`
`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 AMICUS CURIAE
`NAACP LEGAL DEFENSE & EDUCATIONAL
`FUND, INC., AND LATINOJUSTICE PRLDEF
`IN SUPPORT OF RESPONDENTS
`
`
`
`SHERRILYN A. IFILL
`Director-Counsel
`JANAI S. NELSON
`SAMUEL SPITAL
`NATASHA MERLE*
`RAYMOND AUDAIN
`CARA MCCLELLAN
`NAACP LEGAL DEFENSE &
`EDUCATIONAL FUND, INC.
`40 Rector St., 5th Floor
`New York, NY 10006
`(212) 965-2200
`nmerle@naacpldf.org
`
`*Counsel of Record
`
`
`
`
`
`
`
`
`DANIEL HARAWA
`Of Counsel
`NAACP LEGAL DEFENSE &
`EDUCATIONAL FUND, INC.
`700 14th St, NW Suite 600
`Washington, DC 20005
`
`Counsel for Amicus Curiae
`NAACP Legal Defense &
`Educational Fund, Inc
`
`October 4, 2019
`
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`i(cid:3)
`TABLE OF CONTENTS
`
`(cid:3)
`
`PAGE
`TABLE OF AUTHORITIES ...................................... ii
`INTERESTS OF AMICUS CURIAE ..........................1
`INTRODUCTION AND SUMMARY OF
`ARGUMENT ...............................................................3
`ARGUMENT ...............................................................7
`I. Respondents’
`Intentional
`Racial
`Discrimination Claim is Cognizable. ...................7
`(cid:3)(cid:3)
`A.(cid:3) Respondents’ Equal Protection Claim
`Challenges a General Policy Decision,
`Which Should be Reviewed Under the
`Arlington Heights Framework. ......................9
`B.(cid:3) Respondents’ Claim of Intentional
`Racial Discrimination Meets
`the
`“Outrageous” Requirement of AADC. ..........13
`II. The Lower Courts Correctly Concluded
`that Respondents Plausibly Alleged an
`Equal Protection Claim Under Arlington
`Heights. ............................................................... 17
`A.(cid:3) The Factors Supporting an Inference of
`Discrimination. ............................................. 18
`B.(cid:3) The Government Cannot Rely on Ipse
`to Defeat an Inference of
`Dixit
`Discrimination. ............................................ 23
`
`
`
`ii(cid:3)
`CONCLUSION .......................................................... 31
`(cid:3)
`(cid:3)
`
`
`
`iii(cid:3)
`TABLE OF AUTHORITIES
`
` PAGE(S)
`
`CASES
`Batalla Vidal v. Nielsen,
`279 F. Supp. 3d 401 (E.D.N.Y. 2018) ....................4
`Batalla Vidal v. Nielsen,
`291 F. Supp. 3d 260 (E.D.N.Y. 2018) .......... passim
`Bolling v. Sharpe,
`347 U.S. 497 (1955) .............................................. 14
`Brown v. Board of Education,
`347 U.S. 483 (1954) ................................................1
`Buck v. Davis,
`137 S. Ct. 759 (2017) ..............................................1
`CASA de Maryland, Inc. v. Trump,
`355 F. Supp. 3d 307 (D. Md. 2018) ...................... 21
`
`CASA de Maryland v. U.S. Dep’t of
`Homeland Sec.,
`284 F. Supp. 3d 758 (D. Md. 2018) ...................... 12
`
`Centro Presente v. U.S. Dep’t of Homeland
`Sec.,
`332 F. Supp. 3d 393 (D. Mass. 2018) .................. 21
`Chae Chan Ping v. United States,
`130 U.S. 581 (1889) .............................................. 16
`City of Greenwood v. Peacock,
`384 U.S. 808 (1966) .............................................. 14
`
`
`
`iv(cid:3)
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`
` PAGE(S)
`
`CASES
`City of Richmond v. J.A. Croson Co.
`488 U.S. 469 (1989) ................................................8
`Dep’t of Commerce v. New York,
`139 S. Ct. 2551 (2019) .................................... 29, 30
`
`Dep’t of Homeland Security v. Regents of the
`Univ. of Calif.
