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.
`
`(For Continuation of Caption See Inside Cover)
`
`On Writ Of CertiOrari tO the United StateS
`COUrt Of appealS fOr the ninth CirCUit
`
`BRIEF Amici cURiAE OF THE NATIONAL
`EDUCATION ASSOCIATION AND NATIONAL
`PTA IN SUPPORT OF RESPONDENTS
`
`AlIce O’BrIen
`Counsel of Record
`emmA leheny
`luBnA A. AlAm
`reBeccA yAtes
`nAtIOnAl educAtIOn AssOcIAtIOn
`1201 16th Street, NW
`Washington, DC 20036
`(202) 822-7048
`aobrien@nea.org
`
`Counsel for Amici Curiae
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`October 4, 2019
`
`291673
`
`
`
`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.
`
`(For Continuation of Caption See Inside Cover)
`
`On Writ Of CertiOrari tO the United StateS
`COUrt Of appealS fOr the ninth CirCUit
`
`BRIEF Amici cURiAE OF THE NATIONAL
`EDUCATION ASSOCIATION AND NATIONAL
`PTA IN SUPPORT OF RESPONDENTS
`
`AlIce O’BrIen
`Counsel of Record
`emmA leheny
`luBnA A. AlAm
`reBeccA yAtes
`nAtIOnAl educAtIOn AssOcIAtIOn
`1201 16th Street, NW
`Washington, DC 20036
`(202) 822-7048
`aobrien@nea.org
`
`Counsel for Amici Curiae
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`October 4, 2019
`
`291673
`
`
`
`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
`
`
`
`i
`
`QUESTION PRESENTED
`
`This brief addresses the second question accepted for
`review by the Court:
`
`Whether the Department of Homeland Security’s
`decision to terminate the Deferred Action for Childhood
`Arrivals (“DACA”) policy was arbitrary and capricious.
`
`
`
`ii
`
`QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
`
`TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . ii
`
`TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iv
`
`INTEREST OF AmICI . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`INTRODUCTION AND SUMMARY OF
` ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
`
`ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
`
`A. DHS Failed to Provide a Reasoned
`Explanation for the Policy Change,
`Including a Consideration of Reliance
`Interests, as Required by the APA. . . . . . . . . . . .5
`
`
`
`B. I n R e l i a nc e on DACA , S t ude nt s
`Pursued Higher Education and Careers
`in Public Service . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`
`
`C. DHS Failed to Consider the Reliance
`Interests DACA Engendered in This
`Country’s Public Schools . . . . . . . . . . . . . . . . . . .15
`
`
`
`i. W it hout DACA , T hou sa nd s of
`Educators Would Abruptly Leave Their
`Students . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`
`
`iii
`
`ii. Educational Institutions Rely on
`Thousands of DACA Educators to Offset
`the Nationwide Teacher Shortage . . . . . . .18
`
`
`
`iii. Educational Institutions Rely on DACA
`to Provide Essential Diversity in
`the Teaching Profession . . . . . . . . . . . . . . . .20
`
`
`
`iv. DHS Failed to Consider How DACA
`Rescission Would Undermine Student
`Learning for All Students . . . . . . . . . . . . . .25
`
`
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
`
`Table of Contents
`
`Page
`
`
`
`iv
`
`Cases
`
`Batalla Vidal v. Nielsen,
`
`279 F. Supp. 3d 401 (E.D.N.Y. 2018). . . . . . . . . . . . . . .4
`
`Burlington Truck Lines, Inc. v. United States,
`
`371 U.S. 156 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
`
`Camp v. Pitts,
`
`411 U.S. 138 (1973) (per curiam). . . . . . . . . . . . . . . . . .7
`
`Casa De md. v. U.S. Dep’t of Homeland Sec.,
`
`284 F. Supp. 3d 758 (D. Md. 2018). . . . . . . . . . . . . . . . .3
`
`Casa De md. v. U.S. Dep’t of Homeland Sec.,
`
`924 F.3d 684 (4th Cir. 2019). . . . . . . . . . . . . . . . . . . . . .3
`
`Encino motorcars, LLC v. Navarro,
`
` U.S. , 136 S. Ct. 2117 (2016) . . . . . . . . . . . . . . . . .5
`
`FCC v. Fox Television Stations, Inc.,
`
`556 U.S. 502 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . .5, 8
`
`NAACP v. Trump,
`315 F. Supp. 3d 457 (D.D.C. 2018) cert.
