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.
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET
`AL., PETITIONERS
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT
`OF COLORED PEOPLE, ET AL.
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF
`HOMELAND SECURITY, ET AL., PETITIONERS
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`
`ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF
`APPEALS FOR THE D.C., NINTH, AND SECOND CIRCUITS
`
`BRIEF FOR TEXAS V. UNITED STATES
`DEFENDANT-INTERVENORS DACA RECIPIENTS AND STATE
`OF
`NEW JERSEY IN SUPPORT OF RESPONDENTS
`
`GURBIR S. GREWAL
`ATTORNEY GENERAL
`STATE OF NEW JERSEY
`
`JEREMY M. FEIGENBAUM
`ASST. ATTORNEY GENERAL
`25 Market Street
`Trenton, NJ 08625
`
`Counsel for New Jersey
`
`NINA PERALES
`Counsel of Record
`MEXICAN AMERICAN LEGAL
`DEFENSE AND
`EDUCATIONAL FUND
`110 Broadway, Ste. 3000
`San Antonio, TX 78205
`(210) 224-5476
`nperales@MALDEF.org
`
`DOUGLAS HALLWARD-DRIEMEIER
`ROPES & GRAY LLP
`2099 Pennsylvania Avenue NW
`Washington, DC 20006
`
`Counsel for DACA Recipients
`
`Additional counsel on inside cover
`
`

`

`GLENN J. MORAMARCO
`ASST. ATTORNEY GENERAL
`25 Market Street
`Trenton, NJ 08625
`
`Counsel for New Jersey
`
`EMERSON SIEGLE
`RAISHAY LIN
`PAUL BENNETCH
`ROPES & GRAY LLP
`2099 Pennsylvania Avenue NW
`Washington, DC 20006
`
`MARK CIANCI
`ROPES & GRAY LLP
`800 Boylston Street
`Boston, MA 02199
`
`PHILIP EHRLICH
`ROPES & GRAY LLP
`191 North Wacker Drive
`Chicago, IL 60606
`
`Counsel for DACA Recipients
`
`

`

`
`
`
`
`TABLE OF CONTENTS
`
`Page
`Interest of amici curiae ...................................................... 1
`Summary of the argument ................................................ 3
`Argument:
`DACA, as written and implemented, requires the
`exercise of prosecutorial discretion, and is thus
`entirely lawful ..................................................................... 6
`A. The DACA Memorandum itself makes
`clear that USCIS adjudicators should
`exercise case-by-case discretion when
`deciding whether to grant deferred
`action .................................................................. 6
`B. Evidence developed in the Texas DACA
`litigation confirms that DACA
`adjudicators are informed of, and
`exercise, their discretion ................................. 9
`1. DHS materials and internal
`communications consistently
`describe DACA as setting forth
`discretionary criteria for
`individualized, rather than class-
`wide, grants of deferred action .......... 10
`2. USCIS adjudicators exercise
`individualized discretion by
`interpreting and sometimes
`deviating from the criteria set forth
`in the DACA Memorandum ............... 12
`The significant and increasing
`denial rate for deferred action
`likewise confirms this use of case-
`by-case, individualized discretion ...... 16
`(I)
`
`3.
`
`
`
`

`

`
`Table of Contents—Continued: Page
`
`II
`
`4.
`
`Testimonial evidence further
`confirms that USCIS adjudicators
`understand DACA to empower
`them to make discretionary
`decisions ................................................ 19
`C. Evidence from the Texas DACA
`litigation thoroughly discredits
`petitioners’ reliance on the Fifth
`Circuit’s conclusions regarding
`discretion in the DAPA litigation ................ 22
`Conclusion .......................................................................... 25
`Appendix A—List of Individual Defendant-
`Intervenors .............................................. 1a
`
`
`
`
`
`
`
`

`

`III
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`
`Cases:
`
`Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015) ........ 9
`Reno v. Am.-Arab Anti-Discrimination
`Comm., 525 U.S. 471 (1999).................................... 9
`Texas v. United States, 328 F. Supp.
`3d 662 (S.D. Tex. 2018) ............................ 4, 6, 13, 24
`Texas v. United States, 809 F.3d 134 (5th
`Cir. 2015), aff’d by an equally divided
`court, 136 S. Ct. 2271 (2016) ........................ passim
`Texas v. United States, 86 F. Supp. 3d
`591 (S.D. Tex. 2015) ........................................... 1, 22
`
`Miscellaneous:
`
`The Department of Homeland Security’s
`Authority to Prioritize Removal of Certain
`Aliens Unlawfully Present in the United
`States and to Defer Removal of Others, 38 Op.
`O.L.C. 1 (2014) .......................................................... 3
`
`
`
`
`
`

