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 OF AMERICAN COUNCIL ON EDUCATION AND
`43 OTHER HIGHER EDUCATION ASSOCIATIONS AS
`AMICI CURIAE IN SUPPORT OF RESPONDENTS
`_________
`NEAL K. KATYAL
` Counsel of Record
`JESSICA L. ELLSWORTH
`STEPHANIE J. GOLD
`MITCHELL P. REICH
`HOGAN LOVELLS US LLP
`555 Thirteenth Street, N.W.
`Washington, D.C. 20004
`(202) 637-5600
`neal.katyal@hoganlovells.com
`Counsel for Amici Curiae American Council on Educa-
`tion and 43 Other Higher Education Associations
`
`
`
`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 OF AMERICAN COUNCIL ON EDUCATION AND
`43 OTHER HIGHER EDUCATION ASSOCIATIONS AS
`AMICI CURIAE IN SUPPORT OF RESPONDENTS
`_________
`NEAL K. KATYAL
` Counsel of Record
`JESSICA L. ELLSWORTH
`STEPHANIE J. GOLD
`MITCHELL P. REICH
`HOGAN LOVELLS US LLP
`555 Thirteenth Street, N.W.
`Washington, D.C. 20004
`(202) 637-5600
`neal.katyal@hoganlovells.com
`Counsel for Amici Curiae American Council on Educa-
`tion and 43 Other Higher Education Associations
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ...................................... iii
`STATEMENT OF INTEREST .................................... 1
`INTRODUCTION AND SUMMARY OF
`ARGUMENT ............................................................. 2
`ARGUMENT ............................................................... 5
`I. THE RESCISSION OF DACA WILL
`INFLICT PROFOUND HARMS ON
`COLLEGES AND UNIVERSITIES,
`THEIR STUDENTS, AND THE
`COUNTRY AS A WHOLE .................................. 5
`A. America’s Colleges and Universities
`Thrive on a Diverse Student Body
`and a Reputation for Inclusiveness ............... 5
`B. Prior to DACA, Many of the Na-
`tion’s Most Promising Students
`Faced Severe Challenges to Enroll-
`ment in or Completion of Under-
`graduate and Graduate Programs ................ 8
`C. DACA Has Made It Substantially
`Easier for Dreamers to Enroll in
`Postsecondary Institutions and Has
`Carried Enormous Benefits for Col-
`leges, Universities, and the Country........... 16
`D. The Rescission of DACA Would Re-
`verse the Gains the Program Has
`Enabled......................................................... 24
`II. THE RESCISSION IS REVIEWABLE ............ 28
`A. The APA Does Not Make the Re-
`scission Unreviewable ................................. 29
`
`(i)
`
`
`
`ii
`TABLE OF CONTENTS—Continued
`
`B. The INA Does Not Withdraw Juris-
`diction to Consider the Rescission ............... 33
`CONCLUSION .......................................................... 37
`ADDENDUM—LIST OF AMICI CURIAE ............... 1a
`
`Page
`
`
`
`iii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES:
`Arizona v. United States,
`567 U.S. 387 (2012) ................................................ 6
`Citizens to Preserve Overton Park, Inc. v.
