throbber
No. 18-587
`
`IN THE
`Supreme Court of the United States
`
`
`DEPARTMENT OF HOMELAND SECURITY, ET AL.,
`Petitioners,
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
`Respondents.
`
`ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
`STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
`
`
`BRIEF OF THE REGENTS OF THE UNIVERSITY OF
`CALIFORNIA, JANET NAPOLITANO, AND THE
`CITY OF SAN JOSÉ IN OPPOSITION
`
`Robert A. Long
`Counsel of Record
`Mark H. Lynch
`Alexander A. Berengaut
`Megan A. Crowley
`Ivano M. Ventresca
`James O. Strawbridge
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth Avenue, NW
`Washington, DC 20001
`(202) 662-6000
`Mónica Ramírez Almadani
`COVINGTON & BURLING LLP
`1999 Avenue of the Stars
`Los Angeles, CA 90067
`(424) 332-4800
`Counsel for The Regents of the University of California and Janet
`Napolitano
`(Additional Counsel Listed On Signature Page)
`
`
`Jeffrey M. Davidson
`David Watnick
`COVINGTON & BURLING LLP
`One Front Street
`San Francisco, CA 94111
`(415) 591-6000
`
`Charles F. Robinson
`Margaret Wu
`Sonya Sanchez
`University of California
`Office of the General Counsel
`1111 Franklin Street, 8th Floor
`Oakland, CA 94607
`(510) 987-9800
`
`
`
`

`

`QUESTIONS PRESENTED
`1. Whether 8 U.S.C. § 1252(g), which prohibits judi-
`cial review of decisions to “commence proceedings, ad-
`judicate cases, or execute removal orders” in individ-
`ual immigration cases, bars judicial review of a pro-
`grammatic decision by the Acting Secretary of the De-
`partment of Homeland Security to rescind the De-
`ferred Action for Childhood Arrivals (DACA) program.
`
`2. Whether the Acting Secretary’s decision to termi-
`nate the DACA program based on an assessment of its
`legality is a decision “committed to agency discretion
`by law” and therefore immune from judicial review
`under the Administrative Procedure Act.
`
`3. Whether the district court abused its discretion by
`issuing a tailored preliminary injunction enjoining as-
`pects of the rescission of DACA pending adjudication
`on the merits, considering (a) the likelihood that the
`rescission will be set aside as arbitrary and capricious
`under the Administrative Procedure Act; (b) the irrep-
`arable harm to DACA recipients and Respondents
`should the program be rescinded; and (c) the absence
`of countervailing equities given Petitioners’ stated
`support for DACA.
`
`
`
`
`
`

`

`
`
`ii
`
`TABLE OF CONTENTS
`
`
`
`II.
`
`
`QUESTIONS PRESENTED ....................................... i
`TABLE OF CONTENTS ............................................ ii
`TABLE OF AUTHORITIES ...................................... iv
`INTRODUCTION ....................................................... 1
`STATEMENT ............................................................. 2
`REASONS FOR DENYING THE PETITION ......... 14
`I.
`Immediate Review Is Not Warranted. .......... 14
`A.
`The Petition Presents No Legal
`Issue Warranting This Court’s
`Immediate Review. ............................. 15
`Petitioners Have Not Shown That
`Immediate Review Is Warranted. ...... 17
`The Decision Of The Court Of Appeals
`Is Correct. ...................................................... 24
`A.
`The Government Does Not
`Dispute That Three Of The Four
`Preliminary Injunction Factors
`Overwhelmingly Favor
`Respondents. ....................................... 24
`The Rescission Of DACA Is
`Subject To Judicial Review. ................ 24
`
`B.
`
`B.
`
`

`

`
`
`iii
`
`C.
`
`Respondents Are Likely To
`Prevail On The Merits Of Their
`APA Claims. ........................................ 31
`CONCLUSION ......................................................... 37
`
`
`
`
`
`
`
`
`

