State of TEXAS; State of Alabama; State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Louisiana; State of Montana; State of Nebraska; State of South Carolina; State of South Dakota; State of Utah; State Of West Virginia; State Of Wisconsin; Paul R. Lepage, Governor, State of Maine; Patrick L. McCrory, Governor, State of North Carolina; C.L. “Butch” Otter, Governor, State of Idaho; Phil Bryant, Governor, State of Mississip-pi; State of North Dakota; State of Ohio; State of Oklahoma; State of Florida; State of Arizona; State of Arkansas; Attorney General Bill Schuette; State of Nevada; State of Tennessee, Plaintiffs-Appellees, v. UNITED STATES of America; Jeh Charles Johnson, Secretary, Depart-ment of Homeland Security; R. Gil Kerlikowske, Commissioner of U.S. Customs and Border Protection; Ron-ald D. Vitiello, Deputy Chief of U.S. Border Patrol, U.S. Customs and Bor-der Protection; Sarah R. Saldana, Di-rector of U.S. Immigration and Cus-toms Enforcement; Leon Rodriguez, Director of U.S. Citizenship and Im-migration Services, Defendants-Ap-pellants.
No. 15-40238.
United States Court of Appeals, Fifth Circuit.
Nov. 9, 2015.
Revised Nov. 25, 2015.
809 F.3d 134
JERRY E. SMITH, Circuit Judge
On a NYLL wage claim, such as this one, an award of prejudgment interest is mandatory. Prior to 2011, the source of that statutory right was
IV.
In sum, for the foregoing reasons, we reverse the district court‘s decision denying prejudgment interest under the FLSA and NYLL and remand so that the district court may award prejudgment interest. We otherwise affirm.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Scott R. McIntosh, Beth S. Brinkmann, Esq., Jeffrey A. Clair, Esq., Kyle R. Freeny, Kathleen Roberta Hartnett, William Ernest Havemann, Trial Attorney, Benjamin C. Mizer, Solicitor (argued), U.S. Department of Justice, Washington, DC, for Defendants-Appellants.
Noah Guzzo Purcell, Office of the Solicitor General for the State of Washington, Olympia, WA, for Amici Curiae State of Washington, State of California, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Maryland, State of Massachusetts, State of New Mexico, State of New York, State of Oregon, State of Rhode Island, State of Vermont, District of Columbia and State of Virginia.
Michael Bekesha, Paul Orfanedes, Esq., Judicial Watch, Incorporated, Washington, DC, for Amicus Curiae Judicial Watch, Incorporated.
Leif A. Olson, Olson Firm, P.L.L.C., Humble, TX, Ilya Shapiro, Esq., Cato Institute, Washington, DC, for Amici Curiae Cato Institute and Professor Jeremy Rabkin.
Steven James Lechner, Esq., Mountain States Legal Foundation, Lakewood, CO, for Amicus Curiae Mountain States Legal Foundation.
Jeremy W. Shweder, New York, N.Y., for Amici Curiae Mayor Bill De Blasio, of New York City, Mayor Eric Garcetti, of Los Angeles, City of Alexandria, Mayor Ed Pawlowski, of Allentown, Pennsylvania, Mayor Kasim Reed, of Atlanta, Mayor Steve Adler, of Austin, Texas, Mayor Stephanie Rawlings-Blake, City Council of Baltimore, Maryland and City of Bell, California.
Jay A. Sekulow, Esq., American Center for Law & Justice, Washington, DC, for Amici Curiae Certain Members of Congress, American Center for Law and Justice and Committee to Defend the Separation of Powers.
James Davis Blacklock, Senior Counsel, Austin, TX, for Amici Curiae Governor of Texas, Governor of Louisiana, Governor of New Jersey and Governor of South Dakota.
Seth Paul Waxman, Paul Reinherz Wolfson, WilmerHale, Washington DC, for Amici Curiae Representative Nancy Pelosi, Democratic Leader, Representative Steny Hoyer, Democratic Whip, Representative James E. Clyburn, Assistant Democratic Leader, Representative Xavier Becerra, Democratic Caucus Chair, Representative Joseph Crowley and Democratic Caucus Vice-Chair.
Matthew James Ginsburg, Washington, DC, for Amicus Curiae American Federation of Labor-Congress of Industrial Organizations.
Elizabeth Bonnie Wydra, Chief Counsel, Washington, DC, for Amici Curiae Michael Barnes, Former Representative of Maryland, Howard Berman, Former Representative of California, Victor H. Fazio, Former Representative of California, Charles Gonzalez, Former Representative of Tex-
Clifford M. Sloan, Skadden, Arps, Slate, Meagher & Flom, L.L.P., Washington, DC, for Amici Curiae American Apparel, Incorporated, Capital City Fruit, Incorporated, Farmers Investment Company, Latin-American Chamber of Commerce of Utah, Marek Brothers Construction, Incorporated, New Solutions Group, L.L.C., and Nisei Farmers League.
Benjamin Gross Shatz, Manatt, Phelps & Phillips, L.L.P., Los Angeles, CA, for Amici Curiae Church World Service, Reverend Gradye Parsons, Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.), Leadership Conference of Women Religious, Disciples Home Missions and Sisters of Mercy of the Americas.
Chirag Gopal Badlani, Hughes Socol Piers Resnick & Dym, Limited, Chicago, IL, for Amici Curiae Major Cities Chiefs Association, Police Executive Research Forum, Chief Art Acevedo, City of Austin, Texas, Police Department, Chief Charlie Beck, Los Angeles, California, Police Department and Chief David Bejarano, Chula Vista, California, Police Department.
Bradley S. Phillips, Munger, Tolles & Olson, L.L.P., Los Angeles, CA, for Amici Curiae David Abraham, Professor of Law, University of, Miami School of Law, Muneer I. Ahmad, Clinical Professor of Law, Yale Law School, Raquel Aldana, Professor of Law, University of the Pacific McGeorge School of Law, Farrin R. Anello, Visiting Assistant Clinical Professor, Seton Hall University School of Law and Roxana Bacon, Visiting/Adjunct/Lecturer Professor of Immigration Law, University of Miami, Syracuse University, University of Arizona, Arizona State University.
Nina Perales, Esq., San Antonio, TX, Adam Paul KohSweeney, Esq., Gabriel Markoff, Esq., O‘Melveny & Myers, L.L.P., San Francisco, CA, Linda J. Smith, DLA Piper, L.L.P. (US), Los Angeles, CA, for Amici Curiae Jane Doe # 1, Jane Doe # 2 and Jane Doe # 3.
Stephen Blake Kinnaird, Paul Hastings, L.L.P., Washington, DC, for Amici Curiae Senator Richard Blumenthal, Senator Christopher A. Coons, Mazie K. Hirono and Senator Sheldon Whitehouse.
Alexandre I. Afanassiev, Esq., Angelique Marie Montano, Quan Law Group, P.L.L.C., Houston, TX, for Amicus Curiae Congressman Al Green.
Matthew E. Price, Jenner & Block, L.L.P., Washington, DC, for Amici Curiae American Federation of Teachers, First Focus, National Education Association, Aspira, Educators for Fair Consideration, Hispanic Association of Colleges and Universities, Pomona College and Scholarship Foundation of St. Louis.
Jonathan Weissglass, Altshuler Berzon, L.L.P., San Francisco, CA, Karen Cassandra Tumlin, National Immigration Law Center, Los Angeles, CA, for Amici Curiae ACLU of Nevada, Action North Carolina, Advancement Project, Aim for Equity and Alabama Coalition for Immigrant Justice.
James Peterson, Judicial Watch, Incorporated, Washington, DC, for Amicus Curiae State Legislators for Legal Immigration.
Michael Meriwether Hethmon, Senior Counsel, Dale Wilcox, Immigration Reform Law Institute, Washington, DC, for Amici Curiae Immigration Reform Law Institute, Federation for American Immigration Re-
Lawrence John Joseph, Washington, DC, for Amicus Curiae Eagle Forum Education and Legal Defense Fund, Incorporated.
William Jeffrey Olson, Esq., Vienna, VA, for Amici Curiae Citizens United, Citizens United Foundation, English First Foundation, English First, Trea Senior Citizens League, United States Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation for Public Policy Research, Incorporated, United States Border Control Foundation, Policy Analysis Center, Conservative Legal Defense and Education Fund and Institute on the Constitution.
Ernest Young, Apex, NC, for Amicus Curiae Ernest Young.
Before KING, SMITH, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The United States1 appeals a preliminary injunction, pending trial, forbidding implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA“). Twenty-six states (the “states”2) challenged DAPA under the
The government appealed and moved to stay the injunction pending resolution of the merits. After extensive briefing and more than two hours of oral argument, a motions panel denied the stay after determining that the appeal was unlikely to succeed on its merits. Texas v. United States, 787 F.3d 733, 743 (5th Cir.2015). Reviewing the district court‘s order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.5
I.
A.
In June 2012, the Department of Homeland Security (“DHS“) implemented the Deferred Action for Childhood Arrivals program (“DACA“).6 In the DACA Memo
Notes
Deferred action, in one form or another, dates back to at least the 1960s. “Deferred action” per se dates back at least as far as 1975. See, Immigration and Naturalization Service, Operation Instructions § 103.1(a)(1)(ii) (1975).
In evaluating whether the offense is a significant misdemeanor involving domestic violence, careful consideration should be given to whether the convicted alien was also the victim of domestic violence; if so this should be a mitigating factor. See generally John Morton, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, June 17, 2011.
For present purposes, final order is defined as it is in
In August 2001, the former-Immigration and Naturalization Service issued guidance providing deferred action to individuals who were eligible for the recently created U and T visas. Two years later, USCIS issued subsequent guidance, instructing its officers to use existing mechanisms like deferred action for certain U visa applicants facing potential removal. More recently, in June 2009, USCIS issued a memorandum providing deferred action to certain surviving spouses of deceased U.S. citizens and their children while Congress considered legislation to allow these individuals to qualify for permanent residence status.
At least 1.2 million persons qualify for DACA, and approximately 636,000 applications were approved through 2014. Dist. Ct. Op., 86 F.Supp.3d at 609.
In November 2014, by what is termed the “DAPA Memo,” DHS expanded DACA by making millions more persons eligible for the program10 and extending “[t]he period for which DACA and the accompanying employment authorization is granted ... to three-year increments, rather than the current two-year increments.”11 The Secretary also “direct[ed] USCIS to establish a process, similar to DACA,” known as DAPA, which applies to “individuals who ... have, [as of November 20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident” and meet five additional criteria.12 The Secretary stated that, although
“Lawful presence” is not an enforceable right to remain in the United States and can be revoked at any time, but that classification nevertheless has significant legal consequences. Unlawfully present aliens are generally not eligible to receive federal public benefits, see
“Each person who applies for deferred action pursuant to the [DAPA] criteria ... shall also be eligible to apply for work authorization for the [renewable three-year] period of deferred action.” DAPA Memo at 4. The United States concedes that “[a]n alien with work authorization may obtain a Social Security Number,” “accrue quarters of covered employment,” and “correct wage records to add prior covered employment within approximately three years of the year in which the wages were earned or in limited circumstances thereafter.”17 The district court determined—and the government does not dispute—“that DAPA recipients would be eligible for earned income tax credits once they received a Social Security number.”18
As for state benefits, although “[a] State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a),”
B.
The states sued to prevent DAPA‘s implementation on three grounds. First, they asserted that DAPA violated the procedural requirements of the APA as a substantive rule that did not undergo the requisite notice-and-comment rulemaking. See
The district court held that Texas has standing. It concluded that the state would suffer a financial injury by having to issue driver‘s licenses to DAPA beneficiaries at a loss. Dist. Ct. Op., 86 F.Supp.3d at 616-23. Alternatively, the court relied on a new theory it called “abdication standing“: Texas had standing because the United States has exclusive authority over immigration but has refused to act in that
The court temporarily enjoined DAPA‘s implementation after determining that Texas had shown a substantial likelihood of success on its claim that the program must undergo notice and comment. Id. at 677. Despite full briefing, the court did not rule on the “Plaintiffs’ likelihood of success on their substantive APA claim or their constitutional claims under the Take Care Clause/separation of powers doctrine.” Id. On appeal, the United States maintains that the states do not have standing or a right to judicial review and, alternatively, that DAPA is exempt from the notice-and-comment requirements. The government also contends that the injunctiоn, including its nationwide scope, is improper as a matter of law.
II.
“We review a preliminary injunction for abuse of discretion.”21 A preliminary injunction should issue only if the states, as movants, establish
(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.22
“As to each element of the district court‘s preliminary-injunction analysis ... findings of fact are subject to a clearly-erroneous standard of review, while conclusions of law are subject to broad review and will be reversed if incorrect.”23
III.
The government claims the states lack standing to challenge DAPA. As we will analyze, however, their standing is plain, based on the driver‘s-license rationale,24 so we need not address the other possible grounds for standing.
As the parties invoking federal jurisdiction, the states have the burden of establishing standing. See Clapper v. Amnesty Int‘l USA, — U.S. —, 133 S.Ct. 1138, 1148, 185 L.Ed.2d 264 (2013). They must show an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Id. at 1147 (citation omitted). “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will
A.
We begin by considering whether the states are entitled to “special solicitude” in our standing inquiry under Massachusetts v. EPA. They are.
The Court held that Massachusetts had standing to contest the EPA‘s decision not to regulate greenhouse-gas emissions from new motor vehicles, which allegedly contributed to a rise in sea levels and a loss of the state‘s coastal land. Massachusetts v. EPA, 549 U.S. at 526, 127 S.Ct. 1438. “It is of considerable relevance that the party seeking review here is a sovereign State and not ... a private individual” because “States are not normal litigants for the purposes of invoking federal jurisdiction.” Id. at 518, 127 S.Ct. 1438.25
The Court identified two additional considerations that entitled Massachusetts “to special solicitude in [the Court‘s] standing analysis.” Id. at 520, 127 S.Ct. 1438.26 First, the Clean Air Act created a procedural right to challenge the EPA‘s decision:
The parties’ dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. That authorization is of critical importance to the standing inquiry: “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” “In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” We will not, therefore, “entertain citizen suits to vindicate the public‘s nonconcrete interest in the proper administration of the laws.”27
Second, the EPA‘s decision affected Massachusetts‘s “quasi-sovereign” interest in its territory:
When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot ne-
gotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.
These sovereign prerogatives are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to the “emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator‘s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”28
Like Massachusetts, the instant plaintiffs—the states—“are not normal litigants for the purposes of invoking federal jurisdiction,” id. at 518, 127 S.Ct. 1438 and the same two additional factors are present. First, “[t]he parties’ dispute turns on the proper construction of a congressional statute,”29 the APA, which authorizes challenges to “final agency action for which there is no other adequate remedy in a court.”