`

`
`
`
`
`INTEREST OF AMICI CURIAE1
`Amici are defendant-intervenors in Texas v. United
`States, No. 1:18-cv-00068, a case in the United States
`District Court for the Southern District of Texas, in
`which several States brought direct challenges to the le-
`gality of the Deferred Action for Childhood Arrivals
`(DACA) memorandum (Texas DACA litigation).2 Be-
`cause the Department of Homeland Security (DHS) de-
`clined to defend DACA in the Texas litigation, amici
`stepped in to defend DACA.3 The question of DACA’s
`lawfulness is also a central issue, albeit indirectly and in
`
`
`1 All parties have provided blanket consent to the filing of amicus
`curiae briefs. No counsel for any party authored this brief in whole
`or in part, and no person or entity, other than amici curiae or their
`counsel made a monetary contribution intended to fund the prepa-
`ration or submission of this brief.
`2 The Texas DACA litigation is distinct from Texas v. United
`States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court,
`136 S. Ct. 2271 (2016) (per curiam), an earlier case that concerned
`the legality of Deferred Action for Parents of Americans and Law-
`ful Permanent Residents (DAPA) (Texas DAPA litigation). Nota-
`bly, in the earlier Texas DAPA litigation, the government “did not
`seek an evidentiary hearing,” 809 F.3d at 175-176, and the eviden-
`tiary record was underdeveloped, Texas v. United States, 86 F.
`Supp. 3d 591, 677 (S.D. Tex. 2015). The DHS rescission of DACA at
`issue in this case mistakenly equated DAPA and DACA, and as-
`sumed that certain findings in the Texas DAPA litigation meant
`that DACA itself was unlawful. This brief explains the key factual
`errors underlying that assumption.
`3 Twenty-two individual DACA recipients intervened to defend
`DACA’s lawfulness. These individual defendant-intervenors are
`listed in Appendix A hereto. The State of New Jersey also inter-
`vened to defend DACA in light of the many benefits the State has
`enjoyed on account of DACA, including through the many contribu-
`tions within New Jersey that have been made by DACA recipients.
`(1)
`
`
`
`

`

`2
`
`
`a different procedural posture, in the present consoli-
`dated cases concerning the purported rescission of
`DACA.
`While the present consolidated cases and the Texas
`DACA litigation concern certain overlapping issues, the
`Texas DACA litigation, unlike the cases at bar, has in-
`volved discovery at both the preliminary injunction and
`merits phases. Through this ongoing discovery, amici
`have compiled a substantial evidentiary record demon-
`strating that immigration officers’ evaluation of DACA
`applications involves considerable discretion on the part
`of the officers. The discovery that amici have compiled
`to date—including official governmental documents,
`such as DHS internal guidelines and leadership corre-
`spondence regarding the decision to defer action for cer-
`tain childhood arrivals, which are subject to judicial no-
`tice by this Court—is directly relevant to the questions
`before the Court in these consolidated proceedings. As
`the DHS materials show—and as testimonial evidence
`from depositions and declarations filed in the Texas
`DACA litigation confirms—the DACA Memorandum, as
`applied, leaves United States Citizenship and Immigra-
`tion Services (USCIS) officers free to exercise discretion
`when deciding whether to defer action in the case of a
`particular DACA applicant.
`Amici respectfully submit that the evidence devel-
`oped through discovery in the Texas DACA litigation
`shows that the reasoning in the DHS memorandum re-
`scinding DACA (the Rescission Memorandum)—to the
`effect that the initial issuance of the DACA Memoran-
`dum was unlawful because the operation of DACA was
`categorical, rather than on an individualized basis—was
`
`
`
`
`
`
`

