`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 OF FORMER SERVICE SECRETARIES,
`MODERN MILITARY ASSOCIATION OF AMER-
`ICA, AND MILITARY AND VETERAN ADVO-
`CACY ORGANIZATIONS AS AMICI CURIAE IN
`SUPPORT OF RESPONDENTS
`____________
`
`PETER E. PERKOWSKI
`Modern Military
` Association of America
`P.O. Box. 65301
`Washington, DC 20035
`(202) 328-3244
`peter@modermilitary.org
`
`Counsel for Amicus Curiae
`Modern Military Association
`of America
`
`
`CHARLES B. KLEIN
` Counsel of Record
`CLAIRE A. FUNDAKOWSKI
`Winston & Strawn LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`cklein@winston.com
`
`Counsel for Amici Curiae
`
`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.
`MARTÍN JONATHAN BATALLA VIDAL, ET AL.,
`RESPONDENTS.
`____________
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`____________
`
`
`
`
`HARVEY WEINER
`Peabody & Arnold LLP
`600 Atlantic Avenue
`Boston, MA 02210
`hweiner@peabodyarnold.com
`Counsel for Amicus Curiae
`Jewish War Veterans of the USA
`
`
`
`
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`Page(s)
`INTERESTS OF AMICI CURIAE ............................... 1
`STATEMENT ................................................................ 5
`SUMMARY OF ARGUMENT ...................................... 8
`ARGUMENT ................................................................. 9
`The Government Must Consider Serious
`Reliance Interests When Changing
`Existing Policy.................................................... 9
`DACA Engendered Serious Reliance
`Interests on the Part of Non-Citizens
`Enlisted in the Military, Their Families,
`and the American People. ................................ 11
`Foreign-Born Recruits Are Integral
`to the U.S. Military and Vital to Its
`Mission. .................................................. 11
`Enlistees Rely on DACA for
`Eligibility to be Employed by the
`Military and for a Path to
`Citizenship. ............................................ 14
`Enlistees’ Families Rely on DACA
`for the Possibility of Parole in Place
`or Deferred Action. ................................ 18
`The U.S. Military Relies on Non-
`Citizens, Including DACA
`
`A.
`
`B.
`
`C.
`
`D.
`
`
`
`
`
`ii
`
`III.
`
`Recipients, to Protect the American
`People. .................................................... 20
`The Government Violated the APA When
`It Rescinded DACA Without Considering
`Serious Reliance Interests. .............................. 29
`CONCLUSION ........................................................... 31
`
`
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`
`
`Cases
`
`Burlington Truck Lines, Inc. v. United
`States,
`371 U.S. 156 (1962) .............................................. 30
`Encino Motorcars, LLC v. Navarro,
`136 S. Ct. 2117 (2016) ................................ 9, 10, 31
`FCC v. Fox Television Stations, Inc.,
`556 U.S. 502 (2009) .............................................. 10
`
`Motor Vehicle Mfrs. Ass’n v. State Farm
`Mut. Auto. Ins. Co.,
`463 U.S. 29 (1983) .................................................. 9
`SEC v. Chenery Corp.,
`332 U.S. 194 (1947) .............................................. 30
`
`Statutes
`5 U.S.C. § 706(2)(A) ..................................................... 9
`8 U.S.C. § 1439 ........................................................... 15
`8 U.S.C. § 1439(a) ...................................................... 15
`8 U.S.C. § 1439(f) ....................................................... 15