In enacting the APA, Congress intended for those “suffering legal wrong because of agency action” to have judicial recourse,32 and the states fall well within that definition.33 The Clean Air Act‘s review provision is more specific than the APA‘s, but the latter is easily adequate to justify “special solicitude” here. The procedural right to challenge EPA decisions created by the Clean Air Act provided important support to Massachusetts because the challenge Massachusetts sought to bring—a challenge to an agency‘s decision not to act—is traditionally the type for which it is most difficult to establish standing and a justiciable issue.34 Texas, by contrast, challenges DHS‘s affirmative decision to set guidelines for granting lawful presence to a broad class of illegal aliens. Because the states here challengе DHS‘s decision to act, rather than its decision to remain inactive, a procedural right similar to that created by the Clean Air Act is not necessary to support standing. See
As we will show, DAPA would have a major effect on the states’ fiscs, causing
Second, DAPA affects the states’ “quasi-sovereign” interests by imposing substantial pressure on them to change their laws, which provide for issuing driver‘s licenses to some aliens and subsidizing those licenses.35 “[S]tates have a sovereign interest in ‘the power to create and enforce a legal code.’ ”36 Pursuant to that interest, states may have standing based on (1) federal assertions of authority to regulate matters they believe they control,37 (2) federal preemption of state law,38 and (3) federal interference with the enforcement of state law,39 at least where “the state statute at issue regulate[s] behavior or provide[s] for the administration of a state program”40 and does not “simply purport[] to immunize [state] citizens from federal law.”41 Those intrusions are analogous to pressure to change state law.42
Moreover, these plaintiff states’ interests are like Massachusetts‘s in ways that implicate the same sovereignty concerns. When the states joined the union, they surrendered some of their sovereign prerogatives over immigration.43 They cannot establish their own classifications of aliens,44 just as “Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions [and] cannot negotiate an emissions treaty with China or India.”45 The states may not be able to discriminate against subsets of aliens in their driver‘s license programs without running afoul of preemption or the Equal Protection Clause;46 similarly, “in some circumstances[, Massachusetts‘s] exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-
empted.”47 Both these plaintiff states and Massachusetts now rely on the federal government to protect their interests.48 These parallels confirm that DAPA affects the states’ “quasi-sovereign” interests.The significant opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, — U.S. —, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015), announced shortly before oral argument herein, reinforces that conclusion. The Court held that the Arizona Legislature had standing to sue in response to a ballot initiative that removed its redistricting authority and vested it instead in an independent commission. Id. at 2665-66. The Court emphasized that the legislature was “an institutional plaintiff asserting an institutional injury” to what it believed was its constitutional power to regulate elections. Id. at 2664. So too are the states asserting institutional injury to their lawmaking authority. The Court also cited Massachusetts v. EPA as opining that the state in that case was “entitled to special solicitude in our standing analysis.” Id. at 2664-65 n. 10 (quoting Massachusetts v. EPA, 549 U.S. at 520, 127 S.Ct. 1438).
The United States suggests that three presumptions against standing apply here. The first is a presumption that a plaintiff lacks standing to challenge decisions to confer benefits on, or not to prosecute, a third party. But the cases the government cites for that proposition either did not involve standing;49 concerned only nonprosecution (as distinguished from both nonprosecution and the conferral of benefits);50 or merely reaffirmed that a plaintiff must satisfy the standing requirements.51
The second presumption is against justiciability in the immigration context. None of the cases the government cites involved standing52 and include only general language about the government‘s authority over immigration; without a specific discussion of standing, they are of limited relevance.53
The third presumption is that “[t]he [Supreme] Court‘s standing analysis ... has been ‘especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.’ ”54 We decide this appeal, however, without resolving the constitutional claim.
Therefore, the states are entitled to “special solicitude” in the standing inquiry. We stress that our decision is limited to these facts. In particular, the direct, substantial pressure directed at the states and
B.
At least one state—Texas—has satisfied the first standing requirement by demonstrating that it would incur significant costs in issuing driver‘s licenses to DAPA beneficiaries. Under current state law, licenses issued to beneficiaries would necessarily be at a financial loss. The Department of Public Safety “shall issue” a license to a qualified applicant.
If permitted to go into effect, DAPA would enable at least 500,000 illegal aliens in Texas55 to satisfy that requirement with proof of lawful presence56 or employment authorization.57 Texas subsidizes its licenses and would lose a minimum of $130.89 on each one it issued to a DAPA beneficiary.58 Even a modest estimate would put the loss at “several million dollars.” Dist. Ct. Op., 86 F.Supp.3d at 617.
Instead of disputing those figures, the United States claims that the costs would be offset by other benefits to the state. It theorizes that, because DAPA beneficiaries would be eligible for licenses, they would register their vehicles, generating income for the state, and buy auto insurance, reducing the expenses associated with uninsured motorists. The government suggests employment authorization would lead to inсreased tax revenue and decreased reliance on social services.
Even if the government is correct, that does not negate Texas‘s injury, because we consider only those offsetting benefits that are of the same type and arise from the same transaction as the costs.59 “Once injury is shown, no attempt
The one case in which we concluded that the costs of a challenged program were offset by the benefits involved a much tighter nexus. In Henderson, 287 F.3d at 379-81, we determined that taxpayers lacked standing to challenge a Louisiana law authorizing a license plate bearing a pro-life message, reasoning that the plaintiffs had not shown that the program would use their tax dollars, because the extra fees paid by drivers who purchased the plates could have covered the associated expenses. The costs and benefits arose out of the same transaction, so the plaintiffs had not demonstrated injury.
Here, none of the benefits the government identifies is sufficiently connected to the costs to qualify as an offset. The only benefits that are conceivably relevant are the increase in vehicle registration and the decrease in uninsured motorists, but even those are based on the independent decisions of DAPA beneficiaries and are not a direct result of the issuance of licenses. Analogously, the Third Circuit held that sports leagues had standing to challenge New Jersey‘s decision to license sports gambling, explaining that damage to the leagues’ reputations was a cognizable injury despite evidence that more people would have watched sports had betting been allowed. NCAA, 730 F.3d at 222-24. The diminished public perception of the leagues and the greater interest in sports were attributable to the licensing plan but did not arise out of the same transaction and so could not be compared.
In the instant case, the states have alleged an injury, and the government predicts that the later decisions of DAPA beneficiaries would produce offsetting benefits. Weighing those costs and benefits is precisely the type of “accounting exercise,” id. at 223, in which we cannot engage. Texas has shown injury.
C.
Texas has satisfied the second standing requirement by establishing that its injury is “fairly traceable” to DAPA. It is undisputed that DAPA would enable beneficiaries to apply for driver‘s licenses, and there is little doubt that many would do so because driving is a practical necessity in most of the state.
The United States urges that Texas‘s injury is not cognizable, because the state could avoid injury by not issuing licenses to illegal aliens or by not subsidizing its licenses. Although Texas could avoid financial loss by requiring applicants to pay the full costs of licenses, it could not avoid injury altogether. “[S]tates have a sovereign interest in ‘the power to create and enforce a legal code,’ ”62 and the possibility that a plaintiff could avoid injury
Indeed, treating the availability of changing state law as a bar to standing would deprive states of judicial recourse for many bona fide harms. For instance, under that theory, federal preemption of state law could never be an injury, because a state could always change its law to avoid preemption. But courts have often held that states have standing based on preemption.64 And states could offset almost any financial loss by raising taxes or fees. The existence of that alternative does not mean they lack standing.
Relying primarily on Pennsylvania v. New Jersey, 426 U.S. 660, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976) (per curiam), the United States maintains that Texas‘s injury is self-inflicted because the state voluntarily chose to base its driver‘s license policies on federal immigration law. In Pennsylvania v. New Jersey, id. at 664, 666, 96 S.Ct. 2333 the Court held that several states lacked standing to contest other states’ laws taxing a portion of nonresidents’ incomes. The plaintiff states alleged that the defendant states’ taxes injured them because the plaintiffs gave their residents credits for taxes paid to other states, so the defendants’ taxes increased the amount of those credits, causing the plaintiffs to lose revenue. Id. at 663, 96 S.Ct. 2333. The Court flatly rejected that theory of standing:
In neither of the suits at bar has the defendant State inflicted any injury upon the plaintiff States through the imposition of the [challenged taxes]. The injuries to the plaintiffs’ fiscs were self-inflicted, resulting from decisions by their respective state legislatures. Nothing required Maine, Massachusetts, and Vermont to extend a tax credit to their residents for income taxes paid to New Hampshire, and nothing prevents Pennsylvania from withdrawing that credit for taxes paid to New Jersey. No State can be heard to complain about damage inflicted by its own hand.
The more recent decision in Wyoming v. Oklahoma, 502 U.S. 437, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992), also informs our analysis. There, the Court held that Wyoming had standing to challenge an Oklahoma law requiring some Oklahoma power plants to burn at least 10% Oklahoma-mined coal. Id. at 447, 112 S.Ct. 789. The Court explained that Wyoming taxed the extraction of coal in the state and that Oklahoma‘s law reduced demand for that coal and Wyoming‘s corresponding revenue. Id. The Court emphasized that the case involved an “undisputed” “direct injury in the form of a loss of specific tax revenues.” Id. at 448, 112 S.Ct. 789. It rejected Oklahoma‘s contention “that Wyoming is not itself engaged in the commerce affected, is not affected as a consumer, and thus has not suffered the type of direct injury cognizable in a Commerce Clause action,” id.,
Both the Pennsylvania v. New Jersey plaintiffs and Wyoming structured their laws in ways that meant their finances would have been affected by changes in other states’ laws. Because the tax credits in Pennsylvania v. New Jersey were based on taxes paid to other states, any tax increases in other states would have decreased the plaintiffs’ revenues, and any tax cuts would have had the opposite effect. Analogously, Wyoming‘s tax was based on the amount of coal extracted there, so any policies in other states that decreased demand for that coal would have diminished Wyoming‘s revenues, and any policies that bolstered demand would have had the opposite effect.
In other words, the schemes in both cases made the plaintiff states’ finances dependent on those of third parties—either resident taxpayers or coal companies—which in turn were affected by other states’ laws. The issues in Pennsylvania v. New Jersey and Wyoming v. Oklahoma were thus similar to the question here, but the Court announced different results. The two cases are readily distinguishable, however, and, based on two considerations, Wyoming v. Oklahoma directs our decision.
First, Texas and Wyoming sued in response to major changes in the defendant states’ policies. Texas sued after the United States had announced DAPA, which could make at least 500,000 illegal aliens eligible for driver‘s licenses and cause millions of dollars of losses; Wyoming sued after Oklahoma had enacted a law that cost Wyoming over $1 million in tax revenues. See id. at 445-46 & n. 6, 112 S.Ct. 789. Conversely, the Pennsylvania v. New Jersey plaintiffs sued not because of a change in the defendant states’ laws but because they believed that Austin v. New Hampshire, 420 U.S. 656, 95 S.Ct. 1191, 43 L.Ed.2d 530 (1975), had rendered the defendants’ laws unconstitutional. See Pennsylvania v. New Jersey, 426 U.S. at 661-63, 96 S.Ct. 2333. The fact that Texas sued in response to a significant change in the defendants’ policies shows that its injury is not self-inflicted.
Second, the plaintiffs’ options for accomplishing their policy goals were more limited in this case and in Wyoming v. Oklahoma than in Pennsylvania v. New Jersey. Texas seeks to issue licenses only to those lawfully present in the United States, and the state is required to use federal immigration classifications to do so. See Villas at Parkside Partners, 726 F.3d at 536. Likewise, Wyoming sought to tax the extraction of coal and had no way to avoid being affected by other states’ laws that reduced demand for that coal.65
By way of contrast, the plaintiff states in Pennsylvania v. New Jersey could have achieved their policy goal in myriad ways, such as basing their tax credits on residents’ out-of-state incomes instead of on taxes actually paid to other states. That alternative would have achieved those plaintiffs’ goal of allowing their residents to avoid double taxation of their out-of-state incomes, but it would not have tied the plaintiffs’ finances to other states’ laws. The fact that Texas had no similar option means its injury is not self-inflicted.
The decision in Amnesty International supports this conclusion: The Court held that the plaintiffs lacked standing to challenge a provision of the Foreign Intelligence Surveillance Act authorizing the interception of certain electronic communications. Amnesty Int‘l, 133 S.Ct. at 1155. The plaintiffs alleged that they had been forced to take costly steps to avoid surveillance, such as traveling to meet in person and not discussing certain topics by email or phone. Id. at 1150-51. The Court held that any such injuries were self-inflicted, id. at 1152-53, reasoning that plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Id. at 1151 (citing Pennsylvania v. New Jersey, 426 U.S. at 664, 96 S.Ct. 2333). “If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.” Id.
By way of contrast, there is no allegation that Texas passed its driver‘s license law to manufacture standing. The legislature enacted the law one year before DACA and three years before DAPA was announced,66 and there is no hint that the state anticipated a change in immigration policy—much less a change as sweeping and dramatic as DAPA. Despite the dissent‘s bold suggestion that Texas‘s license-plate-cost injury “is entirely manufactured by Plaintiffs for this case,” Dissent at 195, the injury is not self-inflicted.
In addition to its notion that Texas could avoid injury, the government theorizes that Texas‘s injury is not fairly traceable to DAPA because it is merely an incidental and attenuated consequence of the program. But Massachusetts v. EPA establishes that the causal connection is adequate. Texas is entitled to the same “special solicitude” as was Massachusetts, and the causal link is even closer here.
For Texas to incur injury, DAPA beneficiaries would have to apply for driver‘s licenses as a consequence of DHS‘s action, and it is apparent that many would do so. For Massachusetts‘s injury to have occurred, individuals would have had to drive
This case raises even less doubt about causation, so the result is the same. The matters in which the Supreme Court held that an injury was not fairly traceable to the challenged law reinforce this conclusion. In some of them, the independent act of a third party was a necessary condition of the harm‘s occurrence, and it was uncertain whether the third party would take the required step.68 Not so here. DAPA beneficiaries have strong incentives to obtain driver‘s licenses, and it is hardly sрeculative that many would do so if they became eligible. In other cases, in which there was insufficient proof of causation, several factors potentially contributed to the injury, and the challenged policy likely played a minor role.69
Far from playing an insignificant role, DAPA would be the primary cause and likely the only one. Without the program, there would be little risk of a dramatic increase in the costs of the driver‘s-license program. This case is far removed from those in which the Supreme Court has held an injury to be too incidental or attenuated. Texas‘s injury is fairly traceable to DAPA.
Texas has satisfied the third standing requirement, redressability. Enjoining DAPA based on the procedural APA claim could prompt DHS to reconsider the program, which is all a plaintiff must show when asserting a procedural right. See id. at 518, 127 S.Ct. 1438. And enjoining DAPA based on the substantive APA claim would prevent Texas‘s injury altogether.
E.
The United States submits that Texas‘s theory of standing is flawed because it has no principled limit. In the government‘s view, if Texas can challenge DAPA, it could also sue to block a grant of asylum to a single alien or any federal policy that adversely affects the state, such as an IRS revenue ruling that decreases a corporation‘s federal taxable income and corresponding state franchise-tax liability.
