`
`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.,
`Respondents.
`
`_______________
`On Petition For A Writ Of Certiorari
`To The United States Court of Appeals
`For The Ninth Circuit
`_______________
`Brief in Opposition for Respondents Dulce Garcia,
`Miriam Gonzalez Avila, Saul Jimenez Suarez,
`Viridiana Chabolla Mendoza, Norma Ramirez,
`Jirayut Latthivongskorn, the County of Santa Clara,
`and Service Employees International Union Local 521
`_______________
`
`
`STUART F. DELERY
`MATTHEW S. ROZEN
`HALEY S. MORRISSON
`ANDREW J. WILHELM
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, D.C. 20036
`(202) 955-8500
`
`MARK D. ROSENBAUM
`JUDY LONDON
`PUBLIC COUNSEL
`610 South Ardmore Avenue
`Los Angeles, CA 90005
`(213) 385-2977
`
`
`THEODORE J. BOUTROUS, JR.
` COUNSEL OF RECORD
`ETHAN D. DETTMER
`KIRSTEN GALLER
`JONATHAN N. SOLEIMANI
`KELSEY J. HELLAND
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Avenue
`Los Angeles, CA 90071
`(213) 229-7000
`tboutrous@gibsondunn.com
`
`
`Counsel for Respondents Dulce Garcia, Miriam Gonzalez Avila,
`Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez,
`and Jirayut Latthivongskorn
`
`(Additional Counsel Listed on Inside Cover)
`
`
`
`
`
`
`
`LAURENCE H. TRIBE
`HARVARD LAW SCHOOL*
`1575 Massachusetts Avenue
`Cambridge, MA 02138
`(617) 495-1767
`
`LEAH M. LITMAN
`UNIVERSITY OF CALIFORNIA,
`IRVINE SCHOOL OF LAW*
`401 E. Peltason Drive
`Irvine, CA 92697
`(949) 824-7722
`
`
`
`LUIS CORTES ROMERO
`BARRERA LEGAL GROUP, PLLC
`19309 68th Avenue South,
`Suite R102
`Kent, WA 98032
`(253) 872-4730
`
`ERWIN CHEMERINSKY
`UNIVERSITY OF CALIFORNIA,
`BERKELEY SCHOOL OF LAW*
`215 Boalt Hall
`Berkeley, CA 94720
`(510) 642-6483
`
`
`Additional Counsel for Respondents Dulce Garcia, Miriam Gonzalez
`Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma
`Ramirez, and Jirayut Latthivongskorn
`
`
`*Affiliation for identification purposes only
`
`
`JAMES R. WILLIAMS
`GRETA S. HANSEN
`LAURA S. TRICE
`MARCELO QUIÑONES
`OFFICE OF THE COUNTY COUNSEL
`COUNTY OF SANTA CLARA
`70 West Hedding Street
`East Wing, Ninth Floor
`San Jose, CA 95110
`(408) 299-5900
`
`Counsel for Respondent County of
`Santa Clara
`
`
`
`STACEY M. LEYTON
`ERIC P. BROWN
`ALTSHULER BERZON LLP
`177 Post Street, Suite 300
`San Francisco, CA 94108
`(415) 421-7151
`
`Counsel for Respondents County
`of Santa Clara and Service Em-
`ployees International Union Local
`521
`
`
`
`
`
`
`
`QUESTIONS PRESENTED
`
`The Deferred Action for Childhood Arrivals
`(DACA) program enables nearly 700,000 undocu-
`mented individuals who were brought to the United
`States as children to live and work here without fear
`of deportation, so long as they play by the rules. In
`September 2017, the Acting Secretary of Homeland
`Security, on the advice of the Attorney General, ab-
`ruptly decided to terminate the program.
`Respondents brought suit to challenge that deci-
`sion. The district court granted respondents’ motion
`for a preliminary injunction and also denied the gov-
`ernment’s motion to dismiss for lack of jurisdiction.
`The court of appeals affirmed.
`The questions presented are:
`1. Whether either the Administrative Procedure
`Act (APA), 5 U.S.C. § 701(a)(2), or a particular provi-
`sion of the Immigration and Nationality Act (INA),
`8 U.S.C. § 1252(g), precludes judicial review of the
`Acting Secretary’s decision to terminate the DACA
`program.