`Volpe,
`401 U.S. 402 (1971) .............................................. 29
`Dep’t of Commerce v. New York,
`139 S. Ct. 2551 (2019) .................................... 29, 30
`Fisher v. Univ. of Texas at Austin,
`570 U.S. 297 (2013) ................................................ 7
`Gill v. Paige,
`226 F. Supp. 2d 366 (E.D.N.Y. 2002) .................. 28
`Grutter v. Bollinger,
`539 U.S. 306 (2003) ................................................ 7
`Heckler v. Chaney,
`470 U.S. 821 (1985) ............................ 30, 31, 32, 33
`ICC v. Bhd. of Locomotive Eng’rs,
`482 U.S. 270 (1987) .............................................. 32
`Jennings v. Rodriguez,
`138 S. Ct. 830 (2018) ...................................... 34, 35
`Mach Mining, LLC v. EEOC,
`135 S. Ct. 1645 (2015) .......................................... 36
`Massachusetts v. EPA,
`549 U.S. 498 (2007) .............................................. 33
`Michigan v. Bay Mills Indian Cmty.,
`572 U.S. 782 (2014) .............................................. 35
`Nielsen v. Preap,
`139 S. Ct. 954 (2019) ............................................ 34
`
`
`
`iv
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Reno v. Am.-Arab Anti-Discrimination
`Comm.,
`525 U.S. 471 (1999) ............................ 33, 34, 35, 36
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015) .......................... 31, 32
`United States v. Texas,
`136 S. Ct. 2271 (2016) .................................... 30, 32
`United Student Aid Funds, Inc. v. DeVos,
`237 F. Supp. 3d 1 (D.D.C. 2017) .......................... 28
`Weyerhauser Co. v. U.S. Fish & Wildlife Serv.,
`139 S. Ct. 361 (2018) ............................................ 29
`Zivotofsky ex rel. Zivotofsky v. Clinton,
`566 U.S. 189 (2012) .............................................. 29
`STATUTES:
`5 U.S.C. § 701(a)(2) ................................................. 29
`8 U.S.C. § 1252(b)(9) ............................... 5, 33, 34, 35
`8 U.S.C. § 1252(g) ................................... 5, 33, 34, 36
`Administrative Procedure Act .................... 28, 29, 30
`Immigration and Nationality Act .................... 28, 33
`OTHER AUTHORITIES:
`Leisy Janet Abrego, “I Can’t Go to College
`Because I Don’t Have Papers”: Incorpora-
`tion Patterns of Latino Undocumented
`Youth, 4 Latino Stud. 212 (2006),
`https://www.academia.edu/3684916/Abreg
`o_Leisy._2006._I_can_t_go_to_college_beca
`use_I_don_t_have_papers_Incorporation_
`Pat-
`
`
`
`v
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`terns_of_Latino_Undocumented_Youth._L
`atino_Studies_4_3_212-231 ................................. 15
`Am. Council on Educ., Immigration Post-
`Election Q&A: DACA Students, “Sanctu-
`ary Campuses,” and Institutional or
`Community Assistance (Dec. 2016),
`https://www.acenet.edu/Documents/ACE-
`Issue-Brief-Immigration-DACA-
`Sanctuary-Campus.pdf ........................................ 19
`Am. Council on Educ., Protect Dreamers
`Higher Education Coalition: Who Are the
`Dreamers?, https://www.acenet.edu/Policy-
`Advocacy/Pages/Immigration/Protect-
`Dreamers-Higher-Education-
`Coalition.aspx ...................................................... 20
`Jeanne Batalova et al., Migration Policy
`Inst., DACA at the Two-Year Mark: A Na-
`tional and State Profile of Youth Eligible
`and Applying for Deferred Action (Aug.
`2014), https://www.migrationpolicy.org/
`research/daca-two-year-mark-national-
`and-state-profile-youth-eligible-and-
`applying-deferred-action ..................................... 15
`Ike Brannon & Logan Albright, The Eco-
`nomic and Fiscal Impact of Repealing
`DACA, Cato Inst.: Cato At Liberty (Jan.
`18, 2017), https://www.cato.org/blog/
`economic-fiscal-impact-repealing-daca ......... 24, 27
`Alexandra A. Chaidez & Sanjana L. Nara-
`yana, Harvard Senior Becomes First
`
`
`
`vi
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`DACA Recipient to Win Rhodes Scholar-
`ship, Harvard Crimson (Nov. 19, 2018) .............. 21
`John Coyle, The Legality of Banking the
`Undocumented, 22 Geo. Immigr. L.J. 21
`(2007) .................................................................... 11
`Deferred Action for Childhood Arrivals
`(DACA) Data Tools, Migration Policy Inst.,
`https://www.migrationpolicy.org/programs
`/data-hub/deferred-action-childhood-
`arrivals-daca-profiles ............................................. 9
`Economic News Release, Bureau of Labor
`Statistics, U.S. Dep’t of Labor, College En-
`rollment and Work Activity of Recent High
`School and College Graduates Summary
`(Apr. 25, 2019), https://www.bls.gov/news.
