No. 18-587
`In the Supreme Court of the United States
`
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
`ET AL., PETITIONERS
`
`v.
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`
`ON PETITION FOR A WRIT OF CERTIORARI
`BEFORE JUDGMENT TO THE UNITED STATES
`COURT OF APPEALS FOR THE NINTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`BEFORE JUDGMENT
`
`NOEL J. FRANCISCO
`Solicitor General
`Counsel of Record
`JOSEPH H. HUNT
`Assistant Attorney
`General
`JEFFREY B. WALL
`Deputy Solicitor General
`HASHIM M. MOOPPAN
`Deputy Assistant Attorney
`General
`JONATHAN Y. ELLIS
`Assistant to the Solicitor
`General
`MARK B. STERN
`ABBY C. WRIGHT
`THOMAS PULHAM
`Attorneys
`
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`

`

`QUESTIONS PRESENTED
`
`This dispute concerns the policy of immigration en-
`forcement discretion known as Deferred Action for
`Childhood Arrivals (DACA). In 2016, this Court af-
`firmed, by an equally divided Court, a decision of the
`Fifth Circuit holding that two related Department of
`Homeland Security (DHS) discretionary enforcement
`policies, including an expansion of the DACA policy,
`were likely unlawful and should be enjoined. See
`United States v. Texas, 136 S. Ct. 2271 (per curiam). In
`September 2017, DHS determined that the original
`DACA policy was unlawful and would likely be struck
`down by the courts on the same grounds as the related
`policies. DHS thus instituted an orderly wind-down of
`the DACA policy. The questions presented are as follows:
`1. Whether DHS’s decision to wind down the DACA
`policy is judicially reviewable.
`2. Whether DHS’s decision to wind down the DACA
`policy is lawful.
`
`
`(I)
`
`

`

`PARTIES TO THE PROCEEDING
`Petitioners are the Donald J. Trump, President of
`the United States; Jefferson B. Sessions III, Attorney
`General of the United States; Kirstjen M. Nielsen, Sec-
`retary of Homeland Security; U.S. Department of Home-
`land Security; and the United States.
`Respondents are the Regents of the University of Cal-
`ifornia; Janet Napolitano, President of the University of
`California; the State of California; the State of Maine; the
`State of Maryland; the State of Minnesota; the City of San
`Jose; Dulce Garcia; Miriam Gonzalez Avila; Saul Jimenez
`Suarez; Viridiana Chabolla Mendoza; Norma Ramirez; Ji-
`rayut Latthivongskorn; the County of Santa Clara; and
`Service Employees International Union Local 521.
`
`(II)
`
`

`

`TABLE OF CONTENTS
`
`Page
`
`Opinions below .............................................................................. 1
`Jurisdiction .................................................................................... 2
`Statutory provisions involved ...................................................... 2
`Statement ...................................................................................... 2
`Reasons for granting the petition ............................................. 14
`I.
`The questions presented warrant this Court’s
`immediate review ......................................................... 15
`II. The decisions below are wrong ................................... 17
`A. DACA’s rescission is unreviewable under
`the APA .................................................................. 17
`B. DACA’s rescission is lawful .................................. 23
`1. The rescission is reasonable in light of
`DHS’s serious doubts about the legality of
`the DACA policy ............................................. 23
`2. The rescission is reasonable in light of
`DHS’s additional and independent policy
`concerns ........................................................... 27
`3. The rescission is reasonable in light of
`DHS’s correct determination that DACA
`is unlawful ........................................................ 28
`4. The rescission does not violate equal
`protection or due process ............................... 30
`III. The Court should grant certiorari before
`judgment in all three cases ......................................... 32
`Conclusion ................................................................................... 34
`Appendix A — District court order denying FRCP
` 12(b)(1) dismissal and granting
` provisional relief (Jan. 9, 2018) .................. 1a
`Appendix B — District court order granting in part
` defendants’ motion to dismiss under
` FRCP 12(b)(6) (Jan. 12, 2018) .................. 71a
`Appendix C — Notice of appeal (Jan. 16, 2018) .................. 91a
`Appendix D — Court of appeals order (Jan. 25, 2018) ....... 96a
`
`
`(III)
`
`