`2. Whether the district court abused its discre-
`tion in entering a preliminary injunction, based on its
`conclusion that respondents are likely to succeed on
`the merits of their claim that the decision to end
`DACA was “arbitrary, capricious, an abuse of discre-
`tion, or otherwise not in accordance with law,” in vio-
`lation of the APA, 5 U.S.C. § 706(2)(A), and its balanc-
`ing of the equities.
`
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`Page
`OPINIONS BELOW .................................................... 2
`JURISDICTION .......................................................... 3
`STATEMENT .............................................................. 3
`REASONS FOR DENYING THE PETITION .......... 12
`A. Only One Court Of Appeals Has
`Considered The Questions Presented .......... 12
`B. The Decision Below Is Preliminary And
`Interlocutory And Would Not Present
`The Full Dispute ........................................... 17
`C. There Is No Urgent Need For This
`Court’s Review .............................................. 20
`D. The Government’s Merits Arguments
`Do Not Justify Review .................................. 25
`1. The Court Of Appeals Properly
`Affirmed The District Court’s
`Reviewability Determination ................ 26
`2. The Court Of Appeals Correctly
`Affirmed
`The
`Preliminary
`Injunction .............................................. 28
`CONCLUSION .......................................................... 35
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`
`
`Cases
`
`Page(s)
`
`Arizona v. Evans,
`514 U.S. 1 (1995) .................................................. 15
`
`Ashcroft v. ACLU,
`542 U.S. 656 (2004) .............................................. 17
`
`Batalla Vidal v. Duke,
`295 F. Supp. 3d 127 (E.D.N.Y. 2017) .................. 13
`
`Batalla Vidal v. Nielsen,
`279 F. Supp. 3d 401 (E.D.N.Y. 2018)
` ............................................................ 10, 14, 19, 23
`
`
`
`Beame v. Friends of the Earth,
`434 U.S. 1310 (1977) ............................................ 22
`
`Braxton v. United States,
`500 U.S. 344 (1991) .............................................. 25
`
`Brown v. Chote,
`411 U.S. 452 (1973) .............................................. 19
`
`Byrd v. United States,
`138 S. Ct. 1518 (2018) .......................................... 19
`
`Califano v. Sanders,
`430 U.S. 99 (1977) ................................................ 26
`
`Casa de Md. v. DHS,
`284 F. Supp. 3d 758 (D. Md. 2018) ............ 4, 13, 14
`
`
`
`iv
`
`Citizens to Pres. Overton Park, Inc. v.
`Volpe,
`401 U.S. 402 (1971) .............................................. 26
`
`DHS v. Regents of Univ. of Cal.
`138 S. Ct. 1182 (2018) ...................................... 9, 20
`
`Elonis v. United States,
`135 S. Ct. 2001 (2015) .......................................... 18
`
`Encino Motorcars LLC v. Navarro,
`136 S. Ct. 2117 (2016) .................................... 29, 32
`
`Gonzalez v. O Centro Espirita
`Beneficente Uniao do Vegetal,
`546 U.S. 418 (2006) .............................................. 21
`
`Heckler v. Chaney,
`470 U.S. 821 (1985) .............................................. 26
`
`INS v. St. Cyr,
`533 U.S. 289 (2001) .............................................. 26
`
`Martin v. Blessing,
`134 S. Ct. 402 (2013) ............................................ 25
`
`Mont. Air Chapter No. 29 v. Fed. Labor
`Relations Auth.,
`898 F.2d 753 (9th Cir. 1990) ................................ 11
`
`NAACP v. Trump,
`298 F. Supp. 3d 209 (D.D.C. 2018)
` ................... …………………9, 13, 14, 20, 27, 31, 32
`
`NAACP v. Trump,
`315 F. Supp. 3d 457 (D.D.C. 2018) .... 10, 14, 19, 33
`
`
`
`v
`
`NAACP v. Trump,
`321 F. Supp. 3d 143 (D.D.C. 2018) ................ 10, 23
`
`Nat’l Ass’n of Mfrs. v. Dep’t of Def.,
`138 S. Ct. 617 (2018) ............................................ 21
`
`Nat’l Treasury Emps. Union v. Horner,
`854 F.2d 490 (D.C. Cir. 1988) .............................. 27
`
`Reno v. Am.-Arab Anti-Discrimination
`Comm.,
