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.
`————
`ON WRIT OF CERTIORARI TO THE UNITED STATES
`COURT OF APPEALS FOR THE NINTH CIRCUIT
`————
`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
`————
`BRIEF OF AMICI CURIAE
`FORMER NATIONAL SECURITY OFFICIALS
`IN SUPPORT OF RESPONDENTS
`————
`HAROLD HONGJU KOH
`Counsel of Record
`HOPE R. METCALF
`PETER GRUBER RULE OF LAW CLINIC
`YALE LAW SCHOOL
`127 Wall Street
`P.O. Box 208215
`New Haven, CT 06520
`(203) 432-4932
`harold.koh@ylsclinics.org
`Counsel for Amici Curiae
`
`PHILLIP SPECTOR
`MESSING & SPECTOR LLP
`1200 Steuart Street
`#2112
`Baltimore, MD 21230
`(202) 277-8173
`
`October 4, 2019
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
`
`

`

`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF AUTHORITIES ....................................... ii
`STATEMENT OF INTEREST .................................... 1
`SUMMARY OF ARGUMENT ..................................... 1
`ARGUMENT ................................................................ 3
`I. Petitioners’ Rescission of DACA Does Not Serve
`a “Cause and Deter” Rationale, and in Fact
`Would Do Serious Harm to U.S. National
`Security and Foreign Policy Interests .................. 3
` A. Rescission does not serve a “cause and
`deter” rationale. ................................................ 3
` B. Rescission would do serious harm to U.S.
`security and foreign policy interests ............... 8
`II. Petitioners’ Unsupported Claims Do Not
`Warrant National Security Deference ................ 13
`CONCLUSION .......................................................... 18
`APPENDIX: List of Amici Curiae ......................... A-1
`
`
`
`
`
`
`
`
`
`
`

`

`
`
`ii
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`CASES
`ACLU v. U.S. Dep’t of Def., 901 F.3d 125
`(2d Cir. 2018) ........................................................ 14
`Doe 2 v. Shanahan, 917 F.3d 694 (D.C.
`Cir. 2019) .................................................. 13, 14, 15
`Encino Motorcars, LLC v. Navarro,
`136 S. Ct. 2117 (2016) ........................................ 4, 8
`FCC v. Fox Television Stations, Inc.,
`556 U.S. 502 (2009) ............................................ 3, 8
`Goldman v. Weinberger, 475 U.S. 503 (1986) .... 13, 15
`Holder v. Humanitarian Law Project,
`561 U.S. 1 (2010) .................................................. 14
`Michigan v. EPA, 135 S. Ct. 2699 (2015) ............... 3, 7
`Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
`Auto. Ins. Co., 463 U.S. 29 (1983) ..................... 3, 7
`NAACP v. Trump, 298 F. Supp. 3d 209
`(D.D.C. 2018) .......................................................... 5
`Rostker v. Goldberg, 453 U.S. 57 (1981) ............. 14, 15
`Trump v. Hawaii, 138 S. Ct. 2392 (2018) ................ 13
`Thomasson v. Perry, 80 F.3d 915 (4th Cir.
`1996) ..................................................................... 13
`Vill. Of Arlington Heights v. Metro. Hous. Dev.
`Corp., 429 U.S. 252 (1977) ................................... 17
`Winter v. Nat. Res. Def. Council,
`555 U.S. 7 (2008) .................................................. 13
`
`
`
`
`
`

