State of Texas et al v. United States of America et al

Filing 130

SURREPLY to 5 Opposed MOTION for Preliminary Injunction, filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski. (Attachments: # 1 Exhibit 34, # 2 Exhibit 35, # 3 Exhibit 36, # 4 Exhibit 37, # 5 Exhibit 38, # 6 Exhibit 39, # 7 Exhibit 40, # 8 Exhibit 41, # 9 Exhibit 42, # 10 Exhibit 43, # 11 Exhibit 44, # 12 Exhibit 45, # 13 Exhibit 46)(Freeny, Kyle)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
__________________________________________
)
STATE OF TEXAS, et al.
)
)
Plaintiffs,
)
)
No. 1:14-CV-254
v.
)
)
UNITED STATES OF AMERICA, et al.
)
)
Defendants.
)
__________________________________________)
DEFENDANTS’ SUR-REPLY IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

TABLE OF CONTENTS
INTRODUCTION AND SUMMARY OF THE ARGUMENT .................................................... 1
ARGUMENT .................................................................................................................................. 3
I.

Plaintiffs Fail to Demonstrate Standing .............................................................................. 3
A.

Plaintiffs Cannot Demonstrate Article III Injury on the Basis of Benefits
They Choose to Provide .......................................................................................... 4

B.

Plaintiffs’ Theory of Harm from Increased Immigration Fails as Inherently
Speculative and Attenuated..................................................................................... 8
1.

Plaintiffs Have Not Demonstrated a “Certainly Impending” Injury........... 8

2.

Plaintiffs Have Not Demonstrated Any Injury Traceable to
Defendants or Capable of Redress by an Order of This Court ................. 10

3.

Massachusetts v. EPA Does Not Support Plaintiffs’ Theory of
Standing .................................................................................................... 11

C.

Plaintiffs Lack Parens Patriae Standing .............................................................. 12

D.

Further Considerations Compel Dismissal of Plaintiffs’ Claims .......................... 15
1.
2.

II.

Plaintiffs’ Claims Amount to a Generalized Policy Grievance ................ 15
Plaintiffs Are Not Within the Zone of Interests of the Relevant
Provisions of the Immigration Laws ......................................................... 16

Plaintiffs Have Not Demonstrated a Likelihood of Success on the Merits ...................... 17
A.

Youngstown Does Not Establish an Independent Cause of Action Against
the Executive Under the Take Care Clause and, In Any Event, Does Not
Support Plaintiffs’ Claims..................................................................................... 18

B.

The Secretary’s Guidance Regarding the Exercise of Deferred Action for
Certain Low Priority Aliens Is an Unreviewable Form of Prosecutorial
Discretion Under Heckler v. Chaney .................................................................... 20
1.

Chaney Applies Because Plaintiffs Do Not Identify Any Statutory
Provision Limiting the Exercise of Prosecutorial Discretion
Through Deferred Action .......................................................................... 21

2.

The Secretary Has Exercised His Statutory Responsibilities by
Providing a Framework for the Exercise of Prosecutorial
Discretion .................................................................................................. 25
i

3.

The Secretary’s 2014 Deferred Action Guidance Appropriately
Reflects the Exercise of the Agency’s Prosecutorial Discretion at
Several Different Levels ........................................................................... 30

4.

Work Authorization for Deferred Action Is Based on Longstanding
Legal Authority ......................................................................................... 35

C.
D.
III.

Even If It Were Reviewable, the Deferred Action Guidance Must Be
Upheld as a Valid Exercise of Discretion Under the APA ................................... 38
Plaintiffs Fail to State a Procedural Challenge Under the APA to the
Deferred Action Guidance .................................................................................... 39

Plaintiffs Have Failed To Establish Irreparable Harm or That the Balance of the
Harms Favor an Injunction ............................................................................................... 43

CONCLUSION ............................................................................................................................. 45

ii

TABLE OF AUTHORITIES
CASES
Adams v. Richardson,
480 F.2d 1159 (D.C. Cir. 1973) .......................................................................................... 25, 26
Air Courier Conference v. Am. Postal Workers Union,
498 U.S. 517 (1991) .................................................................................................................. 16
Ala. Nursing Home Ass'n v. Harris,
617 F.2d 388 (5th Cir.1980) ..................................................................................................... 39
Alfred L. Snapp & Son, Inc. v. Puerto Rico,
458 U.S. 592 (1982) .................................................................................................................. 13
Allen v. Wright,
468 U.S. 737 (1984) .............................................................................................................. 9, 18
Appalachian Power Co. v. E.P.A.,
208 F.3d 1015 (D.C. Cir. 2000) .......................................................................................... 40, 42
Arizona Dream Act Coalition v. Brewer,
757 F.3d 1053 (9th Cir. 2014) ........................................................................................ 7, 24, 36
Arizona DREAM Act Coalition v. Brewer,
No. 12-2546, 2015 WL 300376 (D. Ariz. Jan. 22, 2015) ........................................................... 7
Arizona v. United States,
132 S. Ct. 2492 (2012) ....................................................................................................... passim
Arpaio v. Obama,
27 F. Supp. 3d 185 (D.D.C. 2014) .............................................................................................. 4
Ass'n of Civilian Technicians, Inc. v. Fed. Labor Relations Auth.,
283 F.3d 339 (D.C. Cir. 2002) .................................................................................................. 26
Bartholomew v. United States,
740 F.2d 526 (7th Cir. 1984) .................................................................................................... 23
Block v. SEC,
50 F.3d 1078 (D.C. Cir. 1995) .................................................................................................. 26
Camp v. Pitts,
411 U.S. 138 (1973) .................................................................................................................. 32

iii

Chamber of Commerce v. U.S. Dep't of Labor,
174 F.3d 206 (D.C. Cir. 1999) .................................................................................................. 43
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) .................................................................................................................. 40
City of Seabrook v. Costle,
659 F.2d 1371 (5th Cir. 1981) .................................................................................................. 23
Clapper v. Amnesty Int'l USA,
133 S. Ct. 1138 (2013) ................................................................................................................ 9
Clarke v. Sec. Indus. Ass'n,
479 U.S. 388 (1987) .................................................................................................................. 16
Commodity Futures Trading Comm'n v. Schor,
478 U.S. 833 (1986) .................................................................................................................. 37
Crane v. Napolitano,
920 F. Supp. 2d 724 (N.D. Tex. 2013) .............................................................................. passim
Cutler v. Hayes,
818 F.2d 879 (D.C. Cir. 1987) .................................................................................................. 26
Dalton v. Specter,
511 U.S. 462 (1994) .................................................................................................................. 19
Dhuka v. Holder,
716 F.3d 149 (5th Cir. 2013) .................................................................................................... 25
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) .................................................................................................................. 38
Federation for American Immigration Reform, Inc. v. Reno,
93 F.3d 897 (D.C. Cir. 1996) .................................................................................................... 17
Florida v. Mellon,
273 U.S. 12 (1927) .................................................................................................................... 12
Florida ex rel. Cobb v. U.S. Dep't of Justice,
No. 5:10-cv-118, 2010 WL 3211992 (N.D. Fla. Aug. 12, 2010) ............................................. 13
Florida v. U.S. Dep't of Justice,
440 F. App'x 860 (11th Cir. 2011) ............................................................................................ 13

