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
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`SUPPLEMENTAL BRIEF FOR THE PETITIONERS
`
`
`
` NOEL J. FRANCISCO
`Solicitor General
`Counsel of Record
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`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
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`SUPPLEMENTAL BRIEF FOR THE PETITIONERS
`
`
`
` NOEL J. FRANCISCO
`Solicitor General
`Counsel of Record
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`Appendix — Court of appeals opinion (Nov. 8, 2018) ........... 1a
`
`
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`
`
`General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) ................. 9
`Gratz v. Bollinger, 537 U.S. 1044 (2002) ............................. 11
`Grutter v. Bollinger, 539 U.S. 306 (2003) ............................ 11
`Heckler v. Chaney, 470 U.S. 821 (1987) ................................. 2
`I.C.C. v. Brotherhood of Locomotive Eng’rs,
`482 U.S. 270 (1987)................................................................ 6
`Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
`Auto. Ins. Co., 463 U.S. 29 (1983) ...................................... 10
`Reno v. American-Arab Anti-Discrimination
`Comm., 525 U.S. 471 (1999) ................................................. 3
`Texas v. United States, 809 F.3d 134
`(5th Cir. 2015), aff ’d, 136 S. Ct. 2271 (2016) ................... 3, 4
`Trump v. Hawaii, 138 S. Ct. 2392 (2018) .............................. 6
`United States v. Booker, 543 U.S. 220 (2005) ..................... 11
`United States v. Fanfan, 542 U.S. 956 (2004)..................... 11
`United States v. Windsor :
`568 U.S. 1066 (2012) .......................................................... 8
`570 U.S. 744 (2013) ........................................................ 8, 9
`Village of Arlington Heights v. Metropolitan Hous.
`Dev. Corp., 429 U.S. 252 (1977) ........................................... 6
`
`Statutes and rules:
`
`
`
`Administrative Procedure Act, 5 U.S.C. 551
`et seq. ...................................................................................... 2
`
`
`
`
`(I)
`
`
`
`II
`
`Statutes and rules—Continued:
`
`Page
`
`Immigration and Nationality Act, 8 U.S.C. 1101
`et seq. ...................................................................................... 3
`8 U.S.C. 1252(b)(9) ............................................................ 3
`8 U.S.C. 1252(g) ................................................................. 3
`6 U.S.C. 202(5) (2012 & Supp. V 2017) ................................ 10
`28 U.S.C. 1254(1) ..................................................................... 8
`Fed. R. Civ. P.:
`Rule 12(b)(1) ...................................................................... 1
`Rule 12(b)(6) ...................................................................... 2
`Sup. Ct. R.
`Rule 10 ................................................................................ 7
`Rules 10-16 ......................................................................... 8
`Rule 10(c) ........................................................................... 8
`Rule 11 ................................................................................ 7
`Rule 15.8 ............................................................................. 1
`
`Miscellaneous:
`
`Stephen M. Shapiro et al., Supreme Court Practice
`(10th ed. 2013) ................................................................. 9, 11
`
`
`
`
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
`No. 18-587
`
`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
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`SUPPLEMENTAL BRIEF FOR THE PETITIONERS
`
`
`
`This supplemental brief, filed pursuant to Rule 15.8
`of this Court, brings to the Court’s attention the opinion
`of the court of appeals in these related cases, which was
`issued after the filing of the government’s petition for a
`writ of certiorari before judgment, and addresses its im-
`pact on the pending petition.
`1. On January 9, 2018, the district court entered a
`preliminary injunction requiring the Department of
`Homeland Security (DHS) to maintain its policy of im-
`migration enforcement discretion known as Deferred
`Action for Childhood Arrivals (DACA) for the pendency
`of these cases challenging the agency’s decision to re-
`scind the policy. Pet. App. 1a-70a. In the same order,
`the court granted in part and denied in part the govern-
`ment’s motion to dismiss under Federal Rule of Civil
`Procedure 12(b)(1) and certified the ruling for interloc-
`utory appeal. Pet. App. 69a-70a. On January 12, the
`
`(1)
`
`
`
`2
`
`court granted in part and denied in part the govern-
`ment’s Rule 12(b)(6) motion and again certified its deci-
`sion for interlocutory appeal. Id. at 71a-90a. The gov-
`ernment filed a timely notice of appeal, id. at 91a-95a,
`and, on January 25, the Ninth Circuit granted permis-
`sion to appeal both orders, id. at 96a. More than eight
`months later, on November 5, the government filed a pe-
`tition for a writ of certiorari before judgment in these
`cases to ensure that this Court could consider this im-
`portant dispute this Term.