`

`iii
`
`
`OTHER AUTHORITIES
`Alan Gomez, Who are the DACA DREAMers and
`how many are here?, USA Today
`(Feb. 13, 2018) ........................................................ 8
`Alex Horton, How the Pentagon Ending Its Deal
`with Immigrant Recruits Could Hurt the
`Military, Wash. Post (July 18, 2017) .................. 11
`Alicia Parlapiano & Karen Yourish, A Typical
`‘Dreamer’ Lives in Los Angeles, Is From Mexico
`and Came to the U.S. at 6 Years Old, N.Y.
`Times (Jan. 23, 2018) ............................................. 8
`Approximate Active DACA Recipients: Country of
`Birth as of July 31, 2018, U.S. Citizenship &
`Immigration Servs ................................................. 9
`Arnoldo Lopez Marmolejo & Marta Ruiz Arranz,
`The Economic Landscape in Central America
`and the Dominican Republic: External
`Challenges and Internal Strengths 15 (2019) ..... 10
`Ben Gitis, The Budgetary and Economic Costs of
`Ending DACA, American Action Forum
`(Sept. 7, 2017) ...................................................... 12
`Brief for Current and Former Prosecutors and Law
`Enforcement as Amicus Curiae, Regents of the
`University of California v. Department of
`Homeland Security, 908 F.3d 476 (9th Cir.
`2018) ..................................................................... 11
`Catalina Amuedo-Dorantes & Thitima Puttitanun,
`DACA and the Surge in Unaccompanied
`Minors at the US-Mexico Border, 54 Int’l
`Migration 102 (2016). ............................................ 6
`Catalina Amuedo-Dorantes & Thitima Puttitanun,
`Was DACA Responsible for the Surge in
`Unaccompanied Minors on the Southern
`Border?, 55 Int’l Migration 12 (2017) ................... 6
`
`
`
`

`

`iv
`
`
`David Bier, DACA Definitely Did Not Cause
`the Child Migrant Crisis, Cato Inst.
`(Jan. 9, 2017) .......................................................... 7
`Geneva Sands, ICE Director: If You Entered the US
`Illegally, You ‘Should be Concerned’, ABC News
`(June 16, 2017) ....................................................... 8
`Gregory Korte et al., Trump administration
`struggles with fate of 900 DREAMers serving
`in the military, USA Today (Sept. 7, 2017) ........ 10
`Ike Brannon & Logan Albright, The Economic and
`Fiscal Impact of Repealing DACA, Cato Inst.
`(Jan. 18, 2017) ...................................................... 12
`Jacqueline Varas & Usama Zafar, Estimating the
`Economic Contributions of DACA Recipients,
`Am. Action F. (Dec. 21, 2017) .............................. 12
`John Grady, Panel Says U.S. Military Recruitment
`Pool Must Broaden, U.S.N.I. News (June 17,
`2019) ..................................................................... 11
`Kevin Sieff, Mexico’s Migration Crackdown
`Overwhelms its Shelters, Antagonizes its
`Neighbors, Wash. Post (July 1, 2019) ................... 9
`Kirk Semple, Overflowing Toilets, Bedbugs and
`High Heat: Inside Mexico’s Migrant Detention
`Centers, N.Y. Times (Aug. 3, 2019). ...................... 9
`Manuel Orozco, Fact Sheet: Family Remittances to
`Latin America and the Caribbean in 2018,
`The Dialogue: Leadership for the Americas
`(Feb. 8, 2019) ........................................................ 10
`Meghann Myers, After 2018’s Recruiting Shortfall,
`It Will Take A Lot Longer to Build the Army to
`500K, Army Times (Mar. 14, 2019) ..................... 11
`
`
`
`

`

`v
`
`
`Memorandum from Elaine C. Duke, Acting Sec’y
`of Homeland Sec. to James W. McCament,
`Acting Dir. of U.S. Citizenship and
`Immigration Servs., et al. (Sept. 5, 2017) ............ 4
`Memorandum from John Kelly, Sec’y of Homeland
`Sec. to Kevin McAleenan, Acting Comm’r of
`U.S. Customs & Border Prot., et al. (Feb. 20,
`2017) ....................................................................... 8
`Memorandum from Kirstjen M. Nielsen, Sec’y
`of Homeland Sec. (June 22, 2018) ................... 5, 17
`Nicole Prchal Svajlenka, Amid Court Challenges,
`Here’s What Will Happen if DACA Ends,
`Center for American Progress (Aug. 15, 2018) ... 12
`Protecting Dreamers and TPS Recipients: Hearing
`Before the H. Comm. on the Judiciary, 116th
`Cong. 2015 (2019) (statement of the American
`Friends Service Committee) ................................ 10
`Robert M. Gates, Robert Gates: Ending DACA Will
`Hurt Immigrant Troops, N.Y. Times (Nov. 8,
`2017) ..................................................................... 11
`Roberto G. Gonzales, Here’s How DACA Changed
`the Lives of Young Immigrants, According to Re-
`search, Vox (Feb. 16, 2018) .................................. 11
`Stephen Dinan, No Apologies: ICE Chief Says
`Illegal Immigrants Should Live in Fear of
`Deportation, Wash. Times (June 13, 2017) ........... 9
`U.S. Dep’t of State, Country Reports on Human
`Rights Practices for 2018: Mexico (2019) .............. 9
`World Bank, Poverty & Equity Brief: Mexico
`(Oct. 2019) .............................................................. 9
`World Bank, Poverty & Equity Brief: Honduras
`(Oct. 2019) ............................................................ 10
`World Bank, Poverty & Equity Brief: Guatemala
`(Oct. 2019) .............................................................. 9
`
`
`
`

