`
`Nos. 18-587, 18-588, and 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.
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
`OF APPEALS FOR THE NINTH CIRCUIT
`
`
`BRIEF FOR RESPONDENTS
`THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
`JANET NAPOLITANO, AND THE CITY OF SAN JOSÉ
`
`Robert A. Long
`Counsel of Record
`Lanny A. Breuer
`Mark H. Lynch
`Alexander A. Berengaut
`Megan A. Crowley
`Ivano M. Ventresca
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth Avenue, NW
`Washington, DC 20001
`(202) 662-6000
`
`Jeffrey M. Davidson
`David Watnick
`COVINGTON & BURLING LLP
`415 Mission Street, Suite 5400
`San Francisco, CA 94105-2533
`(415) 591-6000
`
`Charles F. Robinson
`Margaret Wu
`Sonya Sanchez
`University of California
`Office of the General Counsel
`1111 Franklin Street, 8th Floor
`Oakland, CA 94607
`(510) 987-9800
`Counsel for The Regents of the University of California
`and Janet Napolitano
`(Additional Captions and Counsel Listed On Inside Cover)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
`ET AL.,
`Petitioners,
`
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT
`OF COLORED PEOPLE, ET AL.
`Respondents.
`
`
`
`
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF
`HOMELAND SECURITY, ET AL.,
`Petitioners,
`
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`
`
`
`
`Respondents.
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`
`
`
`
`
`
`
`
`
`
`
`Justin T. Berger
`Brian Danitz
`Tamarah Prevost
`COTCHETT, PITRE & MCCARTHY, LLP
`840 Malcolm Road, Suite 200
`Burlingame, CA 94010
`(650) 697-6000
`Counsel for City of San José
`
`
`
`
`
`
`
`
`QUESTIONS PRESENTED
`1. Whether the decision of the Acting Secretary of
`Homeland Secretary to rescind the Deferred Action
`for Childhood Arrivals (DACA) policy is subject to ju-
`dicial review under the Administrative Procedure Act.
`2. Whether the decision to rescind the DACA pol-
`icy was arbitrary and capricious.
`
`
`
`
`
`
`
`i
`
`
`
`
`
`
`ii
`TABLE OF CONTENTS
`
`
`INTRODUCTION ....................................................... 1
`STATUTORY AND REGULATORY
`PROVISIONS INVOLVED .................................. 2
`STATEMENT ............................................................. 2
`SUMMARY OF ARGUMENT .................................. 14
`ARGUMENT ............................................................ 17
`I. The Rescission Of DACA Is Reviewable. .......... 17
`A. Acting Secretary Duke’s Decision Is
`Reviewable. .................................................. 18
`B. The Nielsen Memorandum Does Not
`Alter The Reviewability Analysis. .............. 26
`II. The Rescission Of DACA Was Arbitrary
`And Capricious. .................................................. 30
`A. The Rescission Of DACA Was Not
`Adequately Explained. ................................ 31
`1. The Duke Memorandum Fails To
`Adequately Explain The
`Rescission. ............................................. 32
`2. The Nielsen Memorandum Does
`Not Cure The Defects In The Duke
`Memorandum. ....................................... 37
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`iii
`3. The Agency Failed To Give
`Adequate Consideration To
`Reliance Interests. ................................ 40
`B. DACA Is Lawful. ......................................... 44
`1. DACA Is A Lawful Exercise Of
`Authority Conferred By The INA. ........ 44
`2. The Government’s Arguments
`That DACA Is Unlawful Lack
`Merit. ..................................................... 49
`3. “Litigation Risk” Is Not A Valid,
`Independent Basis For Rescinding
`DACA. .................................................... 53
`C. This Court Should Not Rule For The
`Government Without A Complete
`Administrative Record, Particularly
`Given The Evidence Of Pretext. ................. 55
`1. The Administrative Record Is
`Incomplete. ............................................ 55
`2. There Is Evidence That DHS’s
`Explanation Is Pretextual. ................... 56
`CONCLUSION ......................................................... 58
`APPENDIX.................................................................1a
`
`
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`
`
`iv
`TABLE OF AUTHORITIES
`
`
`
`
`
`Cases
`Abbott Labs. v. Gardner,
`387 U. S. 136 (1967) ............................................. 18
`Burlington Truck Lines, Inc. v. United
`States,
`371 U.S. 156 (1962) .............................................. 27
`Casa De Maryland v. U.S. Dep’t of
`Homeland Sec.,
`284 F. Supp. 3d 758 (D. Md. 2018) ...................... 13
`Casa De Maryland v. U.S. Dep’t of
`Homeland Sec.,
`924 F.3d 684 (4th Cir. 2019) ................................ 13
`Citizens to Preserve Overton Park, Inc. v.