The flaw in the government‘s reasoning is that Massachusetts v. EPA entailed similar risks, but the Court still held that Massachusetts had standing. Under that decision, Massachusetts conceivably could challenge the government‘s decision to buy a car with poor fuel efficiency because the vehicle could contribute to global warming. The state might be able to contest any federal action that prompts more travel. Or it potentially could challenge any change in federal policy that indirectly results in greenhouse-gas emissions, such as a trade-promotion program that leads to more shipping. One of the dissenting Justices in Massachusetts v. EPA criticized the decision on that ground,70 but the majority found those concerns unpersuasive, just as they are here.
After Massachusetts v. EPA, the answer to those criticisms is that there are other ways to cabin policy disagreements masquerading as legal claims.71 First, a state that has standing still must have a cause of action. Even the APA—potentially the most versatile tool available to an enterprising state—imposes a number of limitations. A state must be defending concerns that are “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”72 It is unclear whether a state dissatisfied with an IRS revenue ruling would be defending such an interest. Moreover, judicial review is unavailable where the statute precludes it or the matter is committed to agency discretion.
Second, the standing requirements would preclude much of the litigation the government describes. For example, it would be difficult to establish standing to challenge a grant of asylum to a single alien based on the driver‘s-license theory. The state must allege an injury that has
Third, our determination that Texas has standing is based in part on the “special solicitude” we afford it under Massachusetts v. EPA as reinforced by Arizona State Legislature. To be entitled to that presumption, a state likely must be exercising a procedural right created by Congress and protecting a “quasi-sovereign” interest. See Massachusetts v. EPA, 549 U.S. at 520, 127 S.Ct. 1438. Those factors will seldom exist. For instance, a grant of asylum to a single alien would impose little pressure to change state law. Without “special solicitude,” it would be difficult for a state to establish standing, a heavy burden in many of the government‘s hypotheticals.
Fourth, as a practical matter, it is pure speculation that a state would sue about matters such as an IRS revenue ruling. Though not dispositive of the issue, the absence of any indication that such lawsuits will occur suggests the government‘s parade of horribles is unfounded,75 and its concerns about the possible future effects of Texas‘s theory of standing do not alter our conclusion. The states have standing.
IV.
Because the states are suing under the APA, they “must satisfy not only Article III‘s standing requirements, but an additional test: The interest [they] assert[] must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that [they] say[] was violated.”76 That “test ... ‘is not meant to be especially demanding’ ” and is applied “in keeping with Congress‘s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable.’ ”77
The Supreme Court “ha[s] always conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff,” and “[w]e do not require any ‘indication of congressional purpose to benefit the would-be plaintiff.’ ”78 “The test forecloses suit only when a plaintiff‘s ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’ ”79
Contrary to the government‘s assertion, Texas satisfies the zone-of-interests test not on account of a generalized grievance but instead as a result of the same injury that gives it Article III standing—Congress has explicitly allowed states to deny public benefits to illegal aliens. Relying on that guarantee, Texas seeks to participate in notice and comment before the Secretary changes the immigration classification of millions of illegal aliens in a way that forces the state to the Hobson‘s choice of spending millions of dollars to subsidize driver‘s licenses or changing its statutes.
V.
The government maintains that judicial review is precluded even if the states are proper plaintiffs. “Any person ‘adversely affected or aggrieved’ by agency action ... is entitled to ‘judicial review thereof,’ as long as the action is a ‘final agency action for which there is no other adequate remedy in a court.’ ”82 “But before any review at all may be had, a party must first clear the hurdle of
“[T]here is a ‘well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action,’ and we will accordingly find an intent to preclude such review only if presented with ‘clear and convincing evidence.’ ”83 The ” ‘strong presumption’ favoring judicial review of administrative action ... is rebuttable: It fails when a statute‘s language or structure demonstrates that Congress wanted an agency to police its own conduct.” Mach Mining, LLC v. EEOC, — U.S. —, 135 S.Ct. 1645, 1651, 191 L.Ed.2d 607 (2015).
The United States relies on
None of those actions is at issue here—the states’ claims do not arise from the Secretary‘s “decision or action ... to commence proceedings, adjudicate cases, or execute removal orders against any alien,”
Judicial review of DAPA is consistent with the protections Congress affords to states that decline to provide public benefits to illegal aliens. “The Government of the United States has broad, undoubted
If 500,000 unlawfully present aliens residing in Texas were reclassified as lawfully present pursuant to DAPA, they would become eligible for driver‘s licenses at a subsidized fee. Congress did not intend to make immune from judicial review an agency action that reclassifies millions of illegal aliens in a way that imposes substantial costs on states that have relied on the protections conferred by § 1621.
The states contend that DAPA is being implemented without discretion to deny applications that meet the objective criteria set forth in the DAPA Memo, and under AAADC, judicial review could be available if there is an indication that deferred-action decisions are not made on a case-by-case basis. In AAADC, a group of aliens “challenge[d] ... the Attorney General‘s decision to ‘commence [deportation] proceedings’ against them,” and the Court held that § 1252(g) squarely deprived it of jurisdiction. AAADC, 525 U.S. at 487, 119 S.Ct. 936. The Court noted that § 1252(g) codified the Secretary‘s discretion to decline “the initiation or prosecution of various stages in the deportation process,” id. at 483, 119 S.Ct. 936 and the Court observed that “[p]rior to 1997, deferred-action decisions were governed by internal [INS] guidelines which considered [a variety of factors],” id. at 484 n. 8, 119 S.Ct. 936. Although those guidelines “were apparently rescinded,” the Court observed that “there [was] no indication that the INS has ceased making this sort of determination on a case-by-case basis.” Id. But the government has not rebutted the strong presumption of reviewability with clear and convincing evidence that, inter alia, it is making case-by-case decisions here.92
A.
Title 5 § 701(a)(2) “preclude[s] judicial review of certain categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion.’ ” Lincoln v. Vigil, 508 U.S. 182, 191, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (citation omitted). For example, “an agency‘s decision not to institute enforcement proceedings [is] presumptively unreviewable under § 701(a)(2).” Id. (citation omitted). Likewise, “[t]here is no judicial review of agency action ‘where statutes [granting agency discretion] are drawn in such broad terms that in a given case there is no law to apply,’ ”93 such as “[t]he allocation of funds from a lump-sum appropriation.” Vigil, 508 U.S. at 192, 113 S.Ct. 2024.
1.
The Secretary has broad discretion to “decide whether it makes sense
Part of DAPA involves the Secretary‘s decision—at least temporarily—not to enforce the immigration laws as to a class of what he deems to be low-priority illegal aliens. But importantly, the states have not challenged the priority levels he has established,98 and neither the preliminary injunction nor compliance with the APA requires the Secretary to remove any alien or to alter his enforcement priorities.
Deferred action, however, is much more than nonenforcement: It would affirmatively confer “lawful presence” and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already explained) eligibility for federal benefits—for example, under
The United States maintains that DAPA is presumptively unreviewable prosecutorial discretion because ” ‘lawful presence’ is not a status and is not something that the alien can legally enforce; the agency can alter or revoke it at any time.”102 The government further contends that “[e]very decision under [DAPA] to defer enforcement action against an alien necessarily entails allowing the individual to be lawfully present.... Deferred action under DAPA and ‘lawful presence’ during that limited period are thus two sides of the same coin.”103
Revocability, however, is not the touchstone for whether agency action is reviewable. Likewise, to be reviewable agency action, DAPA need not directly confer public benefits—removing a categorical bar on receipt of those benefits and thereby making a class of persons newly eligible for them “provides a focus for judicial review.” Chaney, 470 U.S. at 832, 105 S.Ct. 1649.
Moreover, if deferred action meant only nonprosecution, it would not necessarily result in lawful presence. “[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’ ”104 Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change. Regardless of whether the Secretary has the authority to offer lawful presence and employment authorization in exchange for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.
This evident conclusion is reinforced by the Supreme Court‘s description, in AAADC, of deferred action as a nonprosecution decision:
To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action.... Approval of deferred action status means that ... no action will thereafter be taken to proceed against an alien apparently deportable alien, even on grounds normally regarded as aggravated.105
Under DAPA, “[d]eferred action ... means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,”107 a change in designation that confers eligibility for substantial federal and state benefits on a class of otherwise ineligible aliens. Thus, DAPA “provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.”108
2.
“The mere fact that a statute grants broad discretion to an agency does not render the agency‘s decisions completely unreviewable under the ‘committed to agency discretion by law’ exception unless the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised.”109 In Perales, 903 F.2d at 1051, we held that the INS‘s decision not to grant pre-hearing voluntary departures and work authorizations to a group of aliens was committed to agency discretion because “[t]here are no statutory standards for the court to apply.... There is nothing in the [INA] expressly providing for the grant of employment authorization or pre-hearing voluntary departure to [the plaintiff class of aliens].” Although we stated that “the agency‘s decision to grant voluntary departure and work authorization has been committed to agency discretion by law,” id. at 1045, that case involved a challenge to the denial of voluntary departure and work authorization.
Under those facts, Perales faithfully applied Chaney‘s presumption against judicial review of agency inaction “because there are no meaningful standards against which to judge the agency‘s exercise of discretion.” Id. at 1047. But where there is affirmative agency action—as with DAPA‘s issuance of lawful presence and employment authorization—and in light of the INA‘s intricate regulatory scheme for changing immigration classifications and issuing employment authorization,110 “[t]he action at least can be reviewed to determine whether the agency exceeded its statutory powers.” Chaney, 470 U.S. at 832, 105 S.Ct. 1649.
The United States asserts that
Moreover, the government‘s limitless reading of that subsection—allowing for the issuance of employment authorizations to any class of illegal aliens whom DHS declines to remove—is beyond the scope of what the INA can reasonably be interpreted to authorize, as we will explain.112 And even assuming, arguendo, that the government does have that power, Texas is also injured by the grant of lawful presence itself, which makes DAPA recipients newly eligible for state-subsidized driver‘s licenses.113 As an affirmative agency action with meaningful standards against which to judge it, DAPA is not an unreviewable “agency action ... committed to agency discretion by law.”
B.
The government urges that this case is not justiciable even though “a federal court‘s ‘obligation’ ’ to hear and decide cases within its jurisdiction is ‘virtually unflagging.’ ”114 We decline to depart from that well-established principle.115 And in invoking our jurisdiction, the states do not demand that the federal government “control immigration and ... pay for the consequences of federal immigration policy” or “prevent illegal immigration.”116
Neither the preliminary injunction nor compliance with the APA requires the Secretary to enforce the immigration laws or change his priorities for removal, which have expressly not been challenged.117 Nor have the states “merely invited us to substitute our judgment for that of Congress in deciding which aliens shall be eligible to participate in [a benefits program].” Diaz, 426 U.S. at 84, 96, 96 S.Ct. 1883.118 DAPA was enjoined because the
At its core, this case is about the Secretary‘s decision to change the immigration classification of millions of illegal aliens on a class-wide basis. The states properly maintain that DAPA‘s grant of lawful presence and accompanying eligibility for benefits is a substantive rule that must go through notice and comment, before it imposes substantial costs on them, and that DAPA is substantively contrary to law. The federal courts are fully capable of adjudicating those disputes.
VI.
Because the interests that Texas seeks to protect are within the INA‘s zone of interests, and judicial review is available, we address whether Texas has established a substantial likelihood of success on its claim that DAPA must be submitted for notice and comment. The United States urges that DAPA is exempt as an “in
A.
The government advances the notion that DAPA is exempt from notice and comment as a policy statement.122 We evaluate two criteria to distinguish policy statements from substantive rules: whether the rule (1) “impose[s] any rights and obligations” and (2) “genuinely leaves the agency and its decision-makers free to exercise discretion.”123 There is some overlap in the analysis of those prongs “because ‘[i]f a statement denies the decisionmaker discretion in the area of its coverage ... then the statement is binding, and creates rights or obligations.’ ”124 “While mindful but suspicious of the agency‘s own characterization, we ... focus[] primarily on whether the rule has binding effect on agency discretion or severely restricts it.”125 “[A]n agency pronouncement will be considered binding as a practical matter if it either appears on its face to be binding, or is applied by the agency in a way that indicates it is binding.” Gen. Elec., 290 F.3d at 383 (citation omitted).
Although the DAPA Memo facially purports to confer discretion,126 the dis
Like the DAPA Memo, the DACA Memo instructed agencies to review applications on a case-by-case basis and exercise discretion, but the district court found that those statements were “merely pretext”129 because only about 5% of the 723,000 applications accepted for evaluation had been denied,130 and “[d]espite a request by the [district] [c]ourt, the [g]overnment‘s counsel did not provide the number, if any, of requests that were denied [for discretionary reasons] even though the applicant met the DACA criteria....” 131
The finding of pretext was also based on a declaration by Kenneth Palinkas, the president of the union representing the USCIS employees processing the DACA applications, that “DHS management has taken multiple steps to ensure that DACA applications are simply rubberstamped if the
The DACA and DAPA Memos purport to grant discretion, but a rule can be binding if it is “applied by the agency in a way that indicates it is binding,”136 and there was evidence from DACA‘s implementation that DAPA‘s discretionary language was pretextual. For a number of reasons, any extrapolation from DACA must be done carefully.137
A version of this statute was first passed in 1990.BRYAN A. GARNER, GARNER‘S DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed.2011) (citations omitted). And as the district court pointed out, “it is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law.” Dist. Ct. Op., 86 F.Supp.3d at 605 n. 2 (citing Arizona v. United States, — U.S. —, 132 S.Ct. 2492, 2497, 183 L.Ed.2d 351 (2012)). “[I]llegal alien has going for it both history and well-documented, generally accepted use.” Matthew Salzwedel, The Lawyer‘s Struggle to Write, 16 SCRIBES JOURNAL OF LEGAL WRITING 69, 76 (2015). The notion of “special solicitude” was cited in Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC), — U.S. —, 135 S.Ct. 2652, 2664-65 n. 10, 192 L.Ed.2d 704 (2015)—but as recognized by a treatise, in a footnote, in an opinion that did not concern federal-state suits. That footnote correctly observed that “[t]he cases on the standing of states to sue the federal government” are “hard to reconcile.” Id. (quoting R. Fallon et al., Hart and Wechsler‘s The Federal Courts and the Federal System 263-66 (6th ed.2009)).The usual and preferable term in [American English] is illegal alien. The other forms have arisen as needless euphemisms, and should be avoided as near-gobbledygook. The problem with undocumented is that it is intended to mean, by those who use it in this phrase, “not having the requisite documents to enter or stay in a country legally.” But the word strongly suggests “unaccounted for” to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning. More than one writer has argued in favor of undocumented alien ... [to] avoid[ ] the implicatiоn that one‘s unauthorized presence in the United States is a crime.... Moreover, it is wrong to equate illegality with criminality, since many illegal acts are not criminal. Illegal alien is not an opprobrious epithet: it describes one present in a country in violation of the immigration laws (hence “illegal“).