`

`IV
`
`Table of Contents—Continued:   Page
`
`Appendix E — Memorandum on Exercising
` Prosecutorial Discretion with Respect
` to Individuals Who Came to the United
` States as Children (June 15, 2012) .......... 97a
`Appendix F — Memorandum on Exercising
` Prosecutorial Discretion with Respect
` to Individuals Who Came to the United
` States as Children and with Respect to
` Certain Individuals Who Are the
` Parents of U.S. Citizens or Permanent
` Residents (Nov. 20, 2014) ....................... 102a
`Appendix G — Memorandum on Rescission of Deferred
` Action for Childhood Arrivals
` (Sept. 5, 2017) ........................................... 111a
`Appendix H — Memorandum from Secretary Kirstjen
` M. Nielsen (June 22, 2018) ..................... 120a
`Appendix I — Statutory provisions .................................. 127a
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`
`
`Arizona v. United States, 567 U.S. 387 (2012) ........... 2, 3, 19
`Bowman Transp., Inc. v. Arkansas-Best Freight
`Sys., Inc., 419 U.S. 281 (1974) ........................................... 24
`Casa de Maryland v. Department of Homeland Sec.,
`284 F. Supp. 3d 758 (D. Md. 2018) ...................................... 8
`Dames & Moore v. Regan, 453 U.S. 654 (1981) .................. 17
`FCC v. Fox Television Stations, Inc., 556 U.S. 502
`(2009) .................................................................................... 23
`Harlow v. Fitzgerald, 457 U.S. 800 (1982) .......................... 28
`Heckler v. Chaney, 470 U.S. 821 (1985) ...................... passim
`I.C.C. v. Brotherhood of Locomotive Eng’rs,
`482 U.S. 270 (1987)........................................................ 18, 21
`Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ..................... 22
`
`
`
`

`

`Cases—Continued:
`
`Page
`
`V
`
`Lincoln v. Vigil, 508 U.S. 182 (1993) ................................... 18
`Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
`Ins. Co., 463 U.S. 29 (1983) .................................... 23, 26, 29
`Reno v. American-Arab Anti-Discrimination
`Comm., 525 U.S. 471 (1999) .......................... 3, 19, 22, 30, 31
`Texas v. United States:
`86 F. Supp. 3d 591 (S.D. Tex.), aff  ’d,
`809 F.3d 134 (5th Cir. 2015), aff  ’d,
`136 S. Ct. 2271 (2016) .................................................. 5
`809 F.3d 134 (5th Cir. 2015), aff  ’d,
`136 S. Ct. 2271 (2016) .............................5, 6, 24, 25, 29
`Texas v. United States, No. 18-cv-68,
`2018 WL 4178970 (S.D. Tex. Aug. 31, 2018) ............... 16, 25
`Thunder Basin Coal Co. v. Reich, 510 U.S. 200
`(1994) .................................................................................... 22
`Trump v. Hawaii, 138 S. Ct. 2392 (2018) ............................ 31
`United States v. Armstrong, 517 U.S. 456
`(1996) ........................................................................ 19, 28, 30
`United States v. Nixon, 418 U.S. 683 (1974)....................... 17
`United States v. Texas, 136 S. Ct. 2271 (2016) ............... 6, 16
`Wayte v. United States, 470 U.S. 598 (1985) ...................... 20
`Youngstown Sheet & Tube Co. v. Sawyer,
`343 U.S. 579 (1952).............................................................. 17
`
`Constitution, statutes, regulation, and rules:
`
`
`
`U.S. Const.:
`Art. III .............................................................................. 31
`Amend. V (Due Process Clause) .................................... 30
`Administrative Procedure Act,
`5 U.S.C. 551 et seq. ................................................................ 5
`5 U.S.C. 701(a)(2) .................................... 9, 17, 18, 19, 127a
`5 U.S.C. 706(2)(A) .................................................. 23, 128a
`
`
`
`

