throbber
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 FOR LAWYERS’ COMMITTEE FOR CIVIL
`RIGHTS UNDER LAW, THE ANTI-DEFAMATION
`LEAGUE, THE LEADERSHIP CONFERENCE ON
`CIVIL AND HUMAN RIGHTS, AND 42 OTHER SOCIAL
`JUSTICE ORGANIZATIONS AS AMICI CURIAE
`IN SUPPORT OF RESPONDENTS
`————
`WILLIAM D. COSTON
`Counsel of Record
`MARTIN L. SAAD
`SAMEER P. SHEIKH
`VENABLE LLP
`600 Massachusetts Ave NW
`Washington, DC 20001
`(202) 344-4813
`wdcoston@venable.com
`
`KRISTEN CLARKE
`JON GREENBAUM
`DARIELY RODRIGUEZ
`DORIAN SPENCE
`PHYLICIA H. HILL
`MARYUM JORDAN
`LAWYERS’ COMMITTEE FOR
`CIVIL RIGHTS UNDER LAW
`1500 K Street NW, Suite 900
`Washington, DC 20005
`(202) 662-8600
`
`Counsel for Amici Curiae
`
`October 4, 2019
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
`
`

`

`QUESTIONS PRESENTED
`1. Whether DHS’s decision to wind down the DACA
`policy is judicially reviewable.
`2. Whether DHS’s decision to wind down the DACA
`policy is lawful.
`
`(i)
`
`

`

`TABLE OF CONTENTS
`
`QUESTIONS PRESENTED ...............................
`TABLE OF AUTHORITIES ................................
`INTEREST OF AMICI CURIAE ........................
`INTRODUCTION ................................................
`ARGUMENT ........................................................
`I. THE GOVERNMENT WAS REQUIRED
`TO CONSIDER RELIANCE INTERESTS
`PRIOR TO TERMINATING DACA .........
`II. DACA ENGENDERED SERIOUS RELI-
`ANCE INTERESTS THAT THE GOV-
`ERNMENT FAILED TO CONSIDER ......
`A. Reliance Interests of DACA Students,
`Educators and Educational Institu-
`tions ......................................................
`B. DACA Enrollees Purchased Homes
`and Lending Institutions Extended
`Loans in Reliance on DACA ................
`C. Promises of “Expedited Citizenship”
`for DACA Enrollees Serving Vital
`Military Interests ................................
`CONCLUSION ....................................................
`APPENDIX
`APPENDIX: LIST OF AMICI CURIAE ........
`
`Page
`
`i
`iv
`1
`3
`5
`
`5
`
`11
`
`13
`
`17
`
`19
`22
`
`1a
`
`(iii)
`
`

`

`iv
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`5
`
`10
`
`11
`
`City of Arlington v. FCC,
`569 U.S. 290 (2013) ...................................
`Encino Motor Cars, LLC v. Navarro,
`136 S. Ct. 2117 (2016) ....................... 6, 7, 11, 13
`FCC v. Fox Television Stations, Inc.,
`556 U.S. 502 (2009) ...................................
`Jimenez–Cedillo v. Sessions,
`885 F.3d 292 (4th Cir. 2018) .....................
`Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
`State Farm Mut. Auto. Ins. Co.,
`463 U.S. 29 (1983) .....................................
`NAACP v. Trump,
`298 F. Supp. 3d 209 (D.D.C. 2018) ...........
`Perez v. Mortgage Bankers Association,
`135 S. Ct. 1199 (2015) ...............................
`Plyler v. Doe,
`457 U.S. 202 (1982) ................................... 13, 17
`Regents of Univ. of Cal. v. DHS,
`908 F.3d 476 (9th Cir. 2018) .....................
`Smiley v. Citibank (South Dakota), NA,
`517 U.S. 735 (U.S. 1996) ...........................
`Texas v. United States,
`328 F. Supp. 3d 662 (S.D. Tex. 2018) .......
`U.S. v. Penn. Indus. Chem. Corp.,
`411 U.S. 655 (1973) ................................... 11-12
`
`5
`
`5
`
`6-7
`
`5
`
`7
`
`8
`
`STATUTES
`
`5 U.S.C. § 706(2)(A) ......................................
`
`
`5
`
`