`8 U.S.C. § 1440 ........................................................... 15
`8 U.S.C. § 1440(a) ...................................................... 15
`8 U.S.C. § 1440(c) ....................................................... 15
`
`
`
`
`iv
`
`
`10 U.S.C. § 504(b)(2) ...........................................passim
`10 U.S.C. § 513(b)(1)-(3) ............................................ 17
`38 U.S.C. §§ 3311 ...................................................... 16
`38 U.S.C. § 3702 ........................................................ 16
`
`Regulations
`8 C.F.R. § 274a.12(c)(14).............................................. 6
`32 C.F.R. § 199.3 ........................................................ 16
`
`Other Authorities
`Air Force News, The U.S. Military Helps Naturalize
`Non-Citizens (2019),
`https://www.military.com/join-armed-
`forces/eligibility-requirements/the-us-military-
`helps-naturlize-non-citizens.html ........................ 23
`Baldor, Lolita, Problems for Pentagon’s
`immigrant recruit program, AP NEWS
`(Sept. 30, 2018),
`https://www.apnews.com/84530d3799
`004a0a8c15b3d11058e030 ................................... 22
`Bennett, Jonah, Pentagon: Fewer Than
`900 DACA Recipients Are Currently
`Serving In The Military (Sept. 6,
`2017), https://stream.org/pentagon-
`fewer-than-900-daca-recipients-are-
`currently-serving-in-the-military/ ....................... 13
`
`
`
`
`
`v
`
`
`Bowman, Tom, Citizenship For Military
`Service Program Under Fire, NPR
`(July 11, 2017),
`https://www.npr.org/2017/07/11/53663
`0223/citizenship-for-military-service-
`program-under-fire ............................................... 16
`Exec. Order 13,269, 67 Fed. Reg. 45287
`(July 3, 2002) .................................................. 13, 15
`Chief of Naval Personnel Public Affairs,
`SECNAV Releases Updated Diversity,
`Inclusion Policy Statement (Feb. 25,
`2016), available at
`https://www.navy.mil/submit/display.
`asp?story_id=93282 ........................................ 23, 28
`Chishti, Muzaffar, et al., Immigrants in
`the Military: Evolving Recruitment
`Needs Can Accommodate National
`Security Concerns (May 2019),
`https://www.migrationpolicy.org/sites/
`default/files/publications/MPI-
`Noncitizens-Military-Final.pdf ............................ 24
`Courtney, Paul Vincent, Prohibiting
`Sexual Orientation Discrimination in
`Public Accommodations: A Common
`Law Approach, 163 U. Pa. L. Rev.
`1497 (2014-2015) .................................................. 26
`Dep’t of Def., Defense Language
`Transformation Roadmap 3 (Jan.
`2005) http://www.defense.gov/news
`/mar2005/d20050330roadmap.pdf ....................... 27
`
`
`
`
`
`vi
`
`
`Dep’t of Def., DoD Announces Policy
`Changes to Lawful Permanent
`Residents and the Military Accessions
`Vital to the National Interest
`(MAVNI) Pilot Program (Oct. 13,
`2017), https://www.defense.gov
`/Newsroom/Releases/Release/Article/1
`342317/dod-announces-policy-
`changes-to-lawful-permanent-
`residents-and-the-military-acc/...................... 15, 16
`Dep’t of Def., MAVNI Fact Sheet,
`https://dod.defense.gov/news/mavni-
`fact-sheet.pdf ........................................................ 14
`Dep’t of Def., Population Representation
`in the Military Services: Fiscal Year
`2010 Summary Report, available at
`https://www.cna.org/pop-rep/2010
`/summary/PopRep10summ.pdf ............................ 12
`Dep’t of Def., Population Representation
`in the Military Services: Fiscal Year
`2016 Summary Report, available at
`https://www.cna.org/pop-rep/2016