`

`
`
`iv
`
`TABLE OF AUTHORITIES
`
`Cases
`Ashcroft v. ACLU,
`542 U.S. 656 (2004) ........................................ 18, 21
`Batalla Vidal v. Duke,
`295 F. Supp. 3d 127 (E.D.N.Y. 2017) ............ 16, 28
`Batalla Vidal v. Nielsen,
`279 F. Supp. 3d 401 (E.D.N.Y.
`2018).. ................................................................... 10
`Batalla Vidal v. Nielsen,
`291 F. Supp. 3d 260 (E.D.N.Y. 2018) .................. 10
`Bowen v. Massachusetts,
`487 U.S. 879 (1988) .............................................. 26
`
`Bowen v. Michigan Acad. of Family
`Physicians,
`476 U.S. 667 (1986) ........................................ 26, 27
`
`Burlington Truck Lines, Inc. v. United
`States,
`371 U.S. 156 (1962) .............................................. 35
`Casa de Md. v. DHS,
`284 F. Supp. 3d 758 (D. Md. 2018) .......... 11, 16, 28
`
`Citizens for Responsibility and Ethics in
`Washington v. FEC,
`892 F.3d 434 (D.C. Cir. 2018) ........................ 17, 27
`
`
`
`

`

`
`
` v
`
`
`
`Citizens to Preserve Overton Park, Inc.
`v. Volpe,
`401 U.S. 402 (1971) ........................................ 16, 27
`Edison Elec. Inst. v. EPA,
`996 F.2d 326 (D.C. Cir. 1993) ........................ 17, 27
`Encino Motorcars, LLC v. Navarro,
`136 S. Ct. 2117 (2016) .......................................... 35
`FCC v. Fox Television Stations, Inc.,
`556 U.S. 502 (2009) ........................................ 34, 35
`
`Hamilton-Brown Shoe Co. v. Wolf Bros.
`& Co.,
`240 U.S. 251 (1916) .............................................. 17
`Heckler v. Chaney,
`470 U.S. 821 (1985) ...................................... passim
`
`ICC v. Brotherhood of Locomotive
`Engineers,
`482 U.S. 270 (1987) .............................................. 30
`In re Nielsen,
`No. 17-3345 (2d Cir. Dec. 27, 2017) ............. 7, 8, 18
`In re United States,
`875 F.3d 1200 (9th Cir.), judgment
`vacated, 138 S. Ct. 443 (2017) ......................... 7, 18
`INS v. St. Cyr,
`533 U.S. 289 (2001) .............................................. 26
`
`Int’l Union, United Mine Workers of Am.
`v. U.S. Dep’t of Labor,
`358 F.3d 40 (D.C. Cir. 2004) ................................ 34
`
`
`

`

`
`
`vi
`
`Jennings v. Rodriguez,
`138 S. Ct. 830 (2018) ............................................ 25
`Mach Mining, LLC v. EEOC,
`135 S. Ct. 1645 (2015) .......................................... 26
`Massachusetts v. EPA,
`549 U.S. 497 (2007) .................................. 27, 29, 31
`Montana Air Chapter No. 29 v. FLRA,
`898 F.2d 753 (9th Cir. 1990) .................... 12, 17, 27
`
`Motor Vehicle Mfrs. Ass’n of the U.S.,
`Inc. v. State Farm Mut. Auto. Ins.
`Co.,
`463 U.S. 29 (1983) ................................................ 33
`NAACP v. Trump,
`298 F. Supp. 3d 209 (D.D.C. 2018) .......... 10, 16, 28
`NAACP v. Trump,
`315 F. Supp. 3d 457 (D.D.C. 2018) ...................... 11
`NAACP v. Trump,
`321 F. Supp. 3d 143 (D.D.C. 2018) ...................... 21
`Negusie v. Holder,
`555 U.S. 511 (2009) ........................................ 26, 31
`
`Organized Vill. of Kake v. U.S. Dep’t of
`Agric.,
`795 F.3d 956 (9th Cir. 2015) (en
`banc) ..................................................................... 34
`
`Reno v. Am.-Arab Anti-Discrimination
`Comm.,
`525 U.S. 471 (1999) ...................................... passim
`
`
`