`Volpe,
`401 U.S. 402 (1971) ........................................ 18, 55
`Cutter v. Wilkinson, 544 U. S. 709 (2005) ................ 18
`Dep’t of Commerce v. New York, 139 S. Ct.
`2551 (2019) ................................................... passim
`Encino Motorcars, LLC v. Navarro, 136 S.
`Ct. 2117 (2016) ................................... 32, 33, 41, 43
`FCC v. Fox Television Stations, 566 U.S.
`502 (2009) ............................................................. 41
`FDA v. Brown & Williamson Tobacco Corp.,
`529 U.S. 120 (2000) .............................................. 52
`Fed. Election Comm’n v. Akins,
`524 U.S. 11 (1998) ................................................ 20
`
`
`
`
`
`
`
`
`
` v
`
`
`Fed. Power Comm’n v. Texaco Inc., 417 U.S.
`380 (1974) ............................................................. 40
`Heckler v. Chaney,
`470 U.S. 821 (1985) ...................................... passim
`ICC v. Brotherhood of Locomotive
`Engineers,
`482 U.S. 270 (1987) .................................. 19, 24, 25
`INS v. St. Cyr,
`533 U.S. 289 (2001) .............................................. 18
`Int’l Union, UAW v. Brock,
`783 F.2d 237 (D.C. Cir. 1986) ........................ 20, 24
`Int’l Union, United Mine Workers of Am. v.
`U.S. Dep’t of Labor, 358 F.3d 40 (D.C.
`Cir. 2004) .............................................................. 53
`Judulang v. Holder,
`565 U.S. 42 (2011) .................................... 27, 31, 39
`Lincoln v. Vigil,
`508 U.S. 182 (1993) .............................................. 19
`Mach Mining, LLC v. EEOC,
`135 S. Ct. 1645 (2015) .......................................... 18
`Marbury v. Madison,
`1 Cranch 137 (1803) ............................................. 18
`Massachusetts v. EPA,
`549 U.S. 497 (2007) .................................. 20, 22, 44
`Michigan v. E.P.A.,
`135 S. Ct. 2699 (2015) .......................................... 27
`Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
`State Farm Mut. Auto. Ins. Co., 463 U.S.
`29 (1983) ...................................................... passim
`
`
`
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`
`
`
`
`vi
`Neil v. Biggers, 409 U.S. 188 (1972) ........................ 35
`Negusie v. Holder,
`555 U.S. 511 (2009) ........................................ 34, 44
`In re Nielsen,
`No. 17-3345 (2d Cir. Dec. 27, 2017) ............... 10, 55
`Organized Vill. of Kake v. U.S. Dep’t of
`Agric., 795 F.3d 956 (9th Cir. 2015) (en
`banc) ..................................................................... 53
`OSG Bulk Ships, Inc. v. United States,
`132 F.3d 808 (D.C. Cir. 1998) .............................. 23
`Reno v. Am.-Arab Anti-Discrimination
`Comm.,
`525 U.S. 471 (1999) .................................. 26, 45, 52
`SEC v. Chenery Corp.,
`318 U.S. 80 (1943) .................................... 20, 31, 44
`SEC v. Chenery Corp.,
`332 U.S. 194 (1947) ........................................ 31, 37
`Texas v. United States,
`328 F. Supp. 3d 662 (S.D. Tex. 2018) .................. 54
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015), aff’d by an
`equally divided Court, 136 S. Ct. 2271
`(2016) .............................................. 8, 23, 33, 34, 47
`In re United States,
`138 S. Ct. 443 (2017) ............................................ 10
`In re United States,
`875 F.3d 1200 (9th Cir.), judgment
`vacated, 138 S. Ct. 443 (2017) ............................. 10
`
`
`
`
`
`
`
`
`
`vii
`Utility Air Regulatory Grp. v. EPA, 573 U.S.
