 795, 797 (D.C. Cir. 1983) (holding that
`the effect of invalidating an agency rule is to reinstate
`the rule previously in force); Paulsen v. Daniels, 413
`F.3d 999, 1008 (9th Cir. 2005) (refusing to reinstate a
`previous rule under that standard because it was itself
`invalid). Thus, because DACA
`is
`invalid, the
`invalidation of its rescission cannot revive it.
`Indeed, because DACA is invalid, and because the
`effect of invalidating its rescission would be to reinstate
`the last lawful state of applicable regulations,
`Respondents’ requested remedy would only result in
`the restoration of the status quo pre-DACA. For this
`reason, at the minimum, Respondents’ claimed injuries
`are non-redressable, and their claims should be
`dismissed for lack of standing under Federal Rule of
`Civil Procedure 12(b)(1). See Lujan v. Defs. of Wildlife,
`504 U.S. 555, 561 (1992).
`
`

`

`4
`As this Court has explained:
`The question of standing is not subject to waiver
`. . . We are required to address the issue even if
`the courts below have not passed on it, and even
`if the parties fail to raise the issue before us.
`The federal courts are under an independent
`obligation to examine their own jurisdiction, and
`standing is perhaps the most important of the
`jurisdictional doctrines.
`United States v. Hays, 515 U.S. 737, 742 (1995)
`(internal quotation marks, citations, and brackets
`omitted). Thus, courts’ hesitation
`to consider
`arguments raised solely by an amicus curiae does not
`apply to jurisdictional arguments. Kamen v. Kemper
`Fin. Servs., 500 U.S. 90, 97 n.4 (1991).
`This Court, in the course of assuring itself of its
`jurisdiction, should examine both the substantive and
`procedural lawfulness of DACA, and, finding it
`unlawful, hold that Respondents’ claims should be
`dismissed for lack of standing.
`II. DACA Is Invalid.
`DACA is invalid both because it was ultra vires and
`because the Department of Homeland Security (“DHS”)
`failed to follow the notice and comment requirement of
`the Administrative Procedure Act.
`A. The Immigration and Nationality Act does not
`authorize DACA.
`In reviewing an ultra vires claim, courts examine
`statutory language to determine whether Congress
`
`

`

`5
`intended the agency to have the power that it exercised
`when it acted. Univ. of the D.C. Faculty Ass’n/NEA v.
`D.C. Fin. Responsibility & Mgmt. Assistance Auth., 163
`F.3d 616, 620 (D.C. Cir. 1998). A reviewing court must
`reasonably be able to conclude that the regulations
`issued were contemplated in Congress’s grant of
`authority. Chrysler Corp. v. Brown, 441 U.S. 281, 308
`(1979).
`Analyzing DACA by this standard reveals that it
`has no statutory foundation, and therefore is ultra vires
`and a nullity. See Manhattan Gen. Equip. Co. v.
`Comm’r of Internal Revenue, 297 U.S. 129, 134 (1936)
`(“A regulation which . . . operates to create a rule out of
`harmony with the statute[] is a mere nullity”).
`First, the Immigration and Nationality Act (“INA”)
`does not provide a statutory foundation for the DACA
`program. Quite to the contrary: DACA
`is a
`programmatic refusal by DHS to enforce Congress’s
`clear statutory mandate. Under the INA, any alien who
`entered the country illegally is an applicant for
`admission. 8 U.S.C. § 1225(a)(1). And 8 U.S.C.
`§ 1225(b)(2)(A) mandates that if an applicant for
`admission “is not clearly and beyond a doubt entitled to
`be admitted, the alien shall be detained” for removal
`proceedings under 8 U.S.C. § 1229a (emphasis added).
`“Congress did not place the decision as to which
`applicants for admission are placed in removal
`proceedings into the discretion of the Attorney General,
`but created mandatory criteria.” Succar v. Ashcroft,
`394 F.3d 8, 10 (1st Cir. 2005). “[W]hile the President
`has broad authority in foreign affairs, that authority
`does not extend to the refusal to execute domestic
`laws.” Massachusetts v. EPA, 549 U.S. 497, 534 (2007).
`
`

