`
`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 THE UNITED STATES
`CONFERENCE OF CATHOLIC BISHOPS
`AND OTHER CHRISTIAN ORGANIZATIONS
`IN SUPPORT OF RESPONDENTS
`
`CHRISTOPHER J. WRIGHT
`STEPHEN W. MILLER
`Counsel of Record
`HARRIS, WILTSHIRE &
`GRANNIS LLP
`1919 M Street NW, Fl. 8
`Washington, DC 20036
`(202) 730-1300
`smiller@hwglaw.com
`
`
`
`
`
`
`
`
`
`
`
`October 4, 2019
` Counsel for Amici Curiae
`
`Additional Captions 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.,
`
`V.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.,
`Respondents.
`
`Petitioners,
`
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`
`
`
`
`
`
`
`Page
`
`TABLE OF AUTHORITIES ....................................... ii
`
`STATEMENT OF INTEREST .................................... 1
`
`SUMMARY OF ARGUMENT ..................................... 4
`
`ARGUMENT ............................................................... 5
`
`I. The Decision to Rescind DACA is Arbitrary
`and Capricious Because DHS Failed to
`Consider the Severe Individual and Social
`Harm of Family Separation. .................................. 7
`
`
`II. Disturbing the Preliminary Injunction Before
`the Completion of Litigation Would Inequitably
`Cause Irreparable Harm to DACA Recipients
`and Their Families and Harm the Public
`Interest. ................................................................ 13
`
`i
`
`TABLE OF CONTENTS
`
`
`
`CONCLUSION .......................................................... 17
`
`LIST OF AMICI CURIAE ......................................... 1a
`
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`
`Page(s)
`Cases
`Amoco Production Co. v. Village of Gambell,
`480 U.S. 531 (1987) .............................................. 13
`
`
`Ashcroft v. American Civil Liberties Union,
`542 U.S. 656 (2004) .............................................. 15
`
`
`Department of Homeland Security v. Regents
`of the University of California,
`139 S. Ct. 2779 (2019) .......................................... 14
`
`
`Encino Motorcars, LLC v. Navarro,
`136 S. Ct. 2117 (2016) ........................................ 7, 9
`
`
`FCC v. Fox Television Stations, Inc.,
`556 U.S. 502 (2009) ...................................... 7–9, 14
`
`National Cable & Telecommunications Ass’n v.
`Brand X Internet Services,
`545 U.S. 967 (2005) ................................................ 7
`
`
`Railroad Commission of Texas v. Pullman Co.,
`312 U.S. 496 (1941) .............................................. 14
`
`
`Regents of the University of California v. United
`States Department of Homeland Security,
` 908 F.3d 476 (9th Cir. 2018) ............................... 14
`
`
`
`Securities and Exchange Commission v. Chenery
`Corp., 332 U.S. 194 (1947) ..................................... 7
`
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES—Continued
`
`
`Stanley v. Illinois,
`405 U.S. 645 (1972) ................................................ 9
`
`
`Upper Skagit Indian Tribe v. Lundgren,
`138 S. Ct. 1649 (2018) .......................................... 14
`
`
`Weinberger v. Romero–Barcelo,
`
`456 U.S. 305 (1982) .............................................. 14
`
`Winter v. Natural Resources Defense Council, Inc.,
`555 U.S. 7 (2008) .................................................. 13
`
`
`Statutes and Legislative Material
`5 U.S.C. §§ 551–559... ................................................. 7
`5 U.S.C. § 706 .............................................................. 7
`29 U.S.C. § 2601 .......................................................... 9
`H.R. Rep. No. 101-723(I) (1990), reprinted in
`1990 U.S.C.C.A.N. 6710 ....................................... 10
`
`
`S. Rep. No. 89-748 (1965), reprinted in
`1965 U.S.C.C.A.N. 3328 ....................................... 10
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES—Continued
`
`
`Other Authorities
`Ashley Feasley et al., Serving Separated and
`Reunited Families: Lessons Learned and
`the Way Forward to Promote Family Unity,
`United states Conference of Catholic
`Bishops/Migration and Refugee Services
`and Lutheran Immigration and Refugee
`Service (Oct. 2018), https://justicefor
`immigrants.org/wp-content/uploads/
`2018/10/Serving-Separated-and-Reunited
`-Families_Final-Report-10.16.18-updated