`release/hsgec.nr0.htm .......................................... 14
`Enrollment Trends, Inst. for Int’l Educ.
`(2018), https://www.iie.org/Research-and-
`Insights/Open-Doors/Data/International-
`Students/Enrollment ............................................. 6
`Roberto G. Gonzales & Angie M. Bautista-
`Chavez, Am. Immigration Council, Two
`Years and Counting: Assessing the Grow-
`ing Power of DACA (June 2014),
`http://www.immigrationpolicy.org/sites/def
`ault/files/research/two_years_and_countin
`g_assessing_the_growing_power_of_daca_f
`inal.pdf ........................................................... 14, 17
`Roberto G. Gonzales & Leo R. Chavez,
`“Awakening to a Nightmare”: Abjectivity
`and Illegality in the Lives of Undocumented
`
`
`
`vii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`1.5-Generation Latino Immigrants in the
`United States, 53 Current Anthropology
`255 (2012), https://pdfs.semanticscholar.org
`/4515/9747881c9cd7961b282a9066c3e7f4b1
`a93a.pdf ................................................................ 16
`Roberto G. Gonzales et al., Becoming
`DACAmented: Assessing the Short-Term
`Benefits of Deferred Action for Childhood
`Arrivals (DACA), 58 Am. Behavioral Sci-
`entist 1852 (Nov. 2014) ................................ passim
`Emily Greenman & Matthew Hall, Legal
`Status and Educational Transitions for
`Mexican and Central American Immigrant
`Youth, 91 Social Forces 1475 (2013),
`https://www.ncbi.nlm.nih.gov/pmc/articles/
`PMC3816545/pdf/sot040.pdf ............................... 14
`Neeta Kantamneni et al., Academic and
`Career Development of Undocumented Col-
`lege Students: The American Dream?,
`64 Career Development Quarterly 318
`(2016) .............................................................. 10, 13
`Neeta Kantamneni et al., DREAMing Big:
`Understanding the Current Context of Ac-
`ademic and Career Decision-Making for
`Undocumented Students, 43 J. Career
`Dev. 483 (2016) ........................................ 12, 13, 17
`Letter from More than 800 Colleges and
`Universities to Speaker Ryan et al. (Oct.
`19, 2017), https://www.acenet.edu/
`Documents/Letter-to-Congress-on-DACA-
`Oct-2017.pdf ......................................................... 21
`
`
`
`viii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Letter from President Eisgruber and Mi-
`crosoft President Smith to Congress Re-
`garding the Deferred Action for Childhood
`Arrivals (DACA) Program (Jan. 11, 2018),
`https://president.princeton.edu/blogs/letter
`-president-eisgruber-and-microsoft-
`president-smith-congress-regarding-
`deferred-action ..................................................... 21
`Silva Mathema, What DACA Recipients
`Stand to Lose—and What States Can Do
`About It, Ctr. for Am. Progress (Sept. 13,
`2018), https://www.americanprogress.org/
`issues/immigration/reports/2018/09/
`13/458008/daca-recipients-stand-lose-
`states-can/ ................................................ 19, 25, 26
`Gilbert Mendoza & Chesterfield Polkey,
`States Offering Driver’s Licenses to Immi-
`grants, Nat’l Conference of State Legisla-
`tures (July 25, 2019), http://www.ncsl.org/
`research/immigration/states-offering-
`driver-s-licenses-to-immigrants.aspx .................. 26
`NAFSA: Ass’n of Int’l Educators, Restoring
`U.S. Competitiveness for International
`Students and Scholars (June 2006),
`https://www.nafsa.org/sites/default/files/ek
`tron/uploadedFiles/NAFSA_Home/Resourc
`e_Library_Assets/Public_Policy/restoring_
`u.s.pdf ..................................................................... 7
`NAFSA International Student Economic
`Value Tool, NAFSA,
`https://www.nafsa.org/policy-and-
`
`
`
`ix
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`advocacy/policy-resources/nafsa-
`international-student-economic-value-tool ........... 8
`Nat’l Immigration Law Ctr., Access to Driv-