`

`6
`True, two provisions of the INA provide broad,
`general grants of authority to DHS: 8 U.S.C.
`§ 1103(a)(3) (“[The Secretary] . . . shall establish such
`regulations; prescribe such forms of bond, reports,
`entries, and other papers; issue such instructions; and
`perform such other acts as he deems necessary for
`carrying out his authority under the provisions of this
`chapter.”); and 6 U.S.C. § 202(5) (“The Secretary . . .
`shall be responsible for . . . [e]stablishing national
`immigration enforcement policies and priorities.”). The
`first of these, 8 U.S.C. § 1103(a)(3), clearly fails to
`authorize DACA, which is not “necessary for carrying
`out” any part of the INA. In any event, only if the
`authority of DHS to “deem[]” that an action is so
`“necessary” were unlimited and unreviewable could
`these provisions grant authority for DACA, but in that
`case, they would grant DHS a limitless authority over
`how it carries out its duties, making the innumerable
`other provisions of the INA that detail how DHS is to
`carry out
`its duties meaningless. See, e.g.,
`8 U.S.C. §§ 1158(d)(5) (providing requirements for
`asylum procedure), 1228(a)(3) (providing that expedited
`proceedings “shall be” initiated for aliens incarcerated
`for aggravated felonies), 1229a (providing procedural
`requirements for removal proceedings).
`Title 6 U.S.C. § 202(5)’s grant of authority to
`“[e]stablish[] national immigration enforcement policies
`and priorities” also fails to authorize DACA. Its
`authorization to DHS to set “priorities” does not
`authorize DACA, which, as explained below, goes far
`beyond making removable aliens that meet its criteria
`low priorities for removal. Thus, this provision could
`only authorize DACA based on its apparently open-
`
`

`

`7
`ended authorization to DHS to establish enforcement
`“policies.” But if the meaning of this language were as
`open-ended as that, it would allow DHS to establish a
`policy, for example, of removing only removable aliens
`who were violent felons, or only those who had been in
`the country less than two months, or only those who
`lacked a high school education—and it would be
`patently unreasonable to suppose that Congress
`intended DHS to have authority to set policies so at
`odds with the INA.
`Second, DACA is not a valid form of “deferred
`action.” True, faced with limited resources, an agency
`has discretion to implement the mandate of Congress
`as best it can, by setting priorities for action. See City
`of Los Angeles v. Adams, 556 F.2d 40, 50 (D.C. Cir.
`1977) (holding that when a statutory mandate is not
`fully funded, “the agency administering the statute is
`required to effectuate the original statutory scheme as
`much as possible, within the limits of the added
`constraint.”).
`With DACA, however, DHS did not “effectuate the
`original statutory scheme as much as possible” within
`the limits set by underfunding. DACA was not created
`because of lack of resources; the aliens protected by it
`were already rarely removed. Memorandum from Jeh
`Charles Johnson, Exercising Prosecutorial Discretion
`with Respect to Individuals Who Came to the United
`States as Children and with Respect to Certain
`Individuals Who are Parents of U.S. Citizens or
`Permanent Residents 3 (Nov. 20, 2014) (explaining that
`DACA applies to individuals who “are extremely
`unlikely to be deported given [the] Department’s
`
`

