WHITEWATER DRAW NATURAL RESOURCE CONSERVATION DISTRICT; HEREFORD NATURAL RESOURCE CONSERVATION DISTRICT; ARIZONA ASSOCIATION OF CONSERVATION DISTRICTS; CALIFORNIANS FOR POPULATION STABILIZATION; SCIENTISTS AND ENVIRONMENTALISTS FOR POPULATION STABILIZATION; NEW MEXICO CATTLEGROWERS’ ASSOCIATION; GLEN COLTON; RALPH POPE, Plаintiffs-Appellants, v. ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY, Defendants-Appellees.
No. 20-55777
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
July 19, 2021
D.C. No. 3:16-cv-02583-L-BLM
M. James Lorenz, District Judge, Presiding
Argued and Submitted May 11, 2021
Pasadena, California
Filed July 19, 2021
Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges, and Kathleen Cardone,* District Judge.
Opinion by Judge Bybee
SUMMARY**
Environmental Law / Immigration / Standing
The panel affirmed the district court’s judgment in favor of the Secretary of the Department of Homeland Security in an action brought by plaintiff organizations and individuals alleging that the Secretary violated the National Environmental Policy Act (“NEPA”) by failing to consider the environmental impacts of various immigration programs and immigration-related policies.
Concerning Count I, the panel held that the Manual did not constitute “final agency action” subject to review under
Concerning Count II, wherein the plaintiffs alleged that DHS implemented seven programs in violation of NEPA, the panel agreed with the district court that none of these programs were reviewable because they were not discrete agency actions. Specifically, as to the seven non-Deferred
Concerning Count II (plaintiffs’ challenge to DACA) and III-V (plaintiffs’ facial challenge to CATEX A3), the panel considered whether plaintiffs lacked Article III standing. Plaintiffs could claim only procedural injury, and they alleged that compliance with NEPA was required and preparation of an environmental impact statement might have affected DHS’s decisions. To satisfy the injury-in-fact element for a procedural injury, the plaintiffs had to show that the procedures were designed to protect some threatened concrete interest that was the basis of their standing, and the reasonable probability of the challenged action’s threat to plaintiffs’ concrete interest.
Plaintiffs alleged they had standing to challenge DACA because, by allowing individuals who entered the country illegally to remain with federal approval, DACA both added “more settled population” when it was implemented in 2012 and now enticed future unlawful entry. The panel rejected both theories. As to the enticement theory, the panel held that plaintiffs alleged no facts supporting their allegations that DACA caused illegal immigration. As to the “more settled population” theory, the panel held there was no redressability, and thus no standing, where DHS retained sole discretion over how to prioritize future removal proceedings.
Concerning Count III and plaintiffs’ facial challenge to CATEX A3, the panel held that plaintiffs made no attempt to
Concerning Count IV, plaintiffs alleged that DHS’s application of CATEX A3 to the DSO Rule, the STEM Rule, the AC21 Rule, and International Entrepreneur Rules was improper because these rules contributed to immigration-induced population growth. The panel held that plaintiffs failed to show injury-in-fact or causation where they offered no evidence showing that population growth was a predictable effect of the DSO and STEM Rules. Similarly, the panel held that plaintiffs failed to show injury-in-fact or causation between the AC21 Rule and population growth where any increase in immigration that may result from the AC21 Rule would be a product of independent, third-party decisionmaking not fairly traceable to the AC21 Rule itself. The panel held that plaintiffs failed to show injury-in-fаct or causation concerning their challenge to the International Entrepreneur Rule where they did not show that aliens admitted under the Rule permanently stayed in the United States because of the Rule. Finally, plaintiffs alleged they had standing to challenge all four rules because CEQ regulations required agencies to consider cumulative impacts on the environment. The panel held that any “cumulative effect” analysis required by NEPA did not bear on whether plaintiffs had standing to challenge the rules.
Concerning Count V, the panel held that plaintiffs also lacked Article III standing to challenge the sufficiency of the EAs and FONSIs issued in relation to President Obama’s Response to the Influx of Unaccompanied Alien Children Across the Southwest border.