iv

Frank Krasner Enters., Ltd. v. Montgomery County,
401 F.3d 230 (4th Cir. 2005) .................................................................................................... 10
Franklin v. Massachusetts,
505 U.S. 788 (1992) .................................................................................................................. 18
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,
561 U.S. 477 (2010) .................................................................................................................. 18
Gillis v. U.S. Dep't of Health & Human Servs.,
759 F.2d 565 (6th Cir. 1985) .................................................................................................... 26
Guardian Fed. Sav. and Loan Ass'n v. Fed. Sav. and Loan Ins. Corp.,
589 F.2d 658 (D.C. Cir. 1978) .................................................................................................. 42
Hartigan v. Cheney,
726 F. Supp. 219 (C.D. Ill. 1989) ............................................................................................. 17
Harvard Pilgrim Health Care v. Thompson,
318 F. Supp. 2d 1 (D.R.I. 2004)................................................................................................ 32
Heckler v. Chaney,
470 U.S. 821 (1985) ........................................................................................................ 2, 20, 27
Hernandez v. Reno,
91 F.3d 776 (5th Cir. 1996) ........................................................................................................ 4
Holder v. Martinez Gutierrez,
132 S. Ct. 2011 (2012) .............................................................................................................. 21
Iowa ex rel. Miller v. Block,
771 F.2d 347 (8th Cir. 1985) .................................................................................................... 13
Lane v. Holder,
703 F.3d 668 (4th Cir. 2012) ...................................................................................................... 4
League of United Latin Am. Citizens, Dist. 19 v. City of Boerne,
659 F.3d 421 (5th Cir. 2011) ...................................................................................................... 8
Lincoln v. Vigil,
508 U.S. 182 (1993) ............................................................................................................ 40, 42
Linda R.S. v. Richard D.,
410 U.S. 614 (1973) .......................................................................................................... 3, 9, 12

v

Lopez v. Davis,
531 U.S. 230 (2001) .................................................................................................................. 30
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ...................................................................................................... 10, 11, 12
Martinez v. Mukasey,
519 F.3d 532 (5th Cir. 2008) .................................................................................................... 23
Massachusetts v. EPA,
549 U.S. 497 (2007) ................................................................................................ 11, 12, 13, 17
Massachusetts v. Mellon,
262 U.S. 447 (1923) ............................................................................................................ 12, 13
Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc.,
501 U.S. 252 (1991) .................................................................................................................. 29
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) .................................................................................................................... 39
Nat'l Ass'n of Broadcasters v. FCC.,
569 F.3d 416 (D.C. Cir. 2009) .................................................................................................. 43
Nat'l Broadcasting Co. v. United States,
319 U.S. 190 (1943) .................................................................................................................. 39
Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co.,
522 U.S. 479 (1998) ............................................................................................................ 16, 17
Oklahoma ex rel. Pruitt v. Sebelius,
No. 11-30, 2013 WL 4052610 (E.D. Okla. Aug. 12, 2013) ..................................................... 13
Pennsylvania ex rel. Shapp v. Kleppe,
533 F.2d 668 (D.C. Cir. 1976) .................................................................................... 3, 8, 13, 16
Pennsylvania v. New Jersey,
426 U.S. 660 (1976) ................................................................................................................ 5, 6
Perales v. Casillas,
903 F.2d 1043 (5th Cir. 1990) ...................................................................................... 20, 37, 38
Prof'ls & Patients for Customized Care v. Shalala,
56 F.3d 592 (5th Cir. 1995) .......................................................................................... 40, 41, 42

vi

Pub. Citizen, Inc. v. EPA,
343 F.3d 449 (5th Cir. 2003) .................................................................................................... 20
Puerto Rico by Hernandez Colon v. Walters,
660 F. Supp. 1230 (D.P.R. 1987) .............................................................................................. 14
Red Lion Broad. Co. v. FCC,
395 U.S. 367 (1969) .................................................................................................................. 29
Reno v. Am.-Arab Anti-Discrimination Comm.,
("AAADC"), 525 U.S. 471 (1999)........................................................................................ 1, 19
Russell v. Law Enforcement Assistance Admin.,
637 F.2d 354 (5th Cir. 1981) .................................................................................................... 22
Safari Club Int'l v. Salazar,
852 F. Supp. 2d 102 (D.D.C. 2012) .......................................................................................... 44
Seafarers Int’l Union of N. Am. v. U.S.,
891 F. Supp. 641 (D.D.C. 1995) ............................................................................................... 32
Sierra Club v. Larson,
882 F.2d 128 (4th Cir. 1989) .................................................................................................... 26
Sierra Club v. Morton,
405 U.S. 727 (1972) .................................................................................................................. 16
Sierra Club v. Yeutter,
911 F.2d 1405 (10th Cir. 1990) ................................................................................................ 26
Star Satellite, Inc. v. City of Biloxi,
779 F. 2d 1074 (5th Cir. 1986) ................................................................................................. 44
Sure-Tan, Inc. v. NLRB,
467 U.S. 883 (1984) .................................................................................................................... 3
Tel. and Data Sys., Inc. v. FCC,
19 F.3d 42 (D.C. Cir. 1994) ...................................................................................................... 14
Texas v. ICC,
258 U.S. 158 (1922) .................................................................................................................... 7
Texas v. United States,
106 F.3d 661 (5th Cir. 1997) ............................................................................................. passim