`

`
`
`vii
`
`SEC v. Chenery Corp.,
`318 U.S. 80 (1943) ................................................ 31
`SEC v. Chenery Corp.,
`332 U.S. 194 (1947) .............................................. 33
`Texas v. United States,
`328 F. Supp. 3d 662 (S.D. Tex. 2018) ...... 11, 16, 33
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015) ............................ 6, 32
`Webster v. Doe,
`486 U.S. 592 (1988) ........................................ 16, 18
`
`Weyerhaeuser Co. v. U.S. Fish &
`Wildlife Serv.,
`139 S. Ct. 361 (2018) ...................................... 27, 30
`
`Statutes
`5 U.S.C. § 701(a)(2) ........................................... passim
`5 U.S.C. § 702 ............................................................ 26
`5 U.S.C. § 706(2) ............................................ 26, 31, 32
`6 U.S.C. § 202(5) .................................................... 2, 31
`8 U.S.C. § 1103(a)(1) ................................................... 7
`8 U.S.C. § 1151 note .................................................... 3
`8 U.S.C. § 1154(a)(1)(D)(i)(II)................................ 3, 31
`8 U.S.C. § 1182(a)(9)(B)-(C) ........................................ 4
`
`
`
`

`

`
`
`viii
`
`8 U.S.C. § 1227(d)(2) ............................................. 3, 31
`8 U.S.C. § 1252(g) .............................................. passim
`
`Other Authorities
`8 C.F.R. § 212.5(f) ........................................................ 4
`8 C.F.R. § 274a.12(c)(14) ............................................. 4
`Sup. Ct. R. 10 ................................................. 15, 16, 19
`
`
`
`

`

`INTRODUCTION
`Petitioners ask this Court to review the Ninth Cir-
`cuit’s interlocutory order affirming a preliminary in-
`junction directed to the government’s decision to re-
`scind the Deferred Action for Childhood Arrivals
`(DACA) program, and to grant certiorari before judg-
`ment in two additional cases. While the importance of
`the DACA program may warrant this Court’s review
`at an appropriate time, now is not the time.
`First, the government has not shown that it is suf-
`fering significant harm that warrants immediate re-
`view by this Court. The district court’s preliminary in-
`junction operates to preserve a status quo that has ex-
`isted for six years. The government has made an indi-
`vidualized determination that each of the hundreds of
`thousands of immigrants who currently benefit from
`DACA does not present a risk of harm to national se-
`curity or the public, a determination the government
`remains free to revisit at any time based on new infor-
`mation. If the government were truly concerned about
`immediate harm caused by the preliminary injunc-
`tion, the appropriate course would have been to seek
`a stay, something the government chose not to do.
`Second, this case in its current posture is a poor
`vehicle to resolve the future of the DACA program.
`The court of appeals’ interlocutory decision affirms
`the grant of a preliminary injunction, and the govern-
`ment has not contested that three of the four prelimi-
`nary injunction factors—irreparable harm, balance of
`equities, and public interest—overwhelmingly favor
`the issuance of an injunction. This case also includes
`constitutional claims that must be resolved to decide
`
`
`
`
`
`

`

`
`
` 2
`
`
`
`this dispute. Review by this Court at this interlocu-
`tory juncture would risk being superseded by new
`facts and evidence, particularly in view of lower court
`determinations, not addressed by the Ninth Circuit’s
`interlocutory order, that the government has pro-
`duced an incomplete administrative record.
`Third, there is no circuit split. The government
`seeks review of the only appellate decision to date.
`Three additional courts of appeals will likely rule on
`the lawfulness of the DACA rescission in 2019.
`Fourth, the government has failed to present a
`question of law that warrants this Court’s review in
`the absence of a circuit split. Instead, it argues that
`the Ninth Circuit misapplied established legal stand-
`ards to the facts of this case.
`For these reasons, the Court should deny the peti-
`tions for certiorari.
`
`STATEMENT
`1. a. Since 1956, every presidential administration
`has exercised its authority to set “national immigra-
`tion enforcement policies and priorities” by adopting
`deferred action programs that protect certain catego-
`ries of otherwise removable immigrants from deporta-
`tion. 6 U.S.C. § 202(5); SER265-66 (summarizing 17
`pre-DACA deferred action programs).1 These pro-
`grams recognize that the government lacks sufficient
`
`1 “ER” and “SER” refer to the Ninth Circuit Excerpts and Sup-
`plemental Excerpts of Record. 18-15068 Ct. App. Dkts. 32-1–32-
`3; 45–45-5. “Dkt.” refers to docket entries in the district court,
`
`
`
`