`525 U.S. 471 (1999) .................................... 3, 27, 28
`
`Ruckelshaus v. Monsanto Co.,
`463 U.S. 1315 (1983) ............................................ 22
`
`SEC v. Chenery Corp.,
`332 U.S. 194 (1947) .............................................. 31
`
`Spears v. United States,
`555 U.S. 261 (2009) .............................................. 14
`
`Texas v. United States,
`328 F. Supp. 3d 662 (S.D. Tex. 2018)
` ...................................................... 13, 14, 24, 31, 32
`
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015) .......... 5, 15, 16, 28, 30
`
`Texas v. United States,
`136 S. Ct. 2271 (2016) ...................................... 5, 15
`
`In re United States,
`138 S. Ct. 443 (2017) .............................................. 6
`
`Va. Military Inst. v. United States,
`508 U.S. 946 (1993) .............................................. 17
`
`
`
`vi
`
`Volpe v. D.C. Fed’n of Civic Ass’ns,
`405 U.S. 1030 (1972) ............................................ 25
`
`Wong v. United States,
`373 F.3d 952 (9th Cir. 2004) ................................ 28
`
`Zivotofsky ex rel. Zivotofsky v. Clinton,
`566 U.S. 189 (2012) .............................................. 18
`
`Statutes
`
`5 U.S.C. § 701(a)(2) ............................................. 25, 26
`
`5 U.S.C. § 706(2)(A) ............................................... 6, 29
`
`6 U.S.C. § 202(5) .................................................... 3, 16
`
`8 U.S.C. § 1182(h) ...................................................... 16
`
`8 U.S.C. § 1182(i) ....................................................... 16
`
`8 U.S.C. § 1227(d)(2) ................................................... 3
`
`8 U.S.C. § 1229b ........................................................ 16
`
`8 U.S.C. § 1229c ......................................................... 16
`
`8 U.S.C. § 1252 .................................... 7, 16, 26, 27, 28
`
`8 U.S.C. § 1255 .......................................................... 16
`
`28 U.S.C. § 1254(1) ...................................................... 3
`
`28 U.S.C. § 1292(b) ...................................................... 9
`
`Rules
`
`Sup. Ct. R. 10(a) ........................................................ 12
`
`
`
`vii
`
`Sup. Ct. R. 11 ............................................................. 20
`
`Other Authorities
`
`Donald J. Trump (@realDonaldTrump),
`Twitter (Jan. 22, 2018, 8:30 p.m.),
`https://tinyurl.com/yajslj5l ................................... 24
`
`Exclusive: Trump Threatens
`Government Shutdown Over Border
`Wall Funding, Politico (Nov. 28,
`2018), https://tinyurl.com/ya6bsgpr .................... 25
`
`Interview by John Dickerson with
`Kirstjen Nielsen, Sec’y, Dep’t of
`Homeland Sec., “CBS This Morning”
`(Jan. 16, 2018), https://tinyurl.com/
`y8ekmzar .............................................................. 22
`
`Oversight of the United States
`Department of Homeland Security:
`Hearing before the S. Comm. on the
`Judiciary, 115th Cong. (2018) ............................. 22
`
`Pelosi Statement on Immigration
`Priorities (Dec. 1, 2018),
`https://tinyurl.com/y8ya2hz3 ............................... 24
`
`READ: President Trump’s Full
`Exchange With Reporters, CNN.com
`(Jan. 24, 2018) ................................................ 22, 24
`
`Remarks by President Trump in Press
`Conference After Midterm Elections
`(Nov. 7, 2018),
`https://tinyurl.com/y8ab6pjc ................................ 24
`
`
`
`1
`
`BRIEF IN OPPOSITION
`
`
`
`This case is about whether nearly 700,000 young
`adults who came to the United States as children and
`have lived their entire lives here will be subject to re-
`moval because the government decided to rescind the
`Deferred Action for Childhood Arrivals (DACA) pro-
`gram. Since 2012, DACA has allowed these individu-
`als, known as “Dreamers,” to obtain an education,
`work, and contribute to our Nation. The program has
`been an unqualified success, and DACA recipients
`have relied on the federal government’s repeated
`promises of protection from removal.