`

`VI
`
`Statutes, regulation, and rules—Continued:
`
`Page
`
`Federal Food, Drug, and Cosmetic Act,
`21 U.S.C. 301 et seq. ............................................................ 20
`Immigration and Nationality Act,
`8 U.S.C. 1101 et seq. .............................................................. 2
`8 U.S.C. 1103(a)(1) ............................................................. 2
`8 U.S.C. 1158(b)(1)(A) ....................................................... 3
`8 U.S.C. 1182(a) (2012 & Supp. V 2017) .......................... 2
`8 U.S.C. 1227(a) (2012 & Supp. V 2017) .......................... 2
`8 U.S.C. 1229b .................................................................... 3
`8 U.S.C. 1252 .................................................9, 17, 21, 129a
`8 U.S.C. 1252(b)(9) ................................................ 22, 138a
`8 U.S.C. 1252(g) ..................................................... 21, 143a
`Railway Labor Act, 45 U.S.C. 151 et seq. ............................ 21
`Regulatory Flexibility Act, 5 U.S.C. 601 et seq. ............. 8, 12
`6 U.S.C. 202(5) (2012 & Supp. V 2017) ................ 3, 19, 28, 29
`28 U.S.C. 1254(1) ................................................................... 15
`28 U.S.C. 1292(b) ............................................................. 11, 12
`28 U.S.C. 2101(e) ................................................................... 16
`8 C.F.R. 274a.12(c)(14) ............................................................ 3
`Fed. R. Civ. P.:
`Rule 12(b)(1) .......................................................... 9, 10, 12
`Rule 12(b)(6) ................................................................ 9, 12
`Sup. Ct. R. 11 ......................................................................... 16
`
`Miscellaneous:
`
`
`
`S. 1291, 107th Cong., 1st Sess. (2001) .................................... 4
`S. 1545, 108th Cong., 1st Sess. (2003) .................................... 4
`S. 2075, 109th Cong., 1st Sess. (2005) .................................... 4
`S. 2205, 110th Cong., 1st Sess. (2007) .................................... 4
`S. 3827, 111th Cong., 2d Sess. (2010) ..................................... 4
`
`
`
`
`
`

`

`VII
`
`Miscellaneous—Continued:
`
`Page
`
`Stephen M. Shapiro et al., Supreme Court Practice
`(10th ed. 2013) ..................................................................... 17
`The White House, Remarks by the President on
`Immigration (June 15, 2012), https://go.usa.gov/
`xnZFY .................................................................................. 26
`U.S. Citizenship & Immigration Servs.,
`U.S. Dep’t of Homeland Sec.:
`Deferred Action for Childhood Arrivals:
`Frequently Asked Questions (Mar. 8, 2018),
`https://go.usa.gov/xngCd ........................................ 4, 5
`Frequently Asked Questions: Recession of
`DACA (Sept. 5, 2017), https://go.usa.gov/
`xPVmE ......................................................................... 7
`Guidance on Rejected DACA Requests
`(Feb. 14, 2018), https://go.usa.gov/xPVmG .......... 7, 31
`
`
`
`
`
`
`
`

`

`In the Supreme Court of the United States
`
`No. 18-587
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
`ET AL., PETITIONERS
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`
`v.
`
`ON PETITION FOR A WRIT OF CERTIORARI
`BEFORE JUDGMENT TO THE UNITED STATES
`COURT OF APPEALS FOR THE NINTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`BEFORE JUDGMENT
`
`The Solicitor General, on behalf of the United States
`Department of Homeland Security and other federal
`parties, respectfully petitions for a writ of certiorari be-
`fore judgment to the United States Court of Appeals for
`the Ninth Circuit.
`
`OPINIONS BELOW
`The order of the district court granting respondents’
`motion for a preliminary injunction and denying the
`government’s motion to dismiss under Federal Rule of
`Civil Procedure 12(b)(1) (App. 1a-70a) is reported at
`279 F. Supp. 3d 1011. The order of the district court
`granting in part and denying in part the government’s
`motion to dismiss under Rule 12(b)(6) (App. 71a-90a) is
`reported at 298 F. Supp. 3d 1304.
`
`(1)
`
`