`

`v
`TABLE OF AUTHORITIES—Continued
`
`OTHER AUTHORITIES
`
`Page(s)
`
`A.W. Geiger, America’s Public School
`Teachers Are Far Less Racially And
`Ethnically Diverse Than Their Students,
`Pew Research Center. (Aug. 27, 2018),
`https://www.pewresearch.org/fact-tank/20
`18/08/27/americas-public-school-teachers-
`are-far-less-racially-and-ethnically-diver
`se-than-their-students/ .............................
`Alex Horton, The Military Looked to
`‘Dreamers’ to Use Their Vital Skills. Now
`the U.S. Might DePort Them. Wash. Post
`(Sept. 7, 2017), available at https://www.
`washingtonpost.com/news/checkpoint/w
`p/2017/09/07/the-military-looked-to-drea
`mers-to-use-their-vital-skills-now-the-u-
`s-might-deport-them/ ................................ 20, 21
`Alexander Casey, An Estimated 123,000
`‘Dreamers’ Own Homes and Pay $380M
`in Property Taxes, Zillow (Sept. 20, 2017),
`https://www.zillow.com/research/daca-ho
`meowners-380m-taxes-16629/ ..................
`Alice Yin, Education by the Numbers, N.Y.
`Times (Sept. 8, 2017), available at https://
`www.nytimes.com/2017/09/08/magazine/
`education-by-the-numbers.html ...............
`Annie Karni and Sheryl Gay Stolberg,
`Trump Offers Temporary Protections for
`‘Dreamers’ in Exchange for Wall Funding,
`N.Y. Times (Jan. 9, 2019), available at
`https://www.nytimes.com/2019/01/19/us/
`politics/trump-proposal-daca-wall.html ...
`
`11
`
`
`
`15
`
`18
`
`15
`
`

`

`vi
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`16
`
`8
`
`Anti-Defamation League (ADL), Creating
`an Anti-Bias Learning Environment,
`https://www.adl.org/education/resources/
`tools-and-strategies/creating-an-anti-bias-
`learning-environment (last visited Oct. 2,
`2019) ..........................................................
`Dep’t of Justice Office of Legal Counsel,
`The Department of Homeland Security’s
`Authority to Prioritize Removal of Certain
`Aliens Unlawfully Present in the United
`States and to Defer Removal of Others, 38
`Op. O.L.C. (2014). .....................................
`Elise Gould, Local Public Education Employ-
`ment May Have Weathered Recent Storms,
`But Schools Are Still Short 327,000
`Public Educators, Econ. Pol’y. Inst. (Oct.
`6, 2017), available at http://www.epi.org/
`publication/teacher-employment-may-ha
`ve-weathered-storms-but-schools-are-still-
`short-327000-public-educators/ ................
`Greg Toppo, 20,000 DACA Teachers At Risk
`— and Your Kids Could Feel the Fallout,
`too, USA Today (Oct. 11, 2017), available
`at https://www.usatoday.com/story/news/
`2017/10/11/thousands-daca-teachers-risk/
`7520820 01/ ............................................... 14, 16
`
`14
`
`
`
`
`
`
`
`
`

`

`vii
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`Lisette Partelow, America Needs More
`Teachers of Color, Ctr. for Amer. Progress
`(Sept. 14, 2017,), https://www.american
`progress.org/issues/education-k-12/repor
`ts/2017/09/14/437667/america-needs-tea
`chers-color-selective-teaching-profession/ ...
`Liz Robbins, For Teachers Working
`Through DACA, a Bittersweet Start to the
`School Year, N.Y. Times (Sept. 7, 2017),
`available at https://www.nytimes.com/20
`17/09/07/nyregion/daca-teachers.html .....
`Memorandum from Janet Napolitano, Sec’y
`of Homeland Sec., Exercising Prosecuto-
`rial Discretion with Respect to Individuals
`Who Came to the United States as
`Children (June 15, 2012), available at
`https://www.dhs.gov/xlibrary/assets/s1-ex
`ercising-prosecutorial-discretion-individ
`uals-who-came-to-us-as-children.pdf .......
`Moriah Balingit, As DACA Winds Down,
`20,000 Educators Are in Limbo, Wash.
`Post (Oct. 25, 2017), available at https://
`www.washingtonpost.com/local/education/
`as-daca-winds-down-20000-educators-are-
`in-limbo/2017/10/25/4cd36de4-b9b3-11e7-
`a908-a3470754bbb9_story.html ...............
`
`15
`
`16
`
`12
`
`14
`
`
`
`
`
`
`
`
`