`
`granted sub nom . Tr ump v. NA ACP,
`139 S. Ct. 2779 (2019). . . . . . . . . . . . . . . . . . . . . . . . . . .4
`
`
`
`Nat’l Cable & Telecomm. Ass’n. v.
`Brand X Internet Servs.,
`545 U.S. 967 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
`
`
`
`TABLE OF CITED AUTHORITIES
`
`Page
`
`
`
`v
`
`Regents of Univ. of Cal. v.
`U.S. Dep’t of Homeland Sec.,
`279 F. Supp. 3d 1011 (N.D. Cal. 2018) . . . . . . . . . . . . .3
`
`
`
`Regents of Univ. of Cal. v.
`U.S. Dep’t of Homeland Sec.,
`908 F.3d 476 (9th Cir. 2018), cert. granted sub
`nom. U.S. Dep’t of Homeland Sec. v. Regents of
` Univ. of Cal., 139 S. Ct. 2779 (2019) . . . . . . . . . . . . . 3-4
`
`
`
`U.S. Dep’t of Commerce v. New York,
`
` U.S. , 139 S. Ct. 2551 (2019) . . . . . . . . . . . . . . .5, 7
`
`Vermont Yankee Nuclear Power Corp. v.
`Nat. Res. Defense Council, Inc.,
`435 U.S. 519 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
`
`
`
`Statutes
`
`Administrative Procedure Act, 5 U.S.C. § 706(2)(A) .4, 5
`
`Other Authorities
`
`Alexia Fernández Campbell, DACA Immigrants
`Are Teaching American Children. What
`Happens After They’re Gone?, Vox (Sept.
`15, 2017), https://w w w.vox.com /policy-
`a nd-pol it ics / 2 017/ 9/ 15 / 16 3 0 6 9 72 / daca -
`teachers-dreamers. . . . . . . . . . . . . . . . . . . . . . . . . . . .22
`
`
`
`Cited Authorities
`
`Page
`
`
`
`vi
`
`Corey Mitchell, Wanted: Teachers as Diverse as
`Their Students, Educ. W k. (Sept. 17,
`2 0 1 9) , h t t p s : // w w w. e d w e e k . o r g /e w /
`a r t icle s / 2 019/0 9/ 18 / w a nt e d -t e a cher s -
`as-diverse-as-their-students.html . . . . . . . . . . . . . . .19
`
`
`
`Dan Goldhaber et al., Univ. of Wash. Bothell,
`The Theoretical and Empirical Arguments
`for Diversifying the Teacher Workforce:
`A Review of the Evidence (Ctr. for Educ.
` Data & Res., Working Paper No. 2015-9) . . . . . . 20-21
`
`Dianne Solis & James Barragan, U.S. Could
`Lose an Estimated 20,000 Teachers, many
`Bilingual, as DACA is Phased Out, The Dallas
`Morning News (Oct. 5, 2017), https://www.
`dallasnews.com/news/immigration/2017/10/05/
`u-s-could-lose-an-estimated-20000-teachers-
` many-bilingual-as-daca-is-phased-out/. . . . . . . . . . .22
`
`Er ica L. Green, With DACA in Limbo,
`Teachers Protected by the Program Gird
`for the Worst, N.Y. Times (Feb. 1, 2018),
`https://www.nytimes.com/2018/02/01/US/
` politics/daca-teachers-trump.html. . . . . . . . . . . . . . .17
`
`Ginette Magaña, DACAmented Teachers:
`Educating and Enriching Their Communities,
`Obama White House: Blog (Aug. 4, 2015),
`https://obamawhitehouse.archives.gov/
`blog /2 015/0 8/0 4 /dacamented-teachers-
`educating-and-enriching-their-communities . . . . . .24
`
`
`
`Cited Authorities
`
`Page
`
`
`
`vii
`
`Jason A. Grissom et al., Teacher and Principal
`Diversity and the Rep resentation of
`Students of Color in Gifted Programs,
`117 Elementary Sch. J. 396 (2017) . . . . . . . . . . . . . . .21
`
`
`
`Jason T. Downer et al., Teacher-Child/Racial/
`Ethnic match Within Pre-Kindergarten
`Classrooms and Children’s Early School
`Adjustment, 36 Early Childhood Res. Q. 26
`(2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
`
`
`
`Jie Zong et al., Migration Pol’y Inst., A Profile
`of Current DACA Recipients by Education,
`Industry, and Occupation (2017) . . . . . . . . . . . . .9, 16
`
`
`
`Leib Sutcher et al., Learning Pol’y Inst., A
`Coming Cr isis in Teaching? Teacher
`Supply, Demand, and Shortages in the U.S.