`

`2
`
`JURISDICTION
`On January 9, 2018, the district court denied the gov-
`ernment’s Rule 12(b)(1) motion, entered a preliminary
`injunction, and certified its Rule 12(b)(1) decision for in-
`terlocutory appeal. On January 12, 2018, the district
`court granted in part and denied in part the govern-
`ment’s Rule 12(b)(6) motion and certified its decision for
`interlocutory appeal. The government filed a notice of
`appeal of both the January 9 and January 12 orders on
`January 16, 2018 (App. 91a-95a). The Ninth Circuit
`granted permission to appeal both the January 9 and
`January 12 orders on January 25, 2018. App. 96a. The
`court of appeals’ jurisdiction over the appeal of the pre-
`liminary injunction rests on 28 U.S.C. 1292(a)(1). The
`court of appeals’ jurisdiction over the appeal of the cer-
`tified rulings rests on 28 U.S.C. 1292(b). The jurisdic-
`tion of this Court is invoked under 28 U.S.C. 1254(1) and
`28 U.S.C. 2101(e).
`
`STATUTORY PROVISIONS INVOLVED
`Pertinent statutory provisions are set forth in the
`appendix to this petition. App. 127a-143a.
`
`STATEMENT
`1. a. The Immigration and Nationality Act (INA),
`8 U.S.C. 1101 et seq., charges the Secretary of Home-
`land Security “with the administration and enforce-
`ment” of the immigration laws. 8 U.S.C. 1103(a)(1). In-
`dividual aliens are subject to removal if, inter alia,
`“they were inadmissible at the time of entry, have been
`convicted of certain crimes, or meet other criteria set
`by federal law.” Arizona v. United States, 567 U.S. 387,
`396 (2012); see 8 U.S.C. 1182(a) (2012 & Supp. V 2017);
`see also 8 U.S.C. 1227(a) (2012 & Supp. V 2017). As a
`
`
`
`

`

`3
`
`practical matter, however, the federal government can-
`not remove every removable alien, and a “principal fea-
`ture of the removal system is the broad discretion exer-
`cised by immigration officials.” Arizona, 567 U.S. at 396.
`For any alien subject to removal, Department of
`Homeland Security (DHS) officials must first “decide
`whether it makes sense to pursue removal at all.” Ari-
`zona, 567 U.S. at 396. After removal proceedings begin,
`government officials may decide to grant discretionary
`relief, such as asylum or cancellation of removal. See
`8 U.S.C. 1158(b)(1)(A), 1229b. And, “[a]t each stage” of
`the process, “the Executive has discretion to abandon the
`endeavor.” Reno v. American-Arab Anti-Discrimination
`Comm., 525 U.S. 471, 483 (1999) (AADC). In making
`these decisions, like other agencies exercising enforce-
`ment discretion, DHS must engage in “a complicated
`balancing of a number of factors which are peculiarly
`within its expertise.” Heckler v. Chaney, 470 U.S. 821,
`831 (1985). Recognizing the need for such balancing,
`Congress has provided that the “Secretary [of Home-
`land Security] shall be responsible for * * * [e]stablish-
`ing national immigration enforcement policies and pri-
`orities.” 6 U.S.C. 202(5) (2012 & Supp. V 2017).
`b. In 2012, DHS announced the policy known as
`Deferred Action for Childhood Arrivals (DACA). See
`App. 97a-101a. Deferred action is a practice in which
`the Secretary exercises discretion to notify an alien of
`her decision to forbear from seeking his removal for a
`designated period. AADC, 525 U.S. at 484. Under DHS
`regulations, aliens granted deferred action may apply
`for and receive work authorization for the duration of
`the deferred-action grant if they establish economic ne-
`cessity. 8 C.F.R. 274a.12(c)(14). A grant of deferred
`
`
`
`