`

`viii
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`New American Economy, Overcoming the
`Odds: The Contributions of DACA-Eligible
`Immigrants and TPS Holders to the U.S.
`Economy (May 2019), available at https://
`www.newamericaneconomy.org/wp-conte
`nt/uploads/2019/05/DACA-TPS_Brief.pdf...
`Nicole Svjlenka, What We Know About
`DACA Recipients in the United States,
`Ctr. for Amer. Progress (Sept. 5, 2019),
`https://www.americanprogress.org/issues/
`immigration/news/2019/09/05/474177/kno
`w-daca-recipients-united-states/ ...............
`Statement of Nancy E. Weaver, Department
`of Defense Senior Language Authority,
`Before
`the House Armed Services
`Committee Subcommittee on Oversight
`and Investigations, (June 29, 2010)
`available at http://prhome.defense.gov/
`Portals/52/Documents/RFM/Readiness/D
`LNSEO/docs/Weaver%20Testimony%20
`062910.pdf .................................................
`Tom K. Wong et al., DACA Recipients’
`Livelihoods, Families, and Sense of
`Security Are at Stake This November,
`Ctr. For Am. Progress (Sept. 19, 2019),
`https://www.americanprogress.org/issues/
`immigration/news/2019/09/19/474636/da
`ca-recipients-livelihoods-families-sense-se
`curity-stake-november/ .............................
`
`
`
`12
`
`13
`
`20
`
`18
`
`
`
`
`

`

`ix
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`U.S. Census Bureau, Quarterly Residential
`Vacancies And Homeownership, Fourth
`Quarter 2017 (Jan. 30, 2018 10:00 AM),
`https://www.census.gov/housing/hvs/files
`/currenthvspress.pdf .................................
`U.S. Dep’t of Def., Military Accessions Vital
`to National Interest (MAVNI) Recruitment
`Pilot Program, available at https://www.
`defense.gov/news/MAVNI-Fact-Sheet.pdf ...
`U.S. Dep’t of Housing and Urb. Dev.,
`The National Homeownership Strategy:
`Partners in the American Dream (1995) ..
`Yukiko Furuya et al., A Portrait of Foreign-
`Born Teachers In The United States,
`George Mason University, Institute for
`Immigration Research, January 2019,
`available at https://www.immigrationres
`earch.org/system/files/Teacher_Paper.pdf ...
`
`19
`
`20
`
`17
`
`15
`
`
`
`

`

`INTEREST OF AMICI CURIAE1
`Amici, the Lawyers’ Committee for Civil Rights Under
`Law, the Anti-Defamation League, the Leadership
`Conference on Civil and Human Rights, and 42 other
`social justice organizations,2 are national and regional
`civil rights groups and equal justice organizations, each
`committed to the promotion of civil liberties through-
`out the country and the elimination of discrimination
`in any form.
`The Lawyers’ Committee for Civil Rights Under
`Law (“Lawyers’ Committee”) is a nonpartisan, non-
`profit civil rights organization formed in 1963, at the
`request of President John F. Kennedy, to enlist the
`American bar’s leadership and resources in defending
`the civil rights of racial and ethnic minorities.
`Through the Lawyers’ Committee, attorneys have
`represented thousands of clients in civil rights cases
`across the country challenging discrimination in
`virtually all aspects of American life. In furtherance
`of its commitment to challenge policies that discrimi-
`nate against immigrants and refugees, the Lawyers’
`
`
`
`
`
`1 Pursuant to Supreme Court Rule 37.6, counsel for amici
`represent that they authored this brief in its entirety and that
`none of the parties or their counsel, nor any other person or entity
`other than amici or their counsel, made a monetary contribution
`intended to fund the preparation or submission of this brief.
`Pursuant to Rule 37.3(a), counsel for amici also represent that
`all parties have consented to the filing of this brief; letters
`reflecting their blanket consent to the filing of amicus briefs are
`on file with the Clerk.
`2 A list of the 42 other social justice organizations as amici
`curiae is set forth below in the Appendix at 1a.
`
`