`/summary/summary.pdf. .................... 12, 14, 21, 24
`Dep’t of Def., Remarks by Secretary
`Hagel at the Lesbian, Gay, Bisexual,
`Transgender Pride Month Event in
`the Pentagon Auditorium (June 25,
`2013), http://archive.defense.gov
`/transcripts/transcript.aspx?transcrip
`tid=5262 ................................................................ 27
`
`
`
`
`
`vii
`
`
`Dep’t of Homeland Security, MAVNI
`Program Status for Fiscal Year 2017
`(Dec. 2, 2016), https://www.ice.gov
`/doclib/sevis/pdf/bcm-1612-02.pdf ........................ 14
`Eric Fanning, Immigration reform: An Army
`recruitment opportunity (Jan. 8, 2018),
`https://thehill.com/opinion/national-
`security/367839-immigration-reform-an-army-
`recruitment-opportunity. ........................ 21, 22, 23
`Eric Fanning, Secretary of the Army: America’s
`Diversity is Our Army’s Strength, ASS’N OF THE
`U.S. ARMY (Oct. 1, 2016), available at
`https://www.ausa.org/articles/secretary-army-
`america%E2%80%99s-diversity-our-
`army%E2%80%99s-strength ............................... 28
`Gates, Gary J., The Williams Inst.,
`Effects of “Don’t Ask, Don’t Tell” on
`Retention Among Lesbian, Gay and
`Bisexual Military Personnel (2007),
`available at
`https://williamsinstitute.law.ucla.edu/
`wp-content/uploads/Gates-
`EffectsOfDontAskDontTellOnRetenti
`on-Mar-2007.pdf ................................................... 26
`
`
`
`
`
`viii
`
`
`Horton, Alex, Foreign-born recruits,
`promised citizenship by the Pentagon,
`flee the country to avoid deportation,
`Washington Post (July 17, 2017),
`https://www.washingtonpost.com/new
`s/checkpoint/wp/2017/07/17/foreign-
`born-recruits-promised-citizenship-
`by-the-pentagon-flee-the-country-to-
`avoid-deportation/ ................................................ 18
`Horton, Alex, The military looked to
`‘dreamers’ to use their vital skills.
`Now the U.S. might deport them.,
`Washington Post (Sept. 7, 2017),
`https://www.washingtonpost.com/new
`s/checkpoint/wp/2017/09/07/the-
`military-looked-to-dreamers-to-use-
`their-vital-skills-now-the-u-s-might-
`deport-them .......................................................... 17
`Memorandum from Deborah Lee James,
`Secretary of the Air Force, Air Force
`Diversity & Inclusion (Mar. 4, 2015),
`available at
`https://www.af.mil/Portals/1/documen
`ts/SECAF/FINALDiversity_Inclusion_
`Memo1.pdf ...................................................... 22, 28
`McIntosh, Molly F., et al., Non-Citizens
`in the Enlisted U.S. Military (Nov.
`2011), available at
`https://www.cna.org/CNA_files/PDF/D
`0025768.A2.pdf ......................................... 22, 23, 29
`
`
`
`
`
`ix
`
`
`Military Leadership Diversity
`Commission, From Representation to
`Inclusion: Diversity Leadership for the
`21st-Century Military, Final Report xvi
`(2011), https://www.hsdl.org
`/?view&did=11390 ................................................ 27
`National Immigration Forum, For Love of Country:
`New Americans Serving in our Armed Forces:
`Executive Summary (Nov. 7, 2017),
`https://immigrationforum.org/article/love-country-
`new-americans-serving-armed-forces-2/ .............. 29
`New American Economy, Outside the
`Wire: How Barring the DACA-Eligible
`Population from Enlisting Weakens
`our Military (Nov. 8, 2017),
`https://research.newamericaneconomy
`.org/report/outside-the-wire-how-
`barring-the-daca-eligible-population-
`from-enlisting-weakens-our-military/ ..... 14, 24, 25
`U.S. Citizenship and Immigration Servs.,
`Adjudicator’s Field Manual, ch.