`

`4
`
`action does not confer lawful immigration status or pro-
`vide any defense to removal. DHS retains discretion to
`revoke deferred action unilaterally, and the alien re-
`mains removable at any time.
`DACA made deferred action available to “certain
`young people who were brought to this country as chil-
`dren.” App. 97a. The INA does not provide any exemp-
`tions or special relief from removal for such individuals.
`And, dating back to at least 2001, bipartisan efforts to
`provide such relief legislatively had failed.1 Under the
`DACA policy, following successful completion of a back-
`ground check and other review, an alien would receive
`deferred action for a period of two years, subject to re-
`newal. App. 99a-100a. The policy made clear that it
`“confer[red] no substantive right, immigration status or
`pathway to citizenship,” because “[o]nly the Congress,
`acting through its legislative authority, can confer these
`rights.” App. 101a.
`DHS explained that information provided in the
`DACA request process would be protected from disclo-
`sure for the purpose of immigration enforcement pro-
`ceedings unless certain criteria related to national secu-
`rity or public safety were satisfied, or the individual met
`the requirements for a Notice to Appear. USCIS, DHS,
`Deferred Action for Childhood Arrivals: Frequently
`Asked Questions (Mar. 8, 2018), https://go.usa.gov/xngCd.
`DHS also stated, however, that this information-sharing
`policy “may be modified, superseded, or rescinded at
`any time without notice,” and that it “may not be relied
`
`
`1 See, e.g., S. 1291, 107th Cong., 1st Sess. (2001); S. 1545,
`108th Cong., 1st Sess. (2003); S. 2075, 109th Cong., 1st Sess. (2005);
`S. 2205, 110th Cong., 1st Sess. (2007); S. 3827, 111th Cong., 2d Sess.
`(2010).
`
`
`
`

`

`5
`
`upon to create any right or benefit, substantive or pro-
`cedural, enforceable at law by any party in any admin-
`istrative, civil, or criminal matter.” Id. at 6.
`Later, in 2014, DHS created a new policy of enforce-
`ment discretion referred to as Deferred Action for Par-
`ents of Americans and Lawful Permanent Residents
`(DAPA). App. 102a-110a. Through a process expressly
`designed to be “similar to DACA,” DAPA made de-
`ferred action available for certain individuals who had a
`child who was a U.S. citizen or lawful permanent resi-
`dent. App. 107a. At the same time, DHS also expanded
`DACA by extending the deferred-action period from
`two to three years and by loosening the age and resi-
`dency criteria. App. 106a-107a.
`c. Soon thereafter, Texas and 25 other States
`brought suit in the Southern District of Texas to enjoin
`DAPA and the expansion of DACA. The district court
`issued a nationwide preliminary injunction, finding a
`likelihood of success on the claim that the DAPA and
`expanded DACA memorandum was a “ ‘substantive’
`rule that should have undergone the notice-and-
`comment rule making procedure” required by the Ad-
`ministrative Procedure Act (APA), 5 U.S.C. 551 et seq.
`Texas v. United States, 86 F. Supp. 3d 591, 671 (S.D.
`Tex. 2015); see id. at 607, 647, 664-678.
`The Fifth Circuit affirmed the injunction, holding
`that the DAPA and expanded DACA policies likely vio-
`lated both the APA and the INA. Texas v. United
`States, 809 F.3d 134, 146, 170-186 (2015). The court of
`appeals concluded that plaintiffs had “established a sub-
`stantial likelihood of success on the merits of their pro-
`cedural claim” that DAPA and expanded DACA were
`invalidly instituted without notice and comment. Id. at
`
`
`
`