`

`8
`limited enforcement resources”).2 Rather, the program
`reflects a policy judgment that these aliens should be
`free to live and work in the United States without fear
`of deportation. Far from “effectuat[ing] the original
`statutory scheme as much as possible,” this policy
`judgment is at odds with the INA and congressional
`intent. Not only has Congress rejected a legislative
`version of DACA repeatedly, it has found that
`“immigration law enforcement is as high a priority as
`other aspects of Federal law enforcement, and illegal
`aliens do not have the right to remain in the United
`States undetected and unapprehended.” H.R. Rep. No.
`104-725, at 383 (1996) (Conf. Rep.). Congress has also
`passed laws designed to reduce the incentives for
`illegal entry, and to incentivize self-deportation where
`enforcement is lacking. Texas v. United States, 86
`F. Supp. 3d 591, 634-35 (S.D. Tex. 2015), aff’d Texas v.
`United States, 809 F.3d 134 (5th Cir. 2015) (arguing
`that the Deferred Action for Parents of Americans
`program (“DAPA”) would disincentivize illegal aliens
`from self-deporting); Michael X. Marinelli, INS
`Enforcement of the Immigration Reform and Control
`Act of 1986: Employer Sanctions During the Citation
`Period, 37 Cath. U. L.R. 829, 833-34 (1988) (“Congress
`
`2 This statement is scarcely consistent with Secretary Napolitano’s
`bald assertion that “additional measures are necessary to ensure
`that our enforcement resources are not expended on these low
`priority cases but are instead appropriately focused on people who
`meet our enforcement priorities.” Memorandum from Janet
`Napolitano, Exercising Prosecutorial Discretion with Respect to
`Individuals Who Came to the United States as Children 1 (June 15,
`2012) (“DACA Memo”). Admissions against interest are admissible
`evidence, but self-serving statements are not. Woodall v.
`Commissioner, 964 F.2d 361, 364-65 (5th Cir. 1992).
`
`

`

`9
`postulated that unauthorized aliens currently in the
`United States would be encouraged to depart”) (citing
`H.R. Rep. No. 99-682, at 46 (1986)).
`In any event, the deferred-action justification, even
`if accepted initially for a portion of DACA, cannot help
`Respondents. DACA is not only deferred action; as an
`integral part of the DACA program, DHS has granted
`work authorization to its beneficiaries. DACA Memo 3.
`No provision of the INA grants DHS such wide-ranging
`power to authorize aliens to work.
`8 U.S.C. § 1324a(h)(3) (defining an “unauthorized
`alien,” that is, an alien ineligible for employment, as an
`“alien [that] is not at that time either (A) an alien
`lawfully admitted
`for permanent residence, or
`(B) authorized to be so employed by this Act or by the
`Attorney General”) certainly does not grant DHS the
`needed authority. That provision, which does not
`address deferred action at all, is an “exceedingly
`unlikely” grant of power from Congress to authorize
`work, because what the provision does address is the
`unlawful employment of aliens. Texas v. United States,
`809 F.3d 134, 172-73 (5th Cir. 2015). Indeed, as the
`U.S. Court of Appeals for the Ninth Circuit has held,
`“[8 U.S.C. § 1324a] merely allows an employer to
`legally hire an alien (whether admitted or not) while
`his application [for adjustment of status] is pending.”
`Guevara v. Holder, 649 F.3d 1086, 1095 (9th Cir. 2011).
`And if § 1324a(h)(3) permitted DHS to give work
`authorization to DACA beneficiaries, it could only be
`because that provision allowed DHS to authorize work
`for any class of alien it chose; the provision contains no
`limiting language. If Congress had granted the
`
`