`

`3
`
`
`based on a flawed premise, as the decisions below cor-
`rectly recognized.
`SUMMARY OF THE ARGUMENT
`A key issue in this case is whether DACA “grant[s]
`deferred action * * * on a class-wide basis” or as a matter
`of individualized discretion. Pet. Br. 11; Texas v. United
`States, 809 F.3d 134, 184 n.197 (5th Cir. 2015), aff’d by an
`equally divided court, 136 S. Ct. 2271 (2016) (per curiam)
`(Texas DAPA litigation) (quoting 38 Op. O.L.C. at 18 n.8
`(Nov. 19, 2014)4); Dkt. 9,5 Ex. 19 at App. 1192 n.8 (OLC
`Memorandum Opinion, Nov. 19, 2014), (contrasting
`forms of deferred action that are “automatic[]” and
`“class-wide” with those that “evaluate each application
`* * * on a case-by-case basis”).
`But in rescinding DACA, DHS did not actually con-
`sider any evidence regarding whether, and to what ex-
`tent, officers are making discretionary decisions, as op-
`posed to merely implementing a class-wide rule, when
`they evaluate DACA applications. To the contrary,
`DHS simply assumed that the Fifth Circuit’s holding
`and rationale regarding Deferred Action for Parents of
`Americans (DAPA) in Texas, 809 F.3d 134, applied
`equally to the original DACA Memorandum.6
`
`4 The Department of Homeland Security’s Authority to Prior-
`itize Removal of Certain Aliens Unlawfully Present in the United
`States and to Defer Removal of Others, 38 Op. O.L.C. 1 (2014).
`5 App. in Supp. of Pls.’ Mot. for Prelim. Inj. (Pls.’ PI App.) Vol.
`4 (May 2, 2018). Throughout this brief, references to the docket or
`citations to “Dkt.” refer to the docket in amici’s case, Texas v.
`United States, No. 1:18-cv-00068 (S.D. Tex. May 1, 2018).
`6 See Pet. Br. 52 (“DHS made clear that it agrees with the ro-
`bust analysis in the Fifth Circuit’s [DAPA] decision and that it sees
`
`
`
`
`
`

`

`
`
`4
`
`Subsequent discovery in the Texas DACA litigation
`has demonstrated plainly that this premise underlying
`DHS’s reliance on the Fifth Circuit’s decision in the ear-
`lier DAPA litigation and its characterization of the ex-
`tent of officers’ discretion in considering DACA applica-
`tions was in error. Indeed, the very district court that
`previously enjoined DAPA has found—based on evi-
`dence developed through discovery with respect to
`DACA—that the record in fact may be “indicative of a
`discretionary standard” and that the States challenging
`DACA “have not made a ‘clear showing’ that those pro-
`cessing DACA applications are not free to exercise dis-
`cretion.” Texas v. United States, 328 F. Supp. 3d 662,
`733-734 (S.D. Tex. 2018).
`There were good reasons for that conclusion. In the
`Texas DACA litigation, amici have compiled substantial
`evidence demonstrating that DACA is, and has always
`been, administered as an exercise of prosecutorial dis-
`cretion by immigration officers, and that the final deci-
`sion on whether to defer action continues to involve the
`application of discretion by individual adjudicators, on a
`case-by-case basis. Of course, it is no surprise that the
`evidence would confirm the exercise of discretion by im-
`migration officers in individual cases. On its face, the
`memorandum in which then-Secretary of DHS Janet
`Napolitano explained DACA (the DACA Memorandum)
`
`no meaningful distinctions between the lawfulness of those policies
`and the lawfulness of the original DACA policy.”); id. at 56 (“the
`Attorney General informed the Acting Secretary that he had con-
`cluded that the policy was unlawful based in significant part on the
`Texas litigation invalidating the DAPA and expanded DACA poli-
`cies”).
`
`
`
`
`
`
`
`