Julie Axelrod (argued), Washington, D.C.; John C. Eastman and Anthony T. Caso, Center for Constitutional Jurisprudence, Orange, California; Lesley Gay Glackner, Legal Fellow, Center for Immigration Studies, Washington, D.C.; for Plaintiffs-Appellants.
Kevin W. McArdle (argued), Barclay T. Samford, and Robert J. Lundman, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Environment and Natural Resources Disivion, United States Department of Justice, Wаshington, D.C.; Amber N. Napolitano, Attorney, Office of General Counsel, United States Department of Homeland Security, Washington, D.C.; for Defendants-Appellants.
OPINION
BYBEE, Circuit Judge:
Plaintiffs are organizations and individuals who seek to reduce immigration into the United States because it causes population growth, which in turn, they claim, has a detrimental effect on the environment. Plaintiffs allege that the Secretary of the Department of Homeland Security (the Secretary or DHS) violated the National Environmental Policy Act (NEPA),
We begin with a brief overview of NEPA and its corresponding regulations before turning to the facts of this case.
A. NEPA
Congress enacted NEPA in recognition of “the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth,” and other enumerated factors.
NEPA established in the Executive Office of the President a Council on Environmental Quality (CEQ) to promulgate regulations to implement NEPA.
B. Proceedings
Plaintiffs identify themselves as environmentalists, environmental groups, natural resource conservation groups, and cattle ranchers from Arizona, New Mexico, Colorado, and California.2 The gravamen of Plaintiffs’ complaint is that “[t]he primary factor driving U.S. population growth is international migration”—the entry of “approximately 35 million foreign nationals”—and that such growth has caused “enormous impacts” to the human environment, such as urban sprawl, loss of biodiversity, and increasing CO2 emissions. Plaintiffs complain that, despite the impact of immigration on the human environment, “DHS has failed to initiate any NEPA review” for “its programs regulating the entry and settlement of foreign nationals [in the United States]”; instead, DHS has “simply ignore[d] the impacts that foreign nationals themselves have on the human environment.”
The First Amended Complaint (FAC) contains five counts. Count I challenges DHS’s 2015 Instruction Manual (the Manual), which implements NEPA and CEQ regulations. The FAC alleges that the Manual failed to require DHS to comply with NEPA and is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in violation of the Administrative Procedure Act (APA),
In Count IV, Plaintiffs challenge DHS’s application of CATEX A3 to four DHS actions as contrary to NEPA and arbitrary and capricious under the APA:
- Adjustments to Limitations on Designated School Official Assignment and Study by F-2 and M-2 Nonimmigrants (DSO Rule), 80 Fed. Reg. 23680 (Apr. 29, 2015), which amended DHS’s Student and Exchange Visitor Program by allowing for (1) more designated school officials to oversee the progrаm; and (2) spouses and children of visiting students to take classes on a part-time basis. Id. at 23,681–82.
Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students (STEM Rule), 81 Fed. Reg. 13,040 (Mar. 11, 2016), which allows nonimmigrant students with degrees in STEM fields from U.S. universities to apply for a 24-month visa extension (replacing the previously available 17-month extension). Id. at 13,041. It also strengthens DHS’s oversight of the program. Id. at 13,041–42. - Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers (AC21 Rule), 81 Fed. Reg. 82,398 (Nov. 18, 2016), which aims to improve “the ability of U.S. employers to hire and retain high-skilled workers” with employment-based visas, and to increase the ability of visa-holding workers to change positions or employers. Id. at 82,398.
- International Entrepreneur Rule, 82 Fed. Reg. 5,238 (Jan. 17, 2017), which establishes criteria for DHS to use its discretionary parole authority to grant temporary parole to “entrepreneurs of start-up entities” with significant potential for rapid growth and job creation. Id. at 5,238.