vii

Texas v. United States,
497 F.3d 491 (5th Cir. 2007) ...................................................................................................... 5
Town of Castle Rock v. Gonzales,
545 U.S. 748 (2005) .................................................................................................................. 22
Traux v. Raich,
239 U.S. 33 (1915) ...................................................................................................................... 8
U.S. Postal Serv. v. Gregory,
534 U.S. 1 (2001) ...................................................................................................................... 31
United Transp. Union v. ICC,
891 F.2d 908 (D.C. Cir. 1989) .................................................................................................. 10
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State Inc.,
454 U.S. 464 (1982) .................................................................................................................. 15
Virginia ex rel. Cuccinelli v. Sebelius,
656 F.3d 253 (4th Cir. 2011) .............................................................................................. 12, 16
Wash. Legal Found. v. Alexander,
984 F.2d 483 (D.C. Cir. 1993) .................................................................................................. 26
Whitman v. Am. Trucking Ass'ns, Inc.,
531 U.S. 457 (2001) .................................................................................................................. 39
Wyoming ex rel. Sullivan v. Lujan,
969 F.2d 877 (10th Cir. 1992) .................................................................................................. 15
Wyoming v. U.S. Dep't of the Interior,
674 F.3d 1220 (10th Cir. 2012) ................................................................................................ 13
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ........................................................................................................ 2, 18, 19
STATUTES
5 U.S.C. § 553 ......................................................................................................................... 39, 40
5 U.S.C. § 553(b)(3)(A) ................................................................................................................ 39
5 U.S.C. § 701(a)(2)................................................................................................................ 20, 40
5 U.S.C. § 702 ............................................................................................................................... 16
6 U.S.C. § 202(5) .............................................................................................................. 21, 26, 30
8 U.S.C. § 1101(a)(13)(A) ............................................................................................................ 23
viii

8 U.S.C. § 1103(a) ........................................................................................................................ 21
8 U.S.C. § 1151(a)(1).................................................................................................................... 24
8 U.S.C. § 1151(a)(2)(A)(i) .......................................................................................................... 24
8 U.S.C. § 1154(a)(1)(D)(i)(II) ..................................................................................................... 37
8 U.S.C. § 1154(a)(1)(D)(i)(IV) ................................................................................................... 37
8 U.S.C. § 1158(d)(2) ................................................................................................................... 36
8 U.S.C. § 1182(a)(9)(B) .............................................................................................................. 24
8 U.S.C. § 1182(a)(9)(B)(v) .......................................................................................................... 21
8 U.S.C. § 1225 ............................................................................................................................. 23
8 U.S.C. § 1225(a)(1).................................................................................................................... 22
8 U.S.C. § 1225(b)(2)(A) ........................................................................................................ 22, 23
8 U.S.C. § 1226(a)(3).................................................................................................................... 36
8 U.S.C. § 1229b(b) ...................................................................................................................... 25
8 U.S.C. § 1231(a)(7).................................................................................................................... 36
8 U.S.C. § 1324a(b)(1)(C)(ii) ....................................................................................................... 36
8 U.S.C. § 1324a(h)(l)................................................................................................................... 36
8 U.S.C. § 1324a(h)(3)................................................................................................ 35, 36, 37, 38
8 U.S.C. § 1356(m) ....................................................................................................................... 27
29 U.S.C. § 218c ........................................................................................................................... 14
42 U.S.C. § 7521(a)(1).................................................................................................................. 17
Immigration Act of 1990,
Pub. L. No. 101-649, 104 Stat. 4978 ............................................................................................. 29

Immigration and Nationality Act,
H.R. Rep. No. 82-1365 (1952), reprinted in 1952 U.S.C.C.A.N. 1653 ........................................ 21
Immigration Reform and Control Act of 1986 (“IRCA”),
Pub. L. No. 99-603, 100 Stat. 3359 .......................................................................................... 37
Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010) ............................................................................... 14
National Defense Authorization Act for Fiscal Year 2004,
Pub. L. No. 108-136, 117 Stat. 1392 (2003) ....................................................................... 24, 36

ix

USA PATRIOT Act of 2001,
Pub. L. No. 107-56, 115 Stat. 272 ...................................................................................... 24, 36
REGULATIONS
8 C.F.R. § 103.7(b)(1)(i)(C).......................................................................................................... 27
8 C.F.R. § 103.7(b)(1)(i)(HH) ...................................................................................................... 27
8 C.F.R. § 274a.12(c) .................................................................................................................... 38
8 C.F.R. § 274a.12(c)(14) ............................................................................................................. 36
Employment Authorization to Aliens in the United States,
46 Fed. Reg. 25079 (May 5, 1981) ........................................................................................... 36
Employment Authorization; Classes of Aliens Eligible,
52 Fed. Reg. 46092 (Dec. 4, 1987) ........................................................................................... 37

x

INTRODUCTION AND SUMMARY OF THE ARGUMENT
The Executive Branch is constitutionally and statutorily vested with broad discretion to
enforce the Nation’s immigration laws. See Arizona v. United States, 132 S. Ct. 2492, 2499
(2012). The 2014 Deferred Action Guidance at issue in this case, which sets forth general
parameters for the exercise of discretion and provides for such exercise on a case-by-case basis,
responds to compelling enforcement needs and falls within the recognized scope of that
discretion. See Reno v. Am.-Arab Anti-Discrimination Comm. (“AAADC”), 525 U.S. 471, 48384 (1999). Plaintiffs’ claims to the contrary are based on rhetoric, not law. Plaintiffs’ Reply and
presentation at oral argument confirm that their motion for the extraordinary relief of preliminary
injunction fails as a matter of law – both on Article III standing and on the merits.
As an initial matter, Plaintiffs lack standing – and thus necessarily lack the irreparable
harm that must be shown for a preliminary injunction. Plaintiffs’ submission of voluminous
factual materials with their Reply does nothing to cure the inherent legal defects in their theories
of standing. Key among these defects is that their alleged and speculative harm based on
driver’s licensing is the result of state policy choices, not the challenged federal policies, and
therefore is not an actionable Article III injury traceable to Defendants. Lacking a nonspeculative injury, Plaintiffs – both in their Reply and at argument – rested significantly on the
claim that they may sue the federal government to protect their citizens on a parens patriae
theory. That is simply incorrect as a matter of law. At base, the States’ grievance is a
generalized one about the vague and indirect effects of a federal policy they oppose. As a matter
of law, that is not a proper basis for standing, particularly in the immigration context, where the
Federal Government has plenary and exclusive authority. It thus necessarily fails as a predicate
for the irreparable harm that Plaintiffs must prove to obtain the relief they seek.
Although the lack of standing and irreparable harm are dispositive, Plaintiffs’ claims are
-1-