`

`
`
` 3
`
`
`
`resources to “enforce all of the [immigration] rules and
`regulations presently on the books,” and that “[i]n
`some situations, application of the literal letter of the
`law would simply be unconscionable and would serve
`no useful purpose.” SER1215. The legality of such pro-
`grams was commonly accepted, none was challenged
`in court, and Congress recognized deferred action in
`several amendments to the Immigration and Nation-
`ality Act (INA). See, e.g., 8 U.S.C. § 1227(d)(2) (U visa
`and T visa applicants are eligible for “deferred ac-
`tion”); id. § 1154(a)(1)(D)(i)(II) (petitioners under the
`Violence Against Women Act are eligible for “deferred
`action and work authorization”); id. § 1151 note (cer-
`tain immediate family members of certain United
`States citizens “shall be eligible for deferred action”).
`In 2012, the Department of Homeland Security
`(DHS) established the DACA program. Pet. App. 97a-
`101a. Under DACA, “certain young people who were
`brought to this country as children and know only this
`country as home” are eligible to apply for discretion-
`ary relief from removal if they (1) came to the United
`States under the age of sixteen; (2) have continuously
`resided in the United States since June 15, 2007, and
`were present in the United States on June 15, 2012,
`and on the date they requested DACA; (3) are in
`school, have graduated from high school, have ob-
`tained a GED, or have been honorably discharged
`from the United States military or Coast Guard; (4) do
`not have a significant criminal record and are not a
`threat to national security or public safety; (5) were
`
`Regents of the University of California v. DHS, No. 17-cv-5211
`(N.D. Cal.). “AR” refers to the administrative record filed by the
`government in the district court. Dkt. 64-1.
`
`
`

`

`
`
` 4
`
`
`
`under the age of 31 as of June 15, 2012; and (6) do not
`have lawful immigration status. Id. at 97a-98a. Eligi-
`ble applicants, who are evaluated on a case-by-case
`basis, are required to provide the government with
`sensitive personal information, including their home
`address and fingerprints, submit to a rigorous DHS
`background check, and pay a substantial application
`fee. SER1308, SER1325-26, SER1328.
`Since 2012, nearly 800,000 young people have re-
`ceived deferred action under DACA, which confers
`life-changing benefits, including freedom from depor-
`tation, to each recipient that complies with the condi-
`tions of the program. ER78. Once DACA is granted,
`recipients may, pursuant to preexisting regulations,
`obtain employment authorization and social security
`numbers. See 8 C.F.R. § 274a.12(c)(14); Dkt. 111 at
`16. In addition to permitting recipients to work le-
`gally—a benefit that has resulted in a 91% employ-
`ment rate among recipients and permitted DACA re-
`cipients to support their families, Dkt. 111 at 23—
`these documents unlock access to other important
`benefits, including driver’s licenses, medical insur-
`ance, and tuition benefits. See id. at 17. Moreover,
`DACA recipients do not accrue “unlawful presence”
`for purposes of the INA’s re-entry bars, see 8 U.S.C.
`§ 1182(a)(9)(B)-(C), and receive favorable considera-
`tion for advance parole, allowing them to lawfully
`travel abroad and return to the United States, see 8
`C.F.R. § 212.5(f).
`b. Prior to September 2017, when the government
`announced its decision to rescind DACA, no court had
`deemed DACA unlawful and the government consist-
`ently had defended the legality of the program. In a
`
`
`
`