Finally, in Count V, Plaintiffs challenge EAs and FONSIs issued by DHS in August 2014. On June 2, 2014, President Barack Obama issued a memorandum entitled “Response to the Influx of Unaccompanied Alien Children Across the Southwest Border,” in which he directed the Secretary to address а dramatic increase in children and families crossing our border with Mexico. DHS responded with a proposal to expand infrastructure for temporary detention space,
After Plaintiffs filed their FAC, the Secretary moved to dismiss Counts I and II. The district court granted the motion in full under Rule 12(b)(6) of the Federal Rules of Civil Procedure, finding neither count reviewable under the APA. The parties subsequently filed cross-motions for summary judgment on Counts III–V, and the district court granted summary judgment in favor of DHS on the grounds that Plaintiffs lacked Article III standing to bring this action. Plaintiffs timely appealed.
II. SCOPE AND STANDARD OF REVIEW
The scope of our review is determined by the judicial review provisions of the APA,
The standard of review is our ordinary rule regarding review of determinations by a district court at the motion to dismiss and summary judgment stages. We review dismissals under Rules 12(b)(1) and 12(b)(6) de novo.3 Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156 (9th Cir. 2007). Likewise, we review a district сourt’s grant of summary judgment and its determination on the issue of standing de novo. San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676, 699 (9th Cir. 2012); see Nat’l Wildlife Fed’n, 497 U.S. at 884–85.
III. DISCUSSION
We will address the district court’s dismissal of Counts I and II separately, and then address the court’s grant of summary judgment on Counts III–V together.
Plaintiffs allege in Count I that the Manual is arbitrary and capricious because it fails “to incorporate NEPA compliance” and violates CEQ regulations. The threshold question for the district court was whether the Manual constituted “final agency action” subject to our review under
In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme Court established a two-part test for determining whether an agency action is final. The action must: (1) “mark the consummation of the agency’s decisionmaking process [and] must not be of a merely tentative or interlocutory nature”; and (2) “be one by which rights or obligations have been determined, or from which legal consequences will flow.” See id. at 177–78 (citations and internal quotation marks omitted). “In determining whether an agency’s action is final, we look to whether the action amounts to a definitive statement of the agency’s position or has a direct and immediate effect on the day-to-day operations of the subject party, or if immediate compliance with the terms is expeсted.” Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (cleaned up). Our focus is “on the practical and legal effects of the agency action,” with the understanding that the “finality element must be interpreted in a pragmatic and flexible manner.” Id. (citations omitted).
1. Consummation
In holding that the Manual does not meet Bennett’s first prong, the district court relied on our decision in Oregon
The district court here determined that, unlike an AOI, the Manual “does not make any decision.” Rather, “[i]t establishes the procedures for ensuring DHS’s compliance with NEPA.” We agree with the district court. Although in Oregon Natural Desert Ass’n, an AOI represented the culmination of the Forest Service’s decisionmaking process each grazing season, the Manual facilitates the beginning of the NEPA review process for proposed DHS actions. And although an agency’s decision not to prepare an EIS is subject
Pointing to Safer Chemicals, Healthy Families v. EPA, 943 F.3d 397, 405 (9th Cir. 2019), Plaintiffs respond that “a rule that lays out mandatory criteria for how an agency will conduct its subsequent prоject-specific assessments is also a final action subject to APA review.” But Plaintiffs’ reliance on that case is misplaced. In Safer Chemicals, EPA adopted a “Risk Evaluation Rule” under the Toxic Substances Control Act (TSCA),
The Manual, like the preamble to the rule at issue in Safer Chemicals, is not a final agency decision subject to review under the APA. The Manual describes how DHS will
It is equally clear that Plаintiffs cannot satisfy the second prong of the “final agency action” test. If “consummation” addresses itself to “final agency action,” Bennett’s second prong addresses itself to “final agency action,” which is an act “by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 178 (citation and internal quotation marks omitted); see also
Plaintiffs do not claim the Manual imposes any obligation upon them. Rather, Plaintiffs argue that the Manual’s mandatory language establishes “a binding set of legal obligations upon DHS.” This argument is too thin to satisfy Bennett’s second prong. Plaintiffs’ focus on the Manual’s use of language like “must” and “requirement” ignores that NEPA, not the Manual, is the source of any binding legal obligations to which DHS is subject. Cf. Fairbanks, 543 F.3d at 594 (“At bottom, [plaintiff] has an obligation to comply with the CWA . . . . [plaintiff]’s legal obligations arise directly and solely from the CWA.”). The Manual does not augment or diminish DHS’s NEPA obligations; it simply facilitates DHS’s fulfillment of thosе obligations. Indeed, Plaintiffs point to no provision in the Manual for which DHS’s noncompliance might result in a consequence beyond those contained in NEPA.