`2. Three days later, the court of appeals affirmed the
`preliminary injunction and the orders resolving the gov-
`ernment’s motion to dismiss. App., infra, (App.) 1a-97a.
`a. The court of appeals first determined that DHS’s
`decision to rescind DACA is reviewable under the Ad-
`ministrative Procedure Act (APA), 5 U.S.C. 551 et seq.
`App. 23a-45a. The court acknowledged that an agency’s
`decision not to enforce “is a decision generally commit-
`ted to an agency’s absolute discretion.” App. 25a (quot-
`ing Heckler v. Chaney, 470 U.S. 821, 831 (1985)). But the
`court reasoned that “an agency’s nonenforcement deci-
`sion is outside the scope of the Chaney presumption” if
`it is “based solely on a belief that the agency lacked the
`lawful authority to do otherwise.” App. 29a. And the
`court determined that DACA’s rescission, as reflected in
`the initial rescission memorandum, rested exclusively on
`“a belief that DACA was unlawful,” not on concerns about
`maintaining the policy in the face of the then-ongoing lit-
`igation or any other exercise of the agency’s discretion.
`App. 35a; see App. 35a-42a. The court observed that the
`Acting Secretary did not use the words “litigation risk”
`or “discretion” in the memorandum and that the noted
`considerations—i.e., rulings in the ongoing litigation
`and the Attorney General’s advice—were “more readily
`
`
`
`
`
`3
`
`understood as supporting a legal conclusion (DACA is
`illegal) than a pragmatic one (DACA might be en-
`joined).” App. 35a-36a, 40a.
`b. The court of appeals also concluded that the Immi-
`gration and Nationality Act (INA), 8 U.S.C. 1101 et seq.,
`did not require that any challenge to the rescission be
`raised only at the behest of an individual alien after a final
`order of removal. App. 42a-45a. The court recognized
`that 8 U.S.C. 1252(g) was designed to “give some meas-
`ure of protection to ‘no deferred action’ decisions” by
`channeling any review of such decisions into the INA’s
`review scheme. App. 43a (quoting Reno v. American-
`Arab Anti-Discrimination Comm., 525 U.S. 471, 485
`(1999) (AADC)). But it reasoned that the protection
`reached only “individual ‘no deferred action’ deci-
`sions,” not a “programmatic shift like the DACA rescis-
`sion.” Ibid. And it concluded that 8 U.S.C. 1252(b)(9)
`only applies to claims seeking review of a final order of
`removal. App. 45a n.19.
`c. Turning to the merits, the court of appeals af-
`firmed the district court’s nationwide preliminary in-
`junction, reasoning that respondents were likely to suc-
`ceed on their arbitrary-and-capricious claim because
`DHS’s decision was based on an erroneous legal conclu-
`sion that DACA was unlawful. App. 45a-60a.
`The court of appeals acknowledged that the Fifth
`Circuit had held unlawful the related policies known as
`Deferred Action for Parents of Americans and Lawful
`Permanent Residents (DAPA) and expanded DACA.
`App. 49a, 55a (citing Texas v. United States, 809 F.3d 134
`(5th Cir. 2015), aff ’d, 136 S. Ct. 2271 (2016)). In the
`Ninth Circuit’s view, however, the Fifth Circuit had
`“concluded that DAPA conflicted with the INA largely
`for a reason that is inapplicable to DACA”—specifically,
`
`
`
`
`
`4
`
`that the INA provides “ ‘an intricate process for illegal
`aliens to derive a lawful immigration classification from
`their children’s immigration status.’ ” App. 51a-52a (cita-
`tion omitted). It reasoned that “there is no analogous
`provision in the INA defining how immigration status
`may be derived by undocumented persons who arrived
`in the United States as children.” App. 52a.