`er’s Licenses for Immigrant Youth Granted
`DACA, https://www.nilc.org/issues/drivers-
`licenses/daca-and-drivers-licenses/ (last
`updated May 31, 2015) ........................................ 16
`Nat’l Immigration Law Ctr., Stories in De-
`fense of Deferred Action for Childhood Ar-
`rivals, https://www.nilc.org/issues/
`daca/daca-fifth-anniversary-stories/ ............. 22, 23
`Zenen Jaimes Pérez, Ctr. for Am. Progress,
`Removing Barriers to Higher Education
`for Undocumented Students (Dec. 2014),
`https://www.luminafoundation.org/files/re
`sources/removing-barriers-for-
`undocumented-students.pdf ........................ passim
`Protect Dreamers Higher Education Coali-
`tion: Faces of Dreamers, Am. Council on
`Educ.: Higher Educ. Today (Oct. 5, 2017),
`https://www.higheredtoday.org/2017/10/05
`/protect-dreamers-higher-education-
`coalition-faces-dreamers/ ..................................... 22
`REAL ID Frequently Asked Questions, Dep’t
`of Homeland Sec., https://www.dhs.gov/
`real-id-frequently-asked-questions (last
`updated Aug. 14, 2018) ........................................ 26
`Alene Russell, Am. Ass’n of State Colls. and
`Univs., State Policies Regarding Undocu-
`mented College Students: A Narrative of
`Unresolved Issues, Ongoing Debate and
`
`
`
`x
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Missed Opportunities (Mar. 2011),
`https://www.aascu.org/uploadedFiles/AAS
`CU/Content/Root/PolicyAndAdvocacy/
`PolicyPublications/PM_
`UndocumentedStudents-March2011.pdf ............ 11
`TheDream.US, 2018 Progress Report (2018),
`https://www.thedream.us/impact/ourdata/ ... 21, 23
`TheDream.US, Featured Scholar Stories,
`https://www.thedream.us/impact/our-
`scholar-stories-2/ .................................................. 22
`TheDream.US, In Their Own Words: Higher
`Education, DACA, and TPS (Oct. 2018),
`https://www.thedream.us/wp-
`content/uploads/2018/10/TheDream.US-
`In-Their-Own-Words-Report-Oct-2018-1-
`2.pdf ................................................................ 26, 27
`The UndocuScholars Project, Inst. for Im-
`migration, Globalization, & Educ., Univ. of
`California, Los Angeles, In the Shadows of
`the Ivory Tower: Undocumented Under-
`graduates and the Liminal State of Immi-
`gration Reform (2015),
`https://www.luminafoundation.org/files/re
`sources/in-the-shadows.pdf ........................... 17, 19
`United We Dream, A Portrait of Deferred
`Action for Childhood Arrivals Recipients:
`Challenges and Opportunities Three-Years
`Later (Oct. 2015), https://unitedwedream.
`org/wp-content/uploads/2015/10/DACA-
`report-final-1.pdf .................................................. 18
`
`
`
`xi
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Evelyn Valdez-Ward, The End of DACA
`Would Be a Blow to Science, Sci. Am.:
`Voices (Dec. 12, 2018),
`https://blogs.scientificamerican.com/voices/
`the-end-of-daca-would-be-a-blow-to-
`science/ ................................................................. 22
`Tom K. Wong et al., 2019 National DACA
`Study (Sept. 2019),
`https://cdn.americanprogress.org/content/u
`ploads/2019/09/18122133/New-DACA-
`Survey-2019-Final-1.pdf .................... 17, 20, 21, 24
`World University Rankings 2020, Times
`Higher Educ.,
`https://www.timeshighereducation.com/wo
`rld-university-rankings/2020/world-
`ranking#!/page/0/length/25/sort_by/
`rank/sort_order/asc/cols/stats ................................ 5
`Xueying Han & Richard P. Applebaum,
`Ewing Marion Kauffman Found., Will
`They Stay or Will They Go? International
`STEM Students Are Up for Grabs
`(July 2016), https://files.eric.ed.gov/
`fulltext/ED570660.pdf ........................................... 8
`Jie Zong et al., Migration Policy Inst., A
`Profile of Current DACA Recipients by
`Education, Industry, and Occupation
`(Nov. 2017), https://www.migrationpolicy.