`

`6
`
`178. The court also concluded, “as an alternate and ad-
`ditional ground,” that the policies were substantively
`contrary to law. Ibid. The court observed that the INA
`contains an “intricate system of immigration classifica-
`tions and employment eligibility,” and “does not grant
`the Secretary discretion to grant deferred action and
`lawful presence on a class-wide basis to 4.3 million oth-
`erwise removable aliens.” Id. at 184, 186 n.202. It also
`noted that Congress had repeatedly declined to enact
`legislation “closely resembl[ing] DACA and DAPA.”
`Id. at 185.
`After briefing and argument, this Court affirmed the
`Fifth Circuit’s judgment by an equally divided Court,
`United States v. Texas, 136 S. Ct. 2271, 2272 (2016) (per
`curiam), leaving the nationwide injunction in place.
`d. In June 2017, Texas and other plaintiff States in
`the Texas case announced their intention to amend their
`complaint to challenge the original DACA policy. D. Ct.
`Doc. 64-1, at 238-240 (Oct. 6, 2017).2 They asserted that
`“[f ]or the[] same reasons that DAPA and Expanded
`DACA’s unilateral Executive Branch conferral of eligi-
`bility for lawful presence and work authorization was
`unlawful, the original June 15, 2012 DACA memoran-
`dum is also unlawful.” Id. at 239.
`On September 5, 2017, rather than confront litiga-
`tion challenging DACA on essentially the same grounds
`that had succeeded in Texas before the same court for
`the DAPA and expanded DACA policies, DHS decided
`to wind down DACA in an orderly fashion. App. 111a-
`119a. In the rescission memorandum, then-Acting Sec-
`retary of Homeland Security Elaine Duke explained
`that, “[t]aking into consideration the Supreme Court’s
`
`2 Citations to the district court docket are to Regents of the Uni-
`versity of California v. DHS, No. 17-cv-5211.
`
`
`

`

`7
`
`and the Fifth Circuit’s rulings in the ongoing litigation,”
`as well as the Attorney General’s view that the DACA
`policy was unlawful and that the “potentially imminent”
`challenge to DACA would “likely * * * yield similar re-
`sults” as the Texas litigation, “it is clear that the June
`15, 2012 DACA program should be terminated.” App.
`116a-117a. The Acting Secretary accordingly an-
`nounced that, “[i]n the exercise of [her] authority in es-
`tablishing national immigration policies and priorities,”
`the original DACA memorandum was “rescind[ed].”
`App. 117a.
`The rescission memorandum stated, however, that
`the government “[w]ill not terminate the grants of pre-
`viously issued deferred action * * * solely based on the
`directives in this memorandum” for the remaining two-
`year periods. App. 118a. The memorandum also ex-
`plained that DHS would “provide a limited window in
`which it w[ould] adjudicate certain requests for DACA.”
`App. 117a. Specifically, DHS would “adjudicate—on an
`individual, case by case basis—properly filed pending
`DACA renewal requests * * * from current beneficiar-
`ies that have been accepted by the Department as of the
`date of this memorandum, and from current beneficiar-
`ies whose benefits will expire between the date of this
`memorandum and March 5, 2018 that have been ac-
`cepted by the Department as of October 5, 2017.” App.
`117a-118a.
`DHS has also made clear that the “information-
`sharing policy has not changed in any way since it was
`first announced, including as a result of the Sept. 5,
`2017” DACA rescission. USCIS, DHS, Guidance on Re-
`jected DACA Requests (Feb. 14, 2018), https://go.usa.gov/
`xPVmG (DHS Information-Sharing Guidance); see
`
`
`
`