B. Count II
In Count II, Plaintiffs allege that DHS implements eight “programs” in violation of NEPA. The FAC identifies the following “programs”:
- Employment-based immigration authorized by Immigration and Nationality Act (INA)
§ 203(b) ; - Family-based immigration, authorized by INA
§ 203(a) and INA§ 201(b) ;
Long-term nonimmigrant visas, authorized by INA § 214 ;- Parole, authorized by INA
§ 212(d)(5)(A) ; - Temporary Protective Status, authorized by INA
§ 244 ; - Refugees, authorized by INA
§ 207 ; - Asylum, authorized by INA
§ 208 ; and - Deferred Action for Childhood Arrivals (“DACA”), authorized by executive order.
The FAC does not cite any regulations, rules, orders, public notices, or policy statements that authorize or enforce these “programs”; they are identified only generically and, with the exception of DACA, not by name.5 To be sure, in Appendix C to an affidavit attached to the FAC as Exhibit 3, the affiant listed 81 DHS regulations and five policy memoranda that implement these programs. Many of the regulations—certainly those dating from the 1980s and 1990s—are well outside the six-year statute of limitations for actions under the APA. See
It is axiomatic that Plaintiffs must identify an “agency action” to obtain review under the APA. Norton v. S. Utah Wilderness All., 542 U.S. 55, 61–62 (2004). An agency action is “circumscribed” and “discrete,” such as “a rule, order, license, sanction [or] relief.” Id. at 62 (citing
The Court’s opinion was couched in terms of APA review, but its concerns sounded in separation of powers as well. The Court did not disparage the National Wildlife Federation’s claims that “violation of the law is rampant within this [land use] program.” Id. at 891. Rather, the Court’s focus was that such systemic challenges, seeking “wholesale improvement . . . by court decree,” were properly matters that should be pursued in the “offices of the Department [of the Interior] or the halls of Congress, where programmatic improvements are normally made.” Id. As
We cannot see how Plaintiff’s challenge to the seven “programs” is in any way distinguishable from the broad programmatic attack at issue in National Wildlife. As in National Wildlife, the challenged “programs” merely refer to continuing operations of DHS in regulating various types of immigration. Id. at 891. That Plaintiffs attach a list of eighty plus actions taken by DHS over the past 40 years to implement these “programs” only weakens their case. Plaintiffs cannot obtain review of all of DHS’s individual actions pertaining to, say, “employment-based immigration”
C. Counts II (DACA) and III–V
The district court granted summary judgment in favor of DHS on Counts III–V on the grounds that Plaintiffs lack Article III standing. Additionally, as we have discussed, DHS now argues that Plaintiffs also lack standing to challenge the portion of Count II relating to DACA. See United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir. 1997) (“[T]he jurisdictional issue of standing can be raised at any time . . . .“). Plaintiffs’ theory was (and remains) that they have standing because DHS administers immigration laws and programs that result in population growth, and
Article III’s standing requirements are well-established. Plaintiffs must show that (1) they “have suffered an injury in fact” that is (a) “concrete and particularized” and (b) “actual or imminent, not conjectural or hypothetical“; (2) the injury is “fairly traceable to the challenged action of the defendant“; and (3) it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up).8 The doctrine of standing has its origins in separation of powers, see Allen v. Wright, 468 U.S. 737, 750 (1984)9, and “confines the federal courts to a properly judicial role,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
Because “NEPA itself does not mandate particular results, but simply prescribes the necessary process” by which an agency considers the impact of its proposed action on the environment, Methow Valley Citizens Council, 490 U.S. at 350, Plaintiffs can only claim procedural injury. That is, Plaintiffs cannot argue (and they do not) that had DHS complied with NEPA, DHS would have enforced the immigration laws differently. Rather, Plaintiffs allege only that compliance with NEPA was required and preparation of
To satisfy the injury-in-fact element for a procedural claim, Plaintiffs must (1) “show that the procedures in question are designed to protect some threatened concrete interest of [Plaintiffs] that is the ultimate basis of [their] standing“; and (2) “establish the reasonable probability of the challenged action’s threat to [their] concrete interest.” Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003) (cleaned up). We have “described [the] concrete interest test as requiring a geographic nexus between the individual asserting the claim and the location suffering an environmental impact.” Id. at 971 (citation and internal quotation marks omitted) (alteration in original). As to the reasonable probability showing, “[e]nvironmental plaintiffs seeking to enforce a procedural requirement . . . can establish standing without meeting all the normal standards for immediacy.” Id. at 972 (cleaned up).