`(2019) (Nos. 18-587, 18-588, and 18-589) .............5
`Erickson v. Pardus,
`551 U.S. 89 (2007) ................................................ 27
`Humphrey’s Executor v. United States,
`295 U.S. 602 (1935) .............................................. 26
`Korematsu v. United States
`323 U.S. 214 (1944) ................................................8
`McCreary County v. ACLU of Ky.,
`545 U.S. 844 (2005) .............................................. 27
`Miller-El v. Dretke,
`545 U.S. 231 ......................................................... 15
`
`Nat’l Ass’n for the Advancement of Colored
`People v. U.S. Dep’t of Homeland Sec.,
`364 F. Supp. 3d 568 (D. Md. 2019) ...................... 21
`
`
`
`v(cid:3)
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`
` PAGE(S)
`
`CASES
`Nino v. Johhnson,
`No. 16-CV-2876, 2016 WL 6995563
`(N.D. Ill. Nov. 30, 2016) ....................................... 17
`U.S. ex rel Parco v. Morris,
`426 F. Supp. 976 (E.D. Pa 1977) ......................... 11
`Peña-Rodriguez v. Colorado,
`137 S. Ct. 855 (2017) ..............................................1
`Plessy v. Ferguson,
`163 U.S. 537 (1896) .......................................... 1, 15
`Ragbir v. Homan,
`923 F.3d 53 (2d Cir. 2019) ................................... 16
`Rajah v. Mukasey,
`544 F.3d 427 (2d Cir. 2008) ................................. 13
`Ramos v. Nielsen,
`336 F. Supp. 3d 1075 (N.D. Cal. 2018)................ 21
`
`Regents of Univ. of Calif. v. U.S. Dep’t of
`Homeland Sec.,
`279 F. Supp. 3d 1011 (N.D. Cal. 2018)..................4
`
`Regents of Univ. of Calif. v. U.S. Dep’t of
`Homeland Sec.,
`298 F. Supp. 3d 1304 (N.D. Cal. 2018)........ passim
`
`
`
`vi(cid:3)
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`
` PAGE(S)
`
`CASES
`
`Regents of the Univ. of Calif. v. U.S. Dep’t of
`Homeland Sec.,
`908 F.3d 476 (9th Cir. 2018) ........................ passim
`
`Reno v. American-Arab Anti-Discrimination
`Committee,
`525 U.S. 471, 488-91 (1999) ....................... 9, 10, 13
`Rose v. Mitchell,
`443 U.S. 545 (1979) .......................................... 8, 14
`Saget v. Trump,
`345 F. Supp. 3d 287 (E.D.N.Y. 2018) .................. 21
`Saget v. Trump,
`375 F. Supp. 3d 280 (E.D.N.Y. 2019) ............ 22, 26
`Texas v. United States,
`96 F. Supp. 3d 591 (S.D. Tex.), aff’d, 809
`F.3d 134 (5th Cir. 2015), aff’d, 136 S. Ct.
`2271 (2016) ........................................................... 28
`Trump v. NAACP,
`298 F. Supp. 3d 209 (D.D.C. 2018) ........................4
`United States v. Armstrong,
`517 U.S. 456 (1996) .............................................. 13
`
`
`
`vii(cid:3)
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`
` PAGE(S)
`
`CASES
`United States v. Locke,
`471 U.S. 84 (1985) ..................................................5
`
`Vill. of Arlington Heights v. Metro. Hous.
`Dev. Corp.,
`429 U.S. 252 (1977) .............................................. 18
`Washington v. Davis,
`426 U.S. 229 (1976) .............................................. 24
`Yick Wo v. Hopkins,
`118 U.S. 356 (1886) ................................................8
`STATUTES
`Act of July 14, 1870, ch. 254, §7, 16 Stat.
`254. ....................................................................... 15
`Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103. ............. 15
`Act of May 6, 1882 (Chinese Exclusion Act),
`ch. 126, 22 Stat. 58. ............................................. 16
`Administrative Procedure Act, 5 U.S.C. §
`551 et seq. ..............................................................4
`Immigration Act of 1917, ch. 29, § 3, 39
`Stat. 874. .............................................................. 16
`
`
`
`viii(cid:3)
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`
` PAGE(S)
`
`STATUTES
`Immigration Act of 1924, ch. 190, § 11(a),
`43 Stat. 153. ......................................................... 19
`
`OTHER AUTHORITIES
`A. Warner Parker, The Quota Provisions of
`the Immigration Act of 1924, 18 AM. J.