`

`2
`Committee has filed numerous lawsuits and submit-
`ted six amicus briefs in in support of challenges to
`DACA’s rescission, including in all three cases cur-
`rently before the Court.
`Anti-Defamation League (“ADL”), founded in 1913,
`is an anti-hate organization that seeks to stop the
`defamation of the Jewish people, and secure justice
`and fair treatment to all. Its 25 regional offices further
`this mission with programmatic support to promote
`civil rights and combat all forms of bigotry. ADL is
`rooted in a community that has experienced the plight
`of living as refugees throughout its history. ADL has
`advocated for fair and humane immigration policy
`since its founding and has been a leader in exposing
`anti-immigrant and anti-refugee fervor that has
`poisoned our nation’s debate. Consistent with its
`principles and values, ADL joins this brief.
`The Leadership Conference on Civil and Human
`Rights (“The Leadership Conference”) is a diverse coa-
`lition of more than 200 national organizations charged
`with promoting and protecting the civil and human
`rights of all persons in the United States, including
`immigrants. It is the nation’s largest and most diverse
`civil and human rights coalition. For more than half
`a century, The Leadership Conference, based in
`Washington, D.C., has led the fight for civil and
`human rights by advocating for federal legislation and
`policy, securing passage of every major civil rights
`statute since the Civil Rights Act of 1957. The
`Leadership Conference works to build an America that
`is inclusive and as good as its ideals.
`Amici are particularly well suited to offer assistance
`to the Court based on their experience working with
`and in immigrant communities of color including
`those affected by the rescission of DACA. Amici have
`
`

`

`3
`observed firsthand the ways in which DACA has
`improved the lives of undocumented young people and
`enabled them to make significant social and economic
`contributions that have made our country greater.
`
`INTRODUCTION
`The Department of Homeland Security (“DHS” or
`the “Department”) failed to consider serious reliance
`interests engendered by the Deferred Action for
`Childhood Arrivals (“DACA”) program prior to termi-
`nation, in violation of the Administrative Procedures
`Act (“APA”). In this brief, amici seek to highlight some
`of the significant commitments in education, invest-
`ments in home ownership, and service to our military
`program that participants have made in reliance on
`DACA.
`The DACA program, announced on June 15, 2012,
`provided eligible undocumented immigrants protec-
`tion from deportation and made them eligible for work
`authorization subject to approval of an initial applica-
`tion and renewal every two years thereafter. The
`policy’s coverage was limited in scope to individuals
`under the age of thirty-one present in the country on
`or after June 12, 2012 who arrived in the United
`States before the age of sixteen. Thus, while the DACA
`program was available to only eligible individuals in
`the United States prior to June 2012, foreign-born
`persons who entered after this time are ineligible.
`Imbued with the spirit of the American dream, and
`in reliance on the DACA program, enrollees have
`made substantial investments in themselves, their
`families, and their communities. Contrary to the
`government’s assertion in its brief to this Court (e.g.,
`Pet. Br. 46), the DACA enrollees are not engaged in
`
`
`