`(2016), https://learningpolicyinstitute.org/
`sites/default/files/product-files/A_Coming_
` Crisis_in_Teaching_REPORT.pdf . . . . . . . . . . . . . .17
`
`Matthew Ron feldt et a l., Ho w Tea ch er
`Turnover Harms Student Achievement,
`50 Am. Educ. Res. J. 4 (2013) . . . . . . . . . . . . . . . . . .17
`
`
`
`Memorandum from Elaine C. Duke, Acting Sec’y
`of DHS, to James W. McCament, Acting
`Dir., USCIS, et al., memorandum on
`Rescission of Deferred Action for Childhood
`Arrivals (DACA) (Sept. 5, 2017), https://
`www.dhs.gov/news/2017/09/05/memorandum-
`rescission-daca . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 7
`
`
`
`Cited Authorities
`
`Page
`
`
`
`viii
`
`Memorandum from Janet Napolitano, Sec’y, DHS
`to David V. Aguilar, Acting Comm’r, CBP,
`et al., 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-prosecutorial-discretion-
`individuals-who-came-to-us-as-children.pdf . . . . . . .6
`
`
`
`Memorandum from John F. Kelly, Sec’y, DHS
`to Kevin K. McAleenan, Acting Comm’r,
`CBP, et al., memorandum on Enforcement
`of the Immigration Laws to Serve the
` National Interest (Feb. 20, 2017). . . . . . . . . . . . . . . . .6
`
`Memorandum from John F. Kelly, Sec’y, DHS
`to Kevin K. McAleenan, Acting Comm’r,
`CBP, et al., memorandum on Rescission
`Providing for Deferred Action for Parents
`of Am er icans [“DA PA”] an d Lawf ul
` Permanent Residents (June 15, 2017). . . . . . . . . . . . .6
`
`Nat’l Sci. Council on the Developing Child,
`Persistent Fear and Anxiety Can Affect Young
`Children’s Learning and Development (Harv.
`Univ. Ctr. on the Developing Child, Working
`Paper No. 9, 2010), http://developingchild.harvard
`.edu/wp-content/uploads/2010/05/Persistent-
`Fe a r - a nd-A n x iet y- Ca n-A f fec t -You ng-
` Childrens-Learning-and-Development.pdf . . . . . . .27
`
`Cited Authorities
`
`Page
`
`
`
`ix
`
`Nat’l Sci. Council on the Developing Child,
`Young Children Develop in an Environment
`of Relationships (Harv. Univ. Ctr. on the
`Developing Child, Working Paper No. 1,
`2004), https://developingchild.har vard.
`edu/wp-content/uploads/2004/04/ Young-
`Children-Develop -in-an-Env i ronment -
`of-Relationships.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . .16
`
`
`
`NEA, The National Education Association
`V i s i o n , m i s s i o n a n d Va l u e s , 2 019
`Handbook, http://w w w.nea.org /assets/
` docs/2019_NEA_Handbook.pdf. . . . . . . . . . . . . . . . . .1
`
`Off. of Plan., Evaluation & Pol’y Dev., U.S. Dep’t
`of Educ., The State of Racial Diversity in
`the Educator Workforce (July 2016), https://
`www2.ed.gov/rschstat/eval/highered/racial-
` diversity/state-racial-diversity-workforce.pdf . .20, 21
`
`Off. of Postsecondary Educ., U.S. Dep’t of Educ.,
`Teacher Shortage Areas Nationwide Listing
`1990-1991 through 2017-2018 (June 2017),
`https://www2.ed.gov/about/offices/list/ope/pol/
`ateachershortageareasreport2017-18.pdf . . . . . . . . .18
`
`
`
`Randy Capps et al., Migration Pol’y Inst.,
`I m p l i c a t i o n s o f I m m i g r a t i o n
`Enforcement Activities for the Well-Being
`of Chil dren in Immigrant Families:
` A Review of the Literature (2015) . . . . . . . . . . . . . . .26
`
`Cited Authorities
`
`Page
`
`
`
`x
`
`Roberto G. Gonzales et al., Ctr. for Am.