`

`
`
`1
`
`STATEMENT OF INTEREST1
`
`Amici curiae are former national security, foreign
`policy, homeland security, intelligence, and other pub-
`lic officials who have worked on security matters at
`the senior-most levels of the U.S. government.2 Amici
`have held the highest security clearances in the U.S.
`government and have served in leadership roles in
`presidential administrations of both major political
`parties. Amici have collectively devoted their careers
`to combatting the security threats that the United
`States faces in an interconnected and dynamic world.
`A number of amici were serving in the U.S. govern-
`ment in June 2012, when the now-rescinded Deferred
`Action for Childhood Arrivals (“DACA”) program was
`created. Amici write respectfully to offer the Court
`their perspective on the national security and foreign
`policy issues implicated by this case.
`SUMMARY OF ARGUMENT
`Petitioners’ original September 2017 decision to
`rescind DACA did not include a policy rationale based
`on immigration enforcement priorities, or foreign pol-
`icy or national security objectives. Not until nine
`months later, far into the present litigation, did Peti-
`tioners offer such a rationale, in a single sentence near
`the end of then-Secretary Nielsen’s June 2018
`
`1 No counsel for a party to this case authored this brief in whole
`or in part, and no such counsel or party contributed monetarily
`to the preparation or submission of any portion of this brief. Yale
`Law School’s Peter Gruber Rule of Law Clinic operates as a pub-
`lic interest law firm separate and independent from the school’s
`Jerome N. Frank Legal Services Organization, one of the counsel
`for Respondents in one of the consolidated matters in this case.
`Petitioners and Respondents provided blanket consent to file
`amicus curiae briefs.
`2 A complete list of signatories can be found in the Appendix.
`
`
`
`

`

`2
`
`
`memorandum (“Nielsen Memo”). That sentence sug-
`
`gested a “cause and deter” explanation for the rescis-
`sion: DACA causes illegal border crossings, so DACA
`rescission is needed to deter such crossings. The Niel-
`sen Memo offered this post hoc rationale in passing,
`without citations or factual support. Petitioners’ brief
`to this Court now tries to breathe life into this empty
`rationale.
`The “cause and deter” rationale bears no connec-
`tion to the facts, record, or stated motivation for the
`decision under review. This rationale not only lacks
`an evidentiary basis, but is at odds with the over-
`whelming weight of available evidence. It also fails to
`account for the many ways in which—in amici’s expe-
`rience—DACA rescission would harm the national se-
`curity and foreign policy interests of the United
`States. Accordingly, this Court owes this unsupported
`policy claim no “national security” deference. In
`amici’s judgment, this claim and the defective process
`that gave rise to it bear no resemblance to the consid-
`ered and reasoned professional judgments in which
`amici participated, and that have supported bona fide
`claims to national security deference in the past.
`
`
`
`
`
`