`In September 2017, the government reversed
`course and announced the termination of DACA. The
`Dreamers’ fate has captured the attention of the ad-
`ministration, Congress, and millions of Americans
`who worry about the devastating impact that termi-
`nating DACA will have on families, schools, commu-
`nities, and our economy.
`Respondents—including individual DACA recipi-
`ents whose stories “embod[y] the American Dream,”
`App. to U.S. Supp. Br. (Supp. App.) 5a—brought this
`lawsuit to challenge the government’s decision to end
`DACA. The district court entered a preliminary in-
`junction to freeze the DACA program in place, protect-
`ing the livelihood and well-being of the nearly 700,000
`current DACA recipients, while the courts determine
`whether the rescission was lawful. The court of ap-
`peals affirmed those rulings.
`This Court should deny review. The decision below
`is preliminary and interlocutory. Only one court of
`appeals has addressed the issue. That court was not
`presented with, and did not decide, all aspects of the
`
`
`
`2
`
`questions presented. Indeed, the government con-
`cedes there is no way to bring the full dispute before
`this Court without ignoring the appellate process and
`leapfrogging the court of appeals in two additional
`cases addressing similar, though not identical, chal-
`lenges to the decision to end DACA.
`This Court should reject this attempt to upset the
`normal appellate process. If the Court waited until
`next Term, there would likely be multiple appellate
`decisions addressing all the issues that the govern-
`ment asks this Court to review. Those decisions
`would substantially assist this Court.
`And there is no urgency here. The government
`cannot credibly claim it is being harmed by the pre-
`liminary injunction when it never sought a stay.
`DACA recipients contribute to society and have been
`carefully vetted. Their presence in this country while
`the courts determine their rights harms no one. Noth-
`ing about the merits warrants immediate review.
`This Court should not upset time-honored appellate
`procedures, especially when the President said that
`he supports allowing the Dreamers to remain in the
`country, and signaled willingness to work with Con-
`gress to achieve that widely-shared goal. The petition
`should be denied.
`OPINIONS BELOW
`The district court’s order granting respondents’
`motion for a preliminary injunction and denying the
`government’s motion to dismiss for lack of jurisdiction
`(Pet. App. 1a-70a) is reported at 279 F. Supp. 3d 1011.
`The district court’s order granting in part and denying
`in part the government’s motion to dismiss for failure
`to state a claim (Pet. App. 71a-90a) is reported at 298
`F. Supp. 3d 1304.
`
`
`
`3
`
`The decision of the court of appeals affirming the
`district court’s orders (Supp. App. 1a-87a) is reported
`at 908 F.3d 476.
`
`JURISDICTION
`The petition for a writ of certiorari before judg-
`ment was filed on November 5, 2018. The court of ap-
`peals entered judgment on November 8, 2018. The
`government filed a supplemental brief on November
`19, 2018, asking the Court to convert the petition into
`a petition for a writ of certiorari. This Court’s juris-
`diction is invoked under 28 U.S.C. § 1254(1).
`STATEMENT
`1. Deferred action is “a regular practice” in
`which the government elects not to seek removal of
`individuals “for humanitarian reasons or simply for
`its own convenience.” Reno v. Am.-Arab Anti-Discrim-
`ination Comm., 525 U.S. 471, 483-84 & n.8 (1999)
`(AADC). Congress has recognized this established
`practice in the Immigration and Nationality Act
`(INA). See 8 U.S.C. § 1227(d)(2); see also 6 U.S.C.
`§ 202(5).
`Over many decades, presidential administrations
`of both parties have used deferred action to permit
`certain categories of individuals to remain in the
`United States. Pet. App. 5a-8a. Deferred action pro-
`grams have become “a well-accepted feature of the
`[E]xecutive’s enforcement of our immigration laws.”
`Id. at 8a.
`In 2012, Secretary of Homeland Security Janet
`Napolitano established DACA. Pet. App. 9a. The pro-
`gram permits young people who were brought to the
`United States as children to lawfully live and work in
`this country. Id. Qualifying individuals may obtain
`work authorization and a social security number, and
`
`
`
`4
`
`travel overseas and lawfully return to the United
`States. Id. at 12a.