`Progress, Taking Giant Leaps Forward:
`E x p e r i e n c e s o f a R a n g e o f DAC A
` Beneficiaries at the 5-Year Mark (2017) . . . . . .8, 9, 15
`
`Tat y a n a K ley n et a l ., L e a r nin g f r o m
`Undocumented Students: Testimonios
`for Strategies to Suppor t and Resist,
`14 The New Educator 24 (2018) . . . . . . . . . . . . . . . . .14
`
`
`
`Teach For Am., DACA Recipients, (last visited
`Oct. 3, 2019), https://www.teachforamerica.
`org/how-to-join/eligibility/daca. . . . . . . . . . . . . . . . . .22
`
`
`
`Tom K. Wong et al., 2019 National DACA
`Survey, https://cdn.americanprogress.org/
`content/uploads/2019/09/18122133/New-
` DACA-Survey-2019-Final-1.pdf . . . . . . . . . . . .9, 15, 28
`
`U.S. Citizenship & Immigr. Ser vs., U.S.
`Dep’t of Homeland Sec., Approximate
`Active DACA Recipients: Countr y of
`Birth (Sept. 4, 2017), https://www.uscis.go
`v/ sites/ default/ files/ USCIS/ Resources/ Re
`ports%20and%20Studies/Immigration%20
`Forms%20Data /A ll%20Form%20Types/
` DACA/daca_population_data.pdf . . . . . . . . . . . . . . .22
`
`Cited Authorities
`
`Page
`
`
`
`xi
`
`Valerie Strauss, Teacher Shortages Affecting
`Every State as 2017-18 School Year Begins,
`Wash. Post (Aug. 28, 2017), https://www.
`w a s h i n g t o n p o s t . c o m / n e w s / a n s w e r -
`sheet/ wp/ 2017/ 08/ 28/ teacher-shortages-
`affecting-every-state-as-2017-18-school-
`year- begins/ ?utm _ term=.0583fbf55b17 . . . . . . . . . .18
`
`
`
`Cited Authorities
`
`Page
`
`
`
`1
`
`INTEREST OF Amici1
`
`National Education Association (“NEA”) is the
`largest and oldest educational association in the United
`States. Founded in 1857, NEA now represents three
`million teachers, counselors, nurses, and education
`support professionals throughout the country, including
`many DACA educators. Among the millions of public
`school students NEA members serve are hundreds of
`thousands of DACA recipients. DACA has provided a
`foundation for those students’ success both by granting
`them the certainty as to their legal status needed to
`pursue their educational aspirations and by granting that
`same certainty to their teachers who hold DACA status. As
`such, DACA meaningfully advances NEA’s core mission,
`which is to fulfill the promise of public education for every
`student. NEA, The National Education Association
`Vision, mission and Values, 2019 Handbook 7, http://
`www.nea.org/assets/docs/2019_NEA_Handbook.pdf. A
`rescission of DACA will do real and lasting harm to those
`students and teachers, as well as to the entire project of
`public education.
`
`National PTA (“PTA”) is a nationwide network
`of nearly 3.5 million families, students, teachers,
`
`1 No counsel for a party authored this brief in whole or in
`part, and no such counsel or party made a monetary contribution
`intended to fund the preparation or submission of this brief. No
`person other than amici curiae, their members, or their counsel
`made a monetary contribution to its preparation or submission.
`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
`
`administrators, and business and community leaders
`devoted to making a difference for the education, health,
`safety and wellbeing of every child and making every
`child’s potential a reality. National PTA is comprised of 54
`state congresses, encompassing all 50 states, the District
`of Columbia, U.S. Virgin Islands, Puerto Rico and the
`Department of Defense Schools in Europe. Additionally,
`there are more than 24,000 local PTA units nationwide.
`PTA serves 16.5 million students across the country.
`
`The overall purpose of PTA is to bring together
`families, educators and business and community leaders
`to solve the toughest challenges facing schools and
`communities and engage and empower families and
`communities to speak up and take action for every child.
`For more than 100 years, PTA has been a powerful voice
`for all children, a relevant resource for families and
`communities, and a strong advocate for public education.