`org/research/profile-current-daca-
`recipients-education-industry-and-
`occupation ............................................................ 24
`
`
`
`xii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Sejal Zota, Unauthorized Immigrants’ Ac-
`cess to Higher Education: Fifty States, Dif-
`ferent Directions, 79 Popular Gov’t 46
`(2009) .................................................................... 10
`
`
`
`STATEMENT OF INTEREST
`Amici are 44 associations of colleges, universities,
`educators, trustees, and other representatives of
`several thousand institutions of higher education in
`the United States. Amici represent public, inde-
`pendent, large, small, urban, rural, denominational,
`non-denominational, graduate, and undergraduate
`institutions and faculty. Each amicus is deeply
`concerned about the harms that the rescission of the
`Deferred Action for Childhood Arrivals (“DACA”)
`policy will inflict on America’s institutions of higher
`education, their students, and the global standing
`and reputation of the country’s colleges and universi-
`ties.
`Amicus American Council on Education (“ACE”) is
`the major coordinating body for American higher
`education. Its more than 1,700 members reflect the
`extraordinary breadth and contributions of four-year,
`two-year, public and private colleges and universi-
`ties. ACE members educate two out of every three
`students in accredited, degree-granting U.S. institu-
`tions. ACE participates as amicus curiae on occa-
`sions such as this where a case presents issues of
`substantial importance to higher education in the
`United States.
`The Addendum contains information on the other
`amici on this brief.1
`
`1 No party or counsel for a party authored this brief in whole or
`in part. No party, counsel for party, or person other than amici
`curiae or counsel made any monetary contribution intended to
`fund the preparation or submission of this brief. All parties
`have consented to the filing of this brief.
`
`(1)
`
`
`
`2
`INTRODUCTION AND
`SUMMARY OF ARGUMENT
`America’s colleges and universities are among the
`finest in the world. They help preserve our country’s
`democratic values; ensure its economic strength; and
`contribute to our Nation’s influence and global
`standing. One of the central reasons for the excel-
`lence of our postsecondary schools is their ability to
`attract and enroll talented, motivated, and curious
`students, regardless of their circumstances, whether
`born in this country or born abroad.
`Yet, prior to DACA, colleges and universities were
`effectively unable to enroll hundreds of thousands of
`the most deserving and meritorious students in the
`United States.
` The “Dreamers”—undocumented
`immigrants brought here as children, through no
`fault of their own, who attended high school or
`served in the military and have amassed no serious
`criminal record—faced a battery of severe impedi-
`ments to attending or completing college or graduate
`school. Unable to receive federal loans, work legally,
`or qualify for most state tuition benefits, Dreamers
`were foreclosed from nearly every avenue for financ-
`ing their education. Without driver’s licenses or
`work permits, Dreamers could not easily commute to
`school or complete many courses of study. Forced to
`live in the shadows, they often had to bear the seri-
`ous emotional strains and anxiety of their undocu-
`mented status alone.
`DACA has not removed all of these barriers, but it
`has made it newly possible for countless Dreamers to
`get a postsecondary education and unlock the poten-
`tial such an education affords. Dreamers can now
`qualify for many work-study programs, take on high-
`
`
`
`3
`quality jobs, receive a range of state tuition benefits,
`and otherwise find the means to pay for tuition.
`They can drive to work, school, and internships.
`When they graduate, they can qualify for occupa-
`tional licenses and work legally in high-quality
`sectors. In short, while policymakers and politicians
`remain unwilling or unable to address their predic-
`ament legislatively, DACA has offered Dreamers
`cautious hope that they can live the American
`Dream, and become part of this country’s ever-
`evolving story of innovators, inventors, entrepre-
`neurs, and leaders.
`The statistics bear out the profound difference
`DACA has made for its recipients, for U.S. colleges
`and universities, and for the country as a whole.
`College enrollment rates have increased dramatically
`for DACA-eligible individuals, and completion rates
`have skyrocketed. Amici have seen up-close the
`tremendous contributions these individuals have
`made to our campuses as they prepare for and live
`lives of impact across America.