`

`4
`“ongoing illegal activity” or “ongoing violation of
`federal law.” To the contrary, under DACA and with
`the government’s permission, enrollees are legally
`engaged in educational, tax-paying, teaching, and mili-
`tary activities. See, e.g., Case No. 18-589 Pet. App.
`115a (“[H]undreds of thousands of DACA recipients
`and those close to them planned their lives around the
`program.”).
`Without any consideration for these substantial
`reliance interests engendered by DACA over the last
`several years, the Department abruptly terminated
`the program. In doing so, the government upended
`the lives of nearly 700,000 productive young adults,
`their families, and their communities. These DACA
`recipients, in an effort to play by the rules, came out of
`the shadows to enroll in the program.
`The APA’s requirements are designed to protect
`against arbitrary and capricious reversals or termina-
`tions of policies and programs that induce serious
`reliance interests of the type found here. With the
`government’s encouragement, DACA enrollees invested
`in job-specific training programs, enrolled in universi-
`ties, obtained jobs as educators, purchased homes, and
`enlisted in the military in service of our country. In
`turn, educational institutions, local communities, and
`employers invested in and have come to rely on the
`substantial benefits provided by DACA enrollees. Yet
`the administrative record is void of any mention, let
`alone consideration of these interests.
`The government’s complete failure to consider such
`serious reliance interests before abruptly rescinding
`DACA is the hallmark of arbitrary and capricious
`conduct.
`
`
`
`

`

`5
`ARGUMENT
`I. THE GOVERNMENT WAS REQUIRED TO
`CONSIDER RELIANCE INTERESTS PRIOR
`TO TERMINATING DACA
`In its opening brief, the government argues that the
`decision to rescind DACA is an unreviewable discre-
`tionary act, even though the justification offered was
`that the program lacked proper statutory authority
`and was therefore illegal. This argument is unavail-
`ing. “[A]n official cannot claim that the law ties her
`hands while at the same time denying the courts’
`power to unbind her.” NAACP v. Trump, 298 F. Supp.
`3d 209, 249 (D.D.C. 2018). Indeed, Acting Secretary
`of Homeland Security Duke’s proffered rationale for
`the rescission of DACA – that DHS did not have the
`authority to institute DACA in the first place – placed
`its decision squarely within the bounds of an “agency
`action” reviewable under the APA. Regents of Univ. of
`Cal. v. DHS, 908 F.3d 476, 494-498 (9th Cir. 2018)
`(citing City of Arlington v. FCC, 569 U.S. 290 (2013)).
`Under Section 706(2)(A) of the APA, federal courts
`may review and set aside agency action found to be
`“arbitrary, capricious, an abuse of discretion, or other-
`wise not in accordance with law.” 5 U.S.C. § 706(2)(A).
`Here, DHS violated core principles governing its
`actions under the APA. The Department abused its
`discretion because it “entirely failed to consider an
`important aspect of the problem,” namely the impact
`of its policy change on the hundreds of thousands of
`DACA enrollees who would be directly affected by the
`decision. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
`State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
`
`
`

`

`6
`Although agencies are free to change their existing
`policies, they must provide a reasoned explanation for
`a policy change, where that change implicates serious
`reliance interests:
`In explaining its changed position, an agency
`must also be cognizant that longstanding
`policies may have engendered serious reliance
`interests that must be taken in account. In
`such cases it is not that further justification
`is demanded by the mere fact of policy
`change; but that a reasoned explanation is
`needed for disregarding facts and circum-
`stances that underlay or were engendered by
`the prior policy. It follows that an unex-
`plained inconsistency in agency policy is a
`reason for holding an interpretation to be an
`arbitrary and capricious change from agency
`practice.
`Encino Motor Cars, LLC v. Navarro, 136 S. Ct. 2117,
`2125-2126 (2016) (emphasis added).
`This Court’s opinion in Perez v. Mortgage Bankers
`Association is also instructive on the importance of
`reliance in APA cases:
`The APA contains a variety of constraints on
`agency decision making—the arbitrary and
`capricious standard being among the most
`notable. . . . [T]he APA requires an agency
`to provide more substantial justification when
`‘its new policy rests upon factual findings that
`contradict those which underlay its prior
`policy; or when prior policy has engendered
`serious reliance interests that must be taken
`into account. It would be arbitrary and
`
`