`INT’L L. 737 (1924).............................................. 19
`Bianca Quilantan & David Cohen, Trump
`tells Dem congresswomen: Go back
`where you came from, POLITICO (July
`14, 2019),
`https://www.politico.com/story/2019/07/1
`4/trump-congress-go-back-where-they-
`came-from-1415692. ............................................ 20
`Brief of Amicus Curiae NAACP Legal
`Defense and Educational Fund, Inc. In
`Support of Petitioners, Jean v. Nelson,
`472 U.S. 846 (1985) (No.84-5240), 1985
`WL 670075. ............................................................2
`
`
`
`ix(cid:3)
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`
` PAGE(S)
`
`OTHER AUTHORITIES
`Christopher Flavelle, Lisa Friedman, and
`Peter Baker, Commerce Chief
`Threatened Firings at NOAA after
`Trump’s Dorian Tweets, Sources Say,
`NY Times,
`https://www.nytimes.com/2019/09/09/cli
`mate/hurricane-dorian-trump-
`tweet.html (last updated Sept. 10, 2019) ............ 27
`David Sherfinski, Donald Trump: Protesters
`outside rally ‘thugs who were flying the
`Mexican flag,’ Wash. Times (May 25,
`2016) ..................................................................... 19
`Def.’s Suppl. Submission and Further Resp.
`to Pl.’s Post-Briefing Notices, James
`Madison Project v. Dep’t of Justice, No.
`1:17-cv-00144-APM, (D.D.C. Nov. 13,
`2017) .................................................................... 25
`Elizabeth Landers, White House: Trump’s
`Tweets are ‘Official Statements’, CNN
`(June 6, 2017),
`https://www.cnn.com/2017/06/06/politics/
`trump-tweets-official-
`statements/index.html. ........................................ 25
`
`
`
`x(cid:3)
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`
` PAGE(S)
`
`OTHER AUTHORITIES
`Josh Dawsey, Trump derides protections for
`immigrants from ‘shithole’ countries,
`Wash. Post (Jan. 12, 2018),
`https://www.washingtonpost.com/politics
`/trump-attacks-protections-for-
`immigrants-from-shithole-countries-in-
`oval-office-meeting/2018/01/11/bfc0725c-
`f711-11e7-91af-
`31ac729add94_story.html?utm_term=.b
`56f11cc896f. .......................................................... 20
`Jugal K. Patel, Trump Wants Big Changes
`to Legal Immigration, Too — How Big?,
`NY Times (Oct. 18, 2016),
`https://www.nytimes.com/interactive/20
`16/10/18/us/politics/trump-legal-
`immigration.html. ................................................ 19
`Karen Tumulty, President Trump isn’t a
`fan of dissent—inside or outside the
`government, Wash. Post (Feb. 1, 2017),
`https://www.washingtonpost.com/politics
`/president-trump-seeks-to-quash-
`dissent-inside-the-
`government/2017/02/01/788bdefa-e7ed-
`11e6-b82f-687d6e6a3e7c_story.html ................... 27
`
`
`
`xi(cid:3)
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`
` PAGE(S)
`
`OTHER AUTHORITIES
`Madeline Joung, What Is Happening at
`Migrant Detention Centers? Here’s What
`to Know, TIME,
`https://time.com/5623148/migrant-
`detention-centers-conditions/ (last
`updated July 12, 2019). ....................................... 22
` Mallory Shelbourne, Trump to Congress:
`‘Get ready to do your job” on DACA, The
`Hill (Sept. 5, 2017),
`https://thehill.com/homenews/administr
`ation/349173-trump-to-congress-get-
`ready-to-do-your-job-on-daca. .............................. 26
`Memorandum For Federal Prosecutors
`Along the Southwest Border from the
`Att’y Gen. Sessions to Fed. Prosecutors
`Along the Sw. Border (Apr. 6, 2018)
`(https://perma.cc/H5JB-LFG9) ............................ 23
`Memorandum from Att’y Gen. Sessions to
`Acting DHS Sec’y Duke (Sept. 5, 2017)
`(https://www.dhs.gov/sites/default/files/p
`ublications/17_0904_DOJ_AG-letter-
`DACA.pdf) ........................................................ 4, 26
`
`
`
`xii(cid:3)
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`
` PAGE(S)
`
`OTHER AUTHORITIES
`Memorandum from Janet Napolitano, Sec’y
`of Homeland Sec. to David V. Aguilar et
`al. (June 15, 2012)
`https://www.dhs.gov/sites/default/files/p
`ublications/s1-exercising-prosecutorial-
`discretion-individuals-who-came-to-us-
`as-children.pdf .......................................................3
`Michael Shear, Stoking Fears, Trump
`Defied Bureaucracy to Advance
`Immigration Agenda, NY Times (Dec.