`302 (2014) ............................................................. 52
`Webster v. Doe,
`486 U.S. 592 (1988) .............................................. 19
`Weyerhauser Co. v. U.S. Fish & Wildlife
`Serv.,
`139 S. Ct. 361 (2018) ...................................... 17, 20
`Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.
`Ct. 2076 (2015) .................................................... 45
`Statutes
`5 U.S.C. § 701 .................................................... passim
`5 U.S.C. § 702 ............................................................ 18
`5 U.S.C. § 706 .................................................... passim
`6 U.S.C. § 202 ............................................ 2, 16, 44, 52
`8 U.S.C. § 1103 .......................................................... 16
`8 U.S.C. § 1151 ...................................................... 4, 45
`8 U.S.C. § 1154 ...................................................... 4, 45
`8 U.S.C. §§ 1181-88 ..................................................... 2
`8 U.S.C. §§ 1226-29c .................................................... 2
`8 U.S.C. § 1227 ............................................................ 4
`8 U.S.C. § 1252 .................................................... 25, 26
`8 U.S.C. § 1324a ........................................................ 17
`49 U.S.C. § 30301 ...................................................... 45
`Immigration Reform and Control Act, Pub.
`L. No. 99-603, 100 Stat. 3359 (1986) ..................... 3
`
`
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`
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`
`viii
`Pub. L. No. 101-649, Tit. III, 104 Stat. 5030
`(1990) .................................................................... 49
`Regulatory Authorities
`8 C.F.R. § 1.3(a)(4) ....................................................... 6
`8 C.F.R. § 109.1(b)(7) (1982) ....................................... 6
`8 C.F.R. § 274a.12(c)(14) ................................. 6, 35, 46
`Other Authorities
`American Immigration Council, Executive
`Grants of Temporary Immigration Relief,
`1956-Present (Oct. 2014), available at
`https://bit.ly/2hIzgX8 ............................................. 3
`Pia Orrenius & Madeline Zavodny, What
`Are the Consequences of an Amnesty for
`Undocumented Immigrants?, 9 Geo. Pub.
`Pol’y Rev. 21 (2004) ............................................. 40
`
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`
`INTRODUCTION
`After the President stated repeatedly that DACA
`participants had nothing to fear and should rest easy,
`the Acting Secretary of Homeland Security abruptly
`announced the rescission of DACA. There is no dis-
`pute that this decision has life-changing implications
`for nearly 700,000 DACA participants and their fami-
`lies. Yet the Acting Secretary provided only a single
`vague sentence of explanation for the decision that
`leaves basic questions unanswered.
`The government argues that this highly conse-
`quential decision is immune from judicial review un-
`der the Administrative Procedure Act. But the govern-
`ment has not overcome the strong presumption favor-
`ing judicial review of agency action. Nor has it demon-
`strated that this case fits into one of the few and nar-
`row categories of agency action traditionally viewed as
`“committed to agency discretion by law.” When an
`agency determines that an action is required by law,
`as the agency did here, it is not exercising discretion.
`Instead, the agency is concluding that it has no discre-
`tion to exercise. It makes no sense to hold that such
`legal determinations cannot be reviewed by a court.
`On the merits, the Acting Secretary’s explanation
`is too vague and cursory to satisfy the APA’s arbi-
`trary-and-capricious standard. These deficiencies are
`not cured by Secretary Nielsen’s post hoc effort, in the
`midst of litigation, to rehabilitate Acting Secretary
`Duke’s explanation.
`In addition, the interlocutory posture of Regents
`and Batalla Vidal, the evident incompleteness of the
`administrative record, and evidence that the actual
`
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`1
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` 2
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`reasons for rescinding DACA are different from the
`stated reasons, are additional reasons for affirming
`the preliminary injunctions in those cases.