`DACA has allowed nearly 800,000 people to come
`out of the shadows and build productive and fulfilling
`lives in the United States. Compl. ¶ 128.1 Dreamers
`have relied on DACA’s promise to advance their edu-
`cation, serve in the U.S. military, start businesses,
`have families, and make many other life-changing de-
`cisions. Id. ¶¶ 37, 41, 48-98. Like so many other
`Dreamers, the individual respondents here—Dulce
`Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez,
`Norma Ramirez, and Jirayut Latthivongskorn—
`achieved remarkable success through hard work,
`fierce determination, and incredible resilience. Id.
`¶¶ 4, 6-9.2 Because of DACA, they have been able to
`pursue careers as lawyers, medical professionals, and
`teachers, advancing their commitment to serve their
`communities. Id. ¶¶ 53-55, 62-98. Without DACA,
`they will face possible deportation and risk losing
`their families, community connections, and liveli-
`hoods. Id. ¶¶ 48-49, 63, 76, 83, 91, 128.
`DACA enjoys widespread support from the public
`and from members of both political parties. “An over-
`whelming percentage of Americans”—up to 87 per-
`cent—“support protections for ‘Dreamers.’” Casa de
`Md. v. DHS, 284 F. Supp. 3d 758, 767, 779 (D. Md.
`2018). Hundreds of America’s most important busi-
`ness leaders signed a letter stating that the program
`is “vital to the future of our companies and our econ-
`omy.” Compl. ¶ 132. And political leaders including
`
` 1 “Compl.” refers to the complaint filed in Garcia v. United
`States, No. 3:17-cv-5380 (N.D. Cal. Sept. 18, 2017).
` 2 After the Complaint was filed in September 2017, Viridiana
`Chabolla Mendoza was granted Lawful Permanent Resident sta-
`tus.
`
`
`
`5
`
`Speaker of the House Paul Ryan and Senator Lindsay
`Graham have urged the government not to “pull the
`rug out” from Dreamers who relied on the program.
`Id. ¶¶ 41-47.
`2. The current administration originally sup-
`ported DACA and the Dreamers. In March 2017, Sec-
`retary of Homeland Security John Kelly stated that
`DACA embodies a “commitment … by the government
`towards … Dreamer[s].” Compl. ¶ 46 (first alteration
`in original). In April 2017, the President said that the
`“dreamers should rest easy” because the “policy of
`[his] administration [is] to allow the dreamers to
`stay.” Id. ¶ 47 (alterations in original).
`But on September 4, 2017, the administration re-
`versed course. Attorney General Jefferson B. Sessions
`III sent a one-page letter to Acting Secretary of Home-
`land Security Elaine Duke, stating that “DACA was
`effectuated by the previous administration through
`executive action, without proper statutory authority”
`and “was an unconstitutional exercise of authority by
`the Executive Branch.” Pet. App. 116a (internal quo-
`tation marks omitted). The following day, he an-
`nounced the decision to end DACA. As a reason, he
`cited the Fifth Circuit’s decision (affirmed by an
`equally divided Court) approving an injunction
`against a different deferred action program—De-
`ferred Action for Parents of Americans and Lawful
`Permanent Residents (DAPA). Dkt. 64-1 at 251 (cit-
`ing remarks referring to Texas v. United States, 809
`F.3d 134 (5th Cir. 2015), aff ’d, 136 S. Ct. 2271, 2272
`(2016) (per curiam) (Texas I)).3
`
`
` 3 “Dkt.” refers to the electronic docket for Regents of the Uni-
`versity of California v. DHS, No. 3:17-cv-05211 (N.D. Cal.).
`
`
`
`6
`
`Acting Secretary Duke issued a memorandum for-
`mally rescinding DACA. Pet. App. 17a. The memo-
`randum instructed the agency to stop approving new
`DACA applications and to allow individuals’ DACA
`status to expire beginning March 5, 2018. Id. at 117a-
`18a. Her reasoning was brief: Citing the “Supreme
`Court’s and the Fifth Circuit’s rulings [in Texas I], and
`the September 4, 2017 letter from the Attorney Gen-
`eral,” she concluded that the “program should be ter-
`minated.” Id. at 117a. The memorandum did not an-
`alyze “litigation risk” and did not weigh DACA’s wide-
`spread benefits against the many harms that would
`result if DACA were rescinded. Acting Secretary
`Duke also said—contrary to the President’s and prior
`Secretaries’ statements—that “DACA was fundamen-
`tally a lie.” Dkt. 121-2 at 1869.