`

`
`
` 5
`
`
`
`2014 opinion that has not been withdrawn, the Office
`of Legal Counsel memorialized the advice it provided
`prior to the promulgation of DACA “that such a pro-
`gram would be permissible, provided that immigra-
`tion officials retained discretion to evaluate each ap-
`plication on an individualized basis.” AR21 n.8. The
`government argued in the courts that DACA was “a
`valid exercise of the Secretary’s broad authority and
`discretion to set policies for enforcing the immigration
`laws.” Br. of United States as Amicus Curiae in Sup-
`port of Appellees at *1, Ariz. Dream Act Coal. v.
`Brewer, 855 F.3d 957 (9th Cir. 2017) (No. 15-15307),
`2015 WL 5120846.
`In February 2017, then-Secretary of Homeland Se-
`curity Kelly issued a memorandum reordering DHS’s
`enforcement priorities but maintaining DACA un-
`changed. AR230. Secretary Kelly characterized
`“DACA status” as a “commitment * * * by the govern-
`ment towards the DACA person.” SER1334. In June
`2017, Administration officials, including then-Attor-
`ney General Sessions, began communicating with sev-
`eral state attorneys general who had challenged a dif-
`ferent deferred action program, which never went into
`effect, known as Deferred Action for Parents of Amer-
`icans and Lawful Permanent Residents (DAPA).
`SER1442-43. Those discussions culminated in a June
`29, 2017 letter, from ten states to Attorney General
`Sessions, demanding that the government “phase out
`the DACA program” by September 5, 2017, or else
`they would seek to amend their DAPA lawsuit to also
`challenge DACA. AR239.
`On September 4, 2017, Attorney General Sessions
`sent a half-page letter to then-DHS Acting Secretary
`
`
`
`

`

`
`
` 6
`
`
`
`Duke, advising that DHS “should rescind” DACA be-
`cause it was “effectuated * * * without proper statu-
`tory authority” and “was an unconstitutional exercise
`of authority by the Executive Branch.” AR251. The
`letter stated, in conclusory fashion, that DACA “has
`the same legal and constitutional defects” as the
`DAPA program, which had been preliminarily en-
`joined in a decision affirmed by the Fifth Circuit in
`Texas v. United States, 809 F.3d 134 (5th Cir. 2015),
`aff’d by an equally divided Court, 136 S. Ct. 2271
`(2016). But because the Texas plaintiffs had chal-
`lenged only DAPA, the Fifth Circuit did not address
`the legality of the original DACA program.2 Ibid. It is
`unclear what “constitutional defects” the Attorney
`General was referring to, since neither Texas nor any
`other case has ever found any deferred action program
`unconstitutional.
`The next day, Acting Secretary Duke issued a
`short memorandum formally rescinding DACA. The
`rescission memorandum instructed DHS immediately
`to stop accepting new DACA applications; immedi-
`ately to stop accepting advance parole applications; to
`accept renewal applications only from individuals
`whose deferred action would expire before March 5,
`2018, and only through October 5, 2017; and thereby
`to cause DACA grants to expire on a rolling basis be-
`ginning March 5, 2018. Pet. App. 117a-118a. The
`memorandum contained a single sentence of analysis:
`“Taking into consideration the Supreme Court’s and
`
`2 The DAPA program included certain expansions of DACA,
`which were not specifically addressed in Texas. Pet. Supp. App.
`55a.
`
`
`
`

`

`
`
` 7
`
`
`
`the Fifth Circuit’s rulings in the ongoing litigation,
`and the September 4, 2017, letter from the Attorney
`General, it is clear that the June 15, 2012, DACA pro-
`gram should be terminated.” Id. at 117a.3
`2. The University of California, four states, and
`other Respondents brought actions in the Northern
`District of California alleging that the Acting Secre-
`tary’s decision to rescind DACA was unlawful on sev-
`eral grounds, including that the rescission was arbi-
`trary and capricious under the Administrative Proce-
`dure Act (APA). Pet. App. 19a-22a. Respondents also
`challenged the constitutionality of the rescission on
`due process and equal protection grounds. Id. at 22a.
`The parties agreed that the government would
`move swiftly to produce the administrative record.
`Dkt. 52-1 at 17-18. On October 6, 2017, the govern-
`ment produced a record consisting of 14 publicly-
`available documents totaling 256 pages, 187 of which
`consist of court decisions. See Dkt. 64-1. The Ninth
`and Second Circuits have held that this record is
`likely incomplete. For example, it excludes communi-
`cations between the government and the state attor-
`neys general whose litigation threat purportedly re-
`quired the rescission of DACA. See, e.g., Dkt. 79; In re
`United States, 875 F.3d 1200, 1205 (9th Cir.), judg-
`ment vacated, 138 S. Ct. 443 (2017) (ordering record
`issues to be deferred while district court resolved the
`government’s threshold justiciability arguments); In
`
`
`3 See 8 U.S.C. § 1103(a)(1) (providing that, with respect to the
`INA, the “determination and ruling by the Attorney General with
`respect to all questions of law shall be controlling” on DHS).
`
`
`