`23, 2017),
`https://www.nytimes.com/2017/12/23/us/
`politics/trump-immigration.html. ....................... 20
`Sophie Tatum, Trump: I’ll ‘revisit’ DACA if
`Congress can’t fix in 6 months, CNN,
`https://www.cnn.com/2017/09/05/politics/
`donald-trump-revisit-daca/index.html
`(last updated Sept. 6, 2017). ................................ 26
`Stephen Collinson, The law or the
`President: The Trump appointees’
`dilemma, CNN (Apr. 9, 2019),
`https://www.cnn.com/2019/04/09/politics/
`donald-trump-kirstjen-nielsen-
`immigration/index.html. ...................................... 27
`
`
`
`xiii(cid:3)
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`
` PAGE(S)
`
`OTHER AUTHORITIES
`U.S. Dep’t of Justice, Office of Pub. Affairs,
`Attorney General Sessions Delivers
`Remarks on DACA (Sept. 5, 2017),
`https://www.justice.gov/opa/speech/attor
`ney-general-sessions-delivers-remarks-
`daca. ..................................................................... 28
`Z. Byron Wolf, The kiss of death in Trump’s
`cabinet is disagreeing with the boss,
`CNN,
`https://www.cnn.com/2018/04/03/politics/
`trump-cabinet-kiss-of-death/index.html
`(last updated Apr. 3, 2018) .................................. 27
`Z. Byron Wolf, Trump’s attacks on Judge
`Curiel are still jarring to read, CNN
`(Feb. 27, 2017),
`https://www.cnn.com/2018/02/27/politics/
`judge-curiel-trump-border-
`wall/index.html .................................................... 19
`
`
`
`xiv(cid:3)
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`
` PAGE(S)
`
`OTHER AUTHORITIES
`Zack Budryk, Trump’s renewed push for
`family separations led to Nielsen’s
`ouster: report, The Hill (Apr. 8, 2019),
`https://thehill.com/latino/437830-trump-
`has-pushed-to-resume-child-separations-
`for-months-report................................................. 26
`
`
`
`
`(cid:3)
`
`INTERESTS OF AMICUS CURIAE1
`Amicus NAACP Legal Defense and
`Educational Fund, Inc. (“LDF”) is a non-profit,
`non-partisan law organization established under the
`laws of New York to assist Black people and other
`people of color in the full, fair, and free exercise of
`their constitutional rights. Founded in 1940 under the
`leadership of Thurgood Marshall, LDF focuses on
`eliminating racial discrimination
`in education,
`economic
`justice, criminal
`justice, and political
`participation. For nearly eighty years, LDF has
`fought to enforce the constitutional guarantee of
`equal protection for all persons. LDF represented
`Black parents and their children in Brown v. Board of
`Education, 347 U.S. 483 (1954), the historic case that
`dismantled
`the
`“separate but equal” doctrine
`established under Plessy v. Ferguson, 163 U.S. 537
`(1896), which relegated Black people, by law, to a
`position inferior to white citizens. Today, LDF
`continues to work to combat discrimination and
`pernicious racial stereotyping against people of all
`backgrounds. In 2016, LDF argued Buck v. Davis, 137
`S. Ct. 759, 778 (2017), in which this Court condemned
`defense counsel’s introduction of the “toxin” of racial
`bias into Mr. Buck’s capital sentencing hearing. That
`same year, LDF also filed an amicus brief in Peña-
`Rodriguez v. Colorado, 137 S. Ct. 855, 868, 870 (2017),
`(cid:3)
`1 Pursuant to Supreme Court Rule 37.6, counsel for amicus
`curiae state that no counsel for a party authored this brief in
`whole or in part and that no person other than amicus curiae, its
`members, or its counsel made a monetary contribution to the
`preparation or submission of this brief. Pursuant to Supreme
`Court Rule 37.3, counsel for amicus curiae state that both
`parties have filed blanket consent to the filing of amicus briefs.