`

`
`
`3
`
`ARGUMENT
`
`I. Petitioners’ Rescission of DACA Does Not
`Serve a “Cause and Deter” Rationale, and in
`Fact Would Do Serious Harm to U.S. Na-
`tional Security and Foreign Policy Interests.
`Many months after their decision to rescind
`DACA, Petitioners introduced, in passing and without
`evidence, an unsubstantiated post hoc rationale: that
`because DACA causes illegal border crossings, rescis-
`sion of DACA is needed to deter such crossings. This
`unsupported claim does not approach the reasoned
`evaluation of the facts that this Court has required to
`uphold agency action. It ignores the many ways in
`which DACA rescission in fact would do grave harm
`to U.S. security and foreign policy concerns.
`A. Rescission does not serve a “cause and
`deter” rationale.
`Under section 706(2)(a) of the Administrative Pro-
`cedure Act (“APA”), a reviewing court must set aside
`agency actions, findings, or conclusions that are “arbi-
`trary, capricious, an abuse of discretion, or otherwise
`not in accordance with the law.” The court must assess
`whether the agency policy resulted from “reasoned de-
`cisionmaking”3 and whether, at the time “it took the
`action,”4 the agency “examine[d] the relevant data and
`articulate[d] a satisfactory explanation for its action
`including a rational connection between the facts
`found and the choice made.”5 When an agency
`
`3 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 520 (2009).
`4 A court “may uphold agency action only on the grounds that the
`agency invoked when it took the action.” Michigan v. EPA, 135
`S. Ct. 2699, 2710 (2015).
`5 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
`U.S. 29, 43 (1983) (internal quotation marks omitted).
`
`
`
`
`
`

`

`4
`
`
`reverses an earlier position, it must “provide a rea-
`
`soned explanation for the change.”6 These principles
`apply with special force when, as here, hundreds of
`thousands have come to rely on the policy to conduct
`their daily lives.7 In such cases, an agency must iden-
`tify, with more than mere “conclusory statements,”
`the “facts and circumstances that underlay or were
`engendered by the prior policy.”8
`The “cause and deter” rationale for Petitioners’ de-
`cision to rescind DACA falls well short of this stand-
`ard.
`Petitioners’ original decision to rescind DACA
`made no mention of an immigration enforcement ra-
`tionale or any security or foreign policy need for the
`change. In her September 5, 2017 memorandum re-
`scinding DACA (“Duke Memo”), then-Acting Secre-
`tary of Homeland Security Elaine Duke did not sug-
`gest that DACA rescission was necessary to deter mi-
`grants, to address a security risk, or to protect the
`homeland in any respect. The sole reason she articu-
`lated for the decision concerned the legality of DACA.9
`More than nine months later—after the U.S. Dis-
`trict Court for the District of Columbia rejected the
`
`
`6 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125
`(2016).
`7 Petitioners do not dispute that hundreds of thousands of DACA
`recipients have come to rely on DACA for the stability of their
`continued presence in this country, the only home that most re-
`cipients have ever known. Pet. Br. at 42-43.
`8 Encino Motorcars, 136 S. Ct. at 2126 (internal quotation marks
`omitted).
`9 Memorandum from Elaine C. Duke, Acting Sec’y of Homeland
`Sec. to James W. McCament, Acting Dir. of U.S. Citizenship and
`Immigration Servs., et al. (Sept. 5, 2017).
`
`
`
`
`
`

`

`5
`
`
`Duke Memo10—then-Secretary of Homeland Security
`
`Kirstjen Nielsen abruptly introduced a “cause and de-
`ter” explanation for the rescission of DACA, in a single
`sentence near the end of a three-page memorandum.11
`The sentence suggests that, “considering the fact that
`tens of thousands of minor aliens have illegally
`crossed or been smuggled across our border in recent
`years,” and that this “pattern continues to occur at un-
`acceptably high levels to the detriment of the immi-
`gration system,” it is “critically important for DHS to
`project a message that leaves no doubt regarding the
`clear, consistent, transparent enforcement of the im-
`migration laws against all classes and categories of al-
`iens.”12 The Nielsen Memo does not cite any evidence
`either that DACA caused the migration of minors, or
`that rescinding DACA would deter such migration.
`Petitioners’ brief to this Court now expands this
`rationale, asserting that DACA rescission is needed to
`“discourage illegal immigration,” and to prevent the
`“illegal border crossings” of children “with or without
`their families.”13 Petitioners further insist that
`“[a]mnesty-like policies” such as DACA “encourage
`further illegal conduct” by “creating an expectation of
`future amnesties.”14 As support, Petitioners cite only
`a single law review article from fifteen years ago,
`
`
`10 NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018).
`11 Memorandum from Kirstjen M. Nielsen, Sec’y of Homeland
`Sec. (June 22, 2018) [hereinafter Nielsen Memo].
`12 Id. at 3.
`13 Pet. Br. at 11, 40.
`14 Id. at 41 (citing Pia Orrenius & Madeline Zavodny, What Are
`the Consequences of an Amnesty for Undocumented Immigrants?,
`9 Geo. Pub. Pol’y Rev. 21, 31 (2004)).
`
`
`
`
`
`