`21.1(c) ........................................................ 18, 19, 20
`U.S. Citizenship and Immigration Servs.,
`Military Naturalization Statistics,
`https://www.uscis.gov/military/militar
`y-naturalization-statistics (last
`updated Dec. 6, 2018) ..................................... 13, 15
`
`
`
`
`
`x
`
`
`U.S. Citizenship and Immigration Servs.,
`USCIS Facilities Dedicated to the
`Memory of Immigrant Medal of Honor
`Recipients, https://www.uscis.gov
`/about-us/find-uscis-office/uscis-
`facilities-dedicated-memory-
`immigrant-medal-honor-recipients
`(last updated Jan. 24, 2014) ................................. 12
`U.S. Gov’t Accountability Office,
`Immigration Enforcement: Actions
`Needed to Better Handle, Identify, and
`Track Cases Involving Veterans 7
`(2019) ........................................................ 14, 17, 18
`Memorandum from Jessica Wright,
`Undersecretary of Defense for
`Personnel and Readiness, Military
`Accessions Vital to the National
`Interest Program Changes (Sept. 25,
`2014) ..................................................................... 13
`Jie Zong & Jeanne Batalova, Immigrant
`Veterans in the United States (May
`16, 2019),
`https://www.migrationpolicy.org/articl
`e/immigrant-veterans-united-states. ............. 12, 29
`
`
`
`
`
`
`
`1
`INTERESTS OF AMICI CURIAE1
`The amici curiae are Secretary Eric Fanning, Sec-
`retary Deborah Lee James, Secretary Ray Mabus, the
`Modern Military Association of America (MMAA), the
`National Veterans Legal Services Program (NVLSP),
`Jewish War Veterans of the USA (JWV), Blue Star
`Families, Minority Veterans of America (MVA), and
`Swords to Plowshares. Amici share a common inter-
`est in policies that enhance the U.S. military’s readi-
`ness and protect the interests of service members and
`their families.
`Secretary Eric K. Fanning served as the 22nd U.S.
`Secretary of the Army. As Secretary, he had statuto-
`ry responsibility for all matters related in the United
`States Army, including manpower, personnel, and
`reserve affairs. Previously, he served as Chief of
`Staff to the Secretary of Defense, as Acting Secretary
`of the Air Force, as Under Secretary of the Air Force,
`and as Deputy Under Secretary of the Navy/Deputy
`Chief Management Officer. He is the only person to
`have held senior appointments in all three military
`departments and the Office of the Secretary of De-
`fense.
`Secretary Deborah Lee James served as the 25th
`U.S. Secretary of the Air Force. Previously, she
`served in the Pentagon as the Assistant Secretary of
`Defense for Reserve Affairs, where she was the Secre-
`tary of Defense’s Senior Advisor on National Guard
`
`1 This brief is filed with the consent of the parties pursuant to
`Supreme Court Rule 37.3(a). In accordance with Supreme Court
`Rule 37.6, counsel for amici curiae states that no counsel for any
`party authored this brief in whole or in part, and no person oth-
`er than amici curiae, its members, or its counsel made a mone-
`tary contribution to the preparation or submission of this brief.
`
`
`
`
`2
`
`and Reserve personnel. As a professional staff mem-
`ber on the House Armed Services Committee, she
`served as Senior Advisor to the Military Personnel
`and Compensation Subcommittee, the NATO Burden
`Sharing Panel, and the Chairman’s Member Services
`team.
`Secretary Ray Mabus served as the 75th U.S. Sec-
`retary of the Navy from 2009 to 2017, the longest to
`serve as leader of the Navy and Marine Corps since
`World War I. Throughout his tenure, he focused on
`four key priorities—People, Platforms, Power, and
`Partnerships—that enabled the Navy and Marine
`Corps’ unique ability to maintain the global presence
`that reassures our allies and deters our adversaries.
`Among his achievements, he spearheaded the “21st
`Century Sailor and Marine” initiative, which was de-
`signed to build and maintain the most resilient and
`ready force possible and to prepare service members
`and their families for the high-tempo operations of
`today’s military.
`MMAA is one of the country’s largest non-profit,
`non-partisan legal services, policy, and watchdog or-
`ganizations
`serving
`lesbian,
`gay,
`bisexual,
`transgender, and queer (LGBTQ) military personnel,
`veterans, military spouses, family members, and al-
`lies, as well as individuals living with HIV. MMAA
`was formed through the merger of the American Mili-
`tary Partner Association and OutServe-SLDN, Inc.,
`and it has over 75,000 members and supporters.
`MMAA has a unique understanding of the challenges
`faced by the populations it serves. Since 1993,
`MMAA and its predecessor entities have assisted
`over 12,500 clients.