not reviewable on the merits and in any event are unfounded. Despite mentioning Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), only in passing in their opening brief,
Plaintiffs have made clear through their Reply and at oral argument that their purported
constitutional claim hinges fully on that case. But Youngstown is inapposite and fails to support
Plaintiffs’ claim. In Youngstown, the Executive concededly acted outside statutorily-delegated
authority and therefore sought to justify its actions by reference to the Take Care Clause. By
contrast, the Secretary of Homeland Security’s actions here were based on authority delegated to
him by Congress pursuant to statutes that require him to prioritize the enforcement of
immigration laws, consistent with the scarce resources provided by Congress. Plaintiffs’ claim is
therefore a challenge to agency action governed by the Administrative Procedure Act (“APA”).
And that claim fails. As an initial matter, Plaintiffs are not within the zone of interests of the
Immigration and Nationality Act (“INA”) and thus cannot bring an APA claim. Moreover,
because the Secretary is exercising prosecutorial discretion to enforce federal immigration laws
using limited available resources, and no statute precludes the exercise of that discretion, Heckler
v. Chaney, 470 U.S. 821 (1985), clearly forecloses judicial review. Plaintiffs’ procedural
challenge under the APA also fails because the Guidance is a general statement of policy that is
not subject to the APA’s notice-and-comment requirements.
The policy challenged by Plaintiffs is part of an integrated and comprehensive effort to
most effectively deploy existing resources to enforce the Nation’s immigration laws. As
reflected in the concurrently-issued memoranda setting forth the Department’s enforcement
priorities, the Deferred Action Guidance is part and parcel of the Secretary’s judgment on how
best to focus on the removal of priority threats to the Nation and to secure the Nation’s borders in
light of indisputably limited resources. Plaintiffs’ novel and expansive arguments concerning

-2-

standing, reviewability, and the merits are legally insufficient and would have no logical end.
Federal control over immigration policy would be subject to challenge by any State whenever it
might disagree with such policy, despite the plenary power of the Federal Government over
immigration. Having failed to satisfy any of the requirements for a preliminary injunction,
Plaintiffs’ motion should be denied.
ARGUMENT
I.

Plaintiffs Fail to Demonstrate Standing
The Plaintiff States have no legally cognizable interest in the enforcement or non-

enforcement of the immigration laws against particular aliens (here, individuals who may be
considered for deferred action under the challenged guidance), and thus they lack Article III
standing to pursue this case. It is a fundamental principle of American jurisprudence that a
plaintiff “lacks standing to contest the policies of the prosecuting authority when he himself is
neither prosecuted nor threatened with prosecution.” Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973); see also Defs.’ Opp. to Pls.’ Mot. for Prelim. Inj. (“Defs.’ Opp.”) at 15 [ECF No.
38]. And the Supreme Court has specifically held that “private persons . . . have no judicially
cognizable interest in procuring enforcement of the immigration laws by the INS [now DHS].”
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984). Nor do the Plaintiff States. Under the
constitutional structure, the Federal Government has exclusive authority over immigration.
Arizona, 132 S. Ct. at 2499. In addition, under settled case law that recognizes the need to avoid
unnecessary “state interference with the exercise of federal powers,” States may not invoke the
jurisdiction of the federal courts on the basis of the kind of indirect “economic repercussions of
. . . federal policies” that Plaintiffs seek to rely on here. Pennsylvania ex rel. Shapp v. Kleppe,
533 F.2d 668, 672, 678 (D.C. Cir. 1976); see also Defs.’ Opp. at 23, 29.

-3-

In their Reply, Plaintiffs make no effort to address these first principles, or deal with the
three most closely analogous standing cases, see Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C.
2014), appeal pending, No. 14-05325 (D.C. Cir.); Crane v. Napolitano, 920 F. Supp. 2d 724,
745-46 (N.D. Tex. 2013), appeal pending, No. 14-10049 (5th Cir.) (oral arg. to be heard Feb. 3,
2015); Texas v. United States, No. B-94-228, at *7 (S.D. Tex. Aug. 7, 1995), aff’d on other
grounds, 106 F.3d 661 (5th Cir. 1997). Relying on extensive precedent, all three of these cases
rejected similar attempts by state and local governments to challenge federal immigration
policies based on predictions about the indirect effects of those policies on the flow of
undocumented immigrants and the public fisc. Plaintiffs’ voluminous factual materials,
submitted for the first time with Plaintiffs’ Reply, are an attempt to obscure the same legal
impediments that preclude standing for Plaintiffs in the present case.
A.

Plaintiffs Cannot Demonstrate Article III Injury on the Basis of Benefits
They Choose to Provide

Only three of the Plaintiff States – Texas, Wisconsin, and Indiana – have filed
declarations purporting to show that the 2014 Deferred Action Guidance will impose costs on the
State as a result of “state licensing programs.” 1 See Pls.’ Reply in Supp. of Mot. for Prelim. Inj.
(“Pls.’ Reply”) at 42 [ECF No. 64]. And even then, their purported showing confirms the fatal
flaw in Plaintiffs’ theory: the States’ obligation to provide licenses and other benefits to future
DACA and DAPA recipients, and any costs attendant thereto, flow directly from these States’
policy choices. See, e.g., Snemis Decl. ¶ 13 (Pls.’ Ex. 30). It is well-established that “injuries to

1

Contrary to Plaintiffs’ suggestion, no State can be excused from demonstrating standing in this case.
Each party seeking separate relief must itself demonstrate an independent basis for standing. See LULAC
v. City of Boerne, 659 F.3d 421, 428 (5th Cir. 2011). And each State necessarily seeks separate relief
here, because an injunction may only be granted (if at all) to the extent necessary to remedy the harm to
the party seeking it. See Hernandez v. Reno, 91 F.3d 776, 781 (5th Cir. 1996) (modifying nationwide
injunction to apply only to plaintiff).

-4-

[a State’s] fisc[] . . .[that] result[] from decisions by [the] state legislatures” cannot form the basis
of Article III standing. 2 Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (concluding that
Pennsylvania did not have standing to challenge laws of New Jersey based on allegations of
harm tied to interplay between the two states’ laws). Indeed, it would be anathema to the
principles of federalism to deem Defendants responsible for consequences that flow directly
from state legislative choices.
Then-Governor Rick Perry conceded this point in a letter to then-Attorney General Greg
Abbott shortly after the announcement of the 2012 DACA initiative. Governor Perry clearly
stated: “In Texas, the legislature has passed laws that reflect the policy choices that they believe
are right for Texas,” and the Federal Government’s deferred action policy “does not undermine
or change our state laws” or “change our obligations . . . to determine a person’s eligibility for
state and local public benefits.” See Ltr. from Perry to Abbott (Aug. 16, 2012) (Ex. 34). Not
only do Texas, Wisconsin, and Indiana choose to provide driver’s licenses to deferred action
recipients, but they also choose to subsidize those licenses with state funds – a decision that
presumably reflects the States’ view that the public safety benefits gained by providing licenses
outweigh the cost. Cf. Amicus Br. of Major Cities Chiefs Ass’n et al. at 7-9 (explaining that
driver’s licenses promote road safety and assist law enforcement efforts) [ECF No. 83-1]. Thus,
to the extent Plaintiff States “will lose money” from their issuance of licenses to future DACA
and DAPA recipients, Pls.’ Reply at 43, it is money that those states have chosen to spend.