`

`10
`executive branch such vast discretion, it would have
`done so clearly, not through “vague terms or ancillary
`provisions—it does not, one might say, hide elephants
`in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531
`U.S. 457, 468 (2001). It is not reasonable to suppose
`that Congress, without any clear statement that it was
`doing so, granted to DHS the unrestricted power to
`overthrow Congress’s own grants of employment
`protection to American workers. See, e.g., 8 U.S.C.
`§§ 1182(n), 1184(g), 1188 (protecting American workers
`from competition from aliens); Sure-Tan, Inc. v. Nat’l
`Labor Relations Bd., 467 U.S. 883, 893 (1984) (“A
`primary purpose in restricting immigration is to
`preserve jobs for American workers.”).
`Indeed, any interpretation of § 1324a(h)(3) that is
`broad enough to permit DACA’s work authorizations
`makes § 1324a(h)(3) a glaring violation of the
`nondelegation doctrine. That doctrine requires “an
`intelligible principle to which the person or body
`authorized to exercise the delegated authority is
`directed to conform.” Mistretta v. United States, 488
`U.S. 361, 372 (1989). No principle governing the grant
`of work authorizations by the Attorney General or his
`successor DHS can be discerned in § 1324a(h)(3);
`rather, as DHS appears
`to acknowledge,
`if
`§ 1324a(h)(3) gives DHS the authority to authorize
`work for aliens in the DACA program, that is because
`it gives DHS general authority to authorize work for
`any alien, or class of aliens, as it sees fit. See, e.g.,
`80 Fed. Reg. at 10,294 (“8 U.S.C. 1324a(h)(3)(B)[]
`recognizes that employment may be authorized by
`statute or by the Secretary”). Such an interpretation
`makes § 1324a(h)(3) unconstitutional, and for that
`
`

`

`11
`reason should be avoided. Crowell v. Benson, 285 U.S.
`22, 62 (1932) (“When the validity of an act of the
`Congress is drawn in question, and even if a serious
`doubt of constitutionality is raised, it is a cardinal
`principle that this Court will first ascertain whether a
`construction of the statute is fairly possible by which
`the question may be avoided.”), quoted in Arizona v.
`Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247, 2259
`(2013).
`Nor is there a constitutional delegation of power to
`DHS in 8 U.S.C. § 1103(a)(3) to issue DACA’s work
`authorizations. If DHS’s power to issue regulations
`“deem[ed] necessary for carrying out [its] authority
`under the provisions of this chapter” is broad enough to
`cover the wholesale work authorizations in DACA, then
`it is broad enough to give DHS limitless power to
`authorize work for aliens.
`B. The DACA program is a substantive rule
`that did not go through the procedural
`requirements of 5 U.S.C. § 553.
`Even if this Court determines that DACA is not
`ultra vires on its face, it did not go through the proper
`procedural requirements for enacting a substantive
`rule. Substantive rules issued by an agency that did
`not go through the notice and comment process are
`invalid. NRDC v. United States Forest Serv., 421 F.3d
`797, 810 n.27 (9th Cir. 2005); Nat’l Ass’n of Mfrs. v.
`United States Dep’t of Labor, no. 95-0715, 1996 U.S.
`Dist. LEXIS 10478, *55 (D.D.C. July 22, 1996) (“Under
`section 706(2), this court must hold unlawful and set
`aside regulations promulgated without adequate notice
`
`

`

`12
`and comment.”) (citation and internal quotation marks
`omitted).
`As the U.S. Court of Appeals for the District of
`Columbia Circuit has explained:
`The critical distinction between a substantive
`rule and a general statement of policy is the
`different practical effect that these two types of
`pronouncements have
`in subsequent
`administrative proceedings. A properly adopted
`substantive rule establishes a standard of
`conduct that has the force of law. In subsequent
`administrative proceedings
`involving a
`substantive rule, the issues are whether the
`adjudicated facts conform to the rule and
`whether the rule should be waived or applied in
`that particular instance. The underlying policy
`embodied in the rule is not generally subject to
`challenge before the agency.
`
`Pacific Gas & Electric Co. v. Federal Power Com., 506
`F.2d 33, 38 (D.C. Cir. 1974) (internal citation omitted).
`Thus, “[t]he critical factor to determine whether a
`directive announcing a new policy constitutes a rule . . .
`is the extent to which the challenged directive leaves
`the agency, or its implementing official, free to exercise
`discretion to follow, or not to follow, the announced
`policy in an individual case.” Mada-Luna v. Fitzpatrick,
`813 F.2d 1006, 1013 (9th Cir. 1987) (internal citations
`and quotation marks omitted) (emphasis in original)
`(finding that an agency directive concerning the
`application of a deferred action policy
`in the
`immigration context left ample discretion to agency
`officials and thus did not constitute a substantive rule).
`
`