`
`
`
`
`
`
`
`3
`MMAA regularly engages in high-profile litigation
`and participates as amicus curiae to challenge poli-
`cies that target, stigmatize, or otherwise negatively
`affect service members and their families—reducing
`morale and diminishing military readiness by inhibit-
`ing the military’s efforts at recruiting and retention.
`For example, MMAA has filed lawsuits challenging
`laws and regulations that discriminate against and
`stigmatize LGBTQ service members, including: the
`former “Don’t Ask, Don’t Tell” law requiring that les-
`bian, gay, and bisexual service members conceal their
`sexual orientation; regulations prohibiting same-sex
`military spouses from receiving spousal benefits; the
`current ban on openly transgender people serving in
`the U.S. military; and regulations negatively affect-
`ing service members with HIV. MMAA has a strong
`interest in advocating for its members who may be
`affected by DACA’s rescission as well as an interest
`in advocating for a ruling in this case that would af-
`firm the need for government agencies to consider
`how their policy choices would harm the military by
`stigmatizing and otherwise negatively affecting ser-
`vice members and their families.
`NVLSP is an independent nonprofit organization
`that has worked since 1981 to ensure that our na-
`tion’s 22 million veterans and active duty personnel
`receive the federal benefits they have earned through
`service to our nation. NVLSP advocates before feder-
`al agencies, courts, and Congress to protect service
`members and veterans irrespective of whether they
`joined the military as citizens or non-citizens.
`NVLSP has represented thousands of individual ser-
`vice members and veterans, served as counsel for cer-
`tified classes of veteran-plaintiffs, and participated as
`
`
`
`
`
`4
`
`amicus curiae in support of service members and vet-
`erans in numerous agency and court actions.
`JWV, organized in 1986 by Jewish veterans of the
`Civil War, is the oldest active national veterans’ ser-
`vice organization in America. Incorporated in 1924,
`and chartered by an act of Congress in 1983, see 36
`U.S.C. § 110103, JWV’s objectives include to “encour-
`age the doctrine of universal liberty, equal rights, and
`full justice to all men,” id § 110103(5), “combat the
`powers of bigotry and darkness wherever originating
`and whatever the target”, id § 110103(6), and “pre-
`serve the spirit of comradeship by mutual helpfulness
`to comrades and their families,” id § 110103(7).
`JWV has long taken an interest in the right to
`serve in the military. Jewish immigrants and refu-
`gees have fought and died for America, particularly
`in World War II against the Nazis. Over one third of
`the Jews awarded the Congressional Medal of Honor
`were born in a foreign country.
`Blue Star Families is a national, nonprofit organi-
`zation that exists to support active-duty members,
`veterans, and their families from all ranks and ser-
`vices—including National Guard and Reserve. BSF
`strengthens military families and connects America
`to the Armed Forces through a robust array of mo-
`rale, empowerment, education and employment pro-
`grams. Additionally, BSF’s annual Military Family
`Lifestyle Survey creates opportunities to support the
`health and sustainability of our all-volunteer Force
`by increasing dialogue and understanding between
`the military community and broader American socie-
`ty.
`
`Blue Star Families exists to support military fami-
`lies, regardless of their documented legal status. We,
`
`
`
`
`
`5
`
`therefore, join with the MMAA in advocating for a
`ruling that would affirm the need for government
`agencies to consider how their policy choices would
`harm the military by stigmatizing and otherwise
`negatively affecting service members and their fami-
`lies.
`MVA is a nonprofit organization dedicated to cre-
`ating community belonging and advancing equality
`for minority veterans, including veterans of color,
`women
`veterans,
`LGBTQ
`veterans,
`and
`(non)religious minority veterans. MVA is built on
`four fundamental values: inclusivity, advocacy, ally-
`ship, and education. By advocating for the needs of
`veteran communities without a majority voice, MVA
`strives to improve the lives of veterans who may oth-
`erwise be forgotten.