`STATUTORY AND REGULATORY
`PROVISIONS INVOLVED
`Relevant statutory and regulatory provisions not
`reproduced in Petitioners’ brief are reproduced in an
`appendix to this brief. App., infra, 1a-11a.
`
`
`STATEMENT
`1. Deferred Action Policies. The Immigration
`and Nationality Act (INA) establishes requirements
`governing the admissibility of noncitizens into the
`United States, see, e.g., 8 U.S.C. §§ 1181-88, as well
`as procedures for the detention and removal of noncit-
`izens, see, e.g., id. §§ 1226-29c. Subject to those provi-
`sions, Congress has assigned the Secretary of Home-
`land Security responsibility for “[e]stablishing na-
`tional immigration enforcement policies and priori-
`ties.” 6 U.S.C. § 202(5).
`Since 1956, every presidential administration has
`exercised this authority by adopting policies under
`which the government forgoes immigration enforce-
`ment against certain categories of immigrants. See
`SER265-66 (summarizing 17 pre-DACA discretionary
`relief policies).1 President Eisenhower “paroled” into
`the United States tens of thousands of otherwise-ex-
`cludable Hungarian refugees after the Soviet Union
`crushed the Hungarian Revolution. Dkt. 121-1 at 11,
`
`1 “ER” and “SER” refer to the Ninth Circuit Excerpts and Sup-
`plemental Excerpts of Record. “Dkt.” refers to docket entries in
`the district court.
`
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` 3
`
`
`13 (Statements of President Eisenhower). Presidents
`Eisenhower, Kennedy, Johnson, and Nixon paroled
`more than 600,000 Cuban immigrants into the United
`States through a series of discretionary policies.
`American Immigration Council, Executive Grants of
`Temporary Immigration Relief, 1956-Present (Oct.
`2014), available at https://bit.ly/2hIzgX8.
`In 1987, the Reagan Administration instituted the
`Family Fairness Program, which provided eligibility
`for extended voluntary departure to spouses and chil-
`dren of individuals in the process of legalizing their
`immigration status under the Immigration Reform
`and Control Act of 1986, Pub. L. No. 99-603, 100 Stat.
`3359 (IRCA), even though the Act itself did not cover
`spouses and children. Dkt. 121-1 at 20-24 (INS Com-
`missioner Alan C. Nelson, Legalization and Family
`Fairness — An Analysis (Oct. 21, 1987)). In 1990,
`President George H. W. Bush expanded that program.
`Id. at 26-27 (Memorandum from Gene McNary,
`Comm’r, INS, to Reg’l Comm’rs, INS, Family Fair-
`ness: Guidelines for Voluntary Departure under 8 CFR
`242.5 for the Ineligible Spouses and Children of Legal-
`ized Aliens (Feb. 2, 1990)). The Family Fairness Pro-
`gram ultimately extended relief to approximately 1.5
`million people, an estimated 40 percent of the undoc-
`umented population at the time. See U.S. Cert. Pet. at
`7, United States v. Texas, No. 15-674 (2015).
`The Clinton Administration established a deferred
`action policy for individuals petitioning for relief un-
`der the Violence Against Women Act of 1994. Dkt.
`121-1 at 56-62 (Memorandum from Paul W. Virtue,
`Acting Exec. Assoc. Comm’r, INS., to Reg’l Dirs. et al.,
`INS, Supplemental Guidance on Battered Alien Self-
`Petitioning Process and Related Issues (May 6, 1997)).
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` 4
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`
`The George W. Bush Administration similarly pro-
`vided deferred action to certain applicants for T and
`U visas (victims of human trafficking and crimes such
`as domestic violence, respectively), id. at 67-68 (Mem-
`orandum from Stuart Anderson, Exec. Assoc. Comm’r,
`INS, to Johnny N. Williams, Exec. Assoc. Comm’r,
`INS, Deferred Action for Aliens with Bona Fide Appli-
`cations for T Nonimmigrant Status (May 8, 2002)),
`which subsequently were ratified by statute, see 8
`U.S.C. § 1227(d)(2) (U visa and T visa applicants are
`eligible for “deferred action”).