`

`13
`By this standard, DACA is clearly a substantive
`rule. The DACA Memo directs U.S. Immigration and
`Customs Enforcement agents to “exercise prosecutorial
`discretion, on an individual basis,” to grant deferred
`action for two years, subject to renewal, to aliens who
`meet the criteria set forth therein, for the purpose of
`“preventing low priority individuals from being placed
`into removal proceedings or removed from the United
`States,” and to accept work authorization applications
`from those granted deferred action. DACA Memo 2, 3.
`It is difficult to see how any agent so charged would
`feel free not to grant deferred action in any given case,
`especially since the only purpose the agents are
`supposed to be fulfilling in implementing the DACA
`Memo is to prevent the removal of those meeting the
`criteria. Compare Mada-Luna, 813 F.2d at 1017
`(finding discretion where officials were permitted to
`grant deferred action based on
`“appealing
`humanitarian factors”). Thus, though couched in terms
`of agents’ discretion, the DACA Memo actually removes
`that discretion. Indeed, the form of words chosen
`verges on the comical; to order agents to “exercise their
`discretion” only in a particular way, as the DACA
`Memo does, is to deny them the very discretion the
`order presupposes.
`Indeed, based on a thorough evidentiary hearing,
`the U.S. Court of Appeals for the Fifth Circuit held that
`DACA was a substantive rule because it withdrew
`discretion from agents:
`[T]he DACA Memo instructed agencies to review
`applications on a case-by-case basis and exercise
`discretion, but the district court found that those
`
`

`

`14
`statements were “merely pretext” because only
`about 5% of the 723,000 applications accepted
`for evaluation had been denied, and “[d]espite a
`request by
`the
`[district]
`[c]ourt,
`the
`[g]overnment’s counsel did not provide the
`number, if any, of requests that were denied [for
`discretionary reasons] even though the applicant
`met the DACA criteria . . . .” The finding of
`pretext was also based on a declaration by
`Kenneth Palinkas, the president of the union
`representing the USCIS employees processing
`the DACA applications, that “DHS management
`has taken multiple steps to ensure that DACA
`applications are simply rubberstamped if the
`applicants meet the necessary criteria”; [and on]
`DACA’s Operating Procedures, which “contain[]
`nearly 150 pages of specific instructions for
`granting or denying deferred action . . . .”
`Texas v. United States, 809 F.3d at 172-73. Surveying
`the above and other evidence relied on by the district
`court in that case, the Fifth Circuit roundly held that
`the district court’s finding that DACA “severely
`restricts” agency discretion, “[f]ar from being clear
`error, . . . was no error whatsoever.” Id. at n.133
`(internal quotation marks and brackets omitted).
`As a substantive rule, DACA was required to go
`through notice and comment; it never did. It therefore
`is an invalid rule; at most, a court, exercising its
`equitable powers, could allow it to remain in effect
`while notice and comment was accomplished. But
`DACA will not, now, go through the notice and
`
`

`

`15
`comment process, so there would be no occasion for a
`court to allow it to remain in effect for that purpose.
`* * *
`Because DACA is invalid, an injunction of its
`rescission can avail Respondents nothing. Respondents’
`claimed injuries, therefore, are not redressable, and
`these cases should be dismissed for lack of jurisdiction.
`CONCLUSION
`For the foregoing reasons, the judgments of the
`courts below should be reversed.
`Respectfully submitted,
`CHRISTOPHER J. HAJEC*
`IMMIGRATION REFORM LAW INSTITUTE
`25 Massachusetts Ave., NW, Suite 335
`Washington, DC 20001
`(202) 232-5590
`chajec@irli.org
`*Counsel of Record
`Counsel for Amicus Curiae
`
`

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