`

`8
`
`USCIS, DHS, Frequently Asked Questions: Rescission
`of DACA (Sept. 5, 2017), https://go.usa.gov/xPVmE.
`e. Shortly after DHS’s decision to rescind DACA,
`respondents brought these five related suits in the
`Northern District of California challenging the rescis-
`sion of DACA. Collectively, they allege that the termi-
`nation of DACA is unlawful because it is arbitrary and
`capricious under the APA; violates the APA’s require-
`ment for notice-and-comment rulemaking as well as the
`Regulatory Flexibility Act, 5 U.S.C. 601 et seq.; denies
`respondents equal protection and due process; and per-
`mits the government to use information obtained through
`DACA in a manner inconsistent with principles of due
`process and equitable estoppel. See App. 21a-22a. Sim-
`ilar challenges were filed in the Eastern District of New
`York and in the District of Columbia. See, e.g., Batalla
`Vidal v. Nielsen, No. 16-cv-4756 (E.D.N.Y. filed Sept.
`19, 2017); NAACP v. Trump, No. 17-cv-1907 (D.D.C.
`filed Sept. 18, 2017). A summary of the proceedings in
`the Northern District of California (Regents) follows in
`this petition. A summary of the proceedings in the other
`district courts can be found in the government’s petitions
`in those cases, filed simultaneously with this one.3
`2. In Regents, the government filed the administra-
`tive record in October 2017. Litigation ensued in which
`respondents obtained orders from the district court di-
`recting a vast expansion of the administrative record, in
`addition to immediate discovery. See, e.g., D. Ct. Doc.
`79 (Oct. 17, 2017). The government sought review of
`
`
`3 The government largely prevailed in a similar challenge to the
`rescission filed in the District of Maryland. See Casa de Maryland
`v. Department of Homeland Sec., 284 F. Supp. 3d 758 (2018). An
`appeal of that decision is pending before the Fourth Circuit.
`
`
`

`

`9
`
`those orders in a mandamus petition in the court of ap-
`peals, which a divided panel of the Ninth Circuit denied.
`875 F.3d 1200 (2017). After granting a stay of the dis-
`trict court’s orders, 138 S. Ct. 371 (2017), this Court
`granted the government’s petition for a writ of certio-
`rari, vacated the Ninth Circuit’s judgment, and re-
`manded for further proceedings. 138 S. Ct. 443 (2017)
`(per curiam). On remand, the district court stayed its
`orders requiring expansion of the administrative record
`and authorizing discovery “pending further order.”
`D. Ct. Doc. 225, at 1 (Dec. 21, 2017).
`While the litigation over the record proceeded, the
`government filed a motion to dismiss all five suits under
`Federal Rule of Civil Procedure 12(b)(1) and (6). D. Ct.
`Doc. 114 (Nov. 1, 2017). At the threshold, the govern-
`ment argued that respondents’ claims are not reviewa-
`ble because DHS’s decision to rescind DACA is commit-
`ted to agency discretion by law, see 5 U.S.C. 701(a)(2);
`and because judicial review of the denial of deferred ac-
`tion, if available at all, is barred under the INA prior to
`the issuance of a final removal order, see 8 U.S.C. 1252.
`The government also argued that respondents’ arbitrary-
`and-capricious claims fail because DHS rationally ex-
`plained the decision to wind down the discretionary
`DACA policy given the Acting Secretary’s conclusion
`that the policy is unlawful and the imminent risk of its
`being invalidated in the Texas case. Finally, the gov-
`ernment argued that respondents’ other claims are
`without merit because the rescission of DACA is exempt
`from notice-and-comment requirements; does not vio-
`late principles of equal protection or due process; and
`does not change or affect the policies governing the use
`of aliens’ personal information.
`
`
`
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`

`10
`
`Respondents opposed the government’s motion to
`dismiss and filed a motion for a preliminary injunction,
`seeking to prevent the government from rescinding the
`DACA policy. D. Ct. Doc. 111 (Nov. 1, 2017); D. Ct. Doc.
`205 (Nov. 22, 2017).
`3. On January 9, 2018, the district court denied the
`motion to dismiss to the extent it was based on Rule
`12(b)(1), and entered a preliminary injunction requiring
`the government to “maintain the DACA program on a
`nationwide basis.” App. 66a; see App. 1a-70a.
`The district court first ruled that the rescission of
`DACA was not committed to agency discretion by law.
`The court acknowledged that an agency’s decisions “not
`to prosecute or initiate enforcement actions are gener-
`ally not reviewable as they are ‘committed to an agen-
`cy’s absolute discretion.’ ” App. 27a (quoting Chaney,
`470 U.S. at 831). But it concluded that the rescission of
`DACA was different because it involved a “broad en-
`forcement polic[y],” rather than an “ ‘individual enforce-
`ment decision’ ”; it rescinded a policy of enforcement
`discretion, instead of announcing a new one; and the
`“main” rationale for rescinding the prior policy was its
`“supposed illegality,” which the court concluded it was
`authorized to assess. App. 28a-30a (citation omitted).
`The court also concluded that the INA did not preclude
`review because “plaintiffs do not challenge any particu-
`lar removal but, rather, challenge the abrupt end to a
`nationwide deferred-action and work-authorization pro-
`gram.” App. 30a-31a.
`The district court then ruled that respondents were
`entitled to a preliminary injunction, concluding that
`they had demonstrated a likelihood of success on their
`claims that the rescission of DACA was arbitrary and
`capricious. App. 41a-62a. The court acknowledged that
`
`
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`