`-2.pdf uploads/2018/10/Serving-Separated
`-and-Reunited-Families_Final-Report-
`10.16.18-updated-2.pdf ........................................ 12
`Carol Zimmermann, Catholic College Presidents
`Pledge Support for Students with DACA Status,
`Nat’l Catholic Reporter (Dec. 1, 2016), https://
`www.ncronline.org/news/politics/catholic
`-college-presidents-pledge-support-students-
`daca-status ............................................................. 2
`
`Catholic Social Teaching on Immigration and
`the Movement of Peoples, UNITED STATES
`CONFERENCE OF CATHOLIC BISHOPS, http://
`www.usccb.org/issues-and-action/human-life
`-and-dignity/immigration/catholic-teaching
`-on-immigration-and-the-movement-of-
`peoples.cfm ........................................................... 5a
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES—Continued
`
`Colleen Kraft, AAP Statement Opposing Separation
`of Children and Parents at the Border, American
`Academy of Pediatrics (May 8, 2018), https://
`www.aap.org/en-us/about-the-aap/aap-press-
`room/Pages/StatementOpposingSeparationof
`ChildrenandParents.aspx .................................... 13
`
`Deferred Action for Childhood Arrivals (DACA)
`Data Tools, Migration Policy Institute
`(Aug. 31, 2018), https://www.migrationpolicy.
`org/programs/data-hub/deferred-action-child
`hood-arrivals-daca-profiles .................................... 5
`Irma Becerra, Note to Congress — it’s time to
`step up and protect DREAMers, Washington
`Business Journal (Sept. 6, 2019), https://www.
`bizjournals.com/washington/news/2019/09/06/
`viewpoint-note-to-congress-it-s-time-to-step-
`up.html ................................................................... 1
`John DeFrain et al., Why are Families So
`Important?, NebGuide (Sept. 23, 2008),
`http://extensionpubs.unl.edu/publication/
`9000016366318/creating-a-strong-family/ ............ 9
`Julie Zauzmer, ‘If They Come for You, They Come
`For Me,’ The Washington Post (Jan. 19, 2018),
`https://www.washingtonpost.com/news/acts-of-
`faith/wp/2018/01/19/if-they-come-for-you-they-
`come-for-me-if-congress-fails-to-save-daca-this-
`priest-could-be-deported/ ....................................... 3
`
`
`
`vi
`
`TABLE OF AUTHORITIES—Continued
`
`Msgr. Agostino Marchetto, Address in Brussels,
`Belgium, The Holy See (July 10, 2007),
`http://www.vatican.va/roman_curia/
`secretariat_state/2007/documents/rc_
`seg-st_20070710_migrazione-sviluppo_
`en.html. ................................................................ 10
`
`
`
`Omolara T. Uwemedimo et al., A Dream Deferred:
`Ending DACA Threatens Children, Families,
`and Communities, 140 Pediatrics 1 (Dec. 2017),
`https://pediatrics.aappublications.org/content/
`pediatrics/140/6/e20173089.full.pdf. ............. 10, 11
`
`
`Overcoming the Odds: The Contributions of
`DACA-Eligible Immigrants and TPS Holders
` to the U.S. Economy, New American Economy,
`(June 3,2019),https://www.newamerican
`economy.org/wp-content/uploads/2019/05/
`DACA-TPS_Brief.pdf ............................................. 5
`
`
`Pope John Paul II, Familiaris Consortio
`42 (1981) ................................................................. 9
`
`
`Samantha Artiga and Barbara Lyons, Family
`Consequences of Detention/Deportation:
`Effects on Finances, Health, and Well-Being,
`Kaiser Family Foundation, 1–2 (Sept. 18, 2018),
`https://www.kff.org/disparities-policy/issue-
`brief/family-consequences-of-detention-
`deportation-effects-on-finances-health-and-
`well-being/ ...................................................... 11, 12
`
`
`
`vii
`
`TABLE OF AUTHORITIES—Continued
`
`Seth Freed Wessler, Shattered Families: The
`Perilous Intersection of Immigration
`Enforcement and the Child Welfare System,
`Applied Research Center (Nov. 2, 2011),
`https://www.raceforward.org/research/
`reports/shattered-families?arc=1. ....................... 10
`Shruti Simha, The Impact of Family Separation
`on Immigrant and Refugee Families 80 North
`Carolina Medical Journal 95 (2019), http://
`www.ncmedicaljournal.com/content/80/2/95
`.full. ................................................................. 11, 12
`
`Statement from USCCB President Cardinal
`Daniel N. DiNardo of Galveston-Houston,
`United States Conference of Catholic
`Bishops (Sept. 5, 2017), http://www.usccb.