Id. at 252 n. 34. SeeIn a letter brief filed after oral argument, Mississippi put forward three new arguments in support of its standing, [including] (1) the cost of issuing driver‘s licenses to DACA‘s beneficiaries. ... Because Mississippi failed to provide evidentiary support on these arguments and failed to make these arguments in their opening brief on appeal and below, they have been waived.
[T]he facts are so wholly ambiguous and unsharpened as not to present a purely legal question ‘fit . . . for judicial decision,’ and where the agency‘s characterization of its action would fit them cleanly into a § 553 exemption, . . . the most prudent course [is] to await the sharpened facts that come from the actual workings of the regulation in question before striking the objective down as violative of the APA.Am. Hosp. Ass‘n v. Bowen, 834 F.2d 1037, 1056 (D.C.Cir.1987) (first alteration in original) (internal citation omitted); see Hudson v. FAA, 192 F.3d 1031, 1034-35 (D.C.Cir.1999); Pub. Citizen, Inc. v. NRC, 940 F.2d 679, 683 (D.C.Cir.1991).
In addition, the district court stated: (1) “DHS has clearly announced that it has decided not to enforce the immigration laws as they apply to approximately 4.3 million individuals“; (2) “Secretary Johnson announced that the DHS will not enforce the immigration laws as to over four million illegal aliens eligible for DAPA, despite the fact that they are otherwise deportаble“; (3) “As demonstrated by DACA and DAPA ..., the Government has decided that it will not enforce these immigration laws as they apply to well over five million people“; (4) “The DHS unilaterally established the parameters for DAPA and determined that it would not enforce the immigration laws as they apply to millions of individuals“; and (5) “the DHS does not seek compliance with the federal law in any form, but instead establishes a pathway for non-compliance and completely abandons entire sections of this country‘s immigration law.” Id. at 637 n.45, 638-43. The district court also characterized DAPA as an “announced policy of non-enforcement.” Id. at 637 n.45. Although these quotations from the district court‘s opinion focus on what it perceives to be the failures of DHS to enforce the immigration laws, at other places in that opinion, the district court identifies the decades-long failure of Congress to fund what the district court would consider adequate enforcement.
There might not be much left in the way of factual development of the record, see Majority Op. at 178 n. 158, but there is much left wanting in the way of legal development.
Appellees’ Br. 47-50; Appellants’ Reply Br. 21-23; Appellants’ Suppl. Br. 27-29; Appellees’ Suppl. Br. 15-17.
The majority makes much of the scope of DAPA in concluding that it violates the APA. See Majority Op. at 179, 181. Yet the conclusions regarding DAPA‘s legality are similarly applicable to ad hoc deferred action. Ad hoc deferred action triggers the same eligibility for benefits and Congress has not directly mentioned it by statute. It should follow then that ad hoc deferred action is also not authorized by the INA and is a substantive APA violation. But this cannot be the case for the reasons mentioned below. Despite the majority‘s emphasis on the scale of DAPA, its size plays no role in whether or not it is authorized by statute. I am aware of no principle that makes scale relevant in this analysis, and the majority does not cite any authority otherwise. The question of whether an agency has violated its governing statute does not change if its actions affect one person or “4.3 million” persons. Id. at 179.
The Court in Reno noted that “[p]rior to 1997, deferred-action decisions were governed by internal INS guidelines which considered [a variety of factors].” Reno, 525 U.S. at 484 n.8, 119 S.Ct. 936. Although the guidelines were rescinded, the Court also observed that “there [was] no indication that the INS has ceased making this sort of determination on a case-by-case basis.” Id.
The Office of Legal Counsel, in its evaluation of DAPA, noted that Congress had given its “implicit approval” to deferred action over the years. Office of Legal Counsel, The Department of Homeland Security‘s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others 30-31 (2014), available at http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf.
The majority‘s ruling that class-wide deferred action violates the INA is potentially devastating. The definition of a class is expansive: “A group of people, things, qualities, or activities that have common characteristics or attributes.” Class, Black‘s Law Dictionary (10th ed.2014). I suspect that DHS frequently grants deferred action to two or more aliens with common characteristics.
If
Id. at 611-12 (paragraph breaks omitted.) This detailed explication of the DAPA Memo flies in the face of the dissent‘s unjustified critique that the district court “eschew[ed] the plain language of the [DAPA] Memorandum.” Dissent at 207.I [the Secretary] hereby direct USCIS to establish a process, similar to DACA.... Applicants must file.... Applicants must also submit.... [Applicants] shall also be eligible.... Deferred action granted pursuant to the program shall be for a period of three years.... As with DACA, the above criteria are to be considered for all individuals.... ICE and CBP are instructed to immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the above criteria.... ICE is further instructed to review pending removal cases.... The USCIS process shall also be available to individuals subject to final orders of removal.
Second, DACA and DAPA are not identical: Eligibility for DACA was restricted to a younger and less numerous population,138 which suggests that DACA applicants are less likely to have backgrounds that would warrant a discretionary denial. Further, the DAPA Memo contains additional discretionary criteria: Applicants must not be “an enforcement priority as reflected in the [Prioritization Memo]; and [must] present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” DAPA Memo at 4. But despite those differences, there are important similarities: The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,” id. (emphasis added), and there was evidence that the DACA application process itself did not allow for discretion, regardless of the rates of approval and denial.139
Instead of relying solely on the lack of evidence that any DACA application had been denied for discretionary reasons, the district court found pretext for additional reasons. It observed that “the ‘Operating Procedures’ for implementation of DACA
As the government points out, there was conflicting evidence on the degree to which DACA allowed for discretion. Donald Neufeld, the Associate Director for Service Center Operations for USCIS, declared that “deferred action under DACA is a ... case-specific process” that “necessarily involves the exercise of the agency‘s discretion,” and he purported to identify several instances of discretionary denials.140 Although Neufeld stated that approximately 200,000 requests for additional evidence had been made upon receipt of DACA applications, the government does not know the number, if any, that related to discretionary factors rather than the objective criteria. Similarly, the government did not provide the number of cases that service-center officials referred to field offices for interviews.141
Although the district court did not make a formal credibility determination or hold an evidentiary hearing on the conflicting statements by Neufeld and Palinkas, the record indicates that it did not view the Neufeld declaration as creating a material factual dispute.142 Further, the govern
B.
A binding rule is not required to undergo notice and comment if it is one “of agency organization, procedure, or practice.”
The District of Columbia Circuit applies a more intricate test for distinguishing between procedural and substantive rules.146 The court first looks at the “effect on those interests ultimately at stake in the agency proceeding.” Hence, agency rules that impose ‘derivative,’ ‘incidental,’ or ‘mechanical’ burdens upon regulated individuals are considered procedural, rather than substantive.”147
Further, “a procedural rule generally may not ‘encode [] a substantive value judgment or put[] a stamp of approval or disapproval on a given type of behavior,”148 but “the fact that the agency‘s decision was based on a value judgment about procedural efficiency does not convert the resulting rule into a substantive one.”149 “A corollary to this principle is that rules are generally considered procedural so long as they do not ‘change the
Applying those considerations to DAPA yields the same result as does our substantial-impact test. Although the burden imposed on Texas is derivative of conferring lawful presence on beneficiaries, DAPA establishes “the substantive standards by which the [agency] evaluates applications’ which seek a benefit that the agency [purportedly] has the power to provide“—a critical fact requiring notice and comment.151
Thus, DAPA is analogous to “the rules [that] changed the substantive criteria for [evaluating station allotment counter-proposals]” in Reeder v. FCC, 865 F.2d 1298, 1305 (D.C.Cir.1989) (per curiam), holding that notice and comment was required. In contrast, the court in JEM Broadcasting, 22 F.3d at 327, observed that “[t]he critical fact here, however, is that the ‘hard look’ rules did not change the substantive standards by which the FCC evaluates license applications,” such that the rules were procedural. Further, receipt of DAPA benefits implies a “stamp of approval” from the government and “encodes a substantive value judgment,” such that the program cannot be considered procedural. Am. Hosp., 834 F.2d at 1047.
C.
Sеction 553(a)(2) exempts rules from notice and comment “to the extent that there is involved ... a matter relating to ... public property, loans, grants, benefits, or contracts.” To avoid “carv[ing] the heart out of the notice provisions of Section 553“,152 the courts construe the public-benefits exception very narrowly as applying only to agency action that “clearly and directly relate[s] to ‘benefits’ as that word is used in section 553(a)(2).”153
DAPA does not “clearly and directly” relate to public benefits as that term is used in
In summary, the states have established a substantial likelihood of success on the merits of their procedural claim. We proceed to address whether, in addition to that likelihood on the merits, the states make the same showing on their substantive APA claim.156
VII.
A “reviewing court shall ... hold unlawful and set aside agency action ... found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ... [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”
Assuming arguendo that Chevron159 applies,160 we first “ask whether
In specific and detailed provisions, the INA expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present162 and confers eligibility for “discretionary relief allowing [aliens in deportation proceedings] to remain in the country.”163 Congress has also identified narrow classes of aliens eligible for deferred action, including certain petitioners for immigration status under the Violence Against Women Act of 1994,164 immediate family members of lawful permanent residents (“LPRs“) killed by terrorism,165 and immediate family members of LPRs killed in combat and granted posthumous citizenship.166 Entirely absent from those specific classes is the group of 4.3 million illegal aliens who would be eligible for lawful presence under DAPA were it not enjoined. See DAPA Memo at 4.
Congress has enacted an intricate process for illegal aliens to derive a lawful immigration classification from their children‘s immigration status: In general, an applicant must (i) have a U.S. citizen child who is at least twenty-one years old, (ii) leave the United States, (iii) wait ten years, and then (iv) obtain one of the limit
The INA authorizes cancellation of removal and adjustment of status if, inter alia, “the alien has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application” and if “removal would result in exceptional and extremely unusual hardship to the alien‘s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”
Instead of a ten-year physical-presence period, DAPA grants lawful presence to persons who “have continuously resided in the United States since before January 1, 2010,” and there is no requirement that removal would result in exceptional and extremely unusual hardship. DAPA Memo at 4. Although the Secretary has discretion to make immigration decisions based on humanitarian grounds, that discretion is conferred only for particular family relationships and spеcific forms of relief—none of which includes granting lawful presence, on the basis of a child‘s immigration status, to the class of aliens that would be eligible for DAPA.171
The INA also specifies classes of aliens
The INA‘s careful employment-authorization scheme “protect[s] against the displacement of workers in the United States,”176 and a “primary purpose in restricting immigration is to preserve jobs for American workers.”177 DAPA would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress‘s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.
DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and “we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.”178 DAPA undoubtedly implicates “question[s] of deep ‘economic and political significance’ that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.”179 But
The dissent, relying on Texas Rural Legal Aid v. Legal Services Corp., 940 F.2d 685, 694 (D.C.Cir.1991), theorizes that our analysis is nothing but an application of the expressio unius est exclusio alterius180 canon of construction, which the dissent claims is of limited utility in administrative law. Dissent at 215-16. The dissent‘s observation is astray, however, because our statutory analysis does not hinge on the expressio unius maxim.
Moreover, the Supreme Court and this court have relied on expressio unius in deciding issues of administrative law. While noting “the limited usefulness of the expressio unius doctrine in the administrative context,”181 some courts have declined to apply it mostly because they find it unhelpful for the specific statute at issue.182 On other occasions, both our circuit and the Supreme Court have employed the canon in addressing administrative law.183 Nor has the District of Columbia Circuit expressly foreclosed use of the canon on questions of statutory interpretation by agencies.184 Our distinguished dissenting colleague, in fact, relied on expressio unius to uphold a decision of the Board of Immigration Appeals, concluding that the Equal Access to Justice Act did not provide for fee-shifting in proceedings before the Board. See Hodge v. Dep‘t of Justice, 929 F.2d 153, 157 n. 11 (5th Cir.1991) (King, J.).
For the authority to implement DAPA, the government relies in part on
Because we conclude, at Chevron Step One, that Congress has directly addressed lawful presence and work authorizations through the INA‘s unambiguously specific and intricate provisions, we find no reason to allow DHS such leeway. There is no room among those specific and intricate provisions for the Secretary to “exercise discretion in selecting a different threshold” for class-wide grants of lawful presence and work authorization under DAPA. Util. Air, 134 S.Ct. at 2446 n. 8.
We merely apply the ordinary tools of statutory construction to conclude that Congress directly addressed, yet did not authorize, DAPA. See King, 135 S.Ct. at 2483 (noting that to determine whether Congress has expressed its intent, we “must read the words in their context and with a view to their place in the overall statutory scheme“); City of Arlington v. FCC, U.S., 133 S.Ct. 1863, 1868 (2013) (“First, applying the ordinary tools of statutory construction, the court must determine whether Congress has directly spoken to the precise question at issue.“); Util. Air, 134 S.Ct. at 2441 (recognizing the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme“). Now, even assuming the government had survived Chevron Step One, we would strike down DAPA as manifestly contrary to the INA under Step Two. See
The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA‘s intricate system of immigration classifications and employment eligibility. Even with “special deference” to the Secretary,192 the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.
Presumably because DAPA is not authorized by statute, the United States posits that its authority is grounded in historical practice, but that “does not, by itself, create power,”193 and in any event, previous deferred-action programs are not analogous to DAPA. “[M]ost discretionary deferrals have been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters,”194 but DAPA is not such a program. Likewise, many of the previous programs were bridges from one legal status to another,195 whereas DAPA awards lawful presence to persons who have never had a legal status196 and may never receive one.197
Although the “Family Fairness” program did grant voluntary departure to family members of legalized aliens while they “wait[ed] for a visa preference number to become available for family members,” that program was interstitial to a statutory legalization scheme.198 DAPA is far from interstitial: Congress has repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (“DREAM Act“),199 features of which closely resemble DACA and DAPA.
Historical practice that is so far afield from the challenged program sheds no light on the Secretary‘s authority to implement DAPA. Indeed, as the district court recognized, the President explicitly stated that “it was the failure of Congress to enact such a program that prompted him ... to ‘change the law.‘”200 At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes. And the dissent attempts to avoid the impact of the President‘s statement by accusing the district court and this panel majority of “relying ... on selected excerpts of the President‘s public statements.” Dissent at 203, 208 n. 41.
“[D]eference is warranted only when Congress has left a gap for the agency to fill pursuant to an express or implied ‘delegation of authority to the agency.’ ” Chevron, 467 U.S. at 843-44. To suggest, as the [agency] effectively does, that Chevron step two is implicated at any time a statute does not expressly negate the existence of a claimed administrative power ... is both flatly unfaithful to the principles of administrative law ... and refuted by precedent.... Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well.
Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C.Cir.1995).
Through the INA‘s specific and intricate provisions, “Congress has ‘directly addressed the precise question at issue.‘” Mayo Found., 562 U.S. at 52. As we have indicated, the INA prescribes how parents may derive an immigration classification on the basis of their child‘s status and which classes of aliens can achieve deferred action and eligibility for work authorization. DAPA is foreclosed by Congress‘s careful plan; the program is “manifestly contrary to the statute”201 and therefore was properly enjoined.202
VIII.