`3. Respondents filed five related lawsuits chal-
`lenging the decision to rescind DACA. Respondents
`contend, inter alia, that DACA’s rescission (1) is un-
`lawful under the APA because it is “arbitrary, capri-
`cious, an abuse of discretion, or otherwise not in ac-
`cordance with law,” 5 U.S.C. § 706(2)(A); (2) violates
`the APA’s notice-and-comment rulemaking require-
`ment; (3) denies DACA recipients equal protection of
`the laws; and (4) deprives DACA recipients of consti-
`tutionally protected property and liberty interests in
`violation of due process. Pet. App. 19a-22a. Because
`DACA was to expire in March 2018, respondents re-
`quested a preliminary injunction. Dkt. 111.
`After an initial dispute about the administrative
`record (see In re United States, 138 S. Ct. 443 (2017)
`(per curiam)), the district court rejected the govern-
`ment’s arguments that no court can review the deci-
`sion to end DACA. Pet. App. 1a-70a; id. at 26a-33a.
`The court held that the Secretary’s decision is not
`
`
`
`7
`
`“committed to agency discretion by law” under the
`APA, 5 U.S.C. § 701(a)(2), because it is a “major policy
`decision” based on the agency’s “interpretation of the
`INA”—a “quintessential[ly]” reviewable legal ques-
`tion for which “there is law to apply.” Pet. App. 28a-
`30a. The court also held that 8 U.S.C. § 1252(g) does
`not bar judicial review, Pet. App. 30a-33a, because
`that provision applies only to the “three discrete deci-
`sions” named in the statute—decisions to “commence
`proceedings, adjudicate cases, or execute removal or-
`ders against any alien,” 8 U.S.C. § 1252(g)—and the
`decision to end DACA is none of those. Rather, it is
`an “across-the-board cancellation of a nationwide pro-
`gram” done “prior to the commencement of any re-
`moval proceedings.” Pet. App. 31a-32a.
`The district court granted preliminary injunctive
`relief. Pet. App. 41a-69a. It found respondents likely
`to succeed on their APA claim that DACA’s rescission
`is arbitrary and capricious because neither of the gov-
`ernment’s asserted reasons for ending DACA with-
`stood scrutiny. First, the court rejected the govern-
`ment’s argument that “the agency lacked authority to
`implement DACA.” Id. at 42a. Citing guidance from
`the Office of Legal Counsel—guidance on which the
`government itself has relied and has never repudi-
`ated—the court explained that DACA is a permissible
`exercise of the Executive’s broad immigration enforce-
`ment authority. Id. at 42a-43a. The court noted that
`“the government [had] ma[de] no effort” in this litiga-
`tion “to challenge any of the … reasons why DACA
`was and remains within the authority of the agency,”
`id. at 48a; it simply cited the Fifth Circuit’s decision
`in the DAPA case, which is distinguishable on multi-
`ple grounds, id. at 51a-52a.
`
`
`
`8
`
`Second, the district court rejected the govern-
`ment’s post hoc rationalization that litigation risk was
`a sufficient reason to end DACA. Pet. App. 55a-62a.
`The court explained that this was not the reason re-
`lied upon by the decision-makers: The Attorney Gen-
`eral’s stated reason for ending DACA was his belief
`that it is illegal, and the Acting Secretary’s memoran-
`dum relied on that determination, without separately
`“consider[ing] whether defending the program in
`court would (or would not) be worth the litigation
`risk.” Id. at 56a. The agency never assessed litigation
`risk or weighed it against countervailing benefits,
`such as “DACA’s programmatic objectives” and “the
`reliance interests of DACA recipients.” Id. at 58a.
`The agency’s about-face, without a reasoned explana-
`tion was a paradigmatic example of arbitrary and ca-
`pricious agency action. Id. at 60a-61a.
`The district court concluded that the equities
`strongly favor a preliminary injunction. Pet. App.