`org/news/2017/17-157.cfm .................................... 16
`
`Quotes from Church Teachings on the Rights of
`Migrants and Refugees, United States
`Conference of Catholic Bishops, http://
`www.usccb.org/issues-and-action/human
`-life-and-dignity/migrants-refugees-and-
`travelers/quotes-rights-migrants-refugees.
`cfm ........................................................................ 17
`
`
`
`
`
`
`viii
`
`TABLE OF AUTHORITIES—Continued
`
`United States Citizenship and Immigration
`Services, Approximate DACA Receipts as of
`June 30, 2019 (2019), https://www.uscis.gov/
`sites/default/files/USCIS/Resources/Reports
`%20and%20Studies/Immigration%20Forms
`%20Data/Static_files/DACA_Population_
`Receipts_since_Injunction_Jun_30_2019.
`pdf ..................................................................... 5, 10
`
`
`
`
`
`1
`
`STATEMENT OF INTEREST1
` Amici cvriae are the Association of Catholic
`
`Colleges and Universities (ACCU), Catholic Charities
`USA (CCUSA), Catholic Health Association (CHA),
`Catholic Legal Immigration Network, Inc. (CLINIC),
`the Center for Migration Studies (CMS), the Council
`for Christian Colleges and Universities (CCCU), the
`United States Conference of Catholic Bishops
`(USCCB), and World Relief. A full statement of
`interest for each organization is provided as an
`Appendix to this brief.
` Amici have
`long watched with pride and
`admiration as recipients of Deferred Action for
`Childhood Arrivals (DACA) live out their daily lives
`with hope and a determination to flourish and
`contribute to society: continuing to work and provide
`for their families, serve in the military, and receive an
`education.2 Amici have long supported and defended
`DACA recipients, a position grounded in its interest
`in promoting the defense of human dignity in the
`country’s immigration laws, particularly as applied to
`youth and families. And this interest is not abstract;
`indeed, the most recent data from the Catholic Legal
`
`
`1 All parties have provided blanket consent to the filing of amicus
`curiae briefs. No counsel for any party authored this brief in
`whole or in part, and no person or entity, other than amici or
`their counsel, made a monetary contribution intended to fund the
`preparation or submission of this brief.
`2 See Irma Becerra, Note to Congress — it’s time to step up and
`protect DREAMers, Wash. Bus. J. (Sept. 6, 2019), https://www.
`bizjournals.com/washington/news/2019/09/06/viewpoint-note-to-
`congress-it-s-time-to-step-up.html. Dr. Becerra is the president
`of Marymount University, a member of ACCU.
`
`
`
`2
`
`Immigration Network Surveys indicates that over the
`last five years:
`community
`and
`of Catholic
` 85–90%
`(“Programs”)
`immigration
`legal programs
`offered legal services for DACA renewals or
`applications, accounting for 7,000–14,000 such
`submissions per year;
` 41% of Programs conducted at least one DACA
`renewal info session as community outreach in
`the last year;
` DACA applications made up 18–20% of the
`total caseload for the Programs.