`
`(cid:3)
`
`
`
`2
`
`(cid:3)
`in which this Court recognized that a juror’s
`statements assigning pernicious racial stereotypes to
`a Mexican American defendant could,
`if
`left
`unchecked, result in the wrongful exercise of power by
`the State.
`Consistent with amicus curiae’s opposition to
`all forms of discrimination, LDF has a strong interest
`in ensuring that the federal government abides by
`fundamental equal protection principles in its policies
`related to immigrants. LDF filed an amicus brief in
`Jean v. Nelson, 472 U.S. 846 (1985), explaining that
`the Court of Appeals had misapplied this Court’s
`precedent in concluding that a federal immigration
`policy tainted by racial discrimination was not subject
`to judicial review.2 Most recently, in January 2018,
`LDF filed NAACP v. United States Department of
`Homeland Security, on behalf of organizational
`plaintiffs challenging on equal protection grounds the
`Department of Homeland Security’s decision to
`rescind Temporary Protected Status (“TPS”) for
`Haitians in the United States. No. 1:18-cv-00239-
`DKC (D. Md. Jan. 24, 2018).
`Amicus LatinoJustice PRLDEF, founded in
`1972 as the Puerto Rican Legal Defense & Education
`Fund, is a national not-for-profit civil rights legal
`defense fund that has advocated for and defended the
`constitutional rights and the equal protection of all
`Latinos under the law. LatinoJustice champions an
`equitable society through advancing Latinx civil
`engagement, cultivating leadership, and protecting
`civil rights and equality in the areas of criminal
`(cid:3)
`2 See Brief of Amicus Curiae NAACP Legal Defense and
`Educational Fund, Inc. In Support of Petitioners, Jean v. Nelson,
`472 U.S. 846 (1985) (No.84-5240), 1985 WL 670075 at *4.
`
`(cid:3)
`
`
`
`3
`
`(cid:3)
`fair
`employment,
`education,
`justice,
`rights,
`rights,
`language
`housing, immigrants’
`redistricting and voting
`rights. LatinoJustice
`vehemently opposes the Petitioner’s unlawful actions
`to rescind the Deferred Action for Childhood Arrivals
`(“DACA”) program, which has provided deferred
`status
`for thousands of Latinx students and
`DREAMers across the country. Thus, LDF and
`LatinoJustice have the experience and expertise to
`assist the Court in its review of this important case.
`INTRODUCTION AND
`SUMMARY OF ARGUMENT
`On June 15, 2012, then-Secretary of Homeland
`Security
`(“DHS”) Janet Napolitano
`issued a
`memorandum establishing the DACA program.3
`Under DACA, individuals who were brought to the
`United States as children and meet specific criteria
`may request deferred action for a period of two years,
`subject to renewal. DACA designees must undergo
`rigorous screening, including biometric screening and
`criminal background checks, in order to be eligible for
`the program. In establishing DACA, DHS recognized
`that there are “certain young people who were
`brought to this country as children and know only this
`country as home[,]” and that federal immigration
`laws are not “designed to remove productive young
`people to countries where they may not have lived or
`even speak the language.” DACA Memo. at 1-2. The
`
`(cid:3)
`3 Memorandum from Janet Napolitano, Sec’y of Homeland Sec.
`to David V. Aguilar et al. (June 15, 2012)
`https://www.dhs.gov/sites/default/files/publications/s1-
`exercising-prosecutorial-discretion-individuals-who-came-to-us-
`as-children.pdf [hereinafter DACA Memo].
`
`(cid:3)
`
`
`
`4
`
`(cid:3)
`program has allowed nearly 700,000 young people,
`mostly Latinos and persons of Mexican heritage, to
`come out of the shadows, study and work without fear
`of removal.
`On September 5, 2017, DHS abruptly
`rescinded DACA by announcing that it would cease to
`accept new applications. It also announced it would
`only issue renewals for grantees whose deferrals
`expire before March 5, 2018, and only if they applied
`for
`renewal within
`one month
`of DHS’s
`announcement.4 Respondents
`challenged
`the
`rescission of DACA under the Administrative
`Procedure Act (APA), 5 U.S.C. § 551 et seq., and on
`constitutional grounds. The district courts for the
`Northern District of California and Eastern District
`of New York denied in relevant part the Government’s
`motion
`to dismiss Respondents’ APA
`and
`constitutional claims, and those courts granted
`Respondents’ motions for a preliminary injunction
`based on their APA claims.5 In addition, the District
`of Columbia district court denied in relevant part the
`Government’s motion for summary judgment and
`vacated the rescission of DACA.6
`
`(cid:3)
`4 See Memorandum from Att’y Gen. Sessions to Acting DHS
`Sec’y Duke (Sept. 5, 2017)
`(https://www.dhs.gov/sites/default/files/publications/17_0904_D
`OJ_AG-letter-DACA.pdf) [hereinafter DACA Rescission Memo].