`

`6
`
`
`which itself cites no evidence for this claim.15 Later in
`
`their brief, Petitioners opaquely refer to unspecified
`“foreign-policy considerations” as justifying the policy
`change in this case.16
`Petitioners’ “cause and deter” rationale has no ba-
`sis in the evidence or record. Even now, nearly two
`years after the original decision to rescind DACA, and
`more than a year after the Nielsen Memo introduced
`the rationale, Petitioners cannot offer a single piece of
`evidence to support this rationale. They do not point
`to any information in the administrative record. In-
`deed, they produced no administrative record for the
`Nielsen Memo at all. They do not claim to be in pos-
`session of supporting classified or sensitive infor-
`mation that they are unable to disclose. They do not
`offer the declaration of a single national security offi-
`cial who is willing to speak to the process or the facts
`that yielded this rationale. Their post hoc rationale is
`not just late, but entirely unmoored from fact.
`In fact, the overwhelming evidence is to the con-
`trary. Years of data now illuminate the actual impact
`that DACA has had on migrant flows into the United
`States. That data confirms that, as the authors of one
`comprehensive study put it, “DACA did not signifi-
`cantly contribute to the observed increase in unaccom-
`panied minors” apprehended along the U.S.-Mexico
`border.17 A separate analysis found that the Border
`
`
`15 Ibid.
`16 Id. at 53.
`17 Catalina Amuedo-Dorantes & Thitima Puttitanun, Was DACA
`Responsible for the Surge in Unaccompanied Minors on the
`Southern Border?, 55 Int’l Migration 12, 12 (2017); see also Cat-
`alina Amuedo-Dorantes & Thitima Puttitanun, DACA and the
`Surge in Unaccompanied Minors at the US-Mexico Border, 54
`Int’l Migration 102 (2016).
`
`
`
`
`
`

`

`7
`
`
`Patrol’s own figures “show[] unequivocally that all of
`
`the increase in children coming to the border in 2012
`began before the DACA announcement,” and that
`“UAC [unaccompanied alien children] arrivals have
`fluctuated month-to-month and year-to-year totally
`without regard to the number of new DACA applica-
`tions.”18 These results accord not only with amici’s ex-
`perience, but also with the fact that DACA offers no
`benefits to those migrating today, because its protec-
`tions are only available to people who entered the
`United States on or before June 15, 2007, an eligibility
`that expired more than a decade ago. This robust body
`of evidence does not support, but rather undermines,
`Petitioners’ “cause and deter” rationale.
`The policy rationale for DACA rescission that Pe-
`titioners now offer arose at least nine months after the
`actual rescission decision, cites no evidence, relies on
`no evidence of which we are aware, and runs counter
`to the available empirical evidence. This passing jus-
`tification was not made at the time the agency “took
`the action.”19 And it reflected no examination of “rele-
`vant data,” offered no “connection” between the facts
`and the choices made, and gave no explanation of any
`“facts and circumstances” that might be engendered
`by the rescinded policy.20 Petitioners’ “cause and de-
`ter” rationale represents the antithesis of the “rea-
`soned decisionmaking” that the law requires, and in-
`stead resembles the kind of “conclusory statement”
`
`
`18 David Bier, DACA Definitely Did Not Cause the Child Migrant
`Crisis, Cato Inst. (Jan. 9, 2017) (emphasis added).
`19 Michigan, 135 S. Ct. at 2710 (2015).
`20 Michigan, 135 S. Ct. at 2710; State Farm, 463 U.S. at 43.
`
`
`
`
`
`