`62a-66a. The government “d[id] not dispute” that re-
`spondents—especially the individual DACA recipi-
`ents—will face irreparable injury absent temporary
`injunctive relief. Id. at 62a-63a. And the court con-
`cluded that the “public interest will be served by
`DACA’s continuation,” because the rescission would
`“result in hundreds of thousands of individuals losing
`their work authorizations and deferred action status,”
`tearing apart families and removing productive work-
`ers from the national economy. Id. at 65a.
`The preliminary injunction directs the government
`“to maintain the DACA program,” except that the gov-
`ernment need not accept new applications and foreign
`travel requests. Pet. App. 66a-67a. The government
`may exercise its discretion “on an individualized basis
`for each renewal application” and may “remove any
`
`
`
`9
`
`individual, including any DACA enrollee, who it de-
`termines poses a risk to national security or public
`safety, or otherwise deserves, in its judgment, to be
`removed.” Id. at 66a.
`The district court granted the government’s mo-
`tion to dismiss respondents’ notice-and-comment and
`rescission-based substantive due process claims, but
`denied the motion with respect to respondents’ sub-
`stantive APA, equal protection, and information-shar-
`ing-based substantive due process claims. Pet. App.
`71a-90a.
`4. The government appealed the preliminary in-
`junction order. Pet. App. 91a-95a. With permission
`from the district court and court of appeals, the gov-
`ernment and respondents each filed interlocutory ap-
`peals of the motion to dismiss order. See C.A. No. 18-
`15128, Dkt. 1; C.A. No. 18-15133, Dkt. 6; C.A. No. 18-
`15134, Dkt. 1; see also 28 U.S.C. § 1292(b). The gov-
`ernment did not seek—and never has sought—a stay
`of the preliminary injunction.
`Not content with the normal appellate process, the
`government filed a petition for a writ of certiorari be-
`fore judgment, which this Court denied. DHS v. Re-
`gents of Univ. of Cal., 138 S. Ct. 1182 (2018).
`5.
`In the meantime, another district court in the
`District of Columbia entered an order vacating the
`Acting Secretary’s memorandum rescinding DACA
`and giving the government 90 days to provide a “fuller
`explanation for the determination that the program
`lacks statutory and constitutional authority.” NAACP
`v. Trump, 298 F. Supp. 3d 209, 245 (D.D.C. 2018).
`The court stayed its order pending the government’s
`response. Id.
`
`
`
`10
`
`In response, Secretary of Homeland Security
`Kirstjen Nielsen issued a memorandum on June 22,
`2018, in which she “decline[d] to disturb” the Acting
`Secretary’s rescission decision because, in her view,
`that decision “was, and remains, sound.” Pet. App.
`121a. Her memorandum purported to offer “further
`explanation” for the rescission decision. Id.
`The district court in NAACP reaffirmed its deci-
`sion to vacate the rescission, concluding that Secre-
`tary Nielsen’s additional memorandum did not
`“meaningful[ly] elaborat[e]” on the initial memoran-
`dum. NAACP v. Trump, 315 F. Supp. 3d 457, 471-73
`(D.D.C. 2018). Consistent with the preliminary in-
`junction here, the NAACP court allowed its order to
`go into effect to the extent it required the government
`to continue processing renewal applications but
`stayed its order with respect to new applications. See
`NAACP v. Trump, 321 F. Supp. 3d 143, 150 (D.D.C.
`2018).
`6. Without waiting for the court of appeals, the
`government filed a second petition for a writ of certio-
`rari before judgment in this case, Pet. 15, and similar
`petitions in NAACP and a third similar case, Batalla
`Vidal v. Nielsen, 279 F. Supp. 3d 401, 421-33
`(E.D.N.Y. 2018). See U.S. Cert. Pets., Nos. 18-588, 18-
`589.
`The court of appeals affirmed in all key respects.
`U.S. Supp. Br. 2-7. Like every court that has consid-
`ered the question, the court of appeals concluded that
`the rescission is judicially reviewable. Supp. App.
`23a-45a. The court explained that the APA permits
`review of “an agency’s nonenforcement decision” that
`is “based solely on a belief that the agency lacked the
`lawful authority to do otherwise”: If the “agency head
`is mistaken in her assessment that the law precludes
`
`
`
`11
`
`one course of action,” the courts can correct that legal
`error. Id. at 27a-31a (citing Mont. Air Chapter No. 29
`v. Fed. Labor Relations Auth., 898 F.2d 753 (9th Cir.