The states have satisfied the other requirements for a preliminary injunction. They have demonstrated “a substantial threat of irreparable injury if the injunction is not issued.” Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir.2013) (quoting Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir.2009)). DAPA beneficiaries would be eligible for driver‘s licenses and other benefits, and a substantial number of the more than four million potential beneficiaries—many of whom live in the plaintiff states—would take advantage of that opportunity. The district court found that retracting those benefits would be “substantially difficult—if not impossible,” Dist. Ct. Op., 86 F.Supp.3d at 673, and the government has given us no reason to doubt that finding.
The states have shown “that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted.” Sepulvado, 729 F.3d at 417 (quoting Byrum, 566 F.3d at 445). The states have alleged a concrete threatened injury in the form of millions of dollars of losses.
The harms the United States has identified are less substantial. It claims that the injunction “obstructs a core Executive prerogative” and offends separation-of-powers and federalism principles. Those alleged harms are vague, and the principles the government cites are more likely to be affected by the resolution of the case on the merits than by the injunction.
Separately, the United States postulates that the injunction prevents DHS from
The government also complains that the injunction imposes administrative burdens because DHS has already leased office space and begun hiring employees to implement DAPA. Such inconveniences are common incidental effects of injunctions, and the government could have avoided them by delaying preparatory work until the litigation was resolved.203 Finally, the government reasonably speculates that the injunction burdens DAPA beneficiaries and their families and discourages them from cooperating with law-enforcement officers and paying taxes. But those are burdens that Congress knowingly created, and it is not our place to second-guess those decisions.
The states have also sufficiently established that “an injunction will not disserve the public interest.” Sepulvado, 729 F.3d at 417 (quoting Byrum, 566 F.3d at 445). This factor overlaps considerably with the previous one, and most of the same analysis applies.204 The main difference is that, instead of relying on their financial interests, the states refer to the public interest in protecting separation of powers by curtailing unlawful executive action.
Although the United States cites the public interest in maintaining separation of powers and federalism by avoiding judicial and state interference with a legitimate executive function, there is an obvious difference: The interest the government has identified can be effectively vindicated after a trial on the merits. The interest the states have identified cannot be, given the difficulty of restoring the status quo ante if DAPA were to be implemented.205 The public interest easily favors an injunction.
IX.
The government claims that the nationwide scope of the injunction is an abuse of discretion and requests that it be confined to Texas or the plaintiff states. But the Constitution requires “an uniform Rule of Naturalization“;206 Congress has instructed that “the immigration laws of
Furthermore, the Constitution vests the District Court with “the judicial Power of the United States.”210 That power is not limited to the district wherein the court sits but extends across the country. It is not beyond the power of a court, in appropriate circumstances, to issue a nationwide injunction.211
“We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.‘” Util. Air, 134 S.Ct. at 2444 (citation omitted). Agency announcements to the contrary are “greet[ed] ... with a measure of skepticism.” Id.
The district court did not err and most assuredly did not abuse its discretion. The order granting the preliminary injunction is AFFIRMED.
KING, Circuit Judge, dissenting:
Although there are approximately 11.3 million removable aliens in this country today, for the last several years Congress has provided the Department of Homeland Security (DHS) with only enough resources to remove approximately 400,000 of those aliens per year.1 Recognizing DHS‘s congressionally granted prosecutorial discretion to set removal enforcement priorities, Congress has exhorted DHS to use those resources to “mak[e] our country safer.” In response, DHS has focused on removing “those who represent threats to national security, public safety, and border security.” The DAPA Memorandum at issue here focuses on a subset of removable aliens who are unlikely to be removed unless and until more resources are made
Plaintiffs do not challenge DHS‘s ability to allow the aliens subject to the DAPA Memorandum—up to 4.3 million, some estimate—to remain in this country indefinitely. Indeed, Plaintiffs admit that such removal decisions are well within DHS‘s prosecutorial discretion.2 Rather, Plaintiffs complain of the consequences of DHS‘s decision to use its decades-long practice of granting “deferred action” to these individuals, specifically that these “illegal aliens” may temporarily work lawfully for a living and may also eventually become eligible for some public benefits. Plaintiffs contend that these consequences and benefits must be struck down even while the decision to allow the “illegal aliens” to remain stands. But Plaintiffs’ challenge cannot be so easily bifurcated. For the benefits of which Plaintiffs complain are not conferred by the DAPA
Even if this case were justiciable, the preliminary injunction, issued by the district court, is a mistake. If the Memorandum is implemented in the truly discretionary, case-by-case manner it contemplates, it is not subject to the APA‘s notice-and-comment requirements, and the injunction cannot stand. Although the very face of the Memorandum makes clear that it must be applied with such discretion, the district court concluded on its own—prior to DAPA‘s implementation, based on improper burden-shifting, and without seeing the need even to hold an evidentiary hearing—that the Memorandum is a sham, a mere “pretext” for the Executive‘s plan “not [to] enforce the immi
I. The DAPA Memorandum
For all of the pounds of paper written about it, the DAPA Memorandum spans only five pages, and I attach it to this dissent for all to read.4 The D.C. Circuit (which hears more of these administrative law cases than any other) has wisely observed that “[s]ometimes a simple reading of the document and study of its role in the regulatory scheme will yield the answer.” Pub. Citizen, Inc. v. U.S. Nuclear Regulatory Comm‘n, 940 F.2d 679, 682 (D.C.Cir. 1991).
The DAPA Memorandum is one of a series of memoranda issued by Secretary of Homeland Security Jeh Johnson on November 20, 2014. Broadly speaking, the Memorandum does two things: (1) it expands certain parameters of the prior DACA Memorandum, which provided guidelines for the use of deferred action with respect to certain individuals who came to the United States as children; and (2) it includes “guidance for case-by-case use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities.” Appx. A, at 3.
It is important to recognize at the outset the backdrop upon which the Memorandum was written. As noted above, given the resource constraints faced by DHS, the agency is faced with important prioritization decisions as to which aliens should be the subject of removal proceedings. Congress has made clear that those decisions are to be made by DHS, not by Congress itself—and certainly not by the courts. Indeed, Congress has delegated to the Secretary of Homeland Security the authority to “[e]stablish[] national immigration enforcement policies and priorities,”
In an apparent effort to maximize the resources that can be devoted to such ends and consistent with his congressionally granted authority to set enforcement priorities, the Secretary contends that he has chosen—through the DACA and DAPA Memoranda—to divert some of DHS‘s resources away from the lowest priority aliens to better enforce the immigration laws against the highest priority aliens. See Arpaio v. Obama, 797 F.3d 11, 17-18 (D.C.Cir.2015) (“DACA and DAPA ... apply to the portion of the population that [DHS] considers not threatening to public safety and that has not had any involvement, or only minimal and minor involvement, with the criminal justice system.“). By granting deferred action to children who were brought to this country unlawfully, and to the parents of U.S. citizens and lawful permanent residents (who otherwise have clean records), DHS has sought to “encourage [those individuals] to come out of the shadows, submit to background checks, pay fees, apply for work authorization ... and be counted.” Appx. A, at 3. Qualifying individuals can therefore work “on the books“—meaning, of course, that they will pay taxes on the income they earn. Furthermore, the Secretary points to the humanitarian aim of the DAPA Memorandum which, in conjunction with the DACA Memorandum, keeps families together—at least temporarily. Cf. Reno, 525 U.S. at 484 (describing “deferred action” as an “exercis[e] [of] discretion for humanitarian reasons or simply for [the Executive‘s] own convenience“). And by encouraging removable aliens to self-identify and register, both DACA and DAPA allow DHS to collect information (names, addresses, etc.) that will make it easier to locate these aliens in the future—if and when DHS ultimately decides to remove them. DHS is, of course, a law enforcement agency, and this is what we would call “good policing.” Although these programs will likely apply to a large number of individuals, that result is the inevitable upshot of decades of congressional appropriations decisions,7 which require DHS (whether by policy or by practice) to de-prioritize millions of removable aliens each year due to these resource constraints.
The DAPA Memorandum operates in two ways. First, with respect to the expansion of DACA, the DAPA Memorandum: removes the age cap (the DACA Memorandum excluded applicants over 31 years of age); extends the period of deferred action from two to three years; and adjusts the date-of-entry requirement from June 15, 2007, to January 1, 2010. Second, the Memorandum establishes new deferred action guidance, “direct[ing] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals” who meet six threshold criteria:
- have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident;
- have continuously resided in the United States since before January 1, 2010;
- are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS;
have no lawful status on the date of this memorandum; - are not an enforcement priority as reflected in the [Enforcement Priorities Memorandum8]; and
- present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.
Appx. A, at 4.
The Memorandum describes deferred action as a “form of prosecutorial discretion by which the Secretary deprioritizes an individual‘s case for humanitarian reasons, administrative convenience, or in the interest of the Department‘s overall enforcement mission.”9 Appx. A, at 2. The Memorandum makes clear that deferred action: must be “granted on a case-by-case basis“; “may be terminated at any time at the agency‘s discretion“;10 and “does not confer any form of legal status in this country, much less citizenship.” Appx. A, at 2. The Memorandum also states that although “immigration officers will be provided with specific eligibility criteria for deferred action, ... the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.” Appx. A, at 5. In addition, the Memorandum makes clear that applicants must submit to a background check and pay a $465 fee.11 Appx. A, at 4-5. It notes that deferred action recipients are eligible to apply for employment authorization.12 Appx. A, at 4. Finally, the Memorandum states that it “confers no substantive right, immigration status or pathway to citizenship.” Appx. A, at 5.
Holding that Plaintiffs’ challenge to this Memorandum is likely to succeed on the merits, the majority reaches four conclusions, the first three of which were reached by the district court, to sustain the preliminary injunction: (1) Plaintiffs have standing; (2) this case is justiciable and reviewable under the APA; (3) the DAPA Memorandum constitutes a substantive rule that must go through the notice-and-comment process; and (4) the DAPA Memorandum is not authorized by statute and is a substantive violation of the APA. As to the first conclusion, the majority finds that Texas is entitled to “special solicitude” in the standing analysis as DAPA implicates state “sovereignty concerns.” Majority Op. at 151, 153. Within this framework of standing, Texas has demonstrated an injury-in-fact because “it would incur significant costs in issuing driver‘s licenses to DAPA beneficiaries.” Id. at 154. The majority contends that even though “Texas could avoid financial loss by requiring applicants to pay the full costs of licenses, it could not avoid injury
II. Standing
While I would conclude that this case is non-justiciable, I write first to note my concerns with the majority‘s primary theory of standing, premised on an expansive notion of state standing and Texas‘s increased costs due to the issuance of driver‘s licenses to DAPA recipients.
Building off a single, isolated phrase in Massachusetts v. EPA, 549 U.S. 497, 520, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007), the majority finds that Texas has “special solicitude” in the standing inquiry because “DAPA affects the states’ ‘quasi-sovereign’ interests.” Majority Op. at 153. It is altogether unclear whether the majority means that states are afforded a relaxed standing inquiry by virtue of their statehood or whether their statehood, in of itself, helps confer standing. In any event, both propositions are deeply troublesome for three reasons.
First, this reasoning misconstrues the holding of Massachusetts. In that case, the Supreme Court held that Massachusetts had standing to challenge the EPA‘s decision not to regulate greenhouse gas emissions. Massachusetts, 549 U.S. at 526. But it did so based on Massachusetts’ quasi-sovereign interests and a provision of the Clean Air Act that specifically “recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” Id. at 520 (citing
Second, the majority‘s ruling raises serious separation of powers concerns. Long recognized is “the foundational role that Article III standing plays in our separation of powers.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 131 S.Ct. 1436, 1443, 179 L.Ed.2d 523 (2011); see also Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 125 n. 20, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“[O]ur standing doctrine is rooted in separation-of-powers conсerns.“). By preserving the proper bounds of Article III standing, the judiciary prevents itself from “aggrandiz[ing] itself . . . at the expense of one of the other branches.” John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L.J. 1219, 1230 (1993).
The majority‘s breathtaking expansion of state standing would inject the courts into far more federal-state disputes and review of the political branches than is now the case. While the majority claims that the factors giving a state “special solicitude” to sue the federal government will “seldom exist,” its holding suggests otherwise. Majority Op. at 162. If the
Third, and relatedly, the majority‘s sweeping “special solicitude” analysis “has no principled limit.” Majority Op. at 160. Recognizing that fact, it “stress[es] that [its] decision is limited to these facts.” Id. at 154. Really? If that were true, there would be no need to assuage concerns regarding the opinion‘s breadth by arguing “that there are other ways to cabin policy disagreements masquerading as legal claims.” Id. at 161. It is hard for me to see the bounds of the majority‘s broad ruling. Circuit Judge Alvin B. Rubin of this court once wrote that “[a]ny appellate opinion worth publishing should not merely give a reasoned disposition of the particular matter; it should, in addition, articulate a standard or a rule that can be applied by lawyers and judges in future cases.” Alvin B. Rubin, Views From the Lower Court, 23 UCLA L. Rev. 448, 451 (1976). Anything else is a “‘railway ticket’ decision—good only for this day and station.” Id. Today‘s decision is either just such a “railway ticket” (which, we are told, it actually aspires to be) or a broad, newfangled concept of state standing with little instruction going forward.
Apart from its “special solicitude” analysis, the majority also holds that Texas has standing because it suffered an injury-in-fact traceable to DAPA. This injury results from two independent decisions made by Texas: (1) an alleged decision to underwrite the costs of issuing driver‘s licenses to all applicants; and (2) a decision to allow deferred action recipients to apply for driver‘s licenses. The majority claims, at length, that there is a “pressure to change state law,” Majority Op. at 153, because the DAPA Memorandum has the downstream effect of expanding the pool of potential Texas driver‘s license applicants, thus increasing the costs Texas has made the choice to bear. This “pressure” is entirely manufactured by Plaintiffs for this case, and the majority and the district court have signed on. Nothing in the DAPA Memorandum suggests changes in state law. And I am skeptical that an incidental increase in state costs is sufficient to confer standing for the purposes of Article III. See Pennsylvania v. New Jersey, 426 U.S. 660, 664, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976) (“No State can be heard to complain about damage inflicted by its own hand.“). But see Wyoming v. Oklahoma, 502 U.S. 437, 448, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992) (holding a state had standing to sue another state when it suffered “a direct injury in the form of a loss of specific tax revenues“).16 Such a
III. Justiciability
I would conclude, as did Judge Higginson in dissenting from the denial of a stay in this action, that this case is non-justiciable. I write only to supplement Judge Higginson‘s thorough and forceful analysis as to this issue, with which I agree in full. See generally Texas v. United States, 787 F.3d 733, 769-84 (5th Cir.2015) (Higginson, J., dissenting).