`

`5
`
`
`requires USCIS adjudicators to exercise discretion
`when evaluating DACA applications.
`Further official documentation confirms that indi-
`vidual officers were informed of their continued author-
`ity and discretion. DHS’s own training materials, guid-
`ance documents, operating procedures, and internal
`communications produced in discovery in the Texas
`DACA litigation consistently describe DACA as setting
`forth discretionary criteria for a favorable exercise of
`discretion through deferred action, rather than estab-
`lishing any binding standards or conferring any substan-
`tive rights.
`Discovery in the Texas DACA litigation also shows
`that USCIS adjudicators actually exercise the discretion
`required by the DACA Memorandum. During the first
`two quarters of fiscal year 2018, adjudicators denied
`about 20% of requests for initial grants of deferred ac-
`tion under DACA, including denying applications where
`the criteria indicative of a favorable exercise of discre-
`tion were satisfied. Moreover, testimonial evidence
`from the Texas litigation confirms that USCIS adjudica-
`tors understand that the DACA guidelines empower
`them to make discretionary, case-by-case decisions that
`are informed, but not bound, by the stated DACA crite-
`ria.
`Accordingly, the premise underlying the Rescission
`Memorandum is belied by the evidence—evidence avail-
`able to DHS, but that it did not consider. This Court
`should thus reject the premise of petitioners’ chal-
`lenge—that DACA unlawfully established a categorical
`rule.
`
`
`
`
`
`
`

`

`
`
`6
`
`
`
`ARGUMENT
`DACA, AS WRITTEN AND IMPLEMENTED, RE-
`QUIRES THE EXERCISE OF PROSECUTORIAL DIS-
`CRETION, AND IS THUS ENTIRELY LAWFUL
`Contrary to petitioners’ argument that DHS cor-
`rectly concluded DACA is unlawful, Pet. Br. 43-50,
`DACA is not a class-wide grant of deferred action and in
`fact requires DACA adjudicators to exercise individual-
`ized discretion. Discovery from the Texas DACA litiga-
`tion shows both that DHS materials, like the DACA
`Memorandum itself, require USCIS adjudicators to ex-
`ercise discretion and that adjudicators in practice actu-
`ally do engage in discretionary, case-by-case review
`when deciding whether to defer action with respect to
`individual requestors. The same district court that pre-
`viously enjoined DAPA, when reviewing this evidence
`in the Texas DACA litigation, concluded it may be “in-
`dicative of a discretionary standard” and that the States
`challenging DACA “have not made a ‘clear showing’ that
`those processing DACA applications are not free to ex-
`ercise discretion.” Texas v. United States, 328 F. Supp.
`3d 662, 733-734 (S.D. Tex. 2018).
`A. The DACA Memorandum Itself Makes Clear
`That USCIS Adjudicators Should Exercise
`Case-By-Case Discretion When Deciding
`Whether To Grant Deferred Action
`The DACA Memorandum, by its plain language, dis-
`claims any intent to bind DHS. The memorandum re-
`quires adjudicators considering whether to grant de-
`ferred action to exercise discretion on an individualized
`
`
`
`
`
`
`

`

`7
`
`
`basis for requestors who meet certain preliminary crite-
`ria. Dkt. 6,7 Ex. 1 at App. 0002-0004. The memorandum
`makes clear that the specified criteria “should be satis-
`fied before an individual is considered for an exercise of
`prosecutorial discretion pursuant to this memorandum.”
`Id. at App. 0002 (emphasis added). In other words, the
`criteria do not preclude discretion, but instead precede
`the exercise of discretion. The criteria listed are:
` came to the United States under the
`age of sixteen;
` has continuously resided in the United
`States for [at] least five years preced-
`ing the date of this memorandum and is
`present in the United States on the
`date of this memorandum;
`is currently in school, has graduated
`from high school, has obtained a gen-
`eral education development certificate,
`or is an honorably discharged veteran
`of the Coast Guard or Armed Forces of
`the United States;
` has not been convicted of a felony of-
`fense, a significant misdemeanor of-
`fense, multiple misdemeanor offenses,
`or otherwise poses a threat to national
`security or public safety; and
`is not above the age of thirty.
`
`
`
`
`
`Ibid.
`In addition to the discretion to be applied after as-
`certaining that the criteria have been satisfied, deciding
`
`7 Pls.’ PI App. Vol. 1 (May 2, 2018).
`
`
`
`
`
`