` Amici are mindful of the effect DACA’s rescission
`would have on religious education. For example, over
`seventy leaders of Catholic educational institutions
`have explained that their schools share a long history
`of welcoming students from diverse backgrounds and
`stressed their hope that “the students in our
`communities who have qualified for DACA are able to
`continue their studies without interruption and that
`many more students in their situation will be welcome
`to contribute their talents to our campuses.”3
` Rescinding DACA will also have a significant effect
`on health care provision in this country. For instance,
`Catholic health care provides more than 15 percent of
`hospital services in America. As employers of millions
`of dedicated health care professionals, Catholic health
`care has seen firsthand how DACA recipients have
`
`3 Carol Zimmermann, Catholic College Presidents Pledge
`Support for Students with DACA Status, Nat’l Catholic Reporter
`(Dec. 1, 2016), https://www.ncronline.org/news/politics/catholic-
`college-presidents-pledge-support-students-daca-status.
`
`
`
`3
`
`benefitted its organizations and patients as nurses,
`physicians, aides, dietary workers and
`facility
`professionals, and know how much they contribute to
`their communities and to the economy. An estimated
`27,000 health care workers and support staff depend
`on DACA for their authorization to work in the United
`States. Rescinding DACA will cause them to lose their
`authorization to work. This will further contribute to
`the growing shortage of health care professionals in
`the United States, thereby reducing access to care
`across the country and the ability of hospitals and
`other health care facilities to maintain critical staffing
`levels.
` Amici are also familiar with and thankful for the
`contributions that DACA recipients have made to the
`pastoral mission of the Catholic Church in the United
`States. Take, for instance, the story of Father Pineda.
`Fr. Pineda is a DACA recipient from Mexico who has
`been living in the United States since he was only two
`years old. While Fr. Pineda was initially told that he
`could not be ordained due to his unlawful status in the
`country, creation of the DACA program provided him
`with both protection and a path to fulfill his calling.
`Termination would harm Fr. Pineda and other DACA
`recipients serving our Church and faith. It would also
`mean parishes and communities across the country
`would be at risk of losing their trusted spiritual
`leaders.4
`
`
`
`
`
`4 Julie Zauzmer, ‘If They Come for You, They Come for Me,’ Wash.
`Post (Jan. 19, 2018), https://www.washingtonpost.com/news/acts
`-of-faith/wp/2018/01/19/if-they-come-for-you-they-come-for-me-if
`-congress-fails-to-save-daca-this-priest-could-be-deported/.
`
`
`
`4
`
`SUMMARY OF ARGUMENT
` This brief addresses
`the second question
`presented: whether the rescission of DACA was
`lawful. It concludes that rescinding DACA without
`considering crucial facts underlying the program—
`chief among them that rescinding the program would
`irreparably harm hundreds of thousands of families
`by placing them at imminent risk of separation—
`violates the Administrative Procedure Act (APA) and
`is thus unlawful.
`the
` Relatedly,
`this brief also addresses
`preliminary injunction affirmed by the Ninth Circuit.
`Respondents have brought claims, including one
`grounded in the Equal Protection clause, that have
`survived motions to dismiss but have not yet been
`developed. Should the Court decide that the
`Department of Homeland Security’s (DHS) decision to
`rescind DACA did not run afoul of the APA, the cases
`should return to the
`lower courts for factual
`development and trial on the merits of the
`constitutional claims. In the interim, the preliminary
`injunction currently in place should continue. While
`this brief does not address the likelihood of success of
`the Equal Protection argument, the severe and
`irreparable personal and social harms of family
`separation weigh heavily in favor of retaining that
`injunction.