`5 See Regents of Univ. of Calif. v. U.S. Dep’t of Homeland Sec.,
`298 F. Supp. 3d 1304 (N.D. Cal. 2018); Batalla Vidal v. Nielsen,
`291 F. Supp. 3d 260 (E.D.N.Y. 2018); Regents of Univ. of Calif. v.
`U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal.
`2018); Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y.
`2018).
`6 See Trump v. NAACP, 298 F. Supp. 3d 209 (D.D.C. 2018).(cid:3)
`
`(cid:3)
`
`
`
`5
`
`Subsequently, the Ninth Circuit affirmed the
`California district court’s decision on the motion to
`dismiss and the preliminary injunction on APA
`grounds. Regents of the Univ. of Calif. v. U.S. Dep’t of
`Homeland Sec., 908 F.3d 476 (9th Cir. 2018). In a
`concurrence, Judge Owens explained that he would
`have held the APA claim to be not judicially
`reviewable, but that he would have remanded for
`consideration of whether the Plaintiffs’ equal
`protection claim would support a preliminary
`injunction, noting
`that
`the
`claim appeared
`“promising” based on the Plaintiffs’ allegations. Id. at
`523-24 (Owens, J., concurring).
`This Court granted certiorari on the questions
`of: (1) whether the DHS’s decision to terminate DACA
`is judicially reviewable; and if so (2) whether the
`decision to terminate DACA is lawful. Dep’t of
`Homeland Security v. Regents of the Univ. of Calif.
`(2019) (Nos. 18-587, 18-588, and 18-589).
`For the reasons stated by Respondents, the
`district
`courts
`correctly granted preliminary
`injunctions under the APA. Because those injunctions
`are supported by statutory grounds, this Court need
`not reach Respondents’ constitutional claims. See,
`e.g., United States v. Locke, 471 U.S. 84, 92 (1985).
`Nevertheless, because the Government has sought to
`limit judicial review of its racially discriminatory
`treatment of non-citizen U.S. residents, a response
`from amici is in order.
`The Government contends this case involves a
`“discriminatory-enforcement claim,” which it claims
`is “not cognizable in the immigration context.” Pet’rs’
`Aug. 19, 2019 Br. at 53 [hereinafter Pet’rs’ Br.]. Thus,
`according to the Government, the Administration’s
`
`(cid:3)
`
`(cid:3)
`
`
`
`6
`
`(cid:3)
`decision to rescind a program that protects from
`removal 700,000 persons brought to the United States
`as children is not subject to judicial scrutiny even if
`the rescission was motivated by racial animus. That
`is a breathtaking argument. It would mean the
`Article III courts could not review DACA’s rescission
`even if the Administration formally stated that the
`rescission was motivated by a desire to remove as
`many Latinos as possible from our country. Nor could
`the courts review an official federal policy to deport
`only non-citizens of color.
`That is not, and cannot be, the law. The Fifth
`Amendment protects all persons living in the United
`States. If the equal protection component of that
`Amendment means anything, it means that racial
`discrimination must not
`infect
`federal policy
`judgments about whether to deport hundreds of
`thousands of individuals who came to the United
`States as children. And, as LDF pointed out over 30
`years ago in Jean, and as this Court has recognized in
`other contexts, the harms from state-sponsored racial
`discrimination “extend[] beyond the direct victims” of
`the discrimination.7 Such discrimination “corrupt[s]
`our governmental
`institutions, stigmatize[s] all
`members of the disfavored group and incite[s] further
`discrimination.” Id. If unchecked by the courts, such
`discrimination will also undermine public confidence
`in the courts as neutral arbiters of the rule of law.