2

Plaintiffs err when they suggest that Texas v. United States, 497 F.3d 491, 496-97 (5th Cir. 2007),
supports their view that their alleged injuries are not self-inflicted. See Pls.’ Reply at 47. In that case,
unlike this one, Texas challenged a policy that purported to directly regulate its conduct by compelling it
to participate in mediation. See Texas, 497 F.3d at 497-98 (noting that Texas was the “object” of the
regulation at issue).

-5-

Plaintiffs also contend that the “obligation to change state law” in order to “avoid giving
licenses to DHS Directive beneficiaries” itself states an Article III injury. Pls.’ Reply at 47.
That misstates the choice facing these States. The Guidance does not require the Plaintiffs to do
anything with respect to these laws. And a State’s decision to change its law in response to the
policy choices of another sovereign does not give rise to Article III standing. See Pennsylvania,
426 U.S. at 664 (finding that standing did not lie where “nothing prevent[ed] Pennsylvania from
withdrawing” the state law that reduced its revenues). Were it otherwise, States would have
virtually limitless ability to hale the Federal Government (or another State) into court and
demand preliminary injunctive relief whenever they disagreed with a change in federal policy
that they claimed would make it desirable to change state law.
Plaintiffs try to create the appearance of coercion by Defendants – notwithstanding the
fact that Texas, Wisconsin, and Indiana have freely opted to provide driver’s licenses to deferred
action recipients – by noting that the United States submitted an amicus brief in Arizona Dream
Act Coalition v. Brewer, in which it expressed the view that federal law preempted Arizona’s
policy of refusing to accept federal Employment Authorization Documents (“EADs”) from
deferred action recipients while accepting them from all other aliens. See Amicus Br. of United
States in Opp’n to Reh’g En Banc, No. 13-16248 (9th Cir.) (filed Sept. 30, 2014) (Pls.’ Ex. 3).
This effort is a red herring. The United States explained in that amicus brief that Arizona’s
driver’s licensing scheme was preempted not because it denied licenses to deferred action
recipients, but because it relied on “new alien classifications not supported by federal law” – in
that case, a redefinition of which EADs were to be regarded by the State as evidence of federal
authorization. Id. at 11. The government’s position thus turned on the particulars of that state
scheme. As a matter of preemption, neither the 2014 Deferred Action Guidance nor any federal

-6-

statute compels States to provide driver’s licenses to DACA and DAPA recipients, so long as the
States base eligibility on existing federal alien classifications – such as deferred action recipients,
or other categories of aliens – rather than creating new state-law classifications of aliens.
Plaintiffs also contend that Arizona, Idaho, and Montana are injured because they are
bound by the Ninth Circuit’s decision in Arizona Dream Act Coalition, which ordered entry of a
preliminarily injunction of Arizona’s policy of selectively accepting EADs. 3 757 F.3d 1053 (9th
Cir. 2014). Although none of those three States submitted declarations alleging harm in this
case, such alleged harms are in any event insufficient to establish standing for the reasons stated
above. Like the 2014 Deferred Action Guidance, the decisions in Arizona Dream Act Coalition
do not require States to provide driver’s licenses to deferred action recipients. See Arizona
Dream Act Coalition v. Brewer, No. 12-2546, 2015 WL 300376, at *9 (D. Ariz. Jan. 22, 2015)
(“The Court is not saying that the Constitution requires the State of Arizona to grant driver’s
licenses to all noncitizens.”). And those three States still retain the choice to decline to subsidize
any state licenses provided. Cf. Texas, 106 F.3d at 666 (state expenditures on services for
undocumented aliens, including those required by the Equal Protection Clause, “are not the result
of federal coercion” nor legally attributable to the actions of federal immigration authorities). 4

3

The Ninth Circuit’s finding of a likely Equal Protection violation was premised on the specific way that
Arizona chose to structure its policy. In particular, the court found that Arizona’s selective acceptance of
federal Employment Authorization Documents was an “attempt to distinguish between these noncitizens
on the basis of an immigration classification that has no basis in federal law” and thus was not likely to
survive even rational basis review. 757 F.3d at 1066. On January 22, 2015, the district court entered a
permanent injunction in the case on similar grounds. See Ariz. Dream Act Coal., No. 12-2546, 2015 WL
300376, at *8 (D. Ariz. Jan. 22, 2015). In doing so, the district court also rejected Arizona’s argument
that DHS “lacked the authority to grant [DACA recipients] deferred status.” See id. at 6.
4
Plaintiffs also attempt to repackage their claim of economic harm as one that amounts to an “affront to
their sovereignty,” Pls.’ Reply at 48, but this effort gets them no closer to establishing an injury
cognizable under Article III. See Texas v. ICC, 258 U.S. 158, 162 (1922) (state’s claim of infringement
upon state sovereignty was merely “an abstract question of legislative power,” not a justiciable case or
controversy). Plaintiffs “cannot have a quasi-sovereign interest” in creating their own alien classifications

-7-

B.

Plaintiffs’ Theory of Harm from Increased Immigration Fails as Inherently
Speculative and Attenuated

Plaintiffs’ second theory of standing hypothesizes that the 2014 Deferred Action
Guidance will increase the population of undocumented aliens in the Plaintiff States, leading
them to expend additional funds on law enforcement and social services. Defendants have
explained that this theory is both inherently speculative and not traceable to the challenged
conduct of Defendants, and nothing in Plaintiffs’ Reply or oral argument presentation cures these
defects.
1.

Plaintiffs Have Not Demonstrated a “Certainly Impending” Injury

Like the State of Mississippi, which was found to lack standing to challenge the 2012
DACA Memoranda by another district court in this State, Plaintiffs have failed to show that the
costs associated with the presence of undocumented aliens will increase at all as a result of the
2014 Deferred Action Guidance. See Crane, 920 F. Supp. 2d at 745-46.
The vast majority of the declarations submitted by state officials contend only that
expenditures on law enforcement and social services “will increase if additional undocumented
immigrants come to Texas.” Pls.’ Reply at 53 (citing declarations) (emphasis added). In an
effort to cure this acknowledged uncertainty, Plaintiffs submit a declaration from a demographer
employed by the State of Texas, who speculates that the 2014 Deferred Action Guidance will
cause or incentivize greater numbers of undocumented aliens to enter and remain in the United
States. But Plaintiffs cannot satisfy the rigorous requirements of Article III with predictions
about how third parties will respond to the supposed incentives created by prosecutorial
enforcement policies. See Linda R.S., 410 U.S. at 619; Allen v. Wright, 468 U.S. 737, 758-59

for purposes of licensure statutes, “because the matter falls within the sovereignty of the Federal
Government.” Kleppe, 533 F.2d at 677; see also Traux v. Raich, 239 U.S. 33, 42 (1915).