`Swords to Plowshares is a community-based not-
`for-profit organization that provides needs assess-
`ment and case management, employment and train-
`ing, housing, and legal assistance to veterans in the
`San Francisco Bay Area. Swords to Plowshares pro-
`motes and protects the rights of veterans through ad-
`vocacy, public education, and partnerships with local,
`state, and national entities.
`
`STATEMENT
` On September 5, 2017, the Government issued a
`brief memorandum rescinding the Deferred Action for
`Childhood Arrivals program (DACA). Since 2012,
`DACA, implemented by the Department of Homeland
`Security (DHS), has conferred life-changing benefits
`to nearly 800,000 non-citizens. In addition to DACA’s
`promise of a reduced likelihood of removal, these
`benefits include numerous advantages under existing
`policies, such as the ability to obtain employment
`
`
`
`
`6
`
`lawfully. See 8 C.F.R. § 274a.12(c)(14). DACA has
`permitted its recipients to remain in the United
`States with their families and obtain a 91% employ-
`ment rate, benefitting not only DACA recipients, but
`also strengthening and maintaining their families.
` The American people also rely on DACA to en-
`hance U.S. national security through military readi-
`ness. As of September 2017, when the Government
`rescinded DACA, over 800 DACA recipients were ac-
`tively serving in the U.S. military under the Military
`Accessions Vital to the National Interest program
`(MAVNI). That program allows the military to re-
`cruit non-citizens who have skills “vital to the na-
`tional interest,” including health care professionals
`and individuals with specific language and cultural
`skills. See 10 U.S.C. § 504(b)(2). The U.S. military
`has relied on the efforts of these non-citizens, includ-
`ing DACA recipients, to further such vital national
`interests that promote national security and protect
`Americans.
` The Government overlooked such reliance inter-
`ests when rescinding DACA. The rescission memo-
`randum contains just one sentence explaining the
`Government’s rationale for changing its existing poli-
`cy: “Taking into consideration the Supreme Court’s
`and the Fifth Circuit’s rulings in the ongoing litiga-
`tion, and the September 4, 2017, letter from the At-
`torney General, it is clear that the June 15, 2012,
`DACA program should be terminated.” Regents Pet.
`App. 117a.
` Numerous parties brought actions alleging that
`the Government’s decision to rescind DACA was un-
`lawful on several grounds, including that the rescis-
`sion was arbitrary and capricious under the Adminis-
`
`
`
`
`
`7
`
`trative Procedure Act (APA). Three of these cases are
`now before the Court: Department of Homeland Secu-
`rity v. Regents of the University of California, No. 18-
`587 (Regents), in the Ninth Circuit; McAleenan v. Ba-
`talla Vidal, No. 18-589 (Batalla Vidal), in the East-
`ern District of New York; and Trump v. NAACP,
`No. 18-588 (NAACP), in the District Court for the
`District of Columbia. The courts below have uniform-
`ly agreed to enjoin or vacate the Government’s deci-
`sion to rescind DACA.
`
`In Regents, the Ninth Circuit affirmed a prelimi-
`nary injunction requiring, among other things, that
`the Government “allow[] DACA enrollees to renew
`their enrollments.” Regents Pet. App. 66a; Regents
`Pet. Supp. App. 45a-46a. The Eastern District of
`New York preliminarily enjoined the rescission of
`DACA on similar terms. Batalla Vidal Pet. App. 126-
`128a. Both courts concluded that the Government’s
`rescission of DACA was likely arbitrary and capri-
`cious, determining that the Government’s sole ra-
`tionale for rescinding DACA relied on a legally erro-
`neous premise. Regents Pet. App. 42a; Batalla Vidal
`Pet. App. 91a. In Batalla Vidal, the court further ex-
`plained that the Government “acted arbitrarily and
`capriciously by ending [the DACA] program without
`taking any account of reliance interests that program
`has engendered.” Batalla Vidal Pet. App. 113-117a.