`

`8
`
`
`whether certain of the above criteria are met inherently
`requires the adjudicator to exercise individual discre-
`tion. For example, determining whether a person “oth-
`erwise poses a threat to national security,” or whether a
`prior misdemeanor conviction is a “significant” one, in-
`volves the exercise of discretionary judgment by indi-
`vidual USCIS adjudicators. See Dkt. 6, Ex. 7 at App.
`0586-0587 (emphasis added). Furthermore, the DACA
`Memorandum requires that, even once these criteria are
`satisfied, requestors must undergo a complete back-
`ground check and, in some cases, a personal interview.
`Id., Ex. 1 at App. 0003; id., Ex. 7 at App. 0585, App. 0589.
`As a result, adjudicators have a substantial body of in-
`formation upon which to base their individualized deci-
`sion whether to defer action in a particular case.
`The DACA Memorandum further emphasizes that
`“requests for relief pursuant to this memorandum are to
`be decided on a case by case basis,” Dkt. 6, Ex. 1 at App.
`0003, and concludes:
`This memorandum confers no substantive
`right, immigration status or pathway to
`citizenship. Only the Congress, acting
`through its legislative authority, can con-
`fer these rights. It remains for the execu-
`tive branch, however, to set forth policy for
`the exercise of discretion within the frame-
`work of the existing law. I have done so
`here.
`Id. at App. 0004 (emphasis added).
`As a result, no person has any substantive entitle-
`ment to have action deferred under the DACA Memo-
`
`
`
`
`
`
`

`

`9
`
`
`randum, and the Executive retains discretion to termi-
`nate deferred action at any time. See Texas v. United
`States, 809 F.3d 134, 148 (5th Cir. 2015) (recognizing that
`“ ‘[l]awful presence’ is not an enforceable right to remain
`in the United States and can be revoked at any time”).
`Indeed, despite historical efforts by applicants to sue af-
`ter being denied deferred action under prior frame-
`works, this Court recognized that Congress sought to
`limit “judicial constraints upon [this] prosecutorial dis-
`cretion.”
` Reno v. Am.-Arab Anti-Discrimination
`Comm., 525 U.S. 471, 485 & n.9 (1999).
`The DACA Memorandum therefore both clarifies
`how an agency vested with discretion plans to use that
`power and confirms that agents still have the authority
`to decide each case on an individual basis. The DACA
`Memorandum sets forth relevant criteria and considera-
`tions, and adjudicators consider these criteria and more,
`on an individualized basis, when rendering a decision to
`grant or deny deferred action. See also Crane v. John-
`son, 783 F.3d 244, 254-255 (5th Cir. 2015) (“The [DACA
`Memorandum] makes it clear that the Agents shall ex-
`ercise their discretion in deciding to grant deferred ac-
`tion, and this judgment should be exercised on a case-by-
`case basis.”).
`B. Evidence Developed In The Texas DACA
`Litigation Confirms That DACA Adjudica-
`tors Are Informed Of, And Exercise, Their
`Discretion
`In contrast to the cases presently before the Court,
`the Texas DACA litigation is developing a full record re-
`garding the legality of DACA. Cf. Regents Br. in Opp.
`18 (“[M]ultiple courts have held that the administrative
`
`
`
`
`
`
`

`

`10
`
`
`record is likely incomplete.”). The record developed
`thus far in the Texas litigation—largely comprised of
`DHS’s internal materials and communications—includes
`ample evidence demonstrating that adjudicators, in
`practice, exercise the discretion required by the DACA
`Memorandum. Testimonial evidence from the Texas lit-
`igation provides further confirmation of individual offic-
`ers’ exercise of discretion. Together, this new evidence
`undercuts the assumptions regarding discretion upon
`which petitioners now rely (and which were the basis of
`the Fifth Circuit ruling upon the legality of DAPA). See
`note 6, supra.
`1. DHS materials and internal communica-
`tions consistently describe DACA as setting
`forth discretionary criteria for individual-
`ized, rather than class-wide, grants of de-
`ferred action
`Internal DHS documents produced by the United
`States in the Texas DACA litigation confirm that DACA
`does not confer any class-wide deferred action but ra-
`ther provides for temporary deferral of action against in-
`dividual undocumented immigrants. DHS’s national
`standard operating procedures (SOPs) have consistently
`stated that DACA “does not confer any lawful status.”
`See Dkt. 225-6,8 Ex. 153 at 8 (2013 DACA Nat’l SOP);
`see also Dkt. 226-2,9 Ex. 183 at 6 (2012 DACA Training
`Presentation) (“[DACA] does not confer any status,” nor
`does it “lead to any status”; it “simply means that action
`
`8 App. in Supp. of Def.-Ints.’ Opp. to Pls.’ Mot. for Prelim. Inj.
`(Def.-Ints.’ PI App.) Vol. 7 (July 21, 2018).
`9 Def.-Ints.’ PI App. Vol. 9 (July 22, 2018).
`
`
`
`
`
`