Plaintiffs concede that if the DAPA Memorandum is only an exercise in enforcement discretion—without granting any “additional benefits“—it is unreviewable under
In other words, deferred action itself is merely a brand of “presumptively unreviewable” prosecutorial discretion. Majority Op. at 166; see
To the extent the exercise of deferred action “trigger[s]” other benefits, those are not new or “associated” benefits contained within the DAPA Memorandum itself. Majority Op. at 166-67.19 Rather, those benefits are a function of statutes and regulations that were enacted by Congresses and administrations long past—statutes and regulations which, vitally, Plaintiffs do not challenge in this action. The ability to apply for work authorization, the benefit on which the district court most heavily relied, has been tied to deferred action by a federal regulation since the early 1980s. The most current such regulation, promulgated in 1987, states that “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority,” may apply for work authorization “if the alien establishes an economic necessity for employment.”20
Each of the other benefits relied on by the district court and the majority—not one of which is even mentioned on the face of the DAPA Memorandum—results, if at all, from prior statutes and notice-and-comment regulations: (1) the suspension of the accrual of certain time periods for purposes of the INA‘s illegal reentry bars;23 (2) eligibility for certain Social Security and Medicare benefits;24 and (3) the ability to obtain a Social Security num-
These tangible benefits aside, the majority concludes that the term “lawful presence” itself constitutes a benefit bestowed by the DAPA Memorandum because it is “a change in designation that confers eligibility for substantial federal and state benefits on a class of otherwise ineligible aliens.” Majority Op. at 168. The majority ascribes some added importance to “lawful presence.” The Memorandum uses the phrase “lawful presence” to describe what deferred action is: “Deferred action . . . simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” Appx. A, at 2. As the Memorandum makes clear, “[d]eferred action does not confer any form of legal status in this country, much less citizenship,” and it “may be terminated at any time at the agency‘s discretion.” Id. at 2; see also Dhuka, 716 F.3d at 156 (“We conclude that ‘lawful status’ implies a right protected by law, while ‘[lawful presence]’ describes an exercise of discretion by a public official.“); Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir.2013) (“It is entirely possible for aliens to be lawfully present (i.e., in a ‘period of stay authorized by the Attorney General‘) even though their lawful status has expired.“). Thus, “lawful presence” does not “confer[] legal status upon its recipients,” Dist. Ct. Op., 86 F.Supp.3d at 637 n. 45 (emphasis added), nor does it constitute “a change in designation,” Majority Op. at 168. Rather, both “lawful presence” and “deferred action” refer to nothing more than DHS‘s tentative decision, revocable at any time, not to remove an individual for the time being—i.e., the decision to exercise prosecutorial discretion. Even the majority acknowledges that, at its core, “deferred action [is] a nonprosecution decision.” Id. at 167 (citing Reno, 525 U.S. at 484, 119 S.Ct. 936).27
Nor can it possibly be maintained that this exercise of prosecutorial discretion may be reviewed because DHS, which has been removing individuals from the United States in record numbers, “‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”29 Heckler, 470 U.S. at 833 n.4, 105
Finally, I would note that characterizing any “associated” benefits as flowing exclusively from the DAPA Memorandum—despite the fact that they stem from separate legal authorities—sets a dangerous precedent. The majority concludes that, in order to be reviewable, “DAPA need not directly confer public benefits“; merely “removing a categorical bar on receipt of those benefits and thereby making a class of persons newly eligible for them ‘provides a focus for judicial review.‘” Majority Op. at 167. Under this logic, any non-enforcement decision that triggers a collateral benefit somewhere within the background regulatory and statutory scheme is subject to review by the judiciary. As DHS notes, many exercises of prosecutorial discretion trigger such benefits. For example, a prosecutor‘s decision to place an individual in a federal pretrial diversion program in lieu of prosecution may result in that individual receiving drug treatment. See Thomas E. Ulrich, Pretrial Diversion in the Federal Court System, Fed. Prob., Dec. 2002 at 30, 32.30 At the very least, the majority‘s reasoning would render reviewable every single exercise of deferred action—programmatic or ad hoc—as any grant of deferred action triggers benefits under the statutes and regulations discussed above. While the district court distinguished away many past exercises of deferred action as “different in kind and scope” from DAPA for the purposes of reviewability,31 Dist. Ct. Op., 86 F.Supp.3d at 664, the majority does not cabin its conclusion. In fact, it suggests that all exercises of deferred action would be subject to judicial scrutiny. Majority Op. at 166 (“Deferred action . . . is much more than nonenforcement.“).
This is logic to which I cannot subscribe. Because the DAPA Memorandum contains only guidelines for the exercise of prosecutorial discretion and does not itself confer any benefits to DAPA recipients, I would deem this case non-justiciable. The policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process. That this case essentially boils down to a policy dispute is underscored not only by the dozens of amicus briefs filed in this case by interested par-
Accordingly, this case should be dismissed on justiciability grounds. However, for the sake of thoroughness and to correct serious errors committed by the district court in granting the preliminary injunction and the majority in affirming that grant, I discuss below the merits of both
IV. APA Procedural Claim
Our precedent is clear: “As long as the agency remains free to consider the individual facts in the various cases that arise, then the agency action in question has not established a binding norm,” and thus need not go through the procedures of notice-and-comment. Prof‘ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 596-97 (5th Cir.1995) (citation omitted).32 Therefore, in order for Plaintiffs to establish a substantial likelihood of success on the merits—the required showing for a preliminary injunction, Jackson Women‘s Health Org. v. Currier, 760 F.3d 448, 452 (5th Cir.2014)—Plaintiffs bore the burden of demonstrating that the Memorandum was non-discretionary. As the majority admits, the Memorandum “facially purports to confer discretion.” Majority Op. at 171. But the district court ignored this clear language, concluding that agency officials implementing DAPA will defy the
A. The Language and Substance of the DAPA Memorandum
In determining whether the DAPA Memorandum constitutes a substantive rule, we must begin with the words of the Memorandum itself. See Prof‘ls & Patients, 56 F.3d at 596. The Memorandum states that it reflects “new policies,” Appx. A, at 1, and “guidance for case-by-case use of deferred action,” Appx. A, at 3. Accordingly, the Secretary characterizes the Memorandum as a “general statement[] of policy“—which is not subject to the notice-and-comment process.
The discretionary nature of the DAPA Memorandum is further supported by the policy‘s substance. Although some of the Memorandum‘s criteria can be routinely applied,34 many will require agents to make discretionary judgments as to the application of the respective criteria to the facts of a particular case. For example, agents must determine whether an applicant “pose[s] a danger to national security,” Appx. B, at 3, whether the applicant is “a threat to . . . border security” or “public safety,” Appx. B, at 4, and whether the applicant has “significantly abused the visa or visa waiver programs,”35 Appx. B, at 4. Such criteria cannot be mechanically applied, but rather entail a degree of judgment; in other words, they are “imprecise and discretionary—not exact and certain.”36 Prof‘ls & Patients, 56 F.3d at 600 (concluding that an FDA policy delineating nine factors the agency should consider in determining whether to bring an enforcement action did not constitute a substantive rule). This aspect of the DAPA Memorandum appears to have been overlooked by the district court, which—in analyzing whether the Memorandum allows for case-by-case discretion—was fixated on the extent to which applicants meeting DAPA‘s criteria would nonetheless be denied deferred action.37 Such an approach ignores the fact that applying these threshold criteria itself involves an exercise of discretion.
Most strikingly, the last criterion contained in the DAPA Memorandum is entirely open-ended, stating that deferred action should be granted only if the applicant “present[s] no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” Appx. A, at 4. The Memorandum does not elaborate on what such “other factors” should be considered—leaving this analysis entirely to the judgment of the agents processing the applications. This court has held that such a caveat “express[ing] that [a] list of . . . factors is neither dispositive nor exhaustive,” “clearly leaves to the sound discretion of the agency in each case the ultimate decision whether to bring an enforcement action.” Prof‘ls & Patients, 56 F.3d at 600-01. Indeed, construing the DAPA memorandum as a categorical grant of deferred action for all applicants meeting the other DAPA criteria would render this last criterion meaningless. Cf. Brock, 796 F.2d at 538. Thus, due to the pres-
As Judge Kavanaugh, writing for the D.C. Circuit, has stated, “[t]he most important factor” in distinguishing between a substantive rule and a general statement of policy “concerns the actual legal effect (or lack thereof) of the agency action in question on regulated entities.” Nat‘l Mining Ass‘n v. McCarthy, 758 F.3d 243, 252 (D.C.Cir.2014). Here, the Memorandum makes clear that it “confers no substantive right, immigration status or pathway to citizenship.” Appx. A, at 5. The majority suggests that DAPA “modifies substantive rights and interests,” by “conferring lawful presence on 500,000 illegal aliens” and forcing Texas to change its laws. Majority Op. at 175-76. None of this appears on the face of the Memorandum though.38 In fact, nothing in the Memorandum indicates that it is legally binding—i.e., that an applicant who is not granted deferred action can challenge that decision in court, or that DHS would be barred from removing an applicant who appears to satisfy the Memorandum‘s criteria. See Tex. Sav. & Cmty. Bankers Ass‘n v. Fed. Hous. Fin. Bd., 201 F.3d 551, 556 (5th Cir.2000) (“Substantive or legislative rules affect individual rights and obligations and are binding on the courts.“); cf. Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 948 (D.C.Cir.1987) (per curiam) (deeming enforcement criteria a substantive rule where, “[a]s FDA conceded at oral argument, it would be daunting indeed to try to convince a court that the agency could appropriately prosecute a producer [who did not meet the agency‘s criteria for enforcement]“). Nor does anyone assert that the Memorandum “impose[s] any obligation or prohibition on regulated entities,” i.e., the potential DAPA applicants.39 Huerta, 785 F.3d at 717; cf. Heckler, 470 U.S. at 832, 105 S.Ct. 1649 (“[W]hen an agency refuses to act it generally does not exercise its coercive power over an individual‘s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect.“). Moreover, even absent the DAPA Memorandum, DHS would have the authority to take the action of which Plaintiffs complain—i.e., by granting deferred action on an ad hoc basis. See McCarthy, 758 F.3d at 253 (“When the agency applies a general statement of policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.” (internal brackets omitted)). Accordingly, based on its language and substance, the Memorandum does not constitute a binding substantive rule subject to the requirements of notice-and-comment.
The district court focused on the Memorandum‘s “mandatory term[s], instruction[s], [and] command[s]“—in particular, the Secretary‘s “direct[ion]” to USCIS to begin implementing DAPA. Dist. Ct. Op., 86 F.Supp.3d at 671 n. 103. But it should be no surprise that the Memorandum “direct[s]” the USCIS to establish a process for implementing this guidance, Appx. A, at 4; certainly the Secretary did not intend for it to be ignored, see Prof‘ls & Patients, 56 F.3d at 599 (“[W]hat purpose would an agency‘s statement of policy serve if agency employees could not refer to it for guidance?“). Although “the mandatory tone of the factors is undoubtedly calculated to encourage compliance,” such language does not transform a statement of policy into a substantive rule so long as there is “an opportunity for individualized determinations.” Id. at 597. Our discussion in Professionals and Patients is particularly instructive on this point:
True, the FDA had even greater discretion in bringing enforcement actions before [the policy for determining whether to bring enforcement actions against pharmacies] issued; prior to that time inspectors were apparently provided with no official guidance whatsoever. In that sense, therefore, [the policy] has “channeled” the FDA‘s enforcement discretion, providing direction—where once there was none—by helping to determine whether a pharmacy is engaged in traditional compounding or drug manufacturing. But all statements of policy channel discretion to some degree—indeed, that is their purpose. The more cogent question therefore is whether [the policy] is so restrictive in defining which pharmacies are engaged in drug manufacturing that it effectively removes most, if not all, of the FDA‘s discretion in deciding against which pharmacies it will bring an enforcement action. We cannot read [the policy] that restrictively.
Id. at 600. Nor should the DAPA Memorandum be read so restrictively. Its channeling of agency enforcement discretion—through the use of non-exhaustive, flexible criteria—is entirely consistent with a non-substantive rule. See, e.g., Nat‘l Roofing Contractors Ass‘n v. U.S. Dep‘t of Labor, 639 F.3d 339, 341-42 (7th Cir.2011) (“The Secretary committed to paper the criteria for allowing regulatory violations to exist without redress, a step essential to control her many subordinates. This does not make the exercise less discretionary.“); Guardian Fed. Sav. & Loan Ass‘n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658, 667 (D.C.Cir.1978) (“The mandatory tone of the specifications for audits and auditors doubtless encourages compliance. However, an opportunity for an individualized determination is afforded.“); see also Kast Metals Corp., 744 F.2d at 1152 n.13 (“[A]gency instructions to agency officers are not legislative rules.“). This is the law for good reason. Requiring each and every policy channeling prosecutorial discretion to go through the notice-and-comment process would perversely encourage unwritten, arbitrary enforcement policies.
The plain language of the Memorandum cannot be characterized as “draw[ing] a ‘line in the sand’ that, once crossed, removes all discretion from the agency.” Prof‘ls & Patients, 56 F.3d at 601. Furthermore, the fact that the DAPA Memo-
Rather than relying on the language of the Memorandum, the majority concludes that DAPA is a substantive rule because it “would not genuinely leave [DHS] and its employees free to exercise discretion” in practice. Majority Op. at 175; see also Prof‘ls & Patients, 56 F.3d at 595 (quoting Young, 818 F.2d at 946). But in doing so, the majority relies unquestioningly on the district court‘s finding that the discretionary language in DAPA was “merely pretext” and that DHS officials would not exercise case-by-case discretion of removals under DAPA. Majority Op. at 171; see also id. at 177 (“DAPA establishes ‘the substantive standards by which the [agency] evaluates applications.‘” (alterations in original)). The district court‘s finding was clearly erroneous, however, and I turn to it next.
B. Evidence of Pretext
The district court erred not only in its analysis of the legal effect of the DAPA Memorandum, but also in its resolution of the facts. By eschewing the plain language of the Memorandum, and concluding that its discretionary aspects are “merely pretext,” Dist. Ct. Op., 86 F.Supp.3d at 669 n. 101, the district court committed reversible error. To the extent the district court‘s pretext conclusion constitutes a factual finding entitled to “clear error” review, that does not mean that we “rubber stamp the district court‘s findings simply because they were entered.” McLennan v. Am. Eurocopter Corp., 245 F.3d 403, 409 (5th Cir.2001). Rather, “[c]lear error exists when this court is left with the definite and firm conviction that a mistake has been made.” Ogden v. Comm‘r, 244 F.3d 970, 971 (5th Cir.2001) (per curiam). I am left with such a conviction for three independent reasons: (1) the record lacks any probative evidence of DAPA‘s implementation; (2) the district court erroneously equated DAPA with DACA; and (3) even assuming DAPA and DACA can be equated, the evidence of DACA‘s implementatiоn fails to establish pretext.