`
`In NAACP, the District Court for the District of
`Columbia granted partial summary judgment against
`the Government and vacated the rescission of DACA,
`holding that it violated the APA’s substantive re-
`quirements. The court emphasized that the “De-
`partment’s failure to give an adequate explanation of
`its legal judgment was particularly egregious here in
`light of the reliance interests involved,” which “en-
`
`
`
`
`8
`
`gendered the reliance of hundreds of thousands of
`beneficiaries, many of whom had structured their ed-
`ucation, employment, and other life activities on the
`assumption that they would be able to renew their
`DACA benefits.” NAACP Pet. App. 54a. The court
`stayed its mandate for ninety days “to allow the
`agency an opportunity to better explain its rescission
`decision.” Id. at 3a.
`
`In response, on June 22, 2018, DHS Secretary
`Kirstjen M. Nielsen issued a second memorandum
`“declin[ing] to disturb the Duke memorandum’s re-
`scission of the DACA policy.” Regents Pet. App. 121a.
`The Nielsen memorandum stated, “I am keenly
`aware that DACA recipients have availed themselves
`of the policy in continuing their presence in this coun-
`try and pursuing their lives,” but concluded “I do not
`believe that the asserted reliance interests outweigh
`the questionable legality of the DACA policy and the
`other reasons for ending the policy discussed above.”
`Id. at 125a. Secretary Nielsen’s memorandum did
`not mention, much less address, the reliance interests
`of DACA family members, or how the U.S. military
`relies on DACA to advance national security, which
`in turn serves the interests of the American people.
` On August 3, 2018, the NAACP court concluded
`the Nielsen memorandum did not alter the court’s
`earlier conclusions. NAACP Pet. App. 80a-109a. The
`Government petitioned for writs of certiorari in all
`three cases. The Court granted certiorari and consol-
`idated the cases for briefing and oral argument.
`
`SUMMARY OF ARGUMENT
`This Court should affirm the decisions below,
`which correctly enjoined or vacated the Government’s
`decision to rescind DACA on the basis of arbitrary
`
`
`
`
`9
`
`and capricious agency action in violation of the APA.
`The Government provided a legally deficient rescis-
`sion rationale because, among other reasons, it failed
`to address how “longstanding [DACA] policies may
`have engendered serious reliance interests that must
`be taken into account.” Encino Motorcars, LLC v.
`Navarro, 136 S. Ct. 2117, 2126 (2016). For example,
`the Government did not adequately consider the “se-
`rious reliance interests” of DACA beneficiaries who
`have enlisted in the military and are pursuing a path
`to citizenship, the interests of military family mem-
`bers who are direct or indirect beneficiaries of DACA,
`and the interests of the American people, who rely on
`a military that has been significantly strengthened
`by the DACA program.
`ARGUMENT
`The courts below have uniformly—and correctly—
`preliminarily or permanently set aside the Govern-
`ment’s rescission of DACA on the basis of arbitrary
`and capricious agency action. This Court should af-
`firm.
`I. The Government Must Consider Serious Re-
`liance Interests When Changing Existing
`Policy.
`The APA directs that arbitrary and capricious
`Government actions be set aside as unlawful. 5
`U.S.C. § 706(2)(A). While “[a]gencies are free to
`change their existing policies,” they must “provide a
`reasoned explanation for the change.” Encino, 136 S.
`Ct. at 2125. If the explanation for the policy change
`“entirely fail[s] to consider an important aspect of the
`problem,” it will not survive arbitrary-and-capricious
`review. Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
`Auto. Ins. Co., 463 U.S. 29, 43 (1983).
`
`
`
`
`
`
`
`10
`To survive such review, the Government must
`demonstrate it is “cognizant that longstanding poli-
`cies may have engendered serious reliance interests
`that must be taken into account.” Encino, 136 S. Ct.
`at 2126. The Government also must explain its rea-
`son “for disregarding facts and circumstances that
`underlay or were engendered by the prior policy.”
`FCC v. Fox Television Stations, Inc., 556 U.S. 502,
`515-16 (2009).