`Moreover, the court of appeals reasoned that, con-
`trary to the Fifth Circuit’s analysis, a deferred-action
`policy of DACA’s significance was not inconsistent with
`Congress’s enumeration of only “narrow classes of al-
`iens eligible for deferred action,” Texas, 809 F.3d at 179.
`See App. 53a-54a. The Ninth Circuit stated that, be-
`cause the statutory grants of deferred-action eligibility
`“were added to the statute books piecemeal over time,”
`no inference could be drawn about the permissibility of
`designating vastly larger classes of aliens. App. 53a.
`And it concluded that, in any event, DACA was not a
`policy of “economic and political” significance, because
`as of September 2017, DACA had only 689,000 partici-
`pants, while approximately 4.3 million aliens may have
`been eligible for DAPA. App. 54a (citation omitted).
`The court of appeals thus concluded that “DACA was
`a permissible exercise of executive discretion.” App.
`56a-57a. Because, in the Ninth Circuit’s view, DACA’s
`rescission was based entirely on DHS’s contrary belief,
`the court determined that respondents “are likely to
`succeed in demonstrating that the rescission must be
`set aside.” App. 57a. In a footnote, the court refused to
`consider the “impact, if any, on this case” of the June 22
`memorandum from current Secretary of Homeland Se-
`curity Kirstjen Nielsen “ ‘provid[ing] additional explana-
`tion of the basis for the DACA rescission,’ ” suggesting
`that the memorandum was an impermissible “ ‘post-hoc
`
`
`
`
`
`5
`
`rationalization[]’ ” for DHS’s decision that is not part of
`the record of this case and “leav[ing] it to the district
`court in the first instance to determine [its] admissibil-
`ity.” App. 57a-58a n.24 (citation omitted).
`d. The court of appeals also affirmed the resolution
`of the government’s motion to dismiss respondents’
`claims on the merits. App. 61a-78a. The court held that
`respondents’ notice-and-comment claim was correctly
`dismissed because DACA’s rescission was a “[g]eneral
`statement[] of policy * * * advis[ing] the public pro-
`spectively of the manner in which the agency proposes
`to exercise a discretionary power,” which is exempt from
`notice-and-comment procedures. App. 61a (citations and
`internal quotation marks omitted); see App. 61a-65a.
`And it further held that respondents’ due-process claim
`based on an asserted protected interest in indefinite
`DACA renewals was correctly dismissed because DHS
`had consistently stated that it retained discretion to ter-
`minate any grant of deferred action or the policy itself.
`App. 65a-68a.
`The court of appeals concluded, however, that the
`district court had correctly refused to dismiss respond-
`ents’ arbitrary-and-capricious claim, information-shar-
`ing policy claim, and equal-protection claim. App. 61a,
`68a-77a. The court of appeals reasoned that respond-
`ents’ arbitrary-and-capricious claim should not be dis-
`missed “[f ]or the reasons stated above in discussing [re-
`spondents’] likelihood of success” on that claim. App. 61a.
`As to the information-sharing policy claim, the court
`found that respondents plausibly alleged both a protected
`interest in DHS’s indefinite retention of its information-
`sharing policy and a change in that policy notwithstand-
`ing DHS’s public assurances to the contrary. App. 68a-
`
`
`
`
`
`6
`
`73a. The court concluded that such a change would
`“shock[] the conscience.” App. 73a (citations omitted).
`Finally, the court of appeals concluded that respond-
`ents plausibly alleged an equal-protection claim under
`the standard described in Village of Arlington Heights
`v. Metropolitan Housing Development Corp., 429 U.S.
`252, 265-267 (1977). App. 73a-77a. The court reasoned
`that respondents’ equal-protection claim does not “impli-
`cate the concerns motivating th[is] Court in AADC,”
`like “inhibiting prosecutorial discretion, allowing con-
`tinuing violations of immigration law, and impacting for-
`eign relations.” App. 75a-76a. And it distinguished
`Trump v. Hawaii, 138 S. Ct. 2392 (2018), on the grounds
`that respondents had provided more “evidence of dis-
`criminatory motivation, including the rescission order’s
`disparate impact on Latinos and persons of Mexican
`heritage, as well as the order’s unusual history.” App.