`
`INTRODUCTION AND SUmmARy
`OF ARgUmENT
`
`Since its inception in 2012, the Deferred Action
`for Childhood Arrivals (“DACA”) program has yielded
`immeasurable benefits for our nation’s students and
`educators. For young people who, prior to DACA, had
`only a limited pathway to college and almost no realistic
`expectation of long-term employment, the program
`created new hope and a reason to strive for academic
`excellence. Since DACA began over seven years ago,
`many DACA recipients, in reliance on the program,
`have completed high school, entered four-year colleges
`and universities, and graduated to embark on careers
`in public service. And school districts, also relying on
`DACA, have hired thousands of DACA recipients. DACA
`
`
`
`3
`
`recipients have helped alleviate the nationwide shortage
`of qualified educators, particularly in high needs schools
`and communities, and they serve as role models for the
`next generation of increasingly diverse students.
`
`Following the September 5, 2017 decision by the
`Trump administration to rescind DACA, the Department
`of Homeland Security (“DHS”) immediately stopped
`accepting DACA applications and attempted to cut
`off renewal applications 30 days later. Memorandum
`from Elaine C. Duke, Acting Sec’y, DHS, to James W.
`McCament, Acting Dir., USCIS, et al., memorandum
`on Rescission of Deferred Action for Childhood
`Arrivals (DACA) (Sept. 5, 2017), https://www.dhs.
`gov/news/2017/09/05/memorandum-rescission-daca
`(“Rescission Memo”). Lawsuits challenging the rescission
`quickly followed, including the three now before the
`Court.2 In these cases, the district courts either vacated
`or enjoined in large part DHS’s rescission on a nationwide
`basis. Regents of Univ. of Cal. v. U.S. Dep’t of Homeland
`Sec., 279 F. Supp. 3d 1011, 1049 (N.D. Cal. 2018) (issuing
`a nationwide injunction requiring DHS to continue
`accepting DACA renewals); Regents of Univ. of Cal. v.
`U.S. Dep’t of Homeland Sec., 908 F.3d 476, 512 (9th Cir.
`2018) (upholding injunction), cert. granted sub nom. U.S.
`Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 139 S.
`
`2 In a fourth case, not currently before this Court, a
`Maryland District Court held that the decision to rescind DACA
`was not arbitrary and capricious. Casa De md. v. U.S. Dep’t of
`Homeland Sec., 284 F. Supp. 3d 758, 772 (D. Md. 2018). The Fourth
`Circuit reversed in relevant part. Casa De md. v. U.S. Dep’t of
`Homeland Sec., 924 F.3d 684 (4th Cir. 2019). DHS has petitioned
`for a writ of certiorari in that case, which was distributed for the
`Court’s October 1, 2019 conference.
`
`
`
`4
`
`Ct. 2779 (2019); Batalla Vidal v. Nielsen, 279 F. Supp. 3d
`401, 437 (E.D.N.Y. 2018) (issuing a nationwide injunction
`requiring DHS to continue accepting DACA renewals)
`cert. granted sub nom. mcAleenan v. Vidal, 139 S. Ct.
`2779 (2019); NAACP v. Trump, 315 F. Supp. 3d 457, 473
`(D.D.C. 2018) (vacating Rescission Memo), cert. granted
`sub nom. Trump v. NAACP., 139 S. Ct. 2779 (2019).
`
`DHS violated the Administrative Procedure Act
`(“APA”), 5 U.S.C. § 706(2)(A), when it purported to rescind
`DACA without providing a reasoned explanation for its
`decision. The Rescission Memo fails to acknowledge that
`the elimination of DACA is a drastic change in policy
`and does not attempt to address the factual record that
`underlay the creation of DACA, nor the serious reliance
`interests the policy has created over the past seven years.
`These shortcomings render the agency’s action arbitrary
`and capricious.
`
`Allowing this unlawful agency action to eliminate
`DACA would erase the educational and professional
`gains made by DACA recipients in reliance on DACA and
`cause lasting harm to the education communities that
`have invested in and have come to rely on DACA holders.
`Young children will suffer the abrupt departure of trusted
`teachers, teacher shortages will worsen as thousands of
`DACA educators lose their status, immigrant students will
`lose a lifeline to education mentors, and student learning
`will be harmed in both the short- and long-term.