-8-

(1984). And in any event, Plaintiffs’ predictions are themselves uncertain and speculative,
resting on hypothesized outcomes. See Eschbach Decl. ¶ 5a (Pls.’ Ex. 33) (DAPA “may”
encourage undocumented immigrants to enter the country in the hope of getting benefits to
which they are not actually entitled); id. ¶ 26 (it is “reasonable to hypothesize” that the 2012
DACA policy increased the size of the undocumented population); id. ¶ 28 (there is a
“theoretical” basis to believe that the challenged policy will increase the unauthorized immigrant
population) (emphasis added). The speculative nature of Plaintiffs’ theory of harm, though
evident from the face of the Eschbach declaration, is further highlighted by the Declaration of
Michael Hoefer, a technical expert on immigration statistics at USCIS’s Office of Policy and
Strategy, who explains that the predictions offered by Mr. Eschbach “rest on speculation and
unsupported inferences . . . without sufficient data to support his conclusions.” 5 See Hoefer Decl.
¶ 35. Such speculation, regardless of whether plausible as a theoretical matter, falls well short of
demonstrating that Plaintiffs’ posited future injury is “certainly impending.” See Clapper v.
Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013).
Contrary to Plaintiffs’ speculation, it is equally if not more plausible to expect that the
challenged policy may decrease the number of undocumented aliens in the United States by
rededicating scarce agency resources to border security. 6 See Defs.’ Opp. at 21; see also Crane,
920 F. Supp. 2d at 745 (faulting Mississippi for failing to account for potential “increased
5

Because the Eschbach Declaration fails, as a matter of law, to satisfy the requirements of Article III, the
Court should reject Plaintiffs’ flawed theory of standing, without the need to consider the Hoefer
Declaration. The Hoefer Declaration simply provides additional detail on the unfounded premises that
underlie the speculative assertions in the Eschbach Declaration.
6
Defendants have not, as Plaintiffs suggest, “conceded” that unspecified “immigration policies are
causing increases in illegal immigration.” Pls.’ Reply at 54. Plaintiffs base this contention solely on
material cited in the Amended Complaint, which is not in the record before this Court on Plaintiffs’
Motion for Preliminary Injunction (and the very existence of which has never been established). Id. And
even accepting Plaintiffs’ unsupported characterization of that material as true, it is not connected to the
particular immigration policies at issue in this case.

-9-

removal of high-priority illegal aliens”). It would be inappropriate for this Court to assume,
before the Guidance has even gone into effect, that that effort will fail. Moreover, even
assuming that the challenged policy would increase the total number of undocumented aliens
present in the Plaintiff States, it would still require another speculative leap to conclude that any
given State would be economically harmed, on balance, by the policy – a leap that Plaintiffs fail
to substantiate in their Reply. Allowing certain individuals already present in the Plaintiff States
to work legally is expected to expand state tax bases, see Amicus Br. of the State of Washington,
et al. at 6 (noting that grant of work authorization to individuals who may receive DACA or
DAPA in Texas will lead to estimated $338 million increase in the state tax base over five years)
[ECF No. 81], and will also make it more likely that those individuals obtain work-sponsored
health insurance, thereby decreasing their need to rely on state health care, see id. at 9 & App. 55
(citing Roberto Gonzales & Angie Bautista-Chavez, Two Years and Counting: Assessing the
Growing Power of DACA). Plaintiffs make no effort to account for these anticipated effects and
thus have failed to show that the policy would “harm rather than help” them. United Transp.
Union v. ICC, 891 F.2d 908, 914 (D.C. Cir. 1989) (“indeterminacy” about effect of challenged
policy “is enough to defeat. . . standing”); see also Crane, 920 F. Supp. 2d at 731 (finding no
standing, where Mississippi failed to show a “net fiscal cost [to] the state”) (emphasis added).
2.

Plaintiffs Have Not Demonstrated Any Injury Traceable to
Defendants or Capable of Redress by an Order of This Court

Even if Plaintiffs’ speculation were sufficient to show a “certainly impending” injury, the
chain of causation on which it is based is too attenuated, as a matter of law, to permit the Court
to conclude that the predicted injury is “fairly traceable” to the 2014 Deferred Action Guidance
rather than “the result of the independent action[s] of some third party not before the court.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal punctuation and citations
-10-

omitted). Such actions “break[] the causal chain” as a matter of law, regardless of the factual
showing about incentives and influences. See Frank Krasner Enters., Ltd. v. Montgomery
County, 401 F.3d 230, 234-36 (4th Cir. 2005) (concluding that harm was not traceable to
government action even though the “record [left] no doubt” that third party was influenced by
the challenged law); Lane v. Holder, 703 F.3d 668, 674 (4th Cir. 2012) (“Because any harm to
the plaintiffs results from the actions of third parties not before this court, the plaintiffs are
unable to demonstrate traceability.”). Here, the 2014 Deferred Action Guidance expressly
forecloses deferred action for newly arriving aliens. The possibility that third party aliens might
nevertheless misunderstand the policy and migrate based on that misunderstanding is not “fairly
trace[able]” to Defendants. Lujan, 504 U.S. at 560 (emphasis added).
Moreover, there is no reason to believe that individuals who would allegedly migrate to
the United States on the basis of misunderstandings about the scope of the 2014 Deferred Action
Guidance would cease to do so if that guidance were enjoined. Other federal immigration
policies, including 2012 DACA (which is not subject to challenge here), will remain in place,
and Plaintiffs cannot demonstrate that the migratory effect they allege is independent of these
policies. There is therefore no reason to believe (let alone proof) that a temporary injunction
against one of these policies would have the effect of reducing immigration.
3.

Massachusetts v. EPA Does Not Support Plaintiffs’ Theory of
Standing

Plaintiffs are also incorrect when they contend that their standing “follows a fortiori”
from the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007). See Pls.’
Reply at 49-50 (capitalization altered). In that case, the Court did not recognize standing based
on speculative future effects, such as Massachusetts’ “generalized concern over ‘global
warming,’” id. at 42, nor on the basis of state expenditures on public programs, as Plaintiffs
-11-

suggested at oral argument. Rather, the Court found standing to challenge the EPA’s failure to
regulate greenhouse gas emissions based on injuries to state-owned coastal property that had
“already begun” and that would “only increase” in the future. 549 U.S. at 522. Importantly, and
unlike here, the EPA “[did] not dispute the existence of a causal connection between manmade
greenhouse gas emissions and global warming,” such that there was no question that “EPA’s
refusal to regulate such emissions ‘contribute[d]’ to Massachusetts’ injuries.” Id. at 523. 7 In
contrast, Plaintiffs here have failed to identify an injury to the States’ interests qua States that is
currently ongoing, let alone one that is traceable to the challenged policy, as discussed above.
Massachusetts also presented a categorically different situation for standing purposes,
because (1) Massachusetts’ challenge to emissions standards did not (unlike here) involve an
area of the law that is constitutionally-committed exclusively to the Federal Government, and (2)
Massachusetts identified specific authorization by Congress for its challenge to agency inaction
(none of which exists here). 8 See id. at 516 (noting that such authorization was “critical . . . to
the standing inquiry”).
C.