`76a-77a.
`e. Judge Owens concurred in the judgment. App.
`79a-87a. Judge Owens agreed with the majority’s affir-
`mance of the motion-to-dismiss rulings, but he disa-
`greed that the court “may review the rescission of
`DACA for compliance with the APA.” App. 79a. He ex-
`plained that this Court’s decision in I.C.C. v. Brother-
`hood of Locomotive Engineers, 482 U.S. 270 (1987)
`(BLE), “makes clear that when determining the scope
`of permissible judicial review, courts consider only the
`type of agency action at issue, not the agency’s reasons
`for acting.” App. 83a; see BLE, 482 U.S. at 283. He ob-
`served that DHS’s decision to “rescind a non-enforcement
`policy in the immigration context is the type of admin-
`istrative action” that this Court has recognized is “ ‘com-
`mitted to agency discretion by law.’ ” App. 79a-80a (cita-
`tion omitted). And he rejected the majority’s conclusion
`
`
`
`
`
`7
`
`that the court could still review DHS’s decision if it were
`based solely on DHS’s understanding of the INA, rea-
`soning that “BLE plainly prohibits [the court] from do-
`ing so.” App. 82a.
`Nevertheless, Judge Owens explained that he would
`affirm the preliminary injunction and remand for the
`district court to consider whether respondents’ equal-
`protection claim provides an alternative ground for en-
`joining the rescission. App, infra, 84a-85a. He acknowl-
`edged that respondents “did not seek a preliminary in-
`junction on their Equal Protection claim,” but he rea-
`soned that the court of appeals could “affirm an injunc-
`tion issued on legally erroneous grounds where remand
`for consideration of alternative grounds is warranted.”
`App. 84a. And he concluded that such consideration was
`warranted here. App. 86a.
`3. The court of appeals’ decision significantly strength-
`ens the argument for granting certiorari in these cases.
`The court of appeals affirmed the district court’s orders
`in every respect, and thus the cases continue to present
`both questions in the government’s petition. The Ninth
`Circuit’s analysis also largely echoes the reasoning of
`the district court, and it is therefore incorrect for largely
`the same reasons. See Pet. 17-31. Importantly, however,
`as a result of the court of appeals’ decision, the Court no
`longer needs to grant certiorari before judgment. The
`Court can now consider the present petition as one for
`certiorari after judgment and, if it grants the petition,
`review the judgment of the court of appeals. Accord-
`ingly, the petition need only satisfy the criteria for cer-
`tiorari under Rule 10, rather than the heightened stand-
`ard imposed by Rule 11. And there is little question that
`the court of appeals “has decided an important question
`
`
`
`
`
`8
`
`of federal law that has not been, but should be, settled
`by this Court.” Sup. Ct. R. 10(c).
`Although the government’s petition in these cases
`was filed as one for certiorari before judgment, the is-
`suance of the court of appeals’ intervening decision does
`not deprive the Court of the authority to grant it. If
`granted, the writ of certiorari would still be directed to
`the court of appeals, and this Court could still exercise
`jurisdiction pursuant to 28 U.S.C. 1254(1) (“Cases in the
`courts of appeals may be reviewed by the Supreme
`Court by * * * writ of certiorari granted upon the pe-
`tition of any party * * * before or after rendition of
`judgment or decree.”). This Court’s Rules do not estab-
`lish any additional requirements, other than inclusion of
`the court of appeals’ opinion (attached as an appendix
`to this brief ), for a petition for a writ of certiorari after
`judgment. See Sup. Ct. R. 10-16.
`Granting this petition would be consistent with the
`course of proceedings in United States v. Windsor,
`570 U.S. 744 (2013), the most analogous example of
`which the government is aware. In Windsor, the gov-
`ernment petitioned for a writ of certiorari before judg-
`ment. Before the Court considered that petition, how-
`ever, the court of appeals rendered its opinion. The gov-
`ernment then filed a supplemental brief, to which it at-
`tached a copy of the court of appeals’ opinion, request-
`ing that its petition be considered as a petition for a writ
`of certiorari after judgment. U.S. Supp. Br. at 7 & App.,
`Windsor, supra (No. 12-307).