`

`8
`
`
`that has been held insufficient under this Court’s
`
`precedent.21
`B. Rescission would do serious harm to U.S.
`security and foreign policy interests.
`Petitioners’ “cause and deter” rationale not only is
`unsupported by the available evidence, but also fails
`to account for the many ways in which—in amici’s ex-
`perience—the rescission of DACA would do grave
`harm to the security and foreign policy interests of the
`United States.
`First, rescission would have a devastating human-
`itarian impact on DACA recipients and their families
`and communities. On average, DACA recipients ar-
`rived in the United States at the age of six.22 Deport-
`ing them to places that are unsafe, unfamiliar, and
`unable to support them would gravely harm these in-
`dividuals and signal a deep contempt for human
`rights.23 In amici’s experience, this move would
`
`
`21 See Fox Television, 556 U.S. at 520; Encino Motorcars, 136 S.
`Ct. at 2127.
`22 Alan Gomez, Who are the DACA DREAMers and how many are
`here?, USA Today (Feb. 13, 2018); Alicia Parlapiano & Karen
`Yourish, A Typical ‘Dreamer’ Lives in Los Angeles, Is From Mex-
`ico and Came to the U.S. at 6 Years Old, N.Y. Times (Jan. 23,
`2018).
`23 Rescission would place DACA recipients at a genuine risk of
`deportation from the only home that they have known. The Ad-
`ministration’s stated enforcement policy has sharply narrowed
`discretion to exempt any removable aliens from enforcement. See
`Memorandum from John Kelly, Sec’y of Homeland Sec. to Kevin
`McAleenan, Acting Comm’r of U.S. Customs & Border Prot., et
`al. (Feb. 20, 2017). Administration officials have declared that
`those without legal status “should be concerned” and “need to be
`worried.” Geneva Sands, ICE Director: If You Entered the US Il-
`legally, You ‘Should be Concerned’, ABC News (June 16, 2017);
`
`
`
`
`
`

`

`9
`
`
`embolden other countries to mistreat their own mi-
`
`grants. And it would deeply tarnish our image
`throughout the world as a country of promise and tol-
`erance, threatening our influence as a global leader on
`human rights issues, and eroding our capacity to hold
`other governments accountable to their human rights
`obligations.
`Second, rescission would have a damaging impact
`on the stability of our hemisphere. The countries to
`which DACA recipients would be deported are already
`struggling with deep poverty, crime, and over-
`whelmed and under-resourced social services. The
`countries of the Northern Triangle lack the capacity
`or services to absorb the potential inflow of tens of
`thousands of young people in need of jobs and school-
`ing and lacking familiarity with the region. Even Mex-
`ico, larger and at least somewhat more prosperous,
`would have enormous capacity issues were it to re-
`ceive so many individuals.24 In addition, rescission
`
`Stephen Dinan, No Apologies: ICE Chief Says Illegal Immigrants
`Should Live in Fear of Deportation, Wash. Times (June 13, 2017).
`24 The majority of the roughly 700,000 DACA recipients are from
`Mexico (561,420 recipients); the next most common countries of
`origin are El Salvador (26,630), Guatemala (18,220), and Hondu-
`ras (16,730). Approximate Active DACA Recipients: Country of
`Birth as of July 31, 2018, U.S. Citizenship & Immigration Servs.
`Over forty percent of the population of Mexico lives in poverty,
`the nation is grappling with widespread crime and corruption,
`and its infrastructure is already overwhelmed by the tens of
`thousands of migrants from other countries who are newly in the
`country due to the Trump Administration’s Migrant Protection
`Protocols and related policies. See World Bank, Poverty & Equity
`Brief: Mexico (Oct. 2019); U.S. Dep’t of State, Country Reports on
`Human Rights Practices for 2018: Mexico (2019); Kevin Sieff,
`Mexico’s Migration Crackdown Overwhelms its Shelters, Antago-
`nizes its Neighbors, Wash. Post (July 1, 2019); Kirk Semple,
`Overflowing Toilets, Bedbugs and High Heat: Inside Mexico’s
`
`
`
`
`
`