`1990)). The court concluded that the INA permits re-
`view of “programmatic” decisions regarding deferred
`action “like the DACA rescission.” Id. at 43a.
`On the merits, the court of appeals agreed with the
`district court that the rescission was likely arbitrary
`and capricious because it was based on the govern-
`ment’s erroneous belief that the program was unlaw-
`ful. Supp. App. 35a-42a, 45a-57a. The court of ap-
`peals determined that Secretary Nielsen’s new mem-
`orandum was not properly before it, so any argument
`about it would have to be presented to the district
`court in the first instance. Id. at 57a n.24. The court
`cautioned, however, that the memorandum did not
`represent “fresh agency action” and that the govern-
`ment could not rely on “post-hoc rationalizations” for
`the decision to end DACA. Id. Noting that the gov-
`ernment had not challenged the district court’s weigh-
`ing of the equities, the court affirmed the preliminary
`injunction. Id. at 45a-46a, 58a-60a. The court also
`held that “plaintiffs’ equal protection claim is a sec-
`ond, alternative ground for affirming the entry of the
`injunction.” Id. at 77a n.31.
`The court also affirmed dismissal of respondents’
`notice-and-comment and rescission-based substantive
`due process claims and denial of the government’s mo-
`tion to dismiss respondents’ remaining claims. Supp.
`App. 61a-77a.
`Judge Owens concurred in the judgment. Supp.
`App. 79a-87a. In his view, the rescission is an “immi-
`gration enforcement decision[]” that is categorically
`“unreviewable” under the APA even if it rests on an
`incorrect view of the law. Id. at 81a. Judge Owens
`
`
`
`12
`
`nonetheless would have affirmed the preliminary in-
`junction based on respondents’ equal protection claim.
`Id. at 84a.
`7. After the court of appeals issued its decision,
`the government filed a supplemental brief in this
`Court seeking to convert its petition for certiorari be-
`fore judgment into a petition for certiorari. U.S. Supp.
`Br. 9.
`REASONS FOR DENYING THE PETITION
`The government asks this Court to intervene to de-
`cide a significant issue that the lower courts have not
`yet fully addressed. In this case, neither the district
`court nor the court of appeals has conclusively adjudi-
`cated respondents’ claims. And although five pending
`cases present the legal questions here, only one court
`of appeals has actually addressed some, but not all, of
`the issues the government wants this Court to ad-
`dress. Three other courts of appeals are considering
`the issue. There is no reason for this Court to ignore
`normal processes and grant review now. There is no
`harm to the government—it has never sought a stay
`of these rulings—as the decision below simply freezes
`DACA in place and allows the government to continue
`exercising its usual enforcement discretion. And
`there is a real prospect of a policy solution by the po-
`litical branches that would make this Court’s inter-
`vention unnecessary. The petition should be denied.
`A. Only One Court Of Appeals Has Considered
`The Questions Presented
`1. The Court ordinarily waits until the circuits
`have divided to decide an important legal question.
`Sup. Ct. R. 10(a). There is nothing even close to a cir-
`cuit split here.
`
`
`
`13
`
`Five relevant cases are pending: Regents of Univ.
`of Cal. v. DHS, No. 3:17-cv-05211 (N.D. Cal.); NAACP
`v. Trump, No. 1:17-cv-1907 (D.D.C.); Casa de Md. v.
`DHS, 8:17-cv-2942 (D. Md.); Batalla Vidal v. Nielsen,
`1:16-cv-4756 (E.D.N.Y.); Texas v. United States, 1:18-
`cv-68 (S.D. Tex.). Only one—this one—has been de-
`cided by a court of appeals. Appeals are pending in
`three others, and the courts are proceeding expedi-
`tiously to decide them.4 In the remaining case, which
`challenges the creation of DACA (not its rescission),
`the district court declined to issue a preliminary in-
`junction to stop the DACA program, Texas v. United
`States, 328 F. Supp. 3d 662, 740-42 (S.D. Tex. 2018)
`(“Texas II”); the States did not appeal that decision
`but instead are trying to obtain a final judgment,
`Joint Discovery/Case Management Plan at 6, Texas II,
`Dkt. 335.
`Thus, it is likel
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