`The Court granted certiorari in Windsor, 568 U.S.
`1066 (2012), over the opposition of another party to the
`proceedings, see Supp. Br. for Resp. Bipartisan Legal
`Advisory Grp. of the U.S. House of Representatives at
`10-12, Windsor, supra (No. 12-307), and reviewed the
`
`
`
`
`
`9
`
`court of appeals’ decision, 570 U.S. at 751-752. Although
`there was significant disagreement in that case about
`the government’s ability to petition for review of a deci-
`sion with which it agreed, see id. at 781-782 (Scalia, J.,
`dissenting), no Justice questioned the Court’s decision
`to grant a petition for a writ of certiorari filed before
`the court of appeals’ decision. The Court granted certi-
`orari in similar circumstances in General Electric Co. v.
`Gilbert, 429 U.S. 125 (1976). See Stephen M. Shapiro et
`al., Supreme Court Practice § 2.5, at 87 n.36 (10th ed.
`2013) (discussing procedures in Windsor and General
`Electric). The Court should likewise grant certiorari
`and review the court of appeals’ decision here.
`4. a. At the same time, the court of appeals’ decision
`also strengthens the case for granting certiorari before
`judgment in Trump v. National Ass’n for the Advance-
`ment of Colored People, No. 18-588 (filed Nov. 5, 2018)
`(NAACP).
`As noted, the Ninth Circuit concluded that DACA’s
`rescission was based solely on the unlawfulness of the
`policy, and it refused to consider the explanation con-
`tained in Secretary Nielsen’s June 22 memorandum, de-
`scribing the memorandum as post hoc rationalization.
`App. 35a, 57a n.24. Each of those steps was error. The
`initial rescission memorandum indicates that DHS’s de-
`cision was also based on the legal and practical implica-
`tions of maintaining the DACA policy in light of DHS’s
`concerns about its legality and the then-ongoing litiga-
`tion challenging DAPA and expanded DACA. See Pet.
`23-24; see also Pet. App. 117a (explaining that DACA
`“should be terminated,” not that it must). And the June
`22 memorandum contained a “further explanation” of
`why DHS’s decision to rescind DACA “was, and re-
`mains, sound,” Pet. App. 121a, by the official vested
`
`
`
`
`
`10
`
`with the responsibility for “[e]stablishing national im-
`migration enforcement policies and priorities,” 6 U.S.C.
`202(5) (2012 & Supp. V 2017). It is not irrelevant post
`hoc rationalization. See Motor Vehicle Mfrs. Ass’n v.
`State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (ex-
`plaining that “courts may not accept appellate counsel’s
`post hoc rationalizations for agency action,” but must
`consider only “the basis articulated by the agency itself ”).
`More important for present purposes, however, the
`court of appeals’ errors confirm that the Court should
`grant the government’s petition in NAACP. The govern-
`ment previously suggested that, by granting that peti-
`tion, the Court would eliminate any argument that Sec-
`retary Nielsen’s memorandum is not squarely before
`this Court and would bring directly before the Court the
`NAACP court’s consideration of the impact of that
`memorandum on the resolution of this dispute. See
`NAACP Pet. 15-17. The Ninth Circuit’s refusal to under-
`take that analysis strengthens the argument for following
`the government’s suggested approach.
`b. As for Nielsen v. Batalla Vidal, No. 18-589 (filed
`Nov. 5, 2018), the government’s petitions explained that
`the cases at issue there replicate, in many respects, the
`cases at issue here, and the district courts have thus far
`resolved the overlapping challenges to the rescission in
`a substantially similar manner. See Pet. 33; Batalla Vi-
`dal Pet. 16-17. The government previously suggested
`that the Court grant certiorari in both sets of cases to
`ensure that, if the Ninth Circuit had ruled for the gov-
`ernment on any of the claims the government had lost
`in Batalla Vidal, the Court would still be able to ad-
`dress any such claims in Batalla Vidal. Ibid. The Ninth
`Circuit’s blanket affirmance of the district court’s or-
`ders removes that possible complication and therefore
`
`
`
`
`
`11
`
`eliminates that reason for granting the government’s
`petition in Batalla Vidal.