“Once a plaintiff has established an injury in fact under NEPA the causation and redressability requirements are relaxed.” W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011) (citation omitted). This is so because environmental plaintiffs cannot show that compliance with NEPA would have changed the agency’s decisions—the agency may decide that “other values outweigh the environmental costs,” Methow Valley Citizens Council, 490 U.S. at 350—only that the agency had to consider the environmental calculus in its decision. But
Where, as here, an “asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed” to demonstrate causation and redressability. Id. at 562. In that case, the plaintiffs must “adduce facts showing that [the choices of independent actors not before the courts] have been or will be made in such manner as to produce causation and permit redressability of injury.” Id. In such circumstances, involving independent actors, the Court has cautioned that “standing is not precluded, but it is ordinarily substantially more difficult to establish.” Id. (citation and internal quotation marks omitted). And, as we saw in the prior section, “a plaintiff [asserting a procedural harm] raising only a generally available grievance about government . . . and seeking relief that no more directly and tangibly benefits him than it does the public at large[,] does not state an Article III сase or controversy.” Id. at 573–74.
With these principles in mind, we are prepared to consider Plaintiffs’ standing to bring their remaining claims.
1. Count II (DACA)
In June 2012, then-DHS Secretary Janet Napolitano issued a memorandum outlining a policy to defer removal
Turning first to Plaintiffs’ enticement theory, we note that the D.C. Circuit has rejected a similar theory of standing in the context of a challenge to DACA. In Arpaio v. Obama, 797 F.3d 11, 18 (D.C. Cir. 2015), former Maricopa County Sheriff Joseph Arpaio sued to enjoin DACA and a second deferred action policy for parents of U.S. citizens and lawful permanent residents (“Deferred Action for Parents of Americans,” or DAPA). Id. at 17–18. As relevant here, Sheriff Arрaio argued that he had standing because “deferred action will act as a magnet drawing more undocumented aliens than would otherwise come across the Mexican border into Maricopa County, where they will commit crimes” that he would then need to police. Id. at 14. The court held that Sheriff Arpaio could not establish causation because his theory of standing rested on the assumption that aliens outside of the United States would learn of DACA and
As in Arpaio, Plaintiffs’ standing theory hinges on the unreasonable response of third parties to DACA made through allegations that lack sufficient factual support. The 2012 DACA Memorandum only applies to children who have been in the United States for the previous five years. Yet Plaintiffs ask us to assume that aliens outside the United States who are, by definition, ineligible for DACA relief would learn about the policy; mistakenly believe it applicable to them or that they might obtain similar relief from a future administration; come to the United States based on their misconceptions; and permanently settle near Plaintiffs, thereby increasing the population and straining environmental resources. The attenuation in this chain of reasoning, unsupported by well-pleaded facts, is worthy of Rube Goldberg. Even were we to assume “that inaccurate
In an effort to distinguish their allegations from those in Arpaio, Plaintiffs rely on an affidavit from their expert, Jessica Vaughan, in which she claims that, as of 2014, DACA and “other discretionary actions by DHS have had the effect of significantly increasing the number of illegal border crossings, which has resulted in significant environmental impacts.” But Vaughan does not detail any facts linking the alleged influx in immigration to DACA. To the contrary, she attributes the dramatic influx of “unaccompanied minors and families . . . that began around 2012 and continues today” to “policy changes that occurred in 2008 (the Trafficking Victims Protection and Reauthorization Act) and 2009 (Credible Fear Parole).” Plaintiffs’ reliance on an unreleased Border Patrol intelligence report from 2014 that purportеdly “reveals that 95% [of migrants interviewed] stated that their ‘main reason’ for coming was because they had heard they would receive . . . permission to stay,” similarly lacks any specific reference to DACA sufficient to confer standing. Although we must accept Plaintiffs’ factual allegations as true at the pleading stage, Plaintiffs have failed to allege even the barest of connections between DACA and an increase in immigration.