`The Government insists that, even if this claim
`is reviewable, Respondents have not stated an equal
`protection claim. In the Government’s view, this
`Court should ignore the facts that over ninety percent
`(cid:3)
`7 See Brief of Amicus Curiae NAACP Legal Defense and
`Educational Fund, Inc., supra note 2, at *9.(cid:3)
`
`(cid:3)
`
`
`
`7
`
`(cid:3)
`of DACA’s beneficiaries are Latino—the vast majority
`of whom are of Mexican heritage—and that the
`President has repeatedly made statements evincing
`his animus against Mexican and Latino immigrants.
`But this Court’s precedent does not authorize the
`Government to disregard facts because they are
`detrimental. Instead, the President’s alarming
`statements
`evincing
`animus
`against Latino
`immigrants and other immigrants of color; the
`influence he exerts over the members in his cabinet;
`the fact that the vast majority of DACA’s beneficiaries
`are Latino; and the unusual procedures employed by
`the Administration in rescinding DACA, all support
`an inference that the Administration’s rescission of
`DACA was motivated, at least in part, by racial
`discrimination. Therefore, to the degree this Court
`reaches
`the
`issue,
`it should recognize
`that
`Respondents’ equal protection claims are “promising,”
`as Judge Owens recognized. They are certainly
`plausible claims, the assertion of which was sufficient
`to defeat the Government’s motion to dismiss.
`ARGUMENT
`I.(cid:3) Respondents’
`Intentional
`Discrimination Claim is Cognizable.
`The United States has taken the position that
`Respondents’ equal protection challenge to the
`rescission of DACA is “not cognizable.”8 In essence,
`the Government argues that the Administration’s
`policy change, the impact of which falls almost
`completely on Latinos and individuals of Mexican
`heritage, cannot be reviewed by the judiciary for
`(cid:3)
`
`Racial
`
`8 Pet’rs’ Br. at 53.
`
`(cid:3)
`
`
`
`8
`
`(cid:3)
`discriminatory intent. That argument runs contrary
`to our most fundamental constitutional principles and
`to the rule of law itself. No principle is more sacred to
`our democracy than the prohibition on racial
`discrimination in federal government policy. See City
`of Richmond v. J.A. Croson Co. 488 U.S. 469, 501
`(1989) (citation omitted). The courts are tasked with
`ensuring that state-sponsored discriminatory policies
`are not allowed to stand.
`The Government attempts to create a category
`of cases that would be immune from equal protection
`review by courts: challenges to immigration policies.
`This has never been true. It is well established that
`equal protection “provisions are universal in their
`application, to all persons within the territorial
`jurisdiction, without regard to any differences of race,
`of color, or of nationality.” Yick Wo v. Hopkins, 118
`U.S. 356, 369 (1886). The country’s extensive history
`of racial classifications suggests
`that
`judicial
`deference to executive policies is not compatible with
`the constitutional promise of equal protection. See
`Korematsu v. United States 323 U.S. 214, 235-40
`(1944) (Murphy, J., dissenting).
`Though the executive has broad discretion in
`implementing immigration policy, that discretion is
`not so broad to allow the executive to engage in that
`which is “odious in all aspects,” Rose v. Mitchell, 443
`U.S. 545, 555 (1979), i.e., government-sponsored
`racial discrimination.
`(cid:3)
`
`
`
`(cid:3)
`
`
`
`9
`
`A. Respondents’ Equal Protection Claim
`Challenges a General Policy Decision,
`Which Should Be Reviewed Under the
`Arlington Heights Framework.
`The Government argues that Respondents’
`equal protection challenge is, in actuality, a selective-
`prosecution claim, and the race discrimination
`alleged by Respondents
`is not
`sufficiently
`“outrageous” to warrant review under the selective-
`prosecution standard. See Pet’rs’ Br. at 54. As each
`lower court to address the issue found, this argument
`is without merit. First, Respondents do not raise a
`selective-enforcement claim subject to a higher
`pleading standard, but instead raise an equal
`protection challenge
`to
`the executive’s policy
`judgment about how
`to apply
`the nation’s
`immigration laws, which should be analyzed under
`the Arlington Heights framework.(cid:3)Second, even if this
`were
`a
`selective-prosecution
`challenge,
`discrimination on the basis of race is the epitome of
`“outrageous” government conduct that presents a
`judicially cognizable claim.
`The Government’s argument relies on Reno v.
`American-Arab Anti-Discrimination Committee, in
`which this Court stated that selective-enforcement
`claims are rarely viable in the deportation context.