`The Court may still wish to grant the Batalla Vidal
`petition to permit the parties in those cases to partici-
`pate in the Court’s consideration of the overlapping is-
`sues. At a minimum, however, the Court should hold
`the Batalla Vidal petition pending resolution of the
`government’s petitions in these cases and in NAACP to
`ensure that an order vacating the nationwide injunction
`in these cases would have immediate effect on the iden-
`tical injunction issued in the Batalla Vidal cases.
`c. Granting certiorari before judgment in one or
`both of the companion cases to ensure that the Court
`receives a comprehensive presentation of the relevant
`issues would be consistent with the Court’s past practice
`in similar circumstances. See, e.g., United States v.
`Fanfan, 542 U.S. 956 (2004) (No. 04-105) (granting certi-
`orari before judgment in companion case to United
`States v. Booker, 543 U.S. 220 (2005) (No. 04-104)); Gratz
`v. Bollinger, 537 U.S. 1044 (2002) (No. 02-516) (granting
`certiorari before judgment in companion case to Grutter
`v. Bollinger, 539 U.S. 306 (2003) (No. 02-241)); see also
`Shapiro § 2.4, at 86 (explaining that the Court has
`granted certiorari before judgment “not only in cases of
`great public emergency but also in situations where
`similar or identical issues of importance were already
`pending before the Court and where it was considered
`desirable to review simultaneously the questions posed
`in the case still pending in the court of appeals”). The
`Court should follow the same path here.
`
`* * * * *
`
`
`
`
`
`12
`
`For the foregoing reasons and those stated in the
`petition for a writ of certiorari, the petitions in these
`cases and in Trump v. National Ass’n for the Advance-
`ment of Colored People, No. 18-588 (filed Nov. 5, 2018),
`should be granted and the cases consolidated for this
`Court’s review. The petition in Nielsen v. Batalla Vidal,
`No. 18-589 (filed Nov. 5, 2018), should either also be
`granted and consolidated or, at a minimum, be held
`pending resolution of the other petitions and any fur-
`ther proceedings in this Court.
`
`Respectfully submitted.
`
`
`NOVEMBER 2018
`
`
`
` NOEL J. FRANCISCO
`Solicitor General
`
`
`
`
`
`
`
`APPENDIX
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`No. 18-15068
`D.C. No. 3:17-cv-05211-WHA
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA;
`JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS
`PRESIDENT OF THE UNIVERSITY OF CALIFORNIA,
`PLAINTIFFS-APPELLEES
`
`v.
`
`U.S. DEPARTMENT OF HOMELAND SECURITY;
`KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS
`ACTING SECRETARY OF THE DEPARTMENT OF
`HOMELAND SECURITY, DEFENDANTS-APPELLANTS
`
`
`No. 18-15069
`D.C. No. 3:17-cv-05235-WHA
`
`STATE OF CALIFORNIA; STATE OF MAINE; STATE OF
`MINNESOTA; STATE OF MARYLAND,
`PLAINTIFFS-APPELLEES
`
`v.
`
`U.S. DEPARTMENT OF HOMELAND SECURITY;
`KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS
`ACTING SECRETARY OF THE DEPARTMENT OF
`HOMELAND SECURITY; UNITED STATES OF AMERICA,
`DEFENDANTS-APPELLANTS
`
`
`
`
`
`
`
`
`(1a)
`
`
`
`2a
`
`
`
`No. 18-15070
`D.C. No. 3:17-cv-05329-WHA
`
`CITY OF SAN JOSE, PLAINTIFF-APPELLEE
`
`v.
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
`IN HIS OFFICIAL CAPACITY; KIRSTJEN NIELSEN,
`IN HER OFFICIAL CAPACITY AS ACTING SECRETARY
`OF THE DEPARTMENT OF HOMELAND SECURITY;
`UNITED STATES OF AMERICA, DEFENDANTS-APPELLANTS
`
`
`No. 18-15071
`D.C. No. 3:17-cv-05380-WHA
`
`DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL
`JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA;
`JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ,
`PLAINTIFFS-APPELLEES
`
`v.