Nor can Plaintiffs establish standing on their alternative theory that DACA’s enactment added “more settled population” in 2012 by temporarily reducing the number of aliens in the United States who might have otherwise been removed. Under government policy, the children eligible for DACA are already “low priority cases” for removal; thus, Plaintiffs can only speculate that changes to DACA (that might flow from a NEPA analysis) would actually result in the removal of DACA beneficiaries, thereby reducing the U.S. population. Even without a declared DACA policy, DHS retains sole discretion over how to prioritize future
2. Count III
In Count III, Plaintiffs bring a facial challenge to CATEX A3. As we discussed in Part I, CEQ regulations permit agencies to establish categories of actions that “do not individually or cumulatively have a significant effect on the human environment” and, accordingly, do not require an EA or an EIS.
Promulgation of rules, issuance of rulings or interpretations, and the development and publication of policies, orders, directives, notices, procedures, manuals, advisory circulars, and other guidance documents of the following nature:
(a) Those of a strictly administrative or procedural nature;
(b) Those that implement, without substantive change, statutory or regulatory requirements;
(c) Those that implement, without substantive change, procedures, manuals, and other guidance documents;
(d) Those that interpret or amend an existing regulation without changing its environmental effect; (e) Technical guidance on safety and security matters; or
(f) Guidance for the preparation of security plans.
We are hard-pressed to see how this categorical exemption injures Plaintiffs. The Supreme Court’s decision in Summers v. Earth Island Institute, 555 U.S. 488 (2009), is on point. In that case, conservation groups challenged amendments to the U.S. Forest Service’s manual that categorically excluded certain Forest Service projects from the requirement to file an EIS or EA. Id. at 490–91. The plaintiffs settled a portion of the suit but continued to challenge “the regulation in the abstract.” Id. at 494. Because the plaintiffs “identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members,” the Court held the plaintiffs lacked standing. Id. at 495. In so holding, the Court emphasized that a procedural injury alone does not constitute an injury in fact. Id. at 496. We too have explained that “[a] concrete and particular project must be connected to the procedural loss.” Wilderness Soc’y, Inc. v. Rey, 622 F.3d 1251, 1260 (9th Cir. 2010).
Plaintiffs make no attempt in Count III to tie CATEX A3 to any particular action by DHS. They assert, as the Court put it, “a procedural right in vacuo,” and that is “insufficient to create Article III standing.” Earth Island Inst., 555 U.S. at 496.
In Count IV, trying to avoid their errors in Count III, Plaintiffs argue that DHS’s application of CATEX A3 to the DSO, STEM, AC21, and International Entrepreneur Rules was improper because these rules all “contribute to immigration-induced population growth.”