`Dreamers are Rhodes Scholars, scientists, and
`campus leaders; they are sources of inspiration and
`insight for their peers; and they are unparalleled
`ambassadors for our schools abroad. In the words of
`one college president: “Dreamers set the bar very
`high academically, inspiring other students to reach
`higher as well.” Dreamers are also highly productive
`members of the Nation’s economy, contributing over
`a quarter of a trillion dollars in economic growth,
`thanks in large part to their ability to earn an ad-
`vanced education.
`The rescission of DACA would reverse all of these
`gains. In an instant, it would send a message of
`
`
`
`4
`exclusion that would irreparably harm our institu-
`tions’ ability to recruit and retain foreign-born stu-
`dents. It would tear at the fabric of our campus
`communities. Most importantly, it would pull the
`rug out from under the Dreamers themselves, who
`have upended their lives—taking out loans, earning
`degrees, and taking the risk of revealing their un-
`documented status—in reliance on DACA. As one
`DACA recipient stated, rescission would mean that
`“all the hard work I have put into my goals would be
`for nothing, and I would be back to the bottom where
`I started.”
`There are many problems with the government’s
`legal defense of this harsh and destructive policy.
`But the higher education community is particularly
`troubled by the government’s threshold claim that its
`decision is wholly exempt from judicial review.
`Sanctioning
`that remarkable argument would
`threaten to immunize from legal scrutiny numerous
`other major decisions disguised as “enforcement
`policies” that impact our higher education system.
`The government’s nonreviewability argument is
`untenable. The narrow “tradition of nonreviewabil-
`ity” for civil non-enforcement actions does not extend
`to the rescission of DACA, which (1) is not an indi-
`vidual non-enforcement action (or a non-enforcement
`action at all); (2) rests on a legal conclusion amena-
`ble to judicial review; and (3) will result in the revo-
`cation of tangible benefits, such as work authoriza-
`tion. Indeed, it is logically incoherent for the gov-
`ernment to claim that DACA itself was reviewable—
`and to endorse the Fifth Circuit’s holding to that
`effect—but that DACA’s rescission
`is somehow
`exempt from judicial scrutiny. The government’s
`
`
`
`5
`attempt to cram its rescission action into the narrow
`limitations on judicial review embodied in 8 U.S.C.
`§ 1252(b)(9) and (g) is equally unavailing: Its argu-
`ment is flatly irreconcilable with those provisions’
`text and ignores the limited construction this Court
`has given both statutes.
` The Court should not write the Administration a
`blank check to make this monumental policy choice
`without even a patina of judicial review. DACA has
`been an unmitigated good for this country, its higher
`education system, and the young persons whom it
`has benefited. The lower courts’ judgments should
`be affirmed.
`
`ARGUMENT
`I. THE RESCISSION OF DACA WILL
`INFLICT
`PROFOUND HARMS ON
`COLLEGES AND UNIVERSITIES, THEIR
`STUDENTS, AND THE COUNTRY AS A
`WHOLE.
`A. America’s Colleges and Universities
`Thrive on a Diverse Student Body and a
`Reputation for Inclusiveness.
`America’s higher education system is one of the
`crown jewels of our democracy. The country’s colleg-
`es and universities regularly rank among the finest
`in the world. See World University Rankings 2020,
`Times Higher Educ.2 Americans of every background
`have gained enrichment, social mobility, and eco-
`
`2
`https://www.timeshighereducation.com/world-university-
`rankings/2020/world-ranking#!/page/0/length/25/sort_by/rank/
`sort_order/asc/cols/stats (all websites last visited Oct. 3, 2019).
`
`
`
`6
`nomic advancement by attending our postsecondary
`schools. And, for decades now, the world’s leaders in
`the sciences, humanities, arts, and politics have
`come to the United States to be educated, work, and
`contribute to our country’s progress.
`One central ingredient in the success of our higher
`education system is its historic openness and diversi-
`ty. That openness is nowhere more evident than in
`our tradition of enrolling and educating persons born
`outside the United States. “The history of the Unit-
`ed States is in part made of the stories, talents, and
`lasting contributions of those who crossed oceans and
`deserts to come here.” Arizona v. United States, 567
`U.S. 387, 416 (2012). Many of the leading graduates
`of our country’s colleges and universities were born
`abroad. And today, more than 1 million enrollees in
`our colleges and universities are international stu-
`dents. Enrollment Trends, Inst. for Int’l Educ.