`
`UNITED STATES OF AMERICA; DONALD J. TRUMP,
`IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE
`UNITED STATES; U.S. DEPARTMENT OF HOMELAND
`SECURITY; KIRSTJEN NIELSEN, IN HER OFFICIAL
`CAPACITY AS ACTING SECRETARY OF THE DEPARTMENT
`OF HOMELAND SECURITY, DEFENDANTS-APPELLANTS
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`3a
`
`
`
`No. 18-15072
`D.C. No. 3:17-cv-05813-WHA
`
`COUNTY OF SANTA CLARA; SERVICE EMPLOYEES
`INTERNATIONAL UNION LOCAL 521,
`PLAINTIFFS-APPELLEES
`
`v.
`
`DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS
`PRESIDENT OF THE UNITED STATES; JEFFERSON B.
`SESSIONS III, ATTORNEY GENERAL; KIRSTJEN NIELSEN,
`IN HER OFFICIAL CAPACITY AS ACTING SECRETARY OF
`THE DEPARTMENT OF HOMELAND SECURITY;
`U.S. DEPARTMENT OF HOMELAND SECURITY,
`DEFENDANTS-APPELLANTS
`
`
`No. 18-15128
`D.C. Nos. 3:17-cv-05211-WHA, 3:17-cv-05235-WHA,
`3:17-cv-05329-WHA, 3:17-cv-05380-WHA,
`3:17-cv-05813-WHA
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA;
`JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS
`PRESIDENT OF THE UNIVERSITY OF CALIFORNIA;
`STATE OF CALIFORNIA; STATE OF MAINE;
`STATE OF MINNESOTA; STATE OF MARYLAND;
`CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ
`AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA
`MENDOZA; JIRAYUT LATTHIVONGSKORN;
`NORMA RAMIREZ; COUNTY OF SANTA CLARA; SERVICE
`EMPLOYEES INTERNATIONAL UNION LOCAL 521,
`PLAINTIFFS-APPELLEES
`
`v.
`
`UNITED STATES OF AMERICA; DONALD J. TRUMP,
`IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED
`STATES; U.S. DEPARTMENT OF HOMELAND SECURITY;
`
`
`
`
`
`
`
`4a
`
`KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS
`ACTING SECRETARY OF THE DEPARTMENT OF
`HOMELAND SECURITY, DEFENDANTS-APPELLANTS
`
`
`No. 18-15133
`D.C. Nos. 3:17-cv-05211-WHA, 3:17-cv-05235-WHA,
`3:17-cv-05329-WHA, 3:17-cv-05380-WHA,
`3:17-cv-05813-WHA
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET
`NAPOLITANO, IN HER OFFICIAL CAPACITY AS
`PRESIDENT OF THE UNIVERSITY OF CALIFORNIA;
`STATE OF CALIFORNIA; STATE OF MAINE;
`STATE OF MINNESOTA; STATE OF MARYLAND;
`CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ
`AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA
`MENDOZA; JIRAYUT LATTHIVONGSKORN;
`NORMA RAMIREZ, PLAINTIFFS-APPELLANTS
`
`v.
`
`UNITED STATES OF AMERICA; DONALD J. TRUMP,
`IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED
`STATES; U.S. DEPARTMENT OF HOMELAND SECURITY;
`KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS
`ACTING SECRETARY OF THE DEPARTMENT OF
`HOMELAND SECURITY, DEFENDANTS-APPELLEES
`
`
`No. 18-15134
`D.C. Nos. 3:17-cv-05211-WHA, 3:17-cv-05235-WHA,
`3:17-cv-05329-WHA, 3:17-cv-05380-WHA,
`3:17-cv-05813-WHA
`
`DULCE GARCIA; MIRIAM GONZALEZ AVILA;
`SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA
`MENDOZA; NORMA RAMIREZ; JIRAYUT
`LATTHIVONGSKORN; COUNTY OF SANTA CLARA;
`SERVICE EMPLOYEES INTERNATIONAL UNION
`LOCAL 521, PLAINTIFFS-APPELLANTS
`
`
`
`
`
`
`
`
`
`5a
`
`v.