`

`7
`capricious to ignore such matters (citations
`omitted).
`135 S. Ct. 1199, 1209 (2015) (emphasis added). See
`also Smiley v. Citibank (South Dakota), NA, 517 U.S.
`735, 742 (U.S. 1996) (citations and quotations omitted)
`(“Sudden and unexplained change or change that
`does not take account of legitimate reliance on prior
`interpretation may be arbitrary, capricious or an
`abuse of discretion.”).
`Here, as the lower courts repeatedly found, DHS
`failed entirely to consider the reliance interests of the
`DACA enrollees, their employers, and their communi-
`ties. See Case No. 18-587, Pet. App. 60a (“As [in Encino],
`the administrative record here includes no analysis
`of the ‘significant reliance issues involved.’. . . The
`administrative record includes no consideration to the
`disruption a rescission would have on the lives of
`DACA recipients, let alone their families, employers
`and employees, schools and communities.”) (Alsup, J.);
`Case No. 18-588, Pet. App. 54a (“The Rescission Memo
`made no mention of the fact that DACA had been in
`place for five years and had engendered the reliance
`of hundreds of thousands of beneficiaries, many of
`whom had structured their education, employment,
`and other life activities on the assumption that they
`would be able to renew their DACA benefits.”) (Bates,
`J.); Case No. 18-589, Pet. App. 114a (“The record does
`not indicate that Defendants acknowledged, let alone
`considered, these or any other reliance interests
`engendered by the DACA program. That alone is
`sufficient to render their supposedly discretionary
`
`

`

`8
`decision to end the DACA program arbitrary and
`capricious.”) (Garaufis, J.).3
`The reliance by DACA enrollees was certainly reason-
`able. DACA did not guarantee a “substantive right,
`immigration status or pathway to citizenship” as the
`government emphasizes. Pet. Br. 5. But deferred
`action enabled and incentivized individuals to pursue
`schooling, jobs, investments, tax-payment, military
`service, and home ownership. These are not “ongoing
`illegal activit[ies],” Pet. Br. 46, but rather the activities
`that DACA enrollees have earned under the program.
`No court has determined that the reliance under
`DACA to do these things was unreasonable. Indeed, as
`Judge Nicholas Garaufis of the U.S. District Court for
`the Eastern District of New York found, “it is obvious
`that hundreds of thousands of DACA recipients and
`those close to them planned their lives around the
`program.” Case No. 18-589, Pet. App. 115a.
`The original DACA policy: (i) was not challenged in
`the DAPA litigation before this divided Court; (ii) was
`supported by an opinion of the Office of Legal Counsel4;
`and (iii) has not been found to violate the Constitution.
`
`3 The Texas court, which previously ruled that DAPA was
`illegal, concluded that reliance interests were so significant that
`a preliminary injunction should not issue against DACA. Texas
`v. United States, 328 F. Supp. 3d 662, 742 (S.D. Tex. 2018) (“[T]he
`reality of the situation is that [DACA] conferred lawful presence
`and numerous other benefits, and many DACA recipients and
`others nationwide have relied upon it for the last six years.”). The
`court specifically noted (a) DACA recipients’ loss of benefits that
`flow from lawful presence, and (b) loss of employees to various
`schools, states, municipalities, employers and industries. Id.
`4 See Dep’t of Justice Office of Legal Counsel, The Department
`of Homeland Security’s Authority to Prioritize Removal of Certain
`Aliens Unlawfully Present in the United States and to Defer
`Removal of Others, 38 Op. O.L.C. (2014).
`
`