`
`Therefore, on behalf of millions of education
`stakeholders, amici urge the Court to affirm the
`judgments below as the Rescission Memo was an arbitrary
`and capricious agency action.
`
`
`
`5
`
`ARgUmENT
`
`A. DHS Failed to Provide a Reasoned Explanation
`for the Policy Change, Including a Consideration
`of Reliance Interests, as Required by the APA
`
`The APA instructs courts to hold as unlawful and
`set aside agency action that is arbitrary or capricious. 5
`U.S.C. § 706(2)(A). “In order to permit meaningful judicial
`review, an agency must ‘disclose the basis’ of its action.”
`U.S. Dep’t of Commerce v. New York, U.S. , 139 S.
`Ct. 2551, 2573 (2019) (quoting Burlington Truck Lines,
`Inc. v. United States, 371 U.S. 156, 167–69 (1962)). That
`is, the agency needs to provide a “reasoned explanation”
`for its decision. FCC v. Fox Television Stations, Inc., 556
`U.S. 502, 515 (2009). When the agency is changing its
`policy, rather than writing on a blank slate, that reasoned
`explanation must demonstrate that the agency is aware
`that it is changing position and that there are good reasons
`for the new policy. Encino motorcars, LLC v. Navarro,
` U.S. , 136 S. Ct. 2117, 2125 (2016). When the new
`policy “rests upon factual findings that contradict those
`which underlay its prior policy; or when its prior policy has
`engendered serious reliance interests,” the agency must
`provide a “more detailed justification.” Fox Television
`Stations, 556 U.S. at 515. Ignoring these requirements
`constitutes “arbitrary [and] capricious” action. Id.; see
`also Nat’l Cable & Telecomm. Ass’n v. Brand X Internet
`Servs., 545 U.S. 967, 981–82 (2005) (holding that the
`failure of an agency to explain a change in its policy is a
`“reason for holding an interpretation to be [] arbitrary
`and capricious”).
`
`DHS’s decision to rescind DACA represents an
`enormous shift in policy. When then-Secretary Janet
`
`
`
`6
`
`Napolitano announced the creation of DACA in 2012, she
`found that DHS needed the policy to “ensure that [its]
`enforcement resources [were] not expended on these low
`priority cases.” Memorandum from Janet Napolitano,
`Sec’y, DHS to David V. Aguilar, Acting Comm’r, CBP, et
`al., Exercising Prosecutorial Discretion with Respect to
`Individuals Who Came to the United States as Children,
`1-2 (June 15, 2012), https://www.dhs.gov/xlibrary/assets/
`s1-exercising-prosecutorial-discretion-individuals-who-
`came-to-us-as-children.pdf (“2012 DACA Memo”). She
`found that, as a group, DACA-eligible individuals “lacked
`the intent to violate the law,” and were “productive young
`people,” many of whom had “already contributed to our
`country in significant ways.” Id.
`
`As late as June 2017, DHS had explicitly preserved
`DACA, even as it dismantled other programs that provided
`immigrants with relief. Memorandum from John F. Kelly,
`Sec’y, DHS to Kevin K. McAleenan, Acting Comm’r, CBP,
`et al., memorandum on Enforcement of the Immigration
`Laws to Serve the National Interest (Feb. 20, 2017), Joint
`Appendix (“J.A.”) at 858; Memorandum from John F.
`Kelly, Sec’y, DHS to Kevin K. McAleenan, Acting Comm’r,
`CBP, et al., memorandum on Rescission Providing for
`Deferred Action for Parents of Americans [“DAPA”] and
`Lawful Permanent Residents (June 15, 2017), J.A. at 870-
`71. At that time, DHS emphasized that it would prioritize
`enforcement of immigration laws against undocumented
`immigrants who had criminal backgrounds. J.A. at 859-
`63. When DHS did announce the rescission of DACA
`on September 5, 2017, the only basis it provided for its
`decision was its belief that DACA was unlawful, based
`on a ruling by the Fifth Circuit that DAPA conflicted
`with the discretion granted to DHS by the Immigration
`
`
`
`7
`
`and Nationality Act and a letter by the Attorney General
`opining that DACA was unconstitutional. Rescission Memo
`at 3-4.3
`
`The Rescission Memo did not mention the findings
`provided in the 2012 DACA Memo nor did it discuss the
`serious reliance interests created by the program over the
`past several years, thus providing no reasoned explanation
`for why DHS rescinded the policy. As the interviews4 for
`this brief amply demonstrate, the explanation given for
`the policy in 2012 – that DACA-eligible individuals are
`productive young people who contribute to our country
`in significant ways – has only grown stronger. And,
`when serious reliance interests are at stake such as
`here, agencies must provide an explanation that is not
`
`3 On June 22, 2018, after the D.C. District Court vacated
`the Rescission Memo and remanded the case to DHS, then-
`Secretary Kirstjen Nielsen issued a memorandum attempting
`to offer some explanation for DHS’s decision. The Court should
`not consider this memorandum because its review is limited
`to the agency’s contemporaneous explanation, not its post-
`hoc rationalization. See U.S. Dep’t of Commerce v. New York,
` U.S. , 139 S. Ct. 2551, 2573 (2019); Vermont Yankee Nuclear
`Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 549
`(1978); Camp v. Pitts, 411 U.S. 138, 142–43 (1973) (per curiam).