`

`11
`
`
`to remove someone is deferred until a certain date and
`that the decision to pursue removal may be revisited at
`some point in the future”).
`DHS guidance documents require USCIS adjudica-
`tors to exercise discretion and do not bind adjudicators
`to defer action in the case of any given DACA applica-
`tion. See, e.g., Dkt. 226-1,10 Ex. 167 at 4 (USCIS Field
`Manual) (“As in all deferred action determinations,
`USCIS will make case-by-case, discretionary judgments
`based on the totality of the evidence. In doing so, USCIS
`will weigh and balance all relevant considerations, both
`positive and negative.”).
`Adjudicators’ trainings, including refresher train-
`ing, also emphasize the need to exercise discretion when
`reviewing DACA applications:
`As we prepare to attend DACA refresher
`training on Thursday, I just want to be
`sure everyone is clear on a couple things.
`First, DACA can be denied if we deter-
`mine that the person doesn’t merit a favor-
`able exercise of discretion. One of the rea-
`sons we would determine that they don’t
`merit a favorable exercise of discretion is
`based on possible public safety concerns or
`the totality of the circumstances.
`Dkt. 215-1,11 Ex. 38 at NJAPP0401 (DACA Email Guid-
`ance, Apr. 7, 2015) (emphasis added).
`
`10 Def.-Ints.’ PI App. Vol. 8 (July 22, 2018).
`11 App. to N.J. Br. in Opp. to Pls.’ Mot. for Prelim. Inj. (N.J. PI
`App.) (July 21, 2018).
`
`
`
`
`
`
`

`

`
`
`12
`
`Other internal documents similarly indicate that
`USCIS supervisors require adjudicators to evaluate
`DACA applications on a case-by-case basis. For exam-
`ple, in USCIS DACA team meetings, officers were en-
`couraged to “[t]ake the time and adjudicate correctly”
`and prioritize “quality over quantity.” Dkt. 226-2, Ex.
`194 at DEF00000228 (DACA Meeting Minutes, June 1,
`2015); id., Ex. 195 at DEF00000476 (DACA Meeting
`Minutes, June 30, 2015); see also Dkt. 227-1,12 Ex. 234 at
`DEF00001730 (DACA Email Guidance, June 28, 2013)
`(“Every case has a different set of facts involved and all
`of the facts must be considered.”).
`Evidence produced in the Texas DACA litigation
`thus amply demonstrates that DHS training materials
`and internal guidance documents consistently and re-
`peatedly urge USCIS adjudicators to exercise individu-
`alized, case-by-case discretionary judgment when con-
`sidering whether to grant deferred action.
`2. USCIS adjudicators exercise individual-
`ized discretion by interpreting and some-
`times deviating from the criteria set forth in
`the DACA Memorandum
`USCIS adjudicators in practice exercise discretion
`in interpreting the meaning of the criteria set forth in
`the DACA Memorandum. Adjudicators exercise partic-
`ularly broad discretion in determining whether a reques-
`tor represents a threat to “public safety” or “national se-
`curity.” See Dkt. 225-6, Ex. 153 at 82, 90 (2013 DACA
`Nat’l SOP); see also Dkt. 215-1, Ex. 38 at NJAPP0401
`(DACA Email Guidance, Apr. 7, 2015) (“[S]omeone could
`
`12 Def.-Ints.’ PI App. Vol. 11 (July 22, 2018).
`
`
`
`
`
`