`These policies, and others like them, reflect the re-
`ality that the government lacks sufficient resources to
`“enforce all of the [immigration] rules and regulations
`presently on the books,” and that in “some situations,
`application of the literal letter of the law would simply
`be unconscionable and would serve no useful pur-
`pose.” SER1215 (Memorandum from Sam Bernsen,
`INS General Counsel, to Commissioner, Legal Opin-
`ion Regarding Service Exercise of Prosecutorial Dis-
`cretion (July 15, 1976)). For decades, the legality of
`these policies was widely accepted and none was chal-
`lenged in court.
`Congress has also expressly acknowledged the ex-
`istence of deferred action policies. See, e.g., 8 U.S.C.
`§ 1227(d)(2); id. § 1154(a)(1)(D)(i)(II), (IV) (petitioners
`under the Violence Against Women Act are eligible for
`“deferred action and work authorization”); id. § 1151
`note (certain immediate family members of certain
`United States citizens “shall be eligible for deferred
`action”).
`2. DACA. The Department of Homeland Security
`(DHS) established the DACA policy in 2012. Regents
`Pet. App. 97a-101a. The memorandum establishing
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` 5
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`the policy provides that “certain young people who
`were brought to this country as children and know
`only this country as home” are eligible to apply for
`case-by-case discretionary relief from removal if they
`(1) came to the United States under the age of sixteen;
`(2) have continuously resided in the United States
`since June 15, 2007, and were present in the United
`States both on June 15, 2012, and on the date they
`requested DACA; (3) are in school, have graduated
`from high school, have obtained a GED, or have been
`honorably discharged from the United States military
`or Coast Guard; (4) do not have a significant criminal
`record and are not a threat to national security or pub-
`lic safety; (5) were under the age of 31 as of June 15,
`2012; and (6) do not have lawful immigration status.
`Id. at 97a-98a. Eligible applicants are required to pro-
`vide the government with sensitive personal infor-
`mation, including their home address and finger-
`prints, submit to a rigorous DHS background check,
`and pay a substantial application fee. SER1308, 1325-
`26, 1328 (USCIS Form I-821D, Consideration of De-
`ferred Action for Childhood Arrivals, and Instruc-
`tions).
`Before DACA was announced, the Office of Legal
`Counsel (OLC) advised that “such a program would be
`permissible, provided that immigration officials re-
`tained discretion to evaluate each application on an
`individualized basis.” JA 827-28 n.8. This advice was
`memorialized in a comprehensive 2014 OLC opinion.
`JA 797-856. In accordance with OLC’s advice, the
`memorandum creating DACA directs that, for appli-
`cants meeting the threshold criteria, “requests for re-
`lief pursuant to this memorandum are to be decided
`on a case by case basis,” as “part of th[e] exercise of
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` 6
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`prosecutorial discretion.” Regents Pet. App. 99a. The
`memorandum further provides that “DHS cannot pro-
`vide any assurance that relief will be granted in all
`cases.” Ibid. In defending against legal challenges to
`the DACA policy, the government argued that DACA
`is “a valid exercise of the Secretary’s broad authority
`and discretion to set policies for enforcing the immi-
`gration laws.” U.S. Br. *1, Ariz. Dream Act Coal. v.
`Brewer, 855 F.3d 957 (9th Cir. 2017), 2015 WL
`5120846.
`The government does not dispute that DACA has
`created enormous benefits for participants and the
`country as a whole. Nearly 700,000 young immigrants
`currently have deferred action under the policy. Dkt.
`290-2 (Demographics Report). Pursuant to longstand-
`ing regulations, DACA participants, like the benefi-
`ciaries of prior deferred action policies, may obtain
`employment authorization and a social security num-
`ber. See 8 C.F.R. § 274a.12(c)(14) (promulgated in
`1987); id. § 109.1(b)(7) (1982); id. § 1.3(a)(4) (promul-
`gated in 1996). These benefits have allowed DACA
`participants to achieve a 91 percent employment rate,
`and to increase their wages by 69 percent. SER1145-
`48 (Wong Decl.). Access to lawful work allows DACA
`participants to support their families, including their
`estimated 200,000 U.S.-citizen children, SER1155,
`and to receive employer-sponsored health insurance.