`In Encino, this Court set aside a policy change for
`failure to consider serious reliance interests. There,
`the Court recognized that the retail automobile and
`truck industry had “significant reliance interests” in
`an agency’s prior position that service advisors were
`exempt from certain overtime pay provisions. 136 S.
`Ct. at 2126. These significant reliance interests in-
`cluded the compensation plans negotiated between
`dealerships and service advisors, which the Court
`recognized “could necessitate systemic, significant
`changes” under the agency’s revised policy. Ibid.
`The Court also observed that dealerships who failed
`to compensate their service advisors under the re-
`vised policy could face significant liability. Ibid.
`Where, as in Encino, significant reliance interests
`are present, the agency must provide “a more rea-
`soned explanation for its decision to depart from its
`existing enforcement policy.” Ibid. And where an
`agency’s proffered rationale “f[a]ll[s] short of the
`agency’s duty to explain why it deemed it necessary
`to overrule its previous position,” the agency’s change
`in position is arbitrary and capricious and therefore
`unlawful under the APA. Id. at 2126-27.
`
`
`
`
`
`11
`
`II. DACA Engendered Serious Reliance Inter-
`ests on the Part of Non-Citizens Enlisted in
`the Military, Their Families, and the Ameri-
`can People.
`DACA offers more than deferred removal, and the
`program affects more than its direct beneficiaries.
`DACA recipients and their families benefit from nu-
`merous pre-exiting policies, which they would not
`have access to but for DACA. DACA recipients are
`eligible for employment authorization documents,
`commonly known as work permits, and recipients
`with specialized medical or linguistic and cultural
`skills are eligible to enlist through MAVNI. For
`those who have enlisted, the military offers the op-
`portunity to serve their adopted country and a path
`to citizenship. This policy keeps families with non-
`citizens together and, as explained in depth below,
`offers the possibility of deferred action or parole in
`place regardless of DACA eligibility.
`For the American people, DACA has facilitated
`the military readiness on which the country depends,
`such as enabling the military to approach its recruit-
`ing and retention goals by leveraging immigrant and
`minority communities with unique skills vital to the
`national interest. DACA has promoted these expec-
`tations for more than five years.
`Foreign-Born Recruits Are Integral
`A.
`to the U.S. Military and Vital to Its
`Mission.
`The United States has long relied on foreign-born
`recruits to protect our country. From the Revolution-
`ary War through the 1840s, half of the U.S. military’s
`
`
`
`
`
`12
`
`recruits were foreign born.2 During the Civil War,
`approximately 300,000 foreign-born members of the
`military served in the Union Army. Ibid. These and
`other foreign-born recruits account for half a million
`of our country’s veterans, more than 700 of whom
`have received Medals of Honor. Ibid.3
`Our country’s reliance on foreign-born recruits—
`and specifically, non-citizens—has persisted in recent
`decades. Between 1999 and 2010, “some 80,000 non-
`citizens enlisted across all four services, accounting
`for 4 percent of all accessions” among the Army, Na-
`vy, Air Force, and Marine Corps.4 As of June 2010
`alone, approximately 16,500 non-citizens were active-
`ly serving in the military. Id. at 39. Another 5,255
`non-citizens first enlisted in the military in 2016.5
`In light of our military’s seasoned reliance on the
`foreign born, it is not surprising that our Government
`has repeatedly recognized the importance of non-
`citizen recruits to the U.S. military. Nearly two dec-
`
`2 Jie Zong & Jeanne Batalova, Immigrant Veterans in the United
`States (May 16, 2019), https://www.migrationpolicy.org/article
`/immigrant-veterans-united-states.
`3 See also U.S. Citizenship and Immigration Servs., USCIS Fa-
`cilities Dedicated to the Memory of Immigrant Medal of Honor
`Recipients, https://www.uscis.gov/about-us/find-uscis-office/uscis
`
`-facilities-dedicated-memory-immigrant-medal-honor-recipients
`(last updated Jan. 24, 2014).
`4 Dep’t of Def., Population Representation in the Military Ser-
`vices: Fiscal Year 2010 Summary Report, at 41, availa
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