Plaintiffs Lack Parens Patriae Standing

Plaintiffs cannot cure their failure to show an Article III injury by claiming to represent
the purported interests of their citizens under a parens patriae theory of standing. See Defs.’
Opp. at 24. A State may not sue the Federal Government unless it demonstrates an injury-in-fact

7

Plaintiffs’ speculation about how third parties may respond to federal enforcement policies is also quite
different, as a matter of law, from Massachusetts’ scientific modeling of the behavior of molecules in the
atmosphere. See Linda R.S., 410 U.S. at 619; Lujan, 504 U.S. at 575.
8
To the extent that Plaintiffs suggest that Massachusetts recognizes standing anytime a State sues to
challenge a federal law that has supremacy over state law, see Pls.’ Reply at 50, this argument cannot be
reconciled with the reasoning of that case or with other precedent. See, e.g., Florida v. Mellon, 273 U.S.
12, 17 (1927) (fact that federal law “interferes with the exercise by the state of its full powers of taxation
. . . affords no ground for judicial relief”); cf. Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269
(4th Cir. 2011).

-12-

to its own legally cognizable interests. See Massachusetts v. Mellon, 262 U.S. 447, 485-86
(1923). Instead of citing precedent to the contrary, Plaintiffs attempt to draw support from suits
against private defendants, which present entirely distinct issues. Indeed, the leading case cited
by Plaintiffs, Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982), confirms that a
“State does not have standing as parens patriae to bring an action on behalf of its citizens against
the Federal Government.” Id. at 610 n.16.
Plaintiffs’ suggestion at oral argument that Massachusetts overruled, sub silentio, this
well-established principle is incompatible with the holding of that case; the Court found that
Massachusetts had standing not on the basis of an injury to its citizens’ health and welfare, but to
property that the State itself owned. Massachusetts, 549 U.S. at 519-22 & n.17. Plaintiffs’
reading of Massachusetts is also directly contrary to the manner in which the case has been
interpreted and applied by numerous courts. See, e.g., Wyoming v. U.S. Dep’t of the Interior,
674 F.3d 1220, 1232 (10th Cir. 2012) (“[S]tanding pursuant to parens patriae . . . is not available
when a state sues the federal government because the federal government is presumed to
represent the citizens’ interests.”); Oklahoma ex rel. Pruitt v. Sebelius, No. 11-30, 2013 WL
4052610, at *3-4 (E.D. Okla. Aug. 12, 2013); Florida ex rel. Cobb v. U.S. Dep’t of Justice, No.
5:10-cv-118, 2010 WL 3211992, at *1 (N.D. Fla. Aug. 12, 2010) (citing Massachusetts, 549 U.S.
at 519), affirmed by 440 Fed. App’x. 860 (11th Cir. 2011).
Plaintiffs alternatively contend that the bar to parens patriae suits against the Federal
Government applies only where a State challenges a federal statute, rather than an agency action.
Pls.’ Reply at 61-62. There is no support for such a distinction. Numerous courts have
recognized that, whether acting through regulation or statute, “it is the United States, and not the
state, which represents [its citizens] as parens patriae.” Mellon, 262 U.S. at 486; see also, e.g.,

-13-

Kleppe, 533 F.2d at 676-78 & n.56 (state challenge to federal agency’s decision not to provide
disaster assistance); Iowa ex rel. Miller v. Block, 771 F.2d 347, 354 (8th Cir. 1985) (state suit to
compel U.S. Department of Agriculture to implement federal agricultural disaster relief
programs); Oklahoma, 2013 WL 4052610, at *3-4 (state challenge to, inter alia, an IRS rule);
Puerto Rico by Hernandez Colon v. Walters, 660 F. Supp. 1230, 1233 (D.P.R. 1987) (rejecting
contention that Mellon does not apply “[w]hen a state sues [a federal agency] over rights and
benefits flowing from Federal legislation”).
Even if Plaintiffs were not barred from bringing suit against the Federal Government on
behalf of their citizens (which they clearly are), they could not maintain a parens patriae suit
here, having failed to show that their citizens will suffer any concrete injury as a result of the
challenged guidance. Plaintiffs’ conjecture that the guidance will injure U.S. citizen workers in
the Plaintiff States, see Pls.’ Reply at 60, does not state a cognizable injury. Plaintiffs
hypothesize that unknown employers will someday discriminate against U.S. citizens, in favor of
DACA and DAPA recipients, to avoid an employment tax under the Affordable Care Act. Id.
Not only does this theory improperly rest on numerous layers of speculation about third-party
conduct, but it also ignores the fact that it is against the law for an employer to discriminate
against U.S. citizens who are receiving tax credits under the ACA in favor of alien employees
who are not eligible for them. See Pub. L. No. 111-148, § 1558, 124 Stat. 119, 261 (codified as
amended at 29 U.S.C. § 218c (2010)); see also Tel. and Data Sys., Inc. v. FCC, 19 F.3d 42, 48
(D.C. Cir. 1994) (refusing to “presume illegal activities on the part of actors not before the court”
in order to find standing).
Plaintiffs’ second theory of parens patriae standing rests on their claim that the
challenged policy will interfere with their ability to enforce state laws that allegedly “prohibit

-14-

employers . . . from hiring undocumented immigrants.” Reply at 60. But the provisions of state
law cited by Plaintiffs prohibit employers from hiring immigrants who are not authorized to
work, and each state statute tracks the federal definition of work authorization. Accordingly, the
2014 Deferred Action Guidance stands as no obstacle to their enforcement.
D.

Further Considerations Compel Dismissal of Plaintiffs’ Claims
1.