`Dkt. 118-1 at 260 (McLeod Decl.). The rescission of
`DACA would cost the country an estimated $215 bil-
`lion in lost GDP and $60 billion in lost federal tax rev-
`enue over a ten-year period. SER359 (Brannon & Al-
`bright Decl.). In addition, DACA participants contrib-
`ute more than $1.25 billion in state and local tax rev-
`enue each year. SER447 (Essig, et al. Decl.).
`
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` 7
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`
`DACA has allowed 94 percent of participants to
`pursue educational opportunities previously unavail-
`able to them; 72 percent are pursuing a bachelor’s or
`higher degree. SER1152 (Wong Decl.). For example,
`Mitchell Santos Toledo arrived in the United States
`from Mexico when he was less than two years old. JA
`954 (Santos Toledo Decl.). Despite growing up in diffi-
`cult circumstances, he excelled in school. Id. at 954-
`56. Upon graduation from high school, he was ac-
`cepted at the University of California, Berkeley, but
`could not attend because his family was poor and he
`was unable to lawfully work in the United States. Id.
`at 957-58. Once DACA was created, Santos Toledo
`was granted deferred action in 2013. Id. at 959. For
`the first time, he was allowed to lawfully work, and
`earned enough as a bank teller and paralegal to begin
`his studies at UC Berkeley, while also helping to sup-
`port his family. Id. at 960-61. Santos Toledo gradu-
`ated with Highest Distinction in Legal Studies in
`2016, and was the commencement speaker for his pro-
`gram. Id. at 962-63. He now attends Harvard Law
`School. Id. at 963. If DACA is rescinded, Santos Toledo
`will be unable to lawfully work in the United States
`and could be deported at any time to a country he has
`not lived in since he was less than two years old. Id.
`at 964.
`Evelyn Valdez-Ward arrived in the United States
`when she was six months old. SER1109 (Valdez-Ward
`Decl.). She did not know that she was undocumented
`until she applied for college. Id. at 1110. When she re-
`ceived her work authorization after obtaining de-
`ferred action through DACA, she “got [her] first real
`job as a cashier at Kroger’s,” then worked as a tutor
`
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` 8
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`and restaurant server—all while paying undergradu-
`ate tuition and giving money to her family. She has
`since become an acclaimed doctoral student in Ecology
`and Biology at UC Irvine. Id. at 1111-13. Her doctoral
`research, which is supported by a grant from the Ford
`Foundation, cannot be completed if DACA is termi-
`nated. Id. at 1113.
`3. The Government’s Decision to Rescind
`DACA. Early in his Administration, President Trump
`affirmed that the “policy of [his] administration [is] to
`allow the dreamers to stay” and declared that “dream-
`ers should rest easy.”2 In February 2017, then-Secre-
`tary of Homeland Security Kelly exempted DACA
`from a repeal of other immigration directives, JA 857-
`67, and stated that “DACA status” is a “commitment
`* * * by the government towards the DACA person,”
`Dkt. 121-1 at 273.
`On September 4, 2017, however, then-Attorney
`General Sessions sent a half-page letter to then-Act-
`ing Secretary of Homeland Security Duke, advising
`that DHS “should rescind” DACA because it was “ef-
`fectuated * * * without proper statutory authority”
`and “was an unconstitutional exercise of authority by
`the Executive Branch.” JA 877-78. The letter asserted
`that DACA “has the same legal and constitutional de-
`fects” as a different deferred action policy, Deferred
`Action for Parents of Americans and Lawful Perma-
`nent Residents (DAPA), which had been preliminarily
`enjoined in a decision affirmed by the Fifth Circuit in
`Texas v. United States, 809 F.3d 134 (5th Cir. 2015),
`
`2 SER1346-47 (Tr. of AP Interview with Trump (Apr. 24, 2017),
`https://www.cbsnews.com/news/transcript-of-ap-interview-with-
`trump/).