`

`10
`
`
`would narrow the flow of remittances into these coun-
`
`tries, which are critical to many Central American
`economies.25 Depletion of these sources of revenue
`would only further destabilize countries already
`straining to produce enough tax revenues to fund se-
`curity, governance, and anti-poverty programs.
`Third, the rescission of DACA will undercut our
`military readiness. Hundreds of DACA recipients are
`currently serving in the U.S. Armed Forces through
`the Military Accession Vital to National Interest
`(“MAVNI”) program, which recruits immigrants with
`special, mission-critical skills such as language profi-
`ciency and medical expertise that are urgently needed
`by the military.26 MAVNI recruits have been espe-
`cially valuable to Special Operations Forces, who rely
`heavily on language and cultural competencies to
`
`
`Migrant Detention Centers, N.Y. Times (Aug. 3, 2019). Other
`countries that would receive DACA recipients are struggling
`with similar issues. The poverty rate in both Guatemala and
`Honduras, for example, is around sixty percent. See Poverty &
`Equity Brief Guatemala (Oct. 2019); Poverty & Equity Brief Hon-
`duras (Oct. 2019).
`25 See Protecting Dreamers and TPS Recipients: Hearing Before
`the H. Comm. on the Judiciary, 116th Cong. 2015 (2019) (state-
`ment of the American Friends Service Committee); Arnoldo
`Lopez Marmolejo & Marta Ruiz Arranz, The Economic Land-
`scape in Central America and the Dominican Republic: External
`Challenges and Internal Strengths 15 (2019). In 2018, remit-
`tances constituted 22 percent of El Salvador’s GDP, 20 percent
`of Honduras’, and 16 percent of Jamaica’s. See Manuel Orozco,
`Fact Sheet: Family Remittances to Latin America and the Carib-
`bean in 2018, The Dialogue: Leadership for the Americas (Feb.
`8, 2019).
`26 See Gregory Korte et al., Trump administration struggles with
`fate of 900 DREAMers serving in the military, USA Today (Sept.
`7, 2017).
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`perform their sensitive missions.27 The United States
`
`faces security challenges throughout the globe that re-
`quire a military force with specialized and diverse
`skills. The rescission of DACA will harm our military
`effectiveness at a moment when our Armed Forces are
`already struggling to attract enough recruits.28
`Fourth, rescinding DACA will make it more diffi-
`cult for our law enforcement officials to combat crime
`at home and across the region. Law enforcement and
`homeland security professionals agree that DACA
`vastly improved the safety of American cities by de-
`creasing fear of police officers in immigrant communi-
`ties and encouraging immigrants to cooperate with
`law enforcement efforts.29 Nearly sixty percent of
`DACA recipients have stated that they would be will-
`ing to report a crime that they would not have re-
`ported before receiving protected status.30 By remov-
`ing protection against deportation, young DACA re-
`cipients will be unable to obtain work, hold driver’s
`licenses, or participate in many other aspects of
`
`27 See Alex Horton, How the Pentagon Ending Its Deal with Im-
`migrant Recruits Could Hurt the Military, Wash. Post (July 18,
`2017).
`28 See Robert M. Gates, Robert Gates: Ending DACA Will Hurt
`Immigrant Troops, N.Y. Times (Nov. 8, 2017); John Grady, Panel
`Says U.S. Military Recruitment Pool Must Broaden, U.S.N.I.
`News (June 17, 2019); Meghann Myers, After 2018’s Recruiting
`Shortfall, It Will Take A Lot Longer to Build the Army to 500K,
`Army Times (Mar. 14, 2019).
`29 Brief for Current and Former Prosecutors and Law Enforce-
`ment as Amicus Curiae, Regents of the University of California
`v. Department of Homeland Security, 908 F.3d 476 (9th Cir.
`2018); see also Roberto G. Gonzales, Here’s How DACA Changed
`the Lives of Young Immigrants, According to Research, Vox (Feb.
`16, 2018).
`30 Gonzales, supra note 29.