Plaintiffs’ Claims Amount to a Generalized Policy Grievance

Plaintiffs do not dispute that this suit is animated by their ideological disagreement with
the challenged federal policy rather than an effort to protect the States from the economic
consequences they allege as the basis for standing. See Defs.’ Opp. at 28 n. 4 (“[W]e’re not
suing for that economic harm . . . [W]hat we’re suing for is actually. . . harm to the [C]onstitution
. . . .”) (quoting interview of Greg Abbott). Nor do Plaintiffs dispute that they invoke this
Court’s jurisdiction for the purpose of “the ventilation of public grievances.” Wyoming ex rel.
Sullivan v. Lujan, 969 F.2d 877, 881 (10th Cir. 1992) (internal quotation marks omitted).
Instead, Plaintiffs note that Article III does not “bar[] the federal courts from adjudicating issues
of ‘broad public significance.’” Pls.’ Reply at 57. But it is not the “public significance” of the
legal issues in this case that deprives this Court of jurisdiction. Rather, it is the abstract and
generalized nature of the harms alleged, which – to the extent they exist at all – would be
“pervasively shared” by all citizens and thus would be “more appropriately addressed in the
representative branches.” Valley Forge Christian Coll. v. Ams. United for Separation of Church
& State Inc., 454 U.S. 464, 475 (1982). Given that all federal policies may be said to have some
indirect and generalized consequence on the populace, and thus on States in which that populace
resides, if this Court were to accept Plaintiffs’ theory of standing here, “no issue, no matter how
generalized or quintessentially political, would fall beyond a state’s power to litigate in federal

-15-

court.” 9 Cuccinelli, 656 F.3d at 272 (finding the lack of a limiting principle a basis for rejecting
state standing); see also Kleppe, 533 F.2d at 672-73.
2.

Plaintiffs Are Not Within the Zone of Interests of the Relevant
Provisions of the Immigration Laws

Even if Plaintiffs had satisfied the requirements of Article III standing, they still would
not be entitled to adjudication of their APA claims, because they have not established that
Congress intended to confer on them a right to challenge the Secretary’s immigration
enforcement policies. See Defs.’ Opp. at 27 & n. 22. It is not enough, as Plaintiffs suggest, see
Pls.’ Reply at 56, that the APA contains a general cause of action. In order to obtain judicial
review under the APA, a party must show that it is “adversely affected or aggrieved by agency
action within the meaning of a relevant statute,” 5 U.S.C. § 702, and that requires it to show that
its interests fall “arguably within the zone of interests to be protected or regulated by the
[substantive] statute in question.” Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co.,
522 U.S. 479, 488 (1998) (citation and internal ellipses omitted); Sierra Club v. Morton, 405
U.S. 727, 732-33 (1972). The “essential inquiry” under the “zone of interests” test is “whether
Congress intended for a particular class of plaintiffs to be relied upon to challenge” alleged
violations of the specific statutory provisions they seek to enforce. Clarke v. Sec. Indus. Ass'n,
479 U.S. 388, 389 (1987) (internal quotations and brackets omitted); Air Courier Conference v.
Am. Postal Workers Union, 498 U.S. 517, 530 (1991). Thus, the question before the Court is
whether Congress intended to allow States to challenge the Secretary’s immigration enforcement
policies with respect to individuals already residing in the United States.

9

This concern is heightened in the immigration context, where any grant of citizenship, lawful permanent
residency, or other lawful immigration status (including asylum, parole, or other relief) may make an
individual eligible for benefits under state law. By Plaintiffs’ logic, States would have standing to
challenge even these individual adjudications.

-16-

The Supreme Court’s decision in Arizona compels the conclusion that Congress had no
such intent. While crediting the “importance of immigration policy to the States” as a general
matter, the Court went on to conclude that Congress did not intend to permit States to
countermand decisions by the Executive Branch about whether it is “appropriate to allow a
foreign national to continue living in the United States.” Arizona, 132 S. Ct. at 2505-06. This
absence of congressional intent is dispositive here. See Nat’l Credit Union Admin., 522 U.S. at
516 (“The pertinent question . . . is whether Congress intended to protect certain interests
through a particular provision, not whether, irrespective of congressional intent, a provision may
have the effect of protecting those interests.”); cf. Hartigan v. Cheney, 726 F. Supp. 219, 227
(C.D. Ill. 1989) (Illinois not within zone of interest of the Base Closure and Realignment Act,
because “states have no constitutional or statutory role in federal military policy”). As the D.C.
Circuit held in Federation for American Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C.
Cir. 1996), the public’s interest in preventing “stresses on the provision of government services”
– the interest sought to be advanced here – does not lie within the zone of interests of any
provisions limiting the Executive Branch’s authority to grant immigration relief. 10 Id. at 901.
II.

Plaintiffs Have Not Demonstrated a Likelihood of Success on the Merits
Even if Plaintiffs were able to establish standing, which they cannot, they would still not

be entitled to the extraordinary relief requested, because, among other things, they have failed to
demonstrate a likelihood of success on the merits, in the light of the significant discretion
enjoyed by the Secretary in the enforcement of the Nation’s immigration laws.

10

By contrast, the statute at issue in Massachusetts specifically directed the Administrator of the EPA to
act in the interests of the “public health or welfare” when considering whether to issue emissions
standards. 549 U.S. at 519-20 (citing 42 U.S.C. § 7521(a)(1)).

-17-

A.

Youngstown Does Not Establish an Independent Cause of Action
Against the Executive Under the Take Care Clause and, In Any
Event, Does Not Support Plaintiffs’ Claims

Plaintiffs now focus singularly on Justice Jackson’s concurrence in Youngstown, 343 U.S.
579 (1952), to support their constitutional claim, but that case does not demonstrate an
independent cause of action against the Executive under the Take Care Clause. 11 The Take Care
Clause vests discretionary authority directly in the President, not the Legislative or Judicial
Branch, to take care that the laws are properly executed. This is consistent with Supreme Court
precedent that – far from countenancing judicial review of how the President exercises the
authority vested in him under the Take Care Clause – has emphasized the need to protect the
President’s Article II power from intrusion by Congress or the courts. See, e.g., Free Enterprise
Fund v. PCAOB, 561 U.S. 477, 484 (2010) (“The President cannot ‘take Care that the Laws be
faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them.”);
Allen, 468 U.S. at 761 (declining to recognize Article III standing where adjudication of claim
would interfere with President’s Take Care Clause authority); Franklin v. Massachusetts, 505
U.S. 788, 827-28 (1992) (Scalia, J., concurring) (Court cannot order relief that would interfere
with President’s constitutional responsibility under the Take Care Clause).
To be clear, Youngstown did not involve a claim brought under the Take Care Clause
against the President. Rather, the steel companies brought an action against the Secretary of
Commerce claiming that the President’s Executive Order, which directed the Secretary of
Commerce to seize privately owned steel mills, was not authorized by an act of Congress or by
the Constitution. 343 U.S. at 583. The Government acknowledged that it failed to meet