`(2018).3
`Admitting and enrolling students born outside the
`United States benefits colleges, universities, and the
`country at large in numerous ways. For one, it
`ensures that our colleges and universities enroll the
`best, brightest, most motivated and curious under-
`graduate and graduate students. Schools can build
`the strongest possible student body when they close
`their doors to no one, and can select from the country
`(and the world) as a whole, rather than being limited
`to a subset of the population.
`
`3 https://www.iie.org/Research-and-Insights/Open-Doors/Data/
`International-Students/Enrollment.
`
`
`
`7
`Furthermore, enrolling a diverse class helps colleg-
`es and universities provide a better education to all
`of their students. This Court has repeatedly recog-
`nized the “educational benefits that flow from a
`diverse student body.” Fisher v. Univ. of Texas at
`Austin, 570 U.S. 297, 308 (2013). Campus diversity
`helps to create and maintain an “atmosphere which
`is most conducive to speculation, experiment, and
`creation.” Id. (internal quotation marks omitted). It
`opens up students to new ideas and perspectives, and
`breaks down “isolation and stereotypes.” Id. In
`practical terms, it helps give students “the skills
`needed in today’s increasingly global marketplace,”
`which “major American businesses have made clear
`* * * can only be developed through exposure to
`widely diverse people, cultures, ideas, and view-
`points.” Grutter v. Bollinger, 539 U.S. 306, 330
`(2003).
`Enrolling foreign-born students is also critical in
`enabling American schools to compete in the “global
`competition” for international students and scholars.
`NAFSA: Ass’n of Int’l Educators, Restoring U.S.
`Competitiveness
`for International Students and
`Scholars 1 (June 2006).4 The finest international
`students and scholars are most interested in coming
`to a country when its schools are perceived as wel-
`coming and open-minded. See id. at 5. For that
`reason, other countries have made a concerted effort
`in recent decades to attract the leading minds from
`around the world into their universities. Id. at 4.
`
`4 https://www.nafsa.org/sites/default/files/ektron/uploadedFiles/
`NAFSA_Home/Resource_Library_Assets/Public_Policy/restorin
`g_u.s.pdf.
`
`
`
`8
`Policies that welcome the immigrants who reside
`within our borders are critical to preserving our
`higher education system’s reputation for openness
`and inclusion.
`Moreover, attracting and enrolling foreign-born
`students is greatly in the interest of the country at
`large. Foreign-born students contribute tens of
`billions of dollars to the U.S. economy and support
`hundreds of thousands of jobs each year. NAFSA
`International Student Economic Value Tool, NAFSA
`(estimating that foreign-born students contributed
`$39 billion and supported 455,000 jobs during the
`2017-2018 academic year).5 Many of these interna-
`tional students remain in our country to live, work,
`and found businesses. See Xueying Han & Richard
`P. Applebaum, Ewing Marion Kauffman Found., Will
`They Stay or Will They Go? International STEM
`Students Are Up for Grabs (July 2016). 6 Others
`return home inculcated with American values of
`democracy, tolerance, education, and the rule of law,
`helping spread American ideals and strengthening
`our country’s influence and national security.
`B. Prior to DACA, Many of the Nation’s Most
`Promising Students Faced Severe Chal-
`lenges to Enrollment in or Completion of
`Undergraduate and Graduate Programs.
`For many years, American colleges and universities
`faced a severe gap in their ability to include the more
`than one million foreign-born “Dreamers” in their
`
`5
`https://www.nafsa.org/policy-and-advocacy/policy-resources/
`nafsa-international-student-economic-value-tool.
`6 https://files.eric.ed.gov/fulltext/ED570660.pdf.
`
`
`
`9
`student bodies and communities. Dreamers are
`individuals who were brought to the United States as
`children, resided here continuously, and attended
`high school or served in the armed forces without
`committing any serious crime. No. 18-587 Pet. App.