`
`
`
`5
`
`ARGUMENT5
` This case has a direct impact on the nearly 700,000
`current DACA recipients,6 as well as their families
`and communities. These individuals, who arrived in
`this country unlawfully through no fault of their own,
`contribute significantly to the country’s culture and
`economy.7 The fundamental promise of DACA is that,
`for
`individuals
`like these, the United States
`Government will deprioritize prying apart their
`families and forcing them to leave the only country
`
`5 To aid the Court’s assessment of the issues presented here,
`amici limit their arguments to areas in which they have
`particular knowledge, interest, and expertise. They express no
`opinion as to, among other arguments, the reviewability
`question, nor the likelihood of success of the Equal Protection
`claim.
`6 U.S. Citizenship and Immigration Services, Approximate
`DACA Receipts as of June 30, 2019 (2019), https://www.
`uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%
`20Studies/Immigration%20Forms%20Data/Static_files/DACA_
`Population_Receipts_since_Injunction_Jun_30_2019.pdf;
`see
`also Deferred Action for Childhood Arrivals (DACA) Data Tools,
`Migration Policy Inst. (Aug. 31, 2018), https://www.migration
`policy.org/programs/data-hub/deferred-action-childhood-arrivals
`-daca-profiles.
`7 Overcoming the Odds: The Contributions of DACA-Eligible
`Immigrants and TPS Holders to the U.S. Economy, New Am.
`Econ., (June 3, 2019), https://www.newamericaneconomy. org/wp
`-content/uploads/2019/05/DACA-TPS_Brief.pdf. (“Our analysis
`of the most recent data finds that the DACA-eligible population
`earned $23.4 billion in 2017 alone, up from almost $19.9 billion
`in 2015. And despite rhetoric claiming they are a drain on the
`economy, 93.3 percent of DACA-eligible individuals were actively
`employed in 2017 . . . . In 2017, we estimate that DACA-eligible
`individuals paid more than $2.2 billion in federal taxes,
`contributions that helped sustain troubled entitlement programs
`like Social Security and Medicare.”).
`
`
`
`6
`
`they have known so long as they contribute and follow
`the rules.
` As a product of agency action, of course, DACA is
`subject to being changed by subsequent agency action.
`But any change, up to and including rescission, must
`be accomplished lawfully. The APA requires an
`agency to engage
`in reasoned decisionmaking,
`consider the consequences of a change in policy, and
`explain its decision in a manner that appropriately
`accounts for the costs as compared to the benefits of
`the new policy. Here, the only justification provided
`for rescinding DACA was a new belief that the
`program was unlawful. DHS failed utterly to consider
`and address the drastic consequences of rescission—
`among them the mass-scale separation of families.
`This failure to consider the facts underlaying the
`program violates the APA, and therefore the
`rescission is unlawful.
` Should the Court agree with Petitioners and find
`that the rescission did not violate the APA,
`Respondents have brought various other claims
`regarding the illegality of rescission. Due to the
`accelerated nature of this case before the Court,
`however, the
`lower courts have not had the
`opportunity to develop these claims, including a
`constitutional challenge. The Court should not disturb
`the preliminary injunction while these claims remain
`outstanding. Permitting families to be torn apart
`while these claims progress through the lower courts
`is precisely the kind of
`irreparable harm a
`preliminary
`injunction
`is designed to prevent.
`Moreover, a future victory by Respondents would be
`pyrrhic if any of the DACA recipients would have by
`then been deported and separated from their families.
`
`
`
`7
`
`Maintaining the status quo is in the public interest
`and works no harm to Petitioners who, under the
`injunction, remain free to make
`individualized
`enforcement decisions against recipients.
`I. THE DECISION TO RESCIND DACA IS
`ARBITRARY AND CAPRICIOUS BECAUSE
`DHS FAILED TO CONSIDER THE SEVERE
`INDIVIDUAL AND SOCIAL HARM OF
`FAMILY SEPARATION.