`

`9
`These observations further support the recipients’
`reasonable reliance on the program to build successful
`lives in this country.
`In its opening brief, the government argues that
`DHS “sufficiently considered the reliance interests of
`DACA recipients” in rescinding the program. Pet. Br.
`42. Specifically, it points to the wind-down period
`set out in the Duke Memorandum, which permitted
`existing DACA grants “to expire according to their
`stated two-year terms” and purportedly “allow[ed] a
`limited window for additional renewals.” Id. But
`neither those provisions of the Duke Memorandum
`nor any others reference the serious reliance interests
`engendered by DACA. See Case No. 18-587, Pet. App.
`117a-118a. Indeed, nowhere in the administrative
`record are the reliance interests of the nearly 700,000
`DACA enrollees mentioned. There are no studies,
`calculations, or analyses. And in fact, the “wind-down”
`period appears to have been designed to benefit the
`Department, not DACA enrollees, whose interests are
`not mentioned anywhere in the Duke Memorandum.
`See Joint App. 878 (Sessions Memorandum recom-
`mending a wind-down to address the “costs and burdens
`that will be imposed on DHS associated with rescind-
`ing this [DACA] policy.”) (Emphasis added); see also
`Case No. 18-589, Pet. App. 117a (“While the Acting
`Secretary stated that she ‘[r]ecogniz[ed] the complexi-
`ties associated with winding down the program,’ the
`Sessions Letter makes clear that these complexities
`referred to the burdens on DHS of winding down the
`DACA program.”).
`The government also points to Secretary Nielsen’s
`subsequent memorandum in which she stated that
`she did not take the DACA rescission “lightly” and
`referenced “sympathetic circumstances” of DACA
`
`

`

`10
`recipients. Pet. Br. 42. But lip service in a post-hoc
`rationalization does not provide the reasoned analysis
`of the serious reliance interests engendered by the
`DACA program, as required by the APA. See Case
`No. 18-587, Pet. App. 125a; see also, e.g., FCC v. Fox
`Television Stations, Inc., 556 U.S. 502, 515-16 (2009)
`((“[A] reasoned explanation is needed for disregarding
`facts and circumstances that underlay . . . the prior
`policy.”).
`As Judge Bates explained astutely:
`[T]he Nielsen Memo—like the Duke Memo
`before it—fails to engage meaningfully with
`the reliance interests and other countervail-
`ing factors that weigh against ending the
`program . . . .
`Although this time around the Nielsen Memo
`at least “acknowledge[s] how heavily DACA
`beneficiaries had come to rely on” the pro-
`gram, id., it does little more than that. Instead
`of considering DACA’s benefits to DACA
`recipients and to society at large, Secretary
`Nielsen simply states that “the asserted reli-
`ance interests” are outweighed by DACA’s
`“questionable legality . . . and the other
`reasons for ending the policy,” and then goes
`on to suggest that she should not even have
`to consider those interests . . . .
`Like the Duke Memo, the Nielsen Memo
`demonstrates no true cognizance of the serious
`reliance interests at issue here—indeed, it does
`not even identify what those interests are.
`Case No. 18-588, Pet. App. 106a-107a. Such
`“[a]n ‘unexplained inconsistency’ in agency policy
`indicates that the agency’s action is arbitrary and
`
`

`

`11
`capricious, and therefore unlawful.” Jimenez–Cedillo
`v. Sessions, 885 F.3d 292, 298 (4th Cir. 2018) (quoting
`Encino Motor Cars, 136 S. Ct. at 2125).
`The following section sets forth several serious
`reliance interests engendered by DACA enrollees that
`the government was required to consider prior to
`rescinding the DACA policy, but instead ignored.
`
`II. DACA ENGENDERED SERIOUS RELIANCE
`INTERESTS THAT THE GOVERNMENT
`FAILED TO CONSIDER
`Since its inception, nearly 800,000 DACA enrollees
`invested in their education and job training, pur-
`chased homes, and enlisted in the military in reliance
`on the understanding that their right to remain in the
`United States would not be rescinded without proper
`consideration of the consequences of rescission – or
`used solely as a political bargaining chip.5 See Pet.
`App. 12a–13a (793,026 enrollees, with 689,800 active
`as of September 2017).
`The Department is the responsible agency for adju-
`dicating the rights of persons to remain on American
`soil, and “the rulings, interpretations and opinions of
`the responsible agency, while not controlling upon the
`courts by reason of their authority, do constitute a
`body of experience and informed judgment to which
`litigants may properly resort for guidance.” U.S. v.
`
`5 Annie Karni and Sheryl Gay Stolberg, Trump Offers
`Temporary Protections for ‘Dreamers’ in Exchange for Wall Funding,
`N.Y. Times (Jan. 9, 2019), https://www.nytimes.com/2019/01/19/
`us/politics/trump-proposal-daca-wall.html. The government’s brief
`to this Court acknowledges that DACA is a possible tradeoff in a
`deal with Congress (see Pet. Br. 32 and 39), although the
`Administration has hardly exercised “executive restraint” on
`many matters pertaining to immigration.
`
`