`525 U.S. 471, 488–91 (1999) [hereinafter AADC]. In
`that case, non-citizens claimed that, although they
`had violated the immigration laws, the Government
`had impermissibly targeted and chosen them for
`deportation because of their affiliation with an
`alleged terrorist group. The Court rejected their
`claims, noting that selective-enforcement defenses to
`
`(cid:3)
`
`(cid:3)
`
`
`
`10
`
`(cid:3)
`deportation proceedings are ill-suited for judicial
`review. See id. at 490–91.
`the DACA
`to
`Respondents’
`challenge
`rescission, however, is not raised “as a defense
`against [ ] deportation” and is not a claim of “selective
`enforcement.” Id. Further, as Respondents note, some
`of the plaintiffs in this case are states, and their
`claims plainly do not implicate selective enforcement
`principles. Br. of New York, et al. at 56. Therefore,
`the necessary predicate for the application of AADC’s
`heightened standard is not applicable, and its
`concerns about “invad[ing] a special province of the
`Executive” do not apply. Id. at 489.
`Respondent’s equal protection allegation is a
`freestanding
`claim
`that
`the Administration,
`motivated by race discrimination, made a sweeping
`policy decision
`to rescind protections
`to all
`approximately 700,000 immigrants brought here as
`children. It is not a challenge to a case-by-case
`decision made by DHS as to which immigrants should
`have their cases prosecuted and which should not, but
`a challenge that the Government has made a
`fundamental policy judgment about how to apply our
`nation’s immigration laws in a manner infected by
`racial discrimination. In short, the “substantial
`concerns that make the courts properly hesitant to
`examine” individual prosecutorial decisions do not
`obtain here. Id. at 490 (quoting Wayte v. United
`States, 470 U.S. 598, 607-08 (1985)).
`Indeed, key factors the AADC Court identified
`as making courts hesitant to review selective-
`prosecution claims have no application when, as here,
`the challenge is to a categorical (and public)
`government policy decision as to how to apply our
`
`(cid:3)
`
`
`
`11
`
`(cid:3)
`immigration laws. See id. (referring to the “strength
`of the case,” the “prosecution’s general deterrence
`value,” potentially “revealing the Government’s
`enforcement policy,” and the risk of chilling law
`enforcement by subjecting a prosecutor’s motives to
`outside inquiry, as reasons why courts should be
`hesitant in reviewing selective-enforcement claims).
`The Government’s argument that this is a case
`of prosecutorial “discretion” fails on the plain
`meaning of that word. Under the DACA policy
`“‘discretion’ was exercised favorably in all cases of a
`certain kind and then, after repeal of the regulation,
`unfavorably in each such case.” U.S. ex rel Parco v.
`Morris, 426 F. Supp. 976, 984 (E.D. Pa 1977). This is
`not discretion; it is a policy concerning a category of
`people. The DACA rescission may eventually lead to
`the prosecution and removal of undocumented
`immigrants, who may challenge the decision to
`prosecute their case in lieu of others, but that day is
`not today. Today, Respondents are challenging
`whether the Administration’s categorical decision to
`end a nationwide
`immigration program was
`motivated by race discrimination.
`The Government also makes the half-hearted
`suggestion
`that
`judicial
`review
`of
`the
`Administration’s discriminatory rescission of DACA
`would “‘[impact] foreign relations.’” Pet’rs’ Br. at 54
`(citation omitted). But the Government has never
`explained what
`“foreign relations”
`interest
`is
`implicated by judicial review of Respondents’ claim
`that the rescission of DACA was motivated by racial
`discrimination.
`In
`rescinding DACA,
`the
`Administration made no mention of foreign relations
`as a basis for its decision. Notably, this case does not
`
`(cid:3)
`
`
`
`12
`
`(cid:3)
`involve decisions about foreign nationals entering the
`United States; indeed, the only beneficiaries of DACA
`are longstanding residents of this country who have a
`Fifth Amendment right not to be subject to racial
`discrimination by the federal government.
`Each
`lower court correctly rejected the
`Government’s attempt to import AADC’s heightened
`selective prosecution standard
`to
`the DACA
`rescission.9 As one court explained, “Plaintiffs’ claims
`cannot
`fairly be
`characterized as
`selective-
`prosecution claims because they do not ‘implicate the
`Attorney General’s p