`

`
`
` 8
`
`
`
`re Nielsen, No. 17-3345, slip op. at 2-3 (2d Cir. Dec. 27,
`2017).
`Petitioners moved to dismiss all five complaints
`under Rule 12(b)(1) and (6). Pet. App. 26a, 72a. Re-
`spondents opposed the motion to dismiss and moved
`for a preliminary injunction on their APA claims. See
`Dkt. 111 at 10; Dkt. 205.
`On January 9, 2018, the district court granted in
`part and denied in part the government’s Rule
`12(b)(1) motion and granted in part Respondents’ mo-
`tion for a preliminary injunction. Pet. App. 66a-69a.
`The court held that Respondents had demonstrated a
`likelihood of success on their claim that the rescission
`was arbitrary and capricious, id. at 54a, 63a, and sat-
`isfied the remaining factors for preliminary injunctive
`relief, including irreparable harm. Id. at 62a-66a. The
`court relied on Respondents’ undisputed evidence of
`irreparable harm, including their showing that rescis-
`sion will:
`• threaten almost two hundred thousand U.S.-citi-
`zen children with the deportation of their parents,
`see SER1155;
`• cause an average of 1,400 DACA recipients to lose
`their jobs each business day, SER1459;
`• and force tens of thousands of DACA recipient un-
`dergraduate and graduate students to discontinue
`their studies for lack of support, including approx-
`imately 1,700 at the University of California alone,
`SER365-69, SER1152-53.
`
`
`
`

`

`
`
` 9
`
`
`
`The court’s injunction required the government to
`“allow[] DACA enrollees to renew their enrollments”
`under the terms applicable prior to the rescission. Pet.
`App. 66a. For “each renewal application,” the district
`court permitted the government to “take administra-
`tive steps to make sure fair discretion is exercised on
`an individualized basis.” Ibid. The court’s order did
`not prohibit DHS “from proceeding to remove any in-
`dividual, including any DACA enrollee, who it deter-
`mines poses a risk to national security or public
`safety, or otherwise deserves, in its judgment, to be
`removed.” Ibid. The court did not require DHS to pro-
`cess DACA applications from individuals who had not
`previously received deferred action or to permit ad-
`vance parole. Ibid.
`The district court also granted in part and denied
`in part the government’s Rule 12(b)(6) motion, sus-
`taining Respondents’ substantive APA and equal pro-
`tection claims. Id. at 71a-90a.
`3. The government appealed the court’s orders,
`and the Ninth Circuit ordered expedited briefing. 18-
`15068 Ct. App. Dkt. 21.
`4. On January 18, 2018, the government filed a pe-
`tition for a writ of certiorari before judgment, seeking
`review of the district court’s orders. On February 26,
`2018, the Court denied the petition. 138 S. Ct. 1182.
`After agreeing to expedite the case, the Ninth Circuit
`heard oral argument on May 15, 2018.
`5. Meanwhile, similar challenges to the rescission
`of DACA proceeded in other courts. On February 13,
`2018, the District Court for the Eastern District of
`New York preliminarily enjoined the rescission of
`
`
`

`

`
`
`10
`
`DACA in an order that tracks the terms of the Regents
`injunction. Batalla Vidal v. Nielsen, 279 F. Supp. 3d
`401, 437-38 (E.D.N.Y. 2018); see also Batalla Vidal v.
`Nielsen, 291 F. Supp. 3d 260, 268 (E.D.N.Y. 2018). The
`parties appealed to the Second Circuit, where briefing
`is complete and oral argument is scheduled for Janu-
`ary 25, 2019. See Batalla Vidal v. Nielsen, No. 18-485,
`Dkt. 588 (2d Cir. Dec. 12, 2018).
`6. In April 2018, the District Court for the District
`of Columbia granted partial summary judgment
`against the government and vacated the rescission of
`DACA, holding that it violated the APA’s substantive
`requirements. NAACP v. Trump, 298 F. Supp. 3d 209,
`249 (D.D.C. 2018). The court stayed its order for 90
`days to give DHS the opportunity to “issue[] a new de-
`cision rescinding DACA.” NAACP v. Trump, No. 17-
`cv-01907, Dkt. 22 (D.D.C. Apr. 24, 2018).
`In response, DHS Secretary Nielsen issued on
`June 22, 2018, a memorandum “declin[ing] to disturb
`the Duke memorandum’s rescission of the DACA pol-
`icy.” Pet. App. 121a. The memorandum purported to
`“reflect[] [Secretary Nielsen’s] understanding of the
`Duke memorandum” and to offer “further explana-
`tion” of the rescission of DACA. Ibid. Secretary Niel-
`sen stated, among other things, that: she was bound
`by the Attorney General’s conclusion that DACA was
`unlawful; there were “serious doubts” about DACA’s
`legality in any event; and “considering the fact that
`tens of thousands of minor aliens have illegally
`crossed or been smuggled across our border in recent
`years, * * * it is critically important for DHS to project
`a message that leaves no doubt regarding the clear,
`
`
`
`