`In any event, then-Secretary Nielsen’s cursory consideration of
`the reliance interests cannot satisfy the APA’s reasoned decision-
`making requirement.
`
`4 To provide the Court with an expanded understanding
`of how DACA has impacted public education, amici have
`interviewed numerous students, graduates, educators, and school
`administrators. Where names are used, it is with interviewees’
`permission. Others asked not to be named or identifiably described
`because of the uncertainty of their DACA status or concern for
`their DACA students.
`
`
`
`8
`
`just reasoned, but “more detailed” than one for other
`types of agency action. See Fox Television Stations, 556
`U.S. at 515. In reliance on the DACA program, DACA
`holders furthered their education and began careers as
`educators. In turn, school districts and communities relied
`on the many benefits provided by these DACA holders.
`But DHS failed to consider any of these serious reliance
`interests. That failure renders DHS’s action arbitrary and
`capricious, and accordingly unlawful. The Court should
`therefore affirm the judgments below.
`
`B. In Reliance on DACA, Students Pursued Higher
`Education and Careers in Public Service
`
`DACA has motivated countless young people to stay
`in school and further their education. Without DACA,
`
`most unauthorized immigrant youth end their
`schooling before entering college . . . . [T]he
`majority of unauthorized students pursuing
`higher education attend community colleges
`and struggle to persist and graduate. With
`access to legal employment and diminished
`fear of possible deportation [because of DACA],
`many of the study’s respondents described their
`newfound motivation and interest in school.
`
`Roberto G. Gonzales et al., Ctr. for Am. Progress, Taking
`Giant Leaps Forward: Experiences of a Range of DACA
`Beneficiaries at the 5-Year Mark 2 (2017). “DACA has
`been the impetus for many young people . . . to return to
`school . . . . Dozens of the respondents who had previously
`not finished high school told the authors that DACA
`was an important impetus to re-enroll in school . . . .”
`
`
`
`9
`
`Id. at 3. Forty percent of respondents in a nationwide
`survey of 1,105 DACA recipients reported that they were
`currently in school. Tom K. Wong et al., 2019 National
`DACA Survey, https://cdn.americanprogress.org/content/
`uploads/2019/09/18122133/New-DACA-Survey-2019-
`Final-1.pdf. Of those respondents, 83% were already
`pursuing a bachelor’s degree or higher, and 93% reported
`that DACA allowed them to pursue education opportunities
`that had not previously been available. Id. And upon
`graduating from high school, many DACA holders pursue
`higher education so as to devote their careers to public
`service. Some 9,000 DACA holders are now working in
`education according to one 2017 estimate by the Migration
`Policy Institute. Jie Zong et al., Migration Pol’y Inst.,
`A Profile of Current DACA Recipients by Education,
`Industry, and Occupation 7-8 (2017).
`
`DACA holders invested in their education in reliance
`on the government’s promise in DACA that they would
`be able to pursue educational and job opportunities, and
`that those opportunities would not be taken away without
`due consideration. However, DHS failed to consider these
`serious reliance interests and the massive and irreparable
`harm rescinding DACA would have on the hundreds of
`thousands of DACA holders, their families, their students,
`and their communities. The interviews that follow speak
`powerfully to the very issues DHS should have considered.