`

`13
`
`
`not meet the definition of [Egregious Public Safety] for
`a referral to ICE but still be considered a public safety
`concern for DACA.”). Broadly, as one officer put it,
`when determining whether a requestor represents a
`threat to public safety, “[the] standard is whether or not
`you would want to live next door to the person.” Dkt.
`227-1, Ex. 233 at 1 (DACA Email Guidance, June 2,
`2015). Of note, the district court presiding over the
`Texas litigation—which is the same court that previ-
`ously concluded, in connection with DAPA, that USCIS
`officers did not genuinely exercise discretion—recog-
`nized that this guideline “would certainly be indicative
`of a discretionary standard” in the application of DACA.
`See Texas, 328 F. Supp. 3d at 733.13
`Similarly, although the SOPs provide that reques-
`tors with a history of “significant misdemeanors” do not
`merit consideration for deferred action, the SOPs do not
`exhaustively define which misdemeanors qualify as “sig-
`nificant,” requiring adjudicators to exercise discretion in
`determining whether applicants have committed a sig-
`nificant crime (and, therefore, do not merit a favorable
`exercise of discretion). See, e.g., Dkt. 225-6, Ex. 154 at
`DEF00001779-DEF00001780
`(2012 DACA FAQs)
`(“[T]he absence of the criminal history outlined above, or
`
`13 The district court in the Texas litigation observed: “Defend-
`ant-Intervenors produced a post­Texas I email from one instructor
`that, while talking about the established criteria, said that she liked
`to ‘jokingly say our standard is whether or not you would want to
`live next door to the person.’ While this Court will not opine on
`whether the ‘neighbor’ standard is one capable of refined precision
`or even whether it would be legally enforceable, if it were routinely
`being used, it would certainly be indicative of a discretionary stand-
`ard.” Texas, 328 F. Supp. 3d at 733 (citation omitted).
`
`
`
`
`
`

`

`14
`
`
`its presence, is not necessarily determinative, but is a
`factor to be considered in the unreviewable exercise of
`discretion.”).14 Officers thus determine, using their dis-
`cretion, whether, inter alia, minor traffic violations, mul-
`tiple non-significant misdemeanors, juvenile convictions,
`marriage fraud, expunged convictions, or deferred pros-
`ecution indicate that a requestor does not merit discre-
`tionary relief based on the totality of the evidence. See
`id., Ex. 153 at 83-85 (2013 DACA Nat’l SOP).15 In other
`cases, officers are required to go beyond the information
`conveyed by a RAP sheet or criminal record to exercise
`their discretion. See id. at 89.16
`
`
`14 See also Dkt. 226-2, Ex. 198 (DHS Email Chain – “204(c) and
`DACA,” Aug. 19, 2015); Dkt. 226-3, Def.-Ints.’ PI App. Vol. 10 (July
`22, 2018), Ex. 208 (Meeting Minutes – “DACA Roundtable Notes,”
`Sept. 9, 2015); id., Ex. 220 (Meeting Minutes – “Rap Session Notes,”
`Feb. 27 & 28, 2013); Dkt. 227-1, Exs. 231-235 (DACA Email Guid-
`ance); id., Dkt. 227-3, Def.-Ints.’ PI App. Vol. 13 (July 22, 2018), Ex.
`252 (2015 Training Presentation – “How to Deconflict DACA”).
`15 See also Dkt. 227-1, Ex. 236 at 4-5 (DACA BCU Picnic Rap
`Session Agenda and Notes, May 16, 2018); id., Ex. 242 (DACA
`Email Guidance – “Guidance on legal terminology,” May 4, 2017);
`Dkt. 225-6, Ex. 153 at 90 (2013 DACA Nat’l SOP) (providing exam-
`ples of types of conduct that might rise to a public safety threat
`without resulting in a criminal conviction).
`16 See also Dkt. 227-1, Ex. 236 at 2 (DACA BCU Picnic Rap
`Session Agenda and Notes, May 16, 2018); Dkt. 227-2, Def.-Ints.’ PI
`App. Vol. 12 (July 22, 2018), Ex. 244 (DACA Email Guidance – “Do-
`mestic Violence for DACA Purposes,” Sept. 15, 2014); Dkt. 225-6,
`Ex. 155 at DEF00003638 (DACA Internal Adjudicator FAQs); Dkt.
`227-1, Ex. 241 at 1 (Internal FAQ – “Wobbler Offenses”); Dkt. 227-
`3, Ex. 262 at DEF00004597 (Newsletter – “DACA Matters”).
`
`
`
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`
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`