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` 9
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`
`aff’d by an equally divided Court, 136 S. Ct. 2271
`(2016). JA 878. The Attorney General’s letter does not
`elaborate on the purported “constitutional defects” in
`DACA. Neither the Fifth Circuit nor any other court
`has ever found any deferred action policy unconstitu-
`tional.
`On September 5, the day after the Attorney Gen-
`eral’s letter, Acting Secretary Duke issued a memo-
`randum rescinding DACA. Regents Pet. App. 111a-
`12a. The memorandum instructed DHS to cease ac-
`cepting new DACA applications and advance parole
`applications and to accept renewal applications only
`through October 5, 2017, and only from individuals
`whose deferred action would expire before March 5,
`2018. Id. at 117a-18a. The memorandum provided a
`one-sentence justification for ending DACA: “Taking
`into consideration the Supreme Court’s and the Fifth
`Circuit’s rulings in the ongoing litigation, and the Sep-
`tember 4, 2017 letter from the Attorney General, it is
`clear that the June 15, 2012 DACA program should be
`terminated.” Id. at 117a.
`That same day, the President tweeted: “Congress
`now has 6 months to legalize DACA (something the
`Obama Administration was unable to do). If they
`can’t, I will revisit this issue!” Donald J. Trump
`(@realDonaldTrump), Twitter (Sept. 5, 2017, 8:38
`PM), https://tinyurl.com/y7f2y6tj. The President later
`tweeted that “[t]he Democrats have been told, and
`fully understand, that there can be no DACA without
`the desperately needed WALL at the Southern Border
`and an END to the horrible Chain Migration & ridic-
`ulous Lottery System of Immigration etc.” Donald J.
`Trump (@realDonaldTrump), Twitter (Dec. 29, 2017,
`5:16 AM), https://goo.gl/aZ19im.
`
`
`
`
`
`
`
`10
`4. The California Litigation. The University of
`California and other Respondents brought actions in
`the Northern District of California contending that
`the decision to rescind DACA violated the Administra-
`tive Procedure Act (APA). Regents Pet. App. 19a-22a.
`Some Respondents also challenged the rescission on
`due process and equal protection grounds. Id. at 22a.
`a. The administrative record produced by the gov-
`ernment consists of 14 publicly-available documents
`totaling 256 pages, including 187 pages of judicial
`opinions. See Dkt. 64-1. The lower courts have deter-
`mined that this administrative record is incomplete.3
`This Court has directed the lower courts to adjudicate
`the government’s threshold reviewability arguments
`before proceeding with litigation to complete the ad-
`ministrative record. In re United States, 138 S. Ct. 443
`(2017).
`b. Petitioners moved to dismiss the complaints; Re-
`spondents opposed Petitioners’ motion and sought a
`preliminary injunction on their APA claims. See Dkt.
`111 at 10; Dkt. 205. The district court granted both
`motions in part. Regents Pet. App. 66a-69a. The court
`held that Respondents are likely to succeed on their
`claim that the rescission was arbitrary and capricious.
`Id. at 54a, 62a. In finding that Respondents also sat-
`isfied the remaining preliminary injunction factors,
`the court relied on Respondents’ extraordinary show-
`ing of irreparable harm, see id. at 62a-63a, which es-
`tablishes, for example, that the rescission would cause
`
`3 See Dkt. 79 (ordering completion of the administrative record);
`In re United States, 875 F.3d 1200, 1205 (9th Cir.) (denying man-
`damus petition), judgment vacated, 138 S. Ct. 443 (2017); In re
`Nielsen, No. 17-3345, slip op. at 2-3 (2d Cir. Dec. 27, 2017).
`
`
`
`
`
`
`
`11
`roughly 1,400 DACA participants to lose their jobs
`each business day, SER1459 (Center for America Pro-
`gress, Study: The Impact of Deferred Action for Child-
`hood Arrivals (DACA) Program Repeal on Jobs), and
`force tens of thousands of DACA participant under-
`graduate and graduate students to discontinue their
`studies for lack of support, SER1152-53 (Wong Decl.).