`

`
`
`11
`
`consistent, and transparent enforcement of the immi-
`gration laws.” Id. at 122a-124a. The memorandum did
`not purport to be a new decision and did not include
`an administrative record. In notifying the Ninth Cir-
`cuit of the memo, the government claimed that it pro-
`vided additional reasons for the rescission but did not
`argue that it was a new agency action distinct from
`the initial rescission memo. 18-15068 Ct. App. Dkt.
`184.
`On August 3, 2018, the NAACP court concluded
`the Nielsen memo did not alter the court’s earlier con-
`clusions. NAACP v. Trump, 315 F. Supp. 3d 457, 464-
`73 (D.D.C. 2018). The government then appealed to
`the D.C. Circuit. Briefing will be completed by Janu-
`ary 22, 2019. See NAACP v. Trump, No. 18-5243, Doc.
`1756433 (D.C. Cir. Oct. 22, 2018).4
`7. While the Regents appeals were pending, the
`government on October 17, 2018, submitted a letter to
`the Ninth Circuit stating that it “intend[ed] to again
`
`4 On March 5, 2018, the United States District Court for the Dis-
`trict of Maryland concluded the plaintiffs’ claims in that case
`were justiciable, but held that the claims failed on the merits.
`Casa de Md. v. DHS, 284 F. Supp. 3d 758, 770-79 (D. Md. 2018),
`appeal docketed, No. 18-1521 (4th Cir. May 8, 2018). The Fourth
`Circuit held oral argument in that case on December 11, 2018.
` Separately, certain states that had earlier challenged DAPA
`moved for a preliminary injunction enjoining DACA before the
`Texas district court. Despite finding that the plaintiffs were
`likely to succeed on the merits, the Texas court held that the
`plaintiffs’ long delay bringing suit precluded them from estab-
`lishing irreparable harm. Texas v. United States, 328 F. Supp. 3d
`662, 736-42 (S.D. Tex. 2018). Likewise, the court held that the
`public interest and the hardships an injunction would cause to
`DACA recipients weighed in favor of preserving the status quo.
`Id. at 740-42.
`
`
`
`

`

`
`
`12
`
`petition the Supreme Court for a writ of certiorari be-
`fore judgment * * * in the event that [the Ninth Cir-
`cuit] d[id] not issue its judgment by Wednesday, Octo-
`ber 31.” 18-15068 Ct. App. Dkt. 198 at 1. On Novem-
`ber 5, 2018, the government filed a second petition for
`certiorari before
`judgment, and simultaneously
`sought certiorari before judgment in the NAACP and
`Batalla Vidal cases.
`8. On November 8, 2018, the Ninth Circuit issued
`an opinion affirming the Regents preliminary injunc-
`tion and the related orders granting in part and deny-
`ing in part the government’s motion to dismiss. Pet.
`Supp. App. 1a-87a.
`The court first considered whether the rescission
`is exempt from judicial review as a decision “commit-
`ted to agency discretion by law” under 5 U.S.C.
`§ 701(a)(2). The court held the rescission is subject to
`review under the APA because it was based solely on
`a non-discretionary legal determination, namely, “a
`belief that DACA was beyond the authority of DHS.”
`Applying Supreme Court and Ninth Circuit prece-
`dent, the court held that administrative decisions
`premised “on a belief that any alternative choice was
`foreclosed by law” are not “committed to agency dis-
`cretion.” Pet. Supp. App. 29a-42a (citing Heckler v.
`Chaney, 470 U.S. 821, 853 n.4 (1985); Montana Air
`Chapter No. 29 v. FLRA, 898 F.2d 753, 754 (9th Cir.
`1990)). Next, the court concluded that 8 U.S.C.
`§ 1252(g) presents no obstacle to review because the
`rescission was not one of three discrete actions—“to
`commence proceedings, adjudicate cases, or execute
`removal orders”—carved out from review by that sec-
`tion of the INA. Id. at 42a-45a (citing Reno v. Am.-
`
`
`
`