It is true that the plain language of the Memorandum—which, in the majority‘s words, “facially purports to confer discretion“—may not be conclusive if rebutted by “what the agency does in fact.” Prof‘ls & Patients, 56 F.3d at 596. Here, however, there is no such evidence of what the agency has done “in fact,” as DAPA has yet to be implemented. The district court ruled even before it had “an early snapshot” of the policy‘s implementation. McCarthy, 758 F.3d at 253 (stating that, “because . . . recently issued guidance will have been implemented in only a few instances,” courts “look[ing] to post-guidance events to determine whether the agency has applied the guidance as if it were binding” must rely on “an early snapshot“).40 Plaintiffs have cited no authority,
How, then, did the district court reach the conclusion that the DAPA Memorandum‘s express inclusion of case-by-case discretion is “merely pretext“? First, the district court selectively relied on public statements the President made in describing the DAPA Memorandum to the public. Majority Op. at 173. But there is no precedent for a court relying on such general announcements in determining a program‘s effect on the agency and on those being regulated. As Judge Higginson aptly noted in his dissent from the denial of the motion for a stay, “Presidents, like governors and legislators, often describe [a] law enthusiastically yet defend the same law narrowly.” Texas, 787 F.3d at 780 (Higginson, J., dissenting); see also Prof‘ls & Patients, 56 F.3d at 599 (reasoning that “informal communications often exhibit a lack of ‘precision of draftsmanship’ and . . . internal inconsistencies” and thus are “entitled to limited weight“).41 More importantly, the statements relied upon by the district court are not inconsistent with the DAPA Memorandum‘s grant of discretion to agency decision makers. For example, the President‘s statement that those who “meet the [DAPA] criteria . . . can come out of the shadows,” Dist. Ct. Op., 86 F.Supp.3d at 668, does not suggest that applications will be rubber-stamped, given that (as discussed above) those very criteria involve the exercise of discretion. Similarly, the President‘s suggestion that agents who do not follow DAPA‘s guidelines may suffer consequences does not support the conclusion that the Memorandum is pretextual. Rather, it supports the opposite conclusion—that the terms of the DAPA Memorandum, which incorporate case-by-case discretion, will be followed. An order to “use your discretion” is not a substantive rule.
The district court‘s reliance on language contained in DHS‘s DAPA website—a source apparently not even cited by the parties and not mentioned by the majority—rests on even shakier ground. According to the district court, the DHS website‘s characterization of DAPA as a “program” and an “initiative” somehow contradicts DHS‘s position that the Memorandum constitutes “guidance.” Of course, DAPA may very well be all three, but this has no bearing on whether the Memorandum constitutes a substantive rule—i.e., whether the “program” or “initiative” or “guidance” genuinely allows the agency to exercise its discretion on a case-by-case basis. Even more dubious is the
Lacking any probative evidence as to DAPA‘s implementation, the district court relied most heavily on evidence of DACA‘s implementation—concluding unequivocally that DAPA will be “implemented exactly like DACA.” Id. at 663. It is this analysis that the majority finds convincing, all the while noting that “any extrapolation from DACA must be done carefully.” Majority Op. at 173. The district court reached this conclusion on two flawed bases: (1) the DAPA Memorandum‘s statement directing the USCIS to “establish a process, similar to DACA” for implementing DAPA, Appx. A, at 4; and (2) the “lack of any suggestion that DAPA will be implemented in a fashion different from DACA,” Dist. Ct. Op., 86 F.Supp.3d at 649. With respect to the former, this single, nebulous statement does not specify how the DAPA and DACA processes would be similar; the phrase cannot be construed to mean that DAPA and DACA will be implemented identically. The latter is pure burden-shifting—the district court implies that the burden is on DHS to show that the two programs will be implemented differently. Of course, in the preliminary injunction context, Plaintiffs, “by a clear showing, carr[y] the burden of persuasion.” Harris Cnty. v. CarMax Auto Superstores Inc., 177 F.3d 306, 312 (5th Cir.1999). The district court also completely ignored the statement contained in the Declaration of Donald W. Neufeld—the Associate Director for Service Center Operations for USCIS—that “USCIS is in the process of determining the procedures for reviewing requests under DAPA, and thus USCIS has not yet determined whether the process to adjudicate DAPA requests will be similar to the DACA process.”
More importantly, the fact that the administration of the two programs may be similar is not evidence that the substantive review under both programs will be the same. As discussed in more detail below, the district court relied heavily on the denial rates of applications submitted under DACA. But those rates are irrelevant for one simple reason, a reason the district court failed to confront: the substantive criteria under DACA and DAPA are different. And even the majority concedes that “DACA and DAPA are not identical.” Majority Op. at 173. Review under the DAPA Memorandum does not, for example, require reference to the various discretionary factors contained in the Enforcement Priorities Memorandum, nor does DACA contain DAPA‘s criterion that the applicant “present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” Appx. A, at 4; see also Majority Op. at 174 (“Further, the DAPA Memo contains additional discretionary criteria.“). Thus, even assuming DACA and DAPA applications are reviewed using the exact same administrative process, the district court had no basis for concluding that the results of that process—a process that would involve the application of markedly different, discretionary criteria—would be
There are additional reasons, however, to discount the DACA-related evidence on which the district court based its decision and which the majority now accepts. First, even assuming DACA‘s 5% denial rate has some probative value, and assuming that rate can be properly characterized as low,44 a low rate would be unsurprising given the self-selecting nature of the program, as the majority concedes. Majority Op. at 173. It should be expected that only those highly likely to receive deferred action will apply; otherwise, applicants would risk revealing their immigration status and other identifying information to authorities, thereby risking removal (and the loss of a sizeable fee). The majority recognizes this issue but finds that it “is partially mitigated by the finding that ‘the [g]overnment has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action.‘” Id. (citing Dist. Ct. Op., 86 F.Supp.3d at 663). But this public declaration, cited by the district court, comes from an informational DHS website that never states that DHS will make no attempt to enforce the law.45
The district court also erred in its mischaracterization of a letter written by León Rodríguez, Director of USCIS, to Senator Charles Grassley, suggesting that the top four reasons for DACA denials are:
- the applicant used the wrong form;
- the applicant failed to provide a valid signature;
- the applicant failed to file or complete Form I-765 or failed to enclose the fee; and
- the applicant was below the age of fifteen and thus ineligible to participate in the program.
Dist. Ct. Op., 86 F.Supp.3d at 609. This, however, is not what the letter says. The letter actually states that these were the top four reasons for DACA application rejections, not denials. As made clear in DHS‘s Neufeld Declaration, “a DACA request is ‘rejected’ when [it is] determine[d] upon intake that the [application] has a fatal flaw,” while “[a] DACA request is ‘denied’ when a USCIS adjudicator, on a case-by-case basis, determines that the requestor has not demonstrated that they satisfy the guidelines for DACA or when an adjudicator determines that deferred action should be denied even though the threshold guidelines are met.” By conflating rejections with denials, the district court suggested that most denials are made for mechanical administrative reasons and thus could not have been discre-
The district court also appeared singularly focused on one metric for measuring whether DACA (and by implication, DAPA) is implemented in a discretionary manner. The court insisted that DHS provide: “the number, if any, of requests that were denied even though the applicant met the DACA criteria as set out in Secretary Napolitano‘s DACA memorandum.”46 Id. at 609. In yet another instance of improper burden-shifting, the court reasoned that “[b]ecause the Government could not produce evidence concerning applicants who met the program‘s criteria but were denied DACA status, this Court accepts the States’ evidence as correct.” Id. at 609 n.8. But the burden of showing DAPA is non-discretionary was on Plaintiffs—the States—and Plaintiffs provided no evidence as to the number of these denials. Rather, the district court accepted as true Plaintiffs’ bare assertion that there were no such denials, concluding unequivocally that “[n]o DACA application that has met the criteria has been denied based on an exercise of individualized discretion.” Id. at 669 n.101. The district court reached this conclusion in the face of uncontested evidence contained in the Neufeld Declaration that DACA applications “have also been denied on the basis that deferred action was not appropriate for other reasons not expressly set forth in [the] 2012 DACA Memorandum.” The district court also failed to acknowledge the reason DHS did not introduce statistics as to these denials: it had no ability to
do so. As stated in the Neufeld Declaration, “[u]ntil very recently, USCIS lacked any ability to automatically track and sort the reasons for DACA denials,” presumably because it had no reason to track such data prior to this litigation. Although this point is undisputed, the district court and now the majority nonetheless fault DHS for failing to provide the information the district court requested. See Majority Op. at 175 (“[T]he government did not provide the number of cases that service-center officials referred to fiеld offices for interviews.“). Yet it was not DHS‘s burden to disprove Plaintiffs’ assertions of pretext, nor must DHS (anticipatorily) track data in a way that may be convenient to an adversary in future litigation.
The district court also relied on a four-page declaration by Kenneth Palinkas, President of the National Citizenship and Immigration Services Council (the union representing USCIS employees processing DACA applications), for the proposition that “DACA applications are simply rubberstamped if the applicants meet the necessary criteria.”47 Dist. Ct. Op., 86 F.Supp.3d at 610. Yet lay witness conclusions are only competent evidence if rationally drawn from facts personally observed. See Fed.R.Evid. 701. Here, Palinkas‘s conclusion was supported only by the fact that DACA applications are routed to “service centers instead of field offices,” and that “USCIS officers in service centers . . . do not interview applicants“—a weak basis on which to conclude that DHS‘s representations (both to the public and to the courts) are “merely pretext.”48
See 11A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2949 (3d ed. 2015) (“Preliminary injunctions frequently are denied if the affidavits are too vague or conclusory to demonstrate a clear right to relief under Rule 65.“). Indeed, Palinkas‘s assertions are rebutted—and the step-by-step process for reviewing DACA applications is explained—in the detailed affidavit filed by Donald Neufeld, the head of those very USCIS service centers. Neufeld declares that the service centers “are designed to adjudicate applications, petitions and requests” for various programs “that have higher-volume caseloads.” Neufeld goes on to describe the “multi-step, case-specific process” for reviewing DACA applications: “Once a case arrives at a Service Center, a specially trained USCIS adjudicator is assigned to determine whether the requestor satisfies the
ing the application “by contacting educational institutions, other government agencies, employers, or other entities.” Moreover, although the Palinkas Declaration accurately states that adjudicators at USCIS service centers do not have the capability to interview applicants, the Neufeld Declaration clarifies that service center adjudicators “may refer a case for interview at a Field Office“—for example, “when the adjudicator determines, after careful review of the request and support-ing documents, that a request is deniable, but potentially curable, with information that can best be received through an interview.” Adjudicators may also request that applicants submit additional evidence in support of their applications for deferred action; this was no rare occurrence, as nearly 200,000 such requests for additional evidence were issued by adjudicators. “In addition, all DACA requestors must submit to background checks, and requests are denied if these background checks show that deferred action would be inappropriate.”
Placing these declarations side-by-side, the detailed Neufeld Declaration does not simply rebut the conclusory assertions contained in the Palinkas Declaration—it provides undisputed context for how USCIS service centers actually work and how DACA application decisions are made. Or at the very least, as the majority concedes, the two in tandem create “conflicting evidence on the degree to which DACA allowed for discretion.” Majority Op. at 175.
The district court also looked to the operating procedures governing the implementation of DACA, noting that they “contain[] nearly 150 pages of specific instructions for granting or denying deferred action” and involve the use of standardized forms for recording denials—a fact the majority mentions. Dist. Ct. Op., 86 F.Supp.3d at 669 (footnote omitted). But no such operating procedures for the implementation of DAPA appear in the record—a fact the majority does not mention. As noted above, the USCIS is currently “in the process of determining the procedures for reviewing requests under DAPA.” In any event, even “specific and detailed requirements” may qualify as a “‘general’ statement of policy.” Guardian Fed. Sav. & Loan Ass‘n, 589 F.2d at 667. And the “purpose” of a statement of policy is to “channel discretion” of agency decision makers; such channeling does not trigger the requirements of notice-and-comment unless it is “so restrictive . . . that it effectively removes most, if not all, of the [agency]‘s discretion.” Prof‘ls & Patients, 56 F.3d at 600. As for the use of standardized forms to record denials, what matters is not whether DAPA decisions are memorialized in a mechanical fashion, but whether they are made in such a fashion. For the many reasons discussed above, the district court had no legitimate basis for concluding that they will be.
Finally, the district court‘s lengthy discussion of an “abdication theory” of standing—a theory for which Plaintiffs have not even expressly advocated—provides context for the district court‘s conclusions as to pretext.54 In determining that the
The majority accepts the district court‘s factual conclusions almost carte blanche. But clear error review is not a rubber stamp, and the litany of errors committed by the district court become readily apparent from a review of the record. The record before us, when read properly, shows that DAPA is merely a general statement of policy. As such, it is exempt from the notice-and-comment requirements of
V. APA Substantive Claim
The majority‘s conclusion that the states are substantially likely to succeed on their APA procedural claim should presumably be enough to affirm the decision below. Yet, for reasons altogether unclear, the majority stretches beyond the judgment of the district court and concludes that DAPA and a long, preexisting regulation (
That said, were I to reach the substantive APA claim I would find the majority‘s conclusion unpersuasive on the limited record before us. The argument that DAPA is a substantive APA violation, as I read it, appears to be the following: (1) DAPA is “manifestly contrary,” Majority Op. at 186, to the text of the INA and deserves no deference partly because Congress would not assign it such a “decision[] of vast ‘economic and political significance,‘” id. at 184 (citation omitted); and (2) even if DHS deserved deference, DAPA is not a reasonable interpretation of the INA.
Questions of how agencies construe their governing statutes fall under the two-step inquiry announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). It bears reiterating this framework as I believe the majority misapplies it and its associated precedents. At step one of Chevron, courts are to look at “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. If Congress has directly spoken, then the court “must give effect to [its] unambiguously expressed intent.” Id. at 843, 104 S.Ct. 2778. But “if the statute is silent or ambiguous,” then at step two, a court is to defer to an agency‘s interpretation of a statute so long as it is “reasonable.” Id. at 843-44, 104 S.Ct. 2778.
The majority first states that DAPA fails Chevron step one because Congress has directly addressed the issue of deferred action. Majority Op. at 179-80. To bolster its conclusion, the majority points to provisions of the INA that delineate which aliens can receive lawful permanent resident (LPR) status, can be eligible for deferred action, and can receive LPR status by having a citizen family member. Id. at 179-80. These provisions are, indeed, “specific and detailed,” id. at 179, but none of them precisely prohibits or addresses the kind of deferred action provided for under DAPA. The question under step one is whether the language of a statute is “precisely directed to the question,” not whether “parsing of general terms in the text of the statute will reveal an actual intent of Congress.” Chevron, 467 U.S. at 861-62, 104 S.Ct. 2778. Most of the provisions identified by the majority are directed at the requirements for legal status, not the lawful presence permitted by DAPA. And even the majority acknowledges the two are not the same. See Majority Op. at 180 (“LPR status is more substantial than is lawful presence.“). DAPA does not purport to create “a lawful immigration classification.” Id. at 179.