` To comply with the Administrative Procedure Act,
`5 U.S.C. §§ 551–559, before taking action an agency
`must first “examine the relevant data and articulate
`a satisfactory explanation for its action.” FCC v. Fox
`Television Stations, Inc., 556 U.S. 502, 513 (2009)
`(citation omitted); 5 U.S.C. § 706(2)(A) (courts “shall”
`set aside agency action that is “not in accordance with
`law”). The basis for its action must be “set forth with
`such clarity as to be understandable.” Sec. and Exch.
`Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947).
`The standard is the same for “blank slate” agency
`action as it is for changes in prior policy. Encino
`Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125
`(2016) (“Agencies are free to change their existing
`policies as
`long as they provide a reasoned
`explanation
`for the change.”); Nat’l Cable &
`Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
`967, 981 (2005) (“For if the agency adequately
`explains the reasons for a reversal of policy, change is
`not invalidating, since the whole point of Chevron is
`to leave the discretion provided by the ambiguities of
`a statute with the implementing agency.” (internal
`quotation marks and citation omitted)).
`
`
`
`8
`
`Importantly, however, when an agency changes a
`
`prior policy, particularly one that has “engendered
`serious reliance interests,” Fox Television Stations,
`556 U.S. at 515 (citing Smiley v. Citibank (South
`Dakota), N.A., 517 U.S. 735, 742 (1996)), “a reasoned
`explanation is needed for disregarding facts and
`circumstances that underlay or were engendered by
`the prior policy,” id. at 516. Agency action without
`adequate explanation is arbitrary and capricious, and
`therefore unlawful.
` The agency explanation for DACA’s rescission is
`exceptionally brief and bare. The reasoning section in
`the September 5, 2017 memorandum from Acting
`Secretary of the Department of Homeland Security,
`Elaine Duke, supplying the justification for rescinding
`DACA, states:
`Taking into consideration the Supreme Court’s
`and the Fifth Circuit’s rulings in the ongoing
`litigation, and the September 4, 2017 letter
`from the Attorney General, it is clear that the
`June 15, 2012 DACA program should be
`terminated. In the exercise of my authority in
`establishing national immigration policies and
`priorities . . . I hereby rescind the June 15, 2012
`memorandum. Regents Pet. App. 116a–117a.
` Thus, the reason actually given for ending the
`program was DACA’s purported
`illegality. The
`memorandum did not acknowledge, let alone weigh,
`the profound reliance interests and the devastating
`consequences of the rescission on hundreds of
`thousands of DACA recipients and the countless other
`stakeholders who have come to rely on the program.
`
`
`
`9
`
` This fundamental failure by DHS to engage in
`reasoned decisionmaking, and the paucity of its
`explanation for its change of position, run afoul of the
`APA. Similar to Encino Motorcars, here, DHS “gave
`almost no reasons at all” for its decision. 136 S. Ct. at
`2127. The Court there continued, holding that given
`“the serious reliance
`interests at stake,
`the
`Department’s conclusory statements do not suffice to
`explain its decision. This lack of reasoned explication
`for a regulation that is inconsistent with the
`Department’s longstanding earlier position results in
`a rule that cannot carry the force of law.” Id. (citing
`Fox Television Stations, 556 U.S. at 515–516). The
`same is true here.
`is the
`failure more egregious
` Making the
`substantial body of ignored and widely available
`evidence dealing with the serious harms of rescission
`to DACA recipients, their
`families, and their
`communities. Families are the building blocks of
`American society,8 and the “integrity of the family
`unit has found protection in” our founding document,
`the Constitution itself. Stanley v. Illinois, 405 U.S.
`645, 651 (1972). Federal legislation, such as the
`Family and Medical Leave Act, designed to promote
`“the stability and economic security of families,” 29
`U.S.C. § 2601(b)(1), underscores this reality. And
`federal immigration law has long underscored the
`
`8 See, e.g., John DeFrain et al., Why are Families So Important?,
`NebGuide
`(Sept. 23, 2008), http://extensionpubs.unl.edu/
`publication/9000016366318/creating-a-strong-family/
`(“Families, in all the diverse patterns, sizes, creeds, and colors
`they come in, are, indeed, the heart and soul of human society.”);
`Pope John Paul II, Familiaris Consortio 42 (1981) (“The family
`has vital organic links with society, since it is its foundation and
`nourishes it continually.”).