`

`
`
`13
`
`Arab Anti-Discrimination Comm., 525 U.S. 471, 482
`940 (1999) (AADC)).
`The court then held that Respondents are likely to
`succeed on the merits of their APA claims, because
`DACA is “a permissible exercise of executive discre-
`tion” that does not run afoul of the INA, and “where
`an agency purports to act solely on the basis that a
`certain result is legally required, and that legal prem-
`ise turns out to be incorrect, the action must be set
`aside.” Id. at 46a, 56a-57a. The Court made “clear”
`that it was “not hold[ing] that DACA could not be re-
`scinded as an exercise of Executive Branch discre-
`tion,” but only that the legal grounds identified by the
`agency were erroneous. Id. at 57a. Because the gov-
`ernment did not contest the district court’s holdings
`that the risk of irreparable harm to plaintiffs, the bal-
`ance of hardships, and the public interest all favored
`a preliminary injunction, the court did not review
`those holdings. Id. at 45a-46a.
`The court of appeals concluded that the district
`court acted within its discretion by enjoining DHS
`from implementing certain aspects of the rescission,
`as such relief “is commonplace in APA cases, promotes
`uniformity in immigration enforcement, and is neces-
`sary to provide the plaintiffs here with complete re-
`dress.” Id. at 58a-60a.
`The court of appeals also affirmed the other dis-
`trict court rulings under review, including its denial
`of the government’s motion to dismiss plaintiffs’ equal
`protection claims, holding that “the likelihood of suc-
`cess on plaintiffs’ equal protection claim is a second,
`
`
`
`

`

`
`
`14
`
`alternative ground for affirming the entry of the in-
`junction.” Id. at 61a-77a & n.31.
`Judge Owens concurred in the judgment, conclud-
`ing that the preliminary injunction should be affirmed
`on equal protection grounds. Id. at 84a-87a; see id. at
`85a (“the record assembled at this early stage is prom-
`ising”). Judge Owens disagreed with the majority’s
`holding that the rescission was reviewable as to the
`APA claims, in part because he understood there to be
`a difference between challenges to the “procedures the
`agency used” and challenges under Chevron. See id.
`at 82a.
`9. On November 19, 2018, Petitioners filed a sup-
`plemental brief making additional arguments based
`on the Ninth Circuit’s opinion.
`
`REASONS FOR DENYING THE PETITION
`I. Immediate Review Is Not Warranted.
`The government’s petition for certiorari is its latest
`effort to truncate the ordinary process for judicial re-
`view of agency action. The government has not shown
`that it will suffer significant harm if the petition is de-
`nied. Nor can the government plausibly assert such
`harm, given that it has never sought a stay in any
`court.
`The government’s decision to end the DACA pro-
`gram is a matter of life-changing importance to hun-
`dreds of thousands of individuals who participate in
`the program. Consequently, this case may warrant re-
`view by this Court at an appropriate time. However,
`the government’s latest request for immediate review
`
`
`

`

`
`
`15
`
`is unwarranted. The Ninth Circuit’s decision is pre-
`liminary and interlocutory, and does not address all
`the issues in the case. It would thus be extremely dif-
`ficult, and likely impossible, for this Court to fully re-
`solve the litigation at this stage of the proceedings. In
`addition, the Court would benefit from allowing the
`issues to be considered by the D.C., Second, and
`Fourth Circuits, each of which has heard, or will
`shortly hear, argument in a pending appeal. Because
`the government has not demonstrated a “compelling
`reason[ ]” for immediate review, see Sup. Ct. R. 10, the
`petition should be denied.
`
`A. The Petition Presents No Legal Issue War-
`ranting This Court’s Immediate Review.
`The questions presen

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