`

`
`
`15
`
`Even where there is no conviction, an officer may
`still consider the underlying factors of the criminal activ-
`ity when determining whether favorable discretion is
`warranted. See Dkt. 227-1, Ex. 239 at 30 (DACA BCU
`Criminality Training, Feb. 2017) (“DACA is a discretion-
`ary program and does not necessarily require a convic-
`tion for the adjudicator to consider the underlying fac-
`tors of the criminal activity when determining whether
`or not favorable discretion is warranted.”).
`Additionally, in looking at the totality of the circum-
`stances, USCIS adjudicators can deny DACA applica-
`tions not only based on the conduct of the applicant, but
`also because of the applicant’s questionable affiliations.
`See, e.g., Dkt. 215-1, Ex. 37 at NJAPP0398 (DACA
`Email Guidance, Mar. 12, 2015) (Background Check Unit
`denies DACA requests “as a matter of discretion using
`the discretionary checkbox” when there are concerns of
`possible drug cartel affiliation).
`As in the public safety context, USCIS adjudicators
`also exercise broad discretion in determining whether an
`applicant has met DACA’s educational criteria, based on
`inquiries such as the following:
`(i) Whether an applicant has graduated from or
`is enrolled in an educational establishment,
`Dkt. 225-6, Ex. 153 at 60-70 (2013 DACA
`Nat’l SOP);
`(ii) Whether an applicant’s privately funded
`training or vocational programs have been
`sufficient, id. at 66; and
`
`
`
`
`
`
`

`

`
`
`16
`
`(iii) Whether submitted institutions, homeschool-
`ing programs, or other programs are “di-
`ploma mills” or otherwise “suspect,” see Dkt.
`214
`at DEF00000405-
`226-3,17 Ex.
`DEF00000408 (DACA Guidance on Diploma
`Mills); Dkt. 225-6, Ex. 153 at 60-70 (2013
`DACA Nat’l SOP); Dkt. 226-3, Exs. 212-213
`at DEF00000198-DEF00000199
`(DACA
`Guidance – “Homeschooling”).
`Finally, USCIS adjudicators have the discretion to
`deny applications notwithstanding the applicants’ meet-
`ing the criteria set forth in the DACA Memorandum.
`For instance, DHS’s SOPs on DACA state clearly that
`“[n]otwithstanding whether [an applicant’s] offense is
`categorized as a significant or non-significant misde-
`meanor, the decision whether to defer action in a partic-
`ular case is an individualized, discretionary one that is
`made taking into account the totality of the circum-
`stances.” Dkt. 225-6, Ex. 153 at 83-84 (2013 DACA Nat’l
`SOP) (emphasis added). As such, USCIS adjudicators
`can and do grant or deny deferred action to applicants
`regardless of whether they have or have not strictly sat-
`isfied the criteria in the DACA Memorandum.
`3. The significant and increasing denial rate
`for deferred action likewise confirms this
`use of case-by-case, individualized discre-
`tion
`Through the first two quarters of fiscal year 2018,
`USCIS adjudicators denied about 20% of requests for in-
`itial grants of deferred action under DACA. Dkt. 224-
`
`17 Def.-Ints.’ PI App. Vol. 10 (July 22, 2018).
`
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`

`

`17
`
`
`2,18 Ex. 25 at 1 (USCIS Data on Number of Form I-821D,
`Consideration of DACA). This denial rate is “consistent
`with other discretionary applications such as adjustment
`of status,” and a high acceptance rate is based on “the
`high caliber of the DACA applications submitted to
`USCIS.” Dkt. 225-3,19 Ex. 69 at 7 (Decl. of Barbara
`Hines). Moreover, USCIS management has emphasized
`that discretionary denials are increasing, and even
`DACA renewals should not be automatic:
`I wanted to be sure to reiterate what I pre-
`viously stated which is that TSC now de-
`nies significantly more DACA cases based
`on our view of discretionary denials shift-
`ing to be more in line with HQ. * * * Every
`case is different so we have to review the
`totality of the circumstances of each case.
`* * * If we wouldn’t approve it now as an
`initial, we shouldn’t approve it now just be-
`cause it’s a renewal.
`Dkt. 215-1, Ex. 38 at NJAPP0400 (DACA Email Guid-
`ance, June 2, 2015) (emphasis added).
`Lower initial rates of DACA rejections and denials20
`were not indicative of a lack of adjudicator discretion,
`
`18 Def.-Ints.’ PI App. Vol. 1 (July 21, 2018).
`19 Def.-Ints.’ PI App. Vol. 4 (July 21, 2018).
`20 Rejections and denials are distinct. Rejections occur when it
`appears on the face of the application that the applicant is not eligi-
`ble for the discretionary initiative (e.g., she does not meet the age
`requirement), or when the application is missing required materials
`(e.g., the required fee, component forms, or a signature). Denials
`oc