`
`
`
`10
`
`“intention . . . regarding the preservation of the family
`unit.” H.R. Rep. No. 101-723(I), at 40 (1990), reprinted
`in 1990 U.S.C.C.A.N. 6710, 6717 (referring to “family
`reunification” as “the cornerstone of U.S. immigration
`policy”); S. Rep. No. 89-748, at 13 (1965), reprinted in
`1965 U.S.C.C.A.N.
`3328,
`3332
`(describing
`“[r]eunification of
`families” as
`“the
`foremost
`consideration”).9 Inflicting harm on families ripples
`out to all areas of society, as explained below.
` The devastating impacts on families of harsh
`immigration enforcement have been documented by
`the Applied Research Center in its report, Shattered
`Families: The Perilous Intersection of Immigration
`Enforcement and the Child Welfare System.10 Most
`DACA recipients have a mixed-status
`family
`situation, where the loss of deferred action threatens
`to tear families apart. Studies show that 20% of DACA
`recipients are married,11 25% are parents of US-
`citizen children, 12 and 70% have family members who
`
`
`9 See also Msgr. Agostino Marchetto, Address in Brussels,
`Belgium, The Holy See (July 10, 2007), http://www. vatican. va/
`roman_curia/secretariat_state/2007/documents/rc_seg-st_20070
`710_migrazione-sviluppo_en.html. (immigrants “are even more
`in need of their own family, since for those who are far from home
`family support is indispensable”).
`10 Seth Freed Wessler, Shattered Families: The Perilous
`Intersection of Immigration Enforcement and the Child Welfare
`System, Applied Research Ctr. (Nov. 2, 2011), https:// www. race
`forward.org/research/reports/shattered-families?arc=1.
`11 U.S. Citizenship and Immigration Services, supra note 6.
`12 Omolara T. Uwemedimo et al., A Dream Deferred: Ending
`DACA Threatens Children, Families, and Communities, 140
`Pediatrics 1 (Dec. 2017), https://pediatrics.aappublications.org/
`content/pediatrics/140/6/e20173089.full.pdf.
`
`
`
`11
`
`are US citizens.13 A 2018 report from the Kaiser
`Family Foundation, which interviewed families “that
`recently [i.e., since the beginning of 2017] had a family
`member detained or deported,” along with legal
`service providers, found that “nearly all respondents
`appeared to be experiencing symptoms of depression,
`with the majority having a positive score on the
`clinical depression-screening tool. . . . Several said
`that chronic conditions like diabetes and hypertension
`have gotten worse . . . .”14 And while perhaps obvious,
`these studies also show that “parents’ unauthorized
`status creates stress for children that can threaten
`their health, development, and general well-being.”15
`
`Indeed, there is significant literature dealing with
`the unique and trying experiences and needs of
`separated children and their families. One study from
`the Center on the Developing Child at Harvard
`University shows that “persistent stress can change
`the brain architecture by damaging neurons in the
`prefrontal cortex and hippo-campus. These are
`centers of executive function and short-term memory
`and regulate thoughts, emotions, and actions.”16
`Another recent study shows that children separated
`
`13 Id.
`14 Samantha Artiga and Barbara Lyons, Family Consequences of
`Detention/Deportation: Effects on Finances, Health, and Well-
`Being, Kaiser Family Found., 1–2 (Sept. 18, 2018), https:// www.
`kff.org/disparities-policy/issue-brief/family-consequences-of-
`detention-deportation-effects-on-finances-health-and-well-
`being/.
`15 Uwemedimo, supra note 12, at 2.
`16 See Shruti Simha, The Impact of Family Separation on
`Immigrant and Refugee Families 80 N.C. MEDICAL J. 95 (2019),
`http:// www. ncmedicaljournal.com/content/80/2/95.full.