`The University of California alone has approximately
`1,700 DACA students whose educations and contribu-
`tions to the University would be imperiled by the re-
`scission. SER365-69 (Brick Decl.).
`The court’s injunction required the government to
`“allow[] DACA enrollees to renew their enrollments”
`under the terms applicable prior to the rescission. Re-
`gents Pet. App. 66a. For “each renewal application,”
`the district court permitted the government to con-
`tinue to “take administrative steps to make sure fair
`discretion is exercised on an individualized basis.”
`Ibid. The injunction does not prohibit DHS “from pro-
`ceeding to remove any individual, including any
`DACA enrollee, who it determines poses a risk to na-
`tional security or public safety, or otherwise deserves,
`in its judgment, to be removed.” Ibid. Nor does the in-
`junction require DHS to process DACA applications
`from individuals who had not previously received de-
`ferred action, or to restore DACA participants’ ability
`to obtain advance parole to travel abroad and return
`home to the United States. Ibid.
`c. The Ninth Circuit affirmed the district court’s
`orders. Regents Pet. Supp. App. 1a-87a. The court held
`that the rescission decision is not “committed to
`agency discretion by law” under 5 U.S.C. § 701(a)(2).
`The court reasoned that the rescission was based on a
`non-discretionary legal determination that “DACA
`
`
`
`
`
`
`
`12
`was beyond the authority of DHS.” Regents Pet. Supp.
`App. 41a. It concluded that administrative decisions
`premised “on a belief that any alternative choice was
`foreclosed by law” are not “committed to agency dis-
`cretion.” Id. at 29a.
`The court next held that Respondents are likely to
`succeed on the merits of their APA claims, because
`DACA is “a permissible exercise of executive discre-
`tion” that is consistent with the INA, id. at 56a-57a,
`and “where an agency purports to act solely on the ba-
`sis that a certain result is legally required, and that
`legal premise turns out to be incorrect, the action
`must be set aside,” id. at 46a. The court emphasized
`that it was “not hold[ing] that DACA could not be re-
`scinded as an exercise of Executive Branch discre-
`tion,” but only that the legal grounds identified by the
`agency were erroneous. Id. at 57a.
`On appeal, the government did not dispute the dis-
`trict court’s holdings that the likelihood of irreparable
`harm, the balance of hardships, and the public inter-
`est all strongly favor a preliminary injunction. Id. at
`45a-46a.
`The court of appeals also affirmed the denial of the
`government’s motion to dismiss Respondents’ equal
`protection claims, holding that “the likelihood of suc-
`cess on [Respondents’] equal protection claim is a sec-
`ond, alternative ground for affirming the entry of the
`injunction.” Id. at 61a-77a & n.31.
`Judge Owens concurred in the judgment, conclud-
`ing that the APA claim was immune from judicial re-
`view but that the preliminary injunction should be af-
`firmed on equal protection grounds. Id. at 84a-87a.
`
`
`
`
`
`
`
`
`13
`5. The New York, Maryland, and District of
`Columbia Litigation. While the Regents cases were
`proceeding, additional challenges to the rescission of
`DACA proceeded in other courts and reached the
`same result.
`• In February 2018, the District Court for the
`Eastern District of New York preliminarily en-
`joined the rescission of DACA in an order that
`tracks the terms of the Regents injunction. Ba-
`talla Vidal Pet. App. 126a-128a.
`• In March 2018, the District Court for the Dis-
`trict of Maryland granted summary judgment
`to the government, concluding that the rescis-
`sion was reviewable, but not arbitrary and ca-
`pricious. Casa De Maryland v. U.S. Dep’t of
`Homeland Sec., 284 F. Supp. 3d 758 (D. Md.
`2018). On appeal, the Fourth Circuit reversed,
`concluding that the rescission was reviewable,
`arbitrary and capricious, and should be vacated
`under the APA. Casa De Maryland v. U.S. Dep’t
`of Homeland Sec., 924 F.3d 684 (4th Cir. 2019).
`• In April 2018, the District Court for the District
`of Columbia granted partial summary judg-
`ment against the government and vacated
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