We begin with the DSO and STEM rules, which, as we explained in Part I, pertain to opportunities for foreign students. Neither rule authorizes permanent immigration; nevertheless, Plaintiffs insist that the two rules lead to permanent population growth by encouraging additional foreign students to come to the United States. Their claim suffers from some of the same convoluted reasoning as their DACA claim, and unlike the DACA claim, the district court ruled against Plaintiffs on summary judgment. Once a case has proceeded to that stage, Plaintiffs “can no longer rest on . . . ‘mere allegations,’ but must set forth by affidavit or other evidence ‘specific facts.’” Defs. of Wildlife, 504 U.S. at 562 (quoting
Plaintiffs offer no evidence to support their theory. Instead, their expert, Vaughan, simply opines that large numbers of nonimmigrant visa holders settle permanently in the United States without identifying how many—or whether any—of those aliens obtained visas under the DSO and STEM Rules. Plaintiffs request that we take judicial notice of “the fact that a large number of the schools participating in the Student and Exchange Visitor Program . . . are in California.” But, even if true, this fact is irrelevant, as Plaintiffs have not shown a reasonable probability that the DSO and STEM rules cause population growth anywhere in
Plaintiffs also cannot establish causation. Where causation “depends on the unfettered choices made by independent actors not before the courts,” Plaintiffs bear the burden to “adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.” Defs. of Wildlife, 504 U.S. at 562 (citations omitted). Not only do Plaintiffs fail to offer any evidence showing that aliens holding visas under the DSO or STEM rules decide to settle permanently in the United States—via the legal process or by overstaying their visa—but Plaintiffs also fail to show that these aliens would do so because of the challenged rules. As with the DACA claim, any number of variables might influence an alien’s independent decision to resettle. See Arpaio, 797 F.3d at 21. Plaintiffs provide no evidence to the contrary.
Plaintiffs insist that they have met their burden because they need only show that permanent population growth is a “predictable effect” of the STEM and DSO rules. But the degree of predictability matters, and Plaintiffs have not come forward with any relevant evidence. In Department of Commerce v. New York, 139 S. Ct. 2551, 2563–64 (2019), eighteen states brought suit to enjoin the use of a citizenship question on the 2020 census. They alleged that the question would discourage noncitizens from responding to the census and that the resulting populаtion count would affect, among other things, their representation in Congress and receipt of federal funds. Id. at 2565. The government contended that any harm resulted from the independent decisions of third parties, who would, mistakenly, believe they might be prosecuted if they answered truthfully about their non-citizen
The Court has since shed further light on what a plaintiff must do to meet his burden to show “that third parties will likely react in predictable ways.” California v. Texas, No. 19-840, slip. op. at 11–14 (U.S. June 17, 2021) (citing Dep’t of Commerce, 139 S.Ct. at 2566). In that case, eighteеn states and two individuals sought to enjoin the minimum essential coverage requirement of the Patient Protection and Affordable Care Act. Id. slip op. at 1. As amended by Congress in 2019, the Act set all penalties for those who failed to meet its minimum coverage requirements to zero. Id. slip op. at 2–3. The state plaintiffs claimed the challenged provision harmed them by leading more individuals to enroll in state-operated or state-sponsored insurance programs. Id. slip op. at 10. But the Court found the state plaintiffs’ proffered evidence did not establish such a causal connection—only four of their twenty-one affidavits attributed added state costs to the minimum essential coverage requirement, and all of the affidavits referred “to that provision as it existed before Congress removed the
Like the state plaintiffs in California v. Texas, Plaintiffs have offered no evidence showing that population growth is a predictable effect of the DSO and STEM rules. Vaughan’s affidavit provides only general population increase numbers; her report does not separate the F-1, F-2, and M-2 visas (the subject of the DSO and STEM rules) from all the other nonimmigrant visas, and she cannot draw any line connecting the DSO and STEM rules to population increase. Try as they may, Plaintiffs cannot rely on their ipse dixit to establish standing.