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`American society,31 pushing immigrants into the shad-
`
`ows and eroding trust in law enforcement. Without
`the cooperation of immigrant communities, the ability
`of law enforcement to prevent and disrupt crime will
`be significantly hampered, threatening local, na-
`tional, and cross-border security.
`Finally, the expense of DACA rescission would di-
`vert significant funds from real and urgent national
`security needs. The cost of deporting all DACA recipi-
`ents is estimated to be $7.5 billion.32 This money is
`urgently needed for other priorities: to combat cross-
`border and international crime, prevent terrorist at-
`tacks, and address other emergent security threats.
`Redirecting such a substantial sum of money toward
`the deportation of DACA recipients would undermine
`these legitimate national security initiatives. Further,
`by one estimate, DACA recipients contribute nearly
`$42 billion to the nation’s economy each year, money
`that can directly and indirectly contribute to initia-
`tives to bolster homeland security.33 Scarce resources
`should not be diverted toward tearing immigrants
`away from their families and livelihoods at the
`
`
`31 Nicole Prchal Svajlenka, Amid Court Challenges, Here’s What
`Will Happen if DACA Ends, Center for American Progress (Aug.
`15, 2018).
`32 See Ike Brannon & Logan Albright, The Economic and Fiscal
`Impact of Repealing DACA, Cato Inst. (Jan. 18, 2017); see also
`Ben Gitis, The Budgetary and Economic Costs of Ending DACA,
`American Action Forum (Sept. 7, 2017).
`33 Jacqueline Varas & Usama Zafar, Estimating the Economic
`Contributions of DACA Recipients, Am. Action F. (Dec. 21, 2017);
`see also Brannon & Albright, supra note 32 (estimating the total
`economic and fiscal cost of immediately eliminating the DACA
`program and deporting its participants to be $283 billion over 10
`years).
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`expense of critical efforts to address the very real se-
`
`curity threats that we face.
`II. Petitioners’ Unsupported Claims Do Not
`Warrant National Security Deference.
`Before this Court, Petitioners make the passing
`claim that “courts are also ‘ill equipped’ to consider the
`authenticity or the adequacy of the foreign-policy con-
`siderations” raised by cases such as this.34 If this is a
`veiled request for national security deference, it is un-
`justified here.
`This Court has underscored that national security
`deference is owed to the “considered professional judg-
`ment” of national security officials.35 As the Second
`Circuit has explained, “[d]eference to the executive’s
`national security and military
`judgments
`is
`
`
`
`34 Pet. Br. at 53.
`35 Goldman v. Weinberger, 475 U.S. 503, 508-509 (1986) (empha-
`sis added); see also Winter v. Nat. Res. Def. Council, 555 U.S. 7,
`24 (2008) (affording “great deference to the professional judg-
`ment of military authorities” (quoting Goldman, 475 U.S. at
`507)). Last Term, this Court afforded deference to the judgment
`of national security officials, but only after finding that “the
`agencies weighed various indicators of national security risk”
`and “had collected and evaluated data regarding all foreign gov-
`ernments” for the specific order the Court considered. Trump v.
`Hawaii, 138 S. Ct. 2392, 2404-2405 (2018). See Doe 2 v. Sha-
`nahan, 917 F.3d 694, 703 (D.C. Cir. 2019) (Wilkins, J., concur-
`ring) (mem.) (“Even when dealing with facially neutral policies,
`Congress and the Executive receive deference only where mili-
`tary policies are based upon the ‘considered professional judg-
`ment’ of ‘appropriate military officials’ and only after finding that
`the policies ‘reasonably and evenhandedly regulate’ the matter
`at issue.” (quoting Goldman, 475 U.S. at 509-510)); Thomasson
`v. Perry, 80 F.3d 915, 921-923 (4th Cir. 1996) (deferring to the
`“considered judgment” of coordinate b