`
`
`
`12
`
`immigration
`following
`family members
`from
`enforcement had “increased mental health issues and
`behavioral changes that . . . will have long-term
`negative impacts on their health.”17
` The trauma of separation has both short- and long-
`term consequences. In the short term, children
`experiencing trauma often have problems dealing
`with such basic functions as sleeping, toileting, and
`eating.18 They also often have issues with “temper
`tantrums, detachment, anxiety, aggression, or
`heightened response to situations.”19 In the long-term,
`trauma affects “development and learning in young
`children, cause[s] limitations of working memory,
`disrupt[s] organizational skills, and affect[s] IQ.”20
`“Children exposed to toxic stress have higher chances
`of adopting health risk behaviors in the future,
`leading to disease, disability, and social problems.”21
`And the impact of trauma can be “compounded and
`that children can experience the effects of trauma
`long-term, across various domains in their lives
`(education,
`physical
`health, mental
`health,
`relationally, etc.).”22
`
`
`17 Artiga and Lyons, supra note 14, at 2.
`18 Id.
`19 Simha, supra note 16.
`20 Id.
`21 Id.
`22 Ashley Feasley et al., Serving Separated and Reunited
`Families: Lessons Learned and the Way Forward to Promote
`Family Unity, U.S. Conference of Catholic Bishops/Migration
`and Refugee Services and Lutheran Immigration and Refugee
`Serv., (Oct. 2018), https://justiceforimmigrants.org/wp-content/
`uploads/2018/10/Serving-Separated-and-Reunited-Families_
`
`
`
`13
`
` By ignoring these harms when changing its policy,
`DHS’s action was arbitrary and capricious in violation
`of the APA. DACA’s rescission is unlawful.
`II. DISTURBING
`THE
`PRELIMINARY
`INJUNCTION BEFORE THE COMPLETION
`OF LITIGATION WOULD INEQUITABLY
`CAUSE IRREPARABLE HARM TO DACA
`RECIPIENTS AND THEIR FAMILIES AND
`HARM THE PUBLIC INTEREST.
` To obtain a preliminary injunction, a court must
`find that the plaintiff “is likely to succeed on the
`merits, that he is likely to suffer irreparable harm in
`the absence of preliminary relief, that the balance of
`equities tips in his favor, and that an injunction is in
`the public interest.” Winter v. Nat’l Res. Def. Council,
`Inc., 555 U.S. 7, 20 (2008). Courts “must balance the
`competing claims of injury and must consider the
`effect on each party of the granting or withholding of
`the requested relief.” Amoco Prod. Co. v. Village of
`Gambell, 480 U.S. 531, 542 (1987). In “exercising their
`sound discretion, courts of equity should pay
`
`Final-Report-10.16.18-updated-2.pdf uploads/2018/10/Serving-
`Separated-and-Reunited-Families_Final-Report-10.16.18-
`updated-2.pdf; see also Colleen Kraft, AAP Statement Opposing
`Separation of Children and Parents at the Border, Am. Acad. of
`Pediatrics (May 8, 2018), https://www.aap.org/en-us/about-the-
`aap/aap-press-room/Pages/StatementOpposingSeparationof
`ChildrenandParents.aspx (“Separating children from their
`parents contradicts everything we stand for as pediatricians –
`protecting and promoting children’s health. In fact, highly
`stressful experiences,
`like
`family separation, can cause
`irreparable harm, disrupting a child's brain architecture and
`affecting his or her short- and long-term health. This type of
`prolonged exposure to serious stress - known as toxic stress - can
`carry lifelong consequences for children.”).
`
`
`
`14
`
`particular regard for the public consequences in
`employing the extraordinary remedy of injunction.”
`Weinberger v. Romero–Barcelo, 456 U.S. 305, 312
`(1982); see also R.R. Comm’n of Tex. v. Pullman Co.,
`312 U.S. 496, 500 (1941). And the Court may affi
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