It is true that Congress has specified certain categories of aliens that are eligible for deferred action. See id. at 179. This line of argument follows from the legal maxim expressio unius est exclusio alterius (“the expression of one is the exclusion
the language regarding deferred action was worded in permissive terms, not prohibitive terms. See, e.g.,
The majority next holds that DAPA fails Chevron step one because the INA‘s broad grants of authority “cannot reasonably be construed as assigning [DHS] ‘decisions of vast economic and political significance,’ such as DAPA.” Majority Op. at 182-84 (footnote omitted). To the contrary, immigration decisions often have substantial economic and political significance. In Arizona, the Court noted that “discretionary decisions” made in the enforcement of immigration law “involve policy choices that bear on this Nation‘s international relations.” 132 S.Ct. at 2499. “Removal decisions,” it has been observed, “‘may implicate our relations with foreign powers’ and require consideration of ‘changing political and economic circumstances.‘” Jama v. Immigration & Customs Enf‘t, 543 U.S. 335, 348, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) (quoting Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)). And deferred action—whether ad hoc or through DAPA—is not an effort by DHS to “hide elephants in mouseholes,” Whitman v. Am. Trucking Ass‘ns, Inc., 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001), but rather “[a] principal feature of the removal system,” Arizona, 132 S.Ct. at 2499.
The majority‘s reliance on King v. Burwell, --- U.S. ----, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015), for its conclusion is misplaced. The Court in King held that it was unlikely Congress delegated a key reform of the ACA to the IRS—an agency not charged with implementing the ACA and with “no expertise in crafting health insurance policy.” Id. at 2489. By contrast, DHS is tasked with enforcement of the immigration laws, see, e.g.,
Lastly, the majority concludes that “[e]ven with ‘special deference’ to the Secretary,” DAPA is an unreasonable interpretation of the INA. Majority Op. at 184 (footnote omitted). Reasonableness at step two of Chevron requires only a “minimum level of reasonability,” Tex. Office of Pub. Util. Counsel, 183 F.3d at 420, and will be found so long as an agency‘s intеrpretation is “not patently inconsistent with the statutory scheme,” Am. Airlines, Inc. v. Dep‘t of Transp., 202 F.3d 788, 813 (5th Cir.2000) (citation omitted). It is hard to see how DAPA is unreasonable on the record before us. DAPA does not negate or conflict with any provision of the INA. See Whitman, 531 U.S. at 484, 121 S.Ct. 903. DHS has repeatedly asserted its right to engage in deferred action. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 146, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (concluding an agency was not entitled to deference where it previously disavowed its enforcement authority). And DAPA appears to further DHS‘s mission of “[e]stablishing national immigration enforcement policies and priorities.”
Indeed, if DAPA were unreasonable under the INA, then it follows that ad hoc grants of deferred action are unreasonable as well—something the majority declines to reach. See Majority Op. at 186 n. 202. But, as previously mentioned, there is no difference between the two other than scale, and ad hoc deferred action has been repeatedly acknowledged by Congress and the courts as a key feature of immigration enforcement. See Reno, 525 U.S. at 483-84, 119 S.Ct. 936. After all, agencies are “far better equipped than the courts to deal with the many variables involved in the proper ordering of [their] priorities,” Heckler, 470 U.S. at 831-32, 105 S.Ct. 1649 and “[t]he responsibilities for assessing the wisdom of such policy choices ... are not judicial ones,” Chevron, 467 U.S. at 866, 104 S.Ct. 2778. From the limited record before us, I would conclude that the DAPA Memorandum is not a substantive APA violation.
VI. Conclusion
There can be little doubt that Congress‘s choices as to the level of funding for immigration enforcement have left DHS with difficult prioritization decisions. But those decisions, which are embodied in the DAPA Memorandum, have been delegated to the Secretary by Congress. Because federal courts should not inject themselves into such matters of prosecutorial discretion, I would dismiss this case as non-justiciable.
Furthermore, the evidence in the record (the importance of which should not be
I dissent.
November 20, 2014
MEMORANDUM FOR: León Rodríguez
Director
U.S. Citizenship and Immigration Services
Thomas S. Winkowski
Acting Director
U.S. Immigration and Customs Enforcement
R. Gil Kerlikowske
Commissioner
U.S. Customs and Border Protection
FROM: Jeh Charles Johnson
Secretary
SUBJECT: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents
This memorandum is intended to reflect new policies for the use of deferred action. By memorandum dated June 15, 2012, Secretary Napolitano issued guidance entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children. The following supplements and amends that guidance.
The Department of Homeland Security (DHS) and its immigration components are responsible for enforcing the Nation‘s immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. Secretary Napolitano noted two years ago, when she issued her prosecutorial discretion guidance regarding children, that “[o]ur Nation‘s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case.”
Deferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual‘s case for humanitarian reasons, administrative convenience, or in the interest of the Department‘s overall enforcement mission. As an act of prosecutorial discretion, deferred action is legally available so long as it is granted on a case-by-case basis, and it may be terminated at any time at the agency‘s discretion. Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States. Nor can deferred action itself lead to a green card. Although deferred action is not expressly conferred by statute, the practice is referenced and therefore endorsed by implication in several federal statutes.2
Historically, deferred action has been used on behalf of particular individuals, and on a case-by-case basis, for classes of unlawfully present individuals, such as the spouses and minor children of certain legalized immigrants, widows of U.S. citizens, or victims of trafficking and domestic violence.3 Most recently, beginning in 2012, Secretary Napolitano issued guidance for case-by-case deferred action with respect to those who came to the United States as children, commonly referred to as “DACA.”
The reality is that most individuals in the categories set forth below are hard-working people who have become integrated members of American society. Provided they do not commit serious crimes or otherwise become enforcement priorities, these people are extremely unlikely to be deported given this Department‘s limited enforcement resources—which must continue to be focused on those who represent threats to national security, public safety, and border security. Case-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation‘s security and economic interests and make common sense, because they encourage these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization (which by separate authority I may grant), and be counted.
A. Expanding DACA
DACA provides that those who were under the age of 31 on June 15, 2012, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria, are eligible for deferred action on a case-by-case basis. The initial DACA announcement of June 15, 2012 provided deferred action for a period of two years. On June 5, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that DACA recipients could request to renew their deferred action for an additional two years.
In order to further effectuate this program, I hereby direct USCIS to expand DACA as follows:
Remove the age cap. DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i.e., those who were born before June 15, 1981). That restriction will no longer apply.
Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work
Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010.
USCIS should begin accepting applications under the new criteria from applicants no later than ninety (90) days from the date of this announcement.
B. Expanding Deferred Action
I hereby direct USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals who:
- have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident;
- have continuously resided in the United States since before January 1, 2010;
- are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS;
- have no lawful status on the date of this memorandum;
- are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and
- present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.
Applicants must file the requisite applications for deferred action pursuant to the new criteria described above. Applicants must also submit biometrics for USCIS to conduct background checks similar to the background check that is required for DACA applicants. Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of
USCIS should begin accepting applications from eligible applicants no later than one hundred and eighty (180) days after the date of this announcement. As with DACA, the above criteria are to be considered for all individuals encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or USCIS, whether or not the individual is already in removal proceedings or subject to a final order of removal. Specifically:
- ICE and CBP are instructed to immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the above criteria and may thus be eligible for deferred action to prevent the further expenditure of enforcement resources with regard to these individuals.
- ICE is further instructed to review pending removal cases, and seek administrative closure or termination of the cases of individuals identified who meet the above criteria, and to refer such individuals to USCIS for case-by-case determinations. ICE should also establish a process to allow individuals in removal proceedings to identify themselves as candidates for deferred action.
- USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear. The USCIS process shall also be available to individuals subject to final orders of removal who otherwise meet the above criteria.
Under any of the proposals outlined above, immigration officers will be provided with specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.
This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights. It remains within the authority of the Executive Branch, however, to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law. This memorandum is an exercise of that authority.
November 20, 2014
MEMORANDUM FOR: Thomas S. Winkowski
Acting Director
U.S. Immigration and Customs Enforcement
R. Gil Kerlikowske
Commissioner
U.S. Customs and Border Protection
León Rodríguez
Director
U.S. Citizenship and Immigration Services
Alan D. Bersin
Acting Assistant Secretary for Policy
FROM: Jeh Charles Johnson
Secretary
SUBJECT: Policies for the Apprehension, Detention and Removal of Undocumented Immigrants
This memorandum reflects new policies for the apprehension, detention, and removal of aliens in this country. This memorandum should be considered Department-wide guidance, applicable to the activities of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS). This memorandum should inform enforcement and removal activity, detention decisions, budget requests and execution, and strategic planning.
In general, our enforcement and removal policies should continue to prioritize threats to national security, public safety, and border security. The intent of this new policy is to provide clearer and more effective guidance in the pursuit of those priorities. To promote public confidence in our enforcement activities, I am also directing herein greater transparency in the annual reporting of our removal statistics, to include data that tracks the priorities outlined below.
In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. While DHS may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing enforcement and removal of higher priority cases. Thus, DHS personnel are expected to exercise discretion and pursue these priorities at all stages of the enforcement process—from the earliest investigative stage to enforcing final orders of removal—subject to their chains of command and to the particular responsibilities and authorities applicable to their specific position.
Except as noted below, the following memoranda are hereby rescinded and superseded: John Morton, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, March 2, 2011; John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens, June 17, 2011; Peter Vincent, Case-by-Case Review of Incoming and Certain Pending Cases, November 17, 2011; Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems, December 21, 2012; National Fugitive Operations Program: Priorities, Goals, and Expectations, December 8, 2009.
The following shall constitute the Department‘s civil immigration enforcement priorities:
Priority 1 (threats to national security, border security, and public safety)
Aliens described in this priority represent the highest priority to which enforcement resources should be directed:
- aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
- aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
- aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in
18 U.S.C. § 521(a) , or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang; - aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien‘s immigration status; and
- aliens convicted of an “aggravated felony,” as that term is defined in
section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.
The removal of these aliens must be prioritized unless they qualify for asylum or another form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.
Priority 2 (misdemeanants and new immigration violators)
Aliens described in this priority, who are also not described in Priority 1, represent the second-highest priority for apprehension and removal. Resources should be dedicated accordingly to the removal of the following:
- aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element
was the alien‘s immigration status, provided the offenses arise out of three separate incidents; - aliens convicted of a “significant misdemeanor,” which for these purposes is an offense of domestic violence;1 sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence);
- aliens apprehended anywhere in the United States after unlawfully entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014; and
- aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.
These aliens should be removed unless they qualify for asylum or another form of relief under our laws or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.
Priority 3 (other immigration violations)
Priority 3 aliens are those who have been issued a final order of removal2 on or after January 1, 2014. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.
Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein. However, resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein, provided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.
C. Detention
As a general rule, DHS detention resources should be used to support the enforcement priorities noted above or for aliens subject to mandatory detention by law. Absent extraordinary circumstances or the requirement of mandatory detention, field offiсe directors should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest. To detain aliens in those categories who are not subject to mandatory detention, DHS officers or special agents must obtain approval from the ICE Field Office Director. If an alien falls within the above categories and is subject to mandatory detention, field office directors are encouraged to contact their local Office of Chief Counsel for guidance.
D. Exercising Prosecutorial Discretion
Section A, above, requires DHS personnel to exercise discretion based on individual circumstances. As noted above, aliens in Priority 1 must be prioritized for removal unless they qualify for asylum or other form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority. Likewise, aliens in Priority 2 should be removed unless they qualify for asylum or other forms of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority. Similarly, aliens in Priority 3 should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the
In making such judgments, DHS personnel should consider factors such as: extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances.
E. Implementation
The revised guidance shall be effective on January 5, 2015. Implementing training and guidance will be provided to the workforce prior to the effective date. The revised guidance in this memorandum applies only to aliens encountered or apprehended on or after the effective date, and aliens detained, in removal proceedings, or subject to removal orders who have not been removed from the United States as of the effective date. Nothing in this guidance is intended to modify USCIS Notice to Appear policies, which remain in force and effect to the extent they are not inconsistent with this memorandum.
F. Data
By this memorandum I am directing the Office of Immigration Statistics to create the capability to collect, maintain, and report to the Secretary data reflecting the numbers of those apprehended, removed, returned, or otherwise repatriated by any component of DHS and to report that data in accordance with the priorities set forth above. I direct CBP, ICE, and USCIS to cooperate in this effort. I intend for this data to be part of the package of data released by DHS to the public annually.
G. No Private Right Statement
These guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.
DAPA Memo at 4-5. See Dist. Ct. Op., 86 F.Supp.3d at 610-11. The district court‘s conclusion that DACA and DAPA would be applied similarly, based as it was in part on the memorandum‘s plain language, was not clearly erroneous and indeed was not error under any standard of review.In order to align the DACA program more closely with the other deferred action authorization outlined below, ... I hereby direct USCIS to establish a process, similar to DACA.... There will be no fee waivers, and like DACA.... As with DACA, the above criteria are to be considered for all individuals....
Chevron deference requires the courts to accept an agency‘s reasonable construction of a statute as long as it is “not patently inconsistent with the statutory scheme.” Am. Airlines, Inc. v. Dep‘t of Transp., 202 F.3d 788, 813 (5th Cir.2000). As explained below, we decide that, assuming Chevron deference does apply, DAPA is not a reasonable construction of the INA, because it is “manifestly contrary” to the INA statutory scheme. Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 53, 131 S.Ct. 704, 178 L.Ed.2d 588 (2011).
An agency construction that is manifestly contrary to a statutory scheme could not be persuasive under the test in Skidmore v. Swift & Co., 323 U.S. 134 (1944), а test that affords agency constructions less deference than does Chevron. See Gonzales v. Oregon, 546 U.S. 243, 256 (2006) (providing that under Skidmore, an “interpretation is entitled to respect only to the extent it has the power to persuade“). Therefore, our decision to forego discussion of the Walton factors is sensible. See Griffon v. U.S. Dep‘t of Health & Human Servs., 802 F.2d 146, 148 n. 3 (5th Cir.1986) (noting that where an interpretive rule is unreasonable, “there is no need to decide whether Chevron or a less exacting standard applies“).
The dissent‘s repeated references to DAPA as the appropriate continuation of a long-standing practice, see, e.g., Dissent at 189, badly mischaracterizes the nature of DAPA. Previous iterations of deferred action were limited in time and extent, affecting only a few thousand aliens for months or, at most, a few years. MEMORANDUM ON THE DEP‘T OF HOMELAND SEC.‘S AUTH. TO PRIORITIZE REMOVAL OF CERTAIN ALIENS UNLAWFULLY PRESENT IN THE UNITED STATES AND TO DEFER REMOVAL OF OTHERS, Dep‘t of Justice, Office of Legal Counsel, at *15-*17 (Nov. 19, 2014).
Nothing like DAPA, which alters the status of more than four million aliens, has ever been contemplated absent direct statutory authorization. In its OLC memorandum, the Department of Justice noted that “extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action.” Id. at *18 n. 8. Deferred action may be a decades-old tool, but it has never been used to affect so many aliens and to do so for so expansive a period of time.