`
`UNITED STATES OF AMERICA; DONALD J. TRUMP,
`IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE
`UNITED STATES; U.S. DEPARTMENT OF HOMELAND
`SECURITY; KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY
`AS ACTING SECRETARY OF THE DEPARTMENT OF
`HOMELAND SECURITY, DEFENDANTS-APPELLEES
`
`
`Filed: Nov. 8, 2018
`
`
`Appeal from the United States District Court
`for the Northern District of California
`William Alsup, District Judge, Presiding
`
`
`OPINION
`
`
`
`Before: KIM MCLANE WARDLAW, JACQUELINE H.
`NGUYEN, and JOHN B. OWENS, Circuit Judges.
`
`Opinion by Judge WARDLAW; Concurrence by Judge
`OWENS
`
`WARDLAW, Circuit Judge:
`
`It is no hyperbole to say that Dulce Garcia embodies
`the American dream. Born into poverty, Garcia and
`her parents shared a San Diego house with other fami-
`lies to save money on rent; she was even homeless for a
`time as a child. But she studied hard and excelled
`academically in high school. When her family could
`not afford to send her to the top university where she
`had been accepted, Garcia enrolled in a local community
`college and ultimately put herself through a four-year
`university, where she again excelled while working full-
`
`
`
`
`
`6a
`
`
`
`time as a legal assistant. She then was awarded a scho-
`larship that, together with her mother’s life savings,
`enabled her to fulfill her longstanding dream of attend-
`ing and graduating from law school. Today, Garcia main-
`tains a thriving legal practice in San Diego, where she
`represents members of underserved communities in civil,
`criminal, and immigration proceedings.
`
`On the surface, Dulce Garcia appears no different
`from any other productive—indeed, inspiring—young
`American. But one thing sets her apart. Garcia’s par-
`ents brought her to this country in violation of United
`States immigration laws when she was four years old.
`Though the United States of America is the only home
`she has ever known, Dulce Garcia is an undocumented
`immigrant.
`
`Recognizing the cruelty and wastefulness of deport-
`ing productive young people to countries with which
`they have no ties, the Secretary of Homeland Security
`announced a policy in 2012 that would provide some
`relief to individuals like Garcia, while allowing our
`communities to continue to benefit from their contribu-
`tions. Known as Deferred Action for Childhood Arri-
`vals, or DACA, the program allows those noncitizens
`who unwittingly entered the United States as children,
`who have clean criminal records, and who meet various
`educational or military service requirements to apply
`for two-year renewable periods of deferred action—a
`revocable decision by the government not to deport an
`otherwise removable person from the country. DACA
`also allows recipients to apply for authorization to work
`in this country legally, paying taxes and operating in
`the aboveground economy. Garcia, along with hundreds
`
`
`
`
`
`7a
`
`
`
`of thousands of other young people, trusting the govern-
`ment to honor its promises, leapt at the opportunity.
`
`But after a change in presidential administrations, in
`2017 the government moved to end the DACA program.
`Why? According to the Acting Secretary of Homeland
`Security, upon the legal advice of the Attorney General,
`DACA was illegal from its inception, and therefore could
`no longer continue in effect. And after Dulce Garcia—
`along with other DACA recipients and affected states,
`municipalities, and organizations—challenged this con-
`clusion in the federal courts, the government adopted the
`position that its fundamentally legal determination that
`DACA is unlawful is unreviewable by the judicial branch.
`
`With due respect for the Executive Branch, we disa-
`gree. The government may not simultaneously both
`assert that its actions are legally compelled, based on
`its interpretation of the law, and avoid review of that
`assertion by the judicial branch, whose “province and
`duty” it is “to say what the law is.” Marbury v. Madi-
`son, 5 U.S. (1 Cranch) 137, 177 (1803). The govern-
`ment’s decision to rescind DACA is subject to judicial
`review. And, upon review, we conclude that plaintiffs
`are likely to succeed on their claim that the rescission
`of DACA—at least as justified on this record—is arbi-
`trary, capricious, or otherwise not in accordance with
`law. We therefore affirm the district court’s grant of
`preliminary injunctive relief.1
`
`
`
`
`
`
`1 We also affirm in part the district court’s partial grant and par-
`tial denial of the government’s motion to dismiss for failure to state
`a claim.
`
`
`
`
`
`
`
`8a
`
`I.
`
`A. History of Deferred Action
`
`The central benefit a
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