We turn next to the AC21 Rule, which “largely conforms DHS regulations to longstanding DHS policies and practices” aimed at providing “greater flexibility and job portability to certain nonimmigrant workers, particularly those who have been sponsored for [legal permanent resident] status.” DHS intended the rule to “better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of employment-based immigrant visa (Form I-140) petitions.” Seizing on DHS’s use of the word “retain,” Plaintiffs argue that this rule threatens the environment by encouraging immigration growth. The problem with Plaintiffs’ claim is that, as the district court noted, the AC21 Rule generally only applies to immigrants who already hold EB-1, EB-2, or EB-3 visas—that is, aliens who have been present in the United States for a number of years. Absent a concrete link between the AC21 Rule and population growth, then, Plaintiffs cannot
Finally, we address Plaintiffs’ standing to challenge the International Entrepreneur Rule. This rule is explicitly designed to encourage aliens to come to the United States; however, it only provides for entry on a temporary basis. Plaintiffs assert that this particular rule results in population growth. This evidence might be difficult to come by given that, in explaining its decision not to conduct NEPA review, DHS stated that “[f]ewer than 3,000 individuals, an insignificant number in the context of the population of the United States, are projected to receive parole through this program.” International Entrepreneur Rule, 82 Fed. Reg. 5,238, 5,284 (Jan. 17, 2017) (to be codified at 8 C.F.R. pts. 103, 212, 274a). Furthermore, Plaintiffs have failed to show that any aliens granted parole under this rule settle, either temporarily or permanently, near Plaintiffs in numbers that materially contribute to population growth. See Ashley Creek, 420 F.3d at 938. Finally, even assuming injury in fact, Plaintiffs cannot establish causation. As with the other challenged rules, Plaintiffs have not shown that aliens admitted under the International Entrepreneur Rule permаnently stay in the United States because of the rule.
In a last-ditch effort, Plaintiffs argue that they have standing to challenge all four rules because former CEQ regulations required agencies to consider cumulative impacts on the environment. See
4. Count V
Finally, Plaintiffs challenge the sufficiency of the EAs and FONSIs issued in relation to President Obama’s Response to the Influx of Unaccompanied Alien Children Across the Southwest Border. Recall that DHS prepared a programmatic EA for the UAC Response and a supplemental EA (pursuant to the UAC Response) before constructing a facility near Dilley, Texas to house temporarily up to 2,400 women and children detainees. DHS ultimately issued a FONSI in both instances.
At the outset, given that both the UAC Response and the Texas facility were responses to an influx in immigration, Plaintiffs face an uphill battle to show that these two actions cause illegal immigration. Plaintiffs’ experts do not attribute an increase in illegal immigration to the UAC Response or the Texas facility. For example, Vaughan’s citation of a 2014 Washington Times newspaper article attributing a surge in illegal immigration to U.S. policy does not satisfy Plaintiffs’ burden, as the article does not support a claim that infrastructure improvements are a reason that migrants enter the United States. Nor is Vaughan’s general observation that “real or even perceived change[s] to enforcement policies . . . can significantly affect the number of people attempting to cross the border illegally” sufficient. Plaintiffs must connect
To the extent Plaintiffs challenge the FONSI related to the Texas facility, Plaintiffs also lack a geographic nexus to do so. Several individual Plaintiffs and members of Plaintiff organizations provided declarations describing the environmental damage along the southwest border in Arizona and New Mexico. That none of the declarants actuаlly live in Texas underscores their lack of standing. In Ashley Creek, we found no geographic nexus where the plaintiff challenged the BLM’s EIS for a proposed mining project that was 250 miles from plaintiffs’ phosphate reserves. 420 F.3d at 938–39. We rejected the plaintiff’s theory, under which “any owner of a phosphate mine, whether located in Alaska, Utah, or Florida, would have standing to challenge the EIS.” Id. at 939. Yet that is precisely the theory Plaintiffs advance here—under Plaintiffs’ framework, anyone living near Texas would have standing to challenge the EA and FONSI prepared for the Dilley facility. That is beyond the scope contemplated by Article III. See Defs. of Wildlife, 504 U.S. at 572 n.7.
Finally, causation also presents a problem for Plaintiffs. As with the DACA policy, we know of no evidence in the record indicating that either the UAC Response or the building of the Dilley facility entices aliens to come to the United States. Plaintiffs’ enticement theory is even less compelling in this context because, unlike DACA, neither action offers non-citizens an opportunity to remain in the United States. If an alien were granted relief after his or her stay in the Texas (or another) facility, that would be the result of a separate DHS action, having nothing to do with these policies. And if an alien decides to settle illegally, such a
IV. CONCLUSION
For the foregoing reasons, Plaintiffs cannot challenge DHS’s actions under NEPA or the APA. The judgment of the district court is AFFIRMED.