`97a-98a; see Deferred Action for Childhood Arrivals
`(DACA) Data Tools, Migration Policy Inst.7 These
`individuals include countless students whose enroll-
`ment would markedly enrich college and university
`campuses: high school valedictorians; promising
`STEM candidates, leaders, or artists; and persons
`who “embod[y] the American dream.” No. 18-587
`Supp. Br. App. 5a.
`Like “[m]ost young adults in the United States,”
`Dreamers typically “aspire to some type of postsec-
`ondary education.” Roberto G. Gonzales et al.,
`Becoming DACAmented: Assessing the Short-Term
`Benefits of Deferred Action for Childhood Arrivals
`(DACA), 58 Am. Behavioral Scientist 1852, 1854
`(Nov. 2014) [hereinafter, “Becoming DACAmented”].
`But prior to DACA, severe structural barriers made
`it punishingly difficult for many Dreamers to afford,
`enroll in, or successfully complete college or graduate
`school.
`The most daunting impediment many Dreamers
`faced was financial. The vast majority of high school
`graduates—and nearly every undocumented immi-
`grant—cannot afford college without some form of
`tuition assistance, financial aid, or part-time em-
`
`7 https://www.migrationpolicy.org/programs/data-hub/deferred-
`action-childhood-arrivals-daca-profiles.
`
`
`
`10
`ployment. But prior to DACA, each of those avenues
`was largely foreclosed to Dreamers.
`Dreamers were largely barred from the most
`straightforward path to college affordability: enrol-
`ling in a public college or university and paying the
`lower rate charged for in-state residents. More than
`30 States categorically prohibited undocumented
`immigrants from qualifying as residents for in-state
`tuition purposes. Zenen Jaimes Pérez, Ctr. for Am.
`Progress, Removing Barriers to Higher Education for
`Undocumented Students 5-6 (Dec. 2014) [hereinafter,
`“Removing Barriers”].8 While a minority of States
`permitted undocumented students to qualify for the
`in-state rate, Dreamers often could not establish
`their eligibility without providing their Social Securi-
`ty numbers or disclosing information that risked
`revealing their undocumented status. Id. at 19, 24.
`In practice, many undocumented immigrants were
`thus compelled to pay the out-of-state rate at state
`schools, which is on average 61% higher, and some-
`times seven times as high, as the rate charged for in-
`state residents. Id. at 5; see Neeta Kantamneni et
`al., Academic and Career Development of Undocu-
`mented College Students: The American Dream?, 64
`Career Development Quarterly 318, 319 (2016)
`[hereinafter, “Academic and Career Development”].9
`
`8
` https://www.luminafoundation.org/files/resources/removing-
`barriers-for-undocumented-students.pdf.
`9 In two states, even that higher rate was not an option: South
`Carolina and Alabama banned undocumented students from
`attending many public colleges altogether. See Sejal Zota,
`Unauthorized Immigrants’ Access to Higher Education: Fifty
`States, Different Directions, 79 Popular Gov’t 46, 50 (2009).
`
`
`
`11
`Nor could Dreamers qualify for federal or state
`financial aid to fill the gap. Undocumented students
`are “ineligible for all forms of federal financial aid,
`including Pell Grants, the Federal Work-Study
`Program, and federal loans.” Removing Barriers at
`20. And nearly every State makes undocumented
`immigrants ineligible for state education grants, too.
`Id. at 6; see Alene Russell, Am. Ass’n of State Colls.
`and Univs., State Policies Regarding Undocumented
`College Students: A Narrative of Unresolved Issues,
`Ongoing Debate and Missed Opportunities 4 (Mar.
`2011).10
`Private banks presented no better an option for
`most undocumented students. Before DACA, few
`financial institutions were willing to extend loans to
`undocumented students and their parents. Remov-
`ing Barriers at 21. And those that were would often
`impose difficult-to-meet conditions, such as finding a
`co-signer who was a U.S. citizen or lawful permanent
`resident, and charging interest rates in excess of
`twice the rate for federal student loans. Id.; see John
`Coyle, The Legality of Banking the Undocumented,
`22 Geo. Immigr. L.J. 21, 23 (2007) (“[U]ndocumented
`immigrants * * * pay disproportion
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