`11
`
`“a new administration is entitled to replace old policies
`with new policies so long as they comply with the law,”
`App. 2a, and the court did not dispute that DACA was a
`discretionary non-enforcement policy that was neither
`mandated nor specifically authorized by statute. It
`nonetheless concluded that respondents were likely to
`succeed because “the agency’s decision to rescind
`DACA was based on a flawed legal premise” and be-
`cause the government’s “supposed ‘litigation risk’ ra-
`tionale” was an invalid “post hoc rationalization” and,
`“in any event, arbitrary and capricious.” App. 42a.
`Finding that respondents had satisfied the remain-
`ing equitable requirements for an injunction, App. 62a-
`66a, the district court ordered the government, “pend-
`ing final judgment” or other order, “to maintain the
`DACA program on a nationwide basis on the same
`terms and conditions as were in effect before the rescis-
`sion on September 5, 2017.” App. 66a. The court spe-
`cifically directed that the government must “allow[]
`DACA enrollees to renew their enrollments.” Ibid.4
`The district court sua sponte certified its order for
`interlocutory appeal under 28 U.S.C. 1292(b), to the ex-
`
`
`4 The district court identified certain “exceptions” to its injunction
`—namely, “(1) that new applications from applicants who have
`never before received deferred action need not be processed;
`(2) that the advance parole feature need not be continued for the
`time being for anyone; and (3) that defendants may take adminis-
`trative steps to make sure fair discretion is exercised on an individ-
`ualized basis for each renewal application.” App. 66a-67a. The court
`also specified that “[n]othing in [its] order” would prohibit DHS
`from “remov[ing] any individual, including any DACA enrollee, who
`it determines poses a risk to national security or public safety, or
`otherwise deserves, in its judgment, to be removed.” App. 67a.
`
`
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`12
`
`tent it denied the “questions interposed by the govern-
`ment in its motion to dismiss under [Rule] 12(b)(1).”
`App. 70a.
`4. On January 12, 2018, the district court issued a
`further order granting in part and denying in part the
`government’s motion to dismiss to the extent it was
`based on Rule 12(b)(6). App. 71a-90a. The court de-
`clined to dismiss respondents’ arbitrary-and-capricious
`claims “[f ]or the same reasons” stated in its January 9
`order. App. 72a. It declined to dismiss the equal-
`protection claim, concluding that respondents’ allega-
`tions “raise a plausible inference that racial animus to-
`wards Mexicans and Latinos was a motivating factor in
`the decision to end DACA.” App. 87a; see App. 83a-87a.
`And it declined to dismiss the claim that DHS violated
`substantive due process by allegedly “chang[ing] its
`policy” on the use of personal information “provided by
`DACA recipients,” reasoning that such a change would
`“ ‘shock[] the conscience.’ ” App. 79a-81a (citation omit-
`ted). The court dismissed respondents’ remaining
`claims, including with respect to notice-and-comment,
`the Regulatory Flexibility Act, procedural due process,
`equitable estoppel, and equal protection based on a fun-
`damental right to a job. App. 72a-79a, 81a-83a, 87a. The
`court again sua sponte certified its order for interlocu-
`tory appeal pursuant to 28 U.S.C. 1292