`

`12
`Penn. Indus. Chem. Corp., 411 U.S. 655 (1973) (quota-
`tions omitted). It was around this guidance that the
`DACA recipients planned their lives moving forward
`in the United States.
`By explicitly targeting “productive young people,”6
`the federal government plainly contemplated that
`DACA enrollees would be contributing members of our
`society and that the nation would benefit from their
`social and economic efforts. With the opportunity to
`advance their lives through education, employment,
`and homeownership, DACA enrollees have been induced
`by the promise of being able to achieve financial
`security for themselves and their families – and to be
`part of the fabric of America. And it is on the basis of
`this promise that childhood arrivals revealed them-
`selves to the government and submitted to a rigorous
`application and background check process, the cost of
`which was borne by the applicant. Indeed, there were
`individuals who opted not to apply to the DACA
`program on the basis that they could not afford the
`significant application fee or because of the program
`requirement to provide personal and private infor-
`mation to the federal government.7
`The states and the federal government, in turn,
`would benefit from an increased population of produc-
`tive, legally employable workers, who pay taxes and
`
`6 See Memorandum from Janet Napolitano, Sec’y of Homeland
`Sec., Exercising Prosecutorial Discretion with Respect to
`Individuals Who Came to the United States as Children (June 15,
`2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecu
`torial-discretion-individuals-who-came-to-us-as-children.pdf.
`7 See New American Economy, Overcoming the Odds: The
`Contributions of DACA-Eligible Immigrants and TPS Holders to
`the U.S. Economy (May 2019), https://www.newamericanecon
`omy.org/wp-content/uploads/2019/05/DACA-TPS_Brief.pdf.
`
`

`

`13
`make significant contributions to the economy. And,
`indeed, they have. “DACA enrollees and their house-
`holds pay $5.7 billion in federal taxes and $3.1 billion
`in state and local taxes annually.”8 The termination of
`DACA will only place further strain on states and local
`communities that were already under economic pressure.
`The Department’s failure to consider such reliance
`interests, let alone provide an “analysis” of its action
`“is arbitrary and capricious and so cannot carry the
`force of law.” Encino Motor Cars, 136 S. Ct. at 2125.
`
`A. Reliance Interests of DACA Students,
`Educators and Educational Institutions
`It is indisputable that access to education is vitally
`important to all persons in the United States—whether
`citizens, lawful resident aliens, or undocumented per-
`sons. See Plyler v. Doe, 457 U.S. 202, 226 (1982). In
`Plyler, this Court ruled that undocumented school age
`children had a constitutional right to a free public
`education. Id. (“Education provides the basic tools by
`which individuals might lead economically productive
`lives to the benefit of us all . . . “[e]ducation has a
`fundamental role in maintaining the fabric of our
`society.” Because of Plyler, generations of undocu-
`mented persons have succeeded
`in school and
`integrated into the American culture.
`The DACA program has had the practical effect of
`extending the rationale of Plyler to post-secondary
`education. By relying on the rights granted by DACA,
`tens of thousands of undocumented persons have
`
`
`8 Nicole Svjlenka, What We Know About DACA Recipients in
`the United States, Ctr. for Amer. Progress, (Sept. 5, 2019),
`https://www.americanprogress.org/issues/immigration/news/2019/
`09/05/474177/know-daca-recipients-united-states/.
`
`

`

`14
`gained access to and invested substantial time and
`money in a college education. And many of those
`persons, once educated, have entered the workforce as
`teachers, giving back to their communities.
`DACA teachers, in particular, are a significant asset
`to our nation’s public schools,

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