`
`“I could finally serve my community.” This was the
`reaction of Angelica Reyes upon learning of DACA. As a
`public school student in Los Angeles, Reyes dreamed of
`becoming an educator, but felt that advanced academic
`and professional opportunities were out of reach. During
`that time Reyes recalls, “I had done more than 1,000
`
`
`
`10
`
`hours of community service. It was heartbreaking that I
`couldn’t be part of the system I had tried to enrich.” With
`DACA, “it felt like an opportunity. I could finally serve
`my community. And I could be an educator. DACA gave
`me a clear path to obtain the career I had been working
`towards.” While earning her teaching credential at the
`University of California at Los Angeles, Reyes also
`worked for several non-profit advocacy organizations that
`assist K-12 students with college preparedness, financial
`aid, health and nutrition, and recovery from domestic
`violence. Reyes is now a valued member of the teaching
`corps in the district where she herself was a student. A
`former Advanced Placement U.S. History teacher, Reyes
`now teaches World History and Ethnic Studies. Next,
`Reyes is hoping to pursue a doctorate in education.
`
`“Helping everyday citizens.” A senior at the
`University of Texas at Austin, Vanessa Rodriguez Minero
`majors in government. She volunteers in a program that
`brings college students to underserved high schools to
`advise on how to pursue higher education. For two years,
`Rodriguez Minero served as the constituent liaison for
`an Austin City Councilmember. She enjoyed “helping
`everyday citizens” navigate through government services
`to resolve their issues. Her goal is to use her education
`to give back to her community. In thinking about the
`potential end of DACA, Rodriguez Minero is concerned
`about “professional development, what happens after
`college, what happens with my degree, will I be able to
`work in a field that I’m very passionate about?”
`
`“My dream of working in education.” A graduate
`of the University of California, DACA-holder Vicente
`Rodriguez teaches in the San Bernardino City Unified
`
`
`
`11
`
`School District. This year, Rodriguez works one-on-
`one with a student receiving special education services.
`Last year, he served as the school’s resident substitute,
`an assignment that included three months as a teacher
`providing bilingual education to second-graders. The
`former Director of Social Services at an after-school
`program providing academic support for school-aged
`children, Rodriguez has just this month applied for a
`master’s program in education. His career goal is to teach
`high school students in the areas of English and Ethnic
`Studies, his majors in college, but he now feels that “my
`dream of working in education is slowly slipping away
`despite how far I have come.”
`
`“DACA gave me access to education.” A Duke
`University senior, Axel Herrera is pursuing a double
`major in economics and sociology. Herrera has interned
`in the U.S. Congress and is applying to work at advocacy
`organizations after his graduation from Duke. Herrera
`presently volunteers for a STEM program where he has
`mentored a group of students since they were in sixth
`grade. Herrera receives mentorship, funding toward
`tuition, and career placement support through the Golden
`Door Scholarship program, which was established to
`advance the economic mobility of DACA recipients.
`“DACA gave me access to education,” says Herrera, who
`sees the termination of DACA as an “extreme disruption,”
`not just on a personal level but to schools and employers.
`
`“I wanted to do something more.” A bilingual
`teaching fellow in a school district outside of Seattle,
`A.M.P. is pursuing her teaching certification. Before
`DACA, she had always been a strong student, but she felt
`she had no clear pathway to college. When she received
`
`
`
`12
`
`DACA, she “wanted to do something more.” Working with
`a mentor teacher, A.M.P. now teaches third grade at the
`elementary school she attended as a child. Next year, she
`will have her own classroom and she intends to stay in her
`home district, but “I know there are a lot of [educators]
`who are wondering how they’ll be able to renew their
`DACA” and continue their teaching careers.
`
` “The basic sense of human dignity.” Kateri Simpson
`teaches at a high school in Oakland, California. Simpson
`has seen first-hand how DACA has motivated students
`to fully engage in school and work toward graduation
`because higher education opportunities were now within
`reach. The students “all of a sudden . . . had agency and
`advocacy . . . . They were able to work for themselves and
`that was such a powerful thing.” Her students could afford
`to stay in school and, with DACA work authorization, hold
`jobs to support themselves in college. As Simpson says,
`“the basic sense of human dignity to be able to work for
`what you want—I don’t think can be underestimated.”
`
`“It affects every aspect of my being.” Anayeli Marcos
`is in her last year of study for a dual master’s degree
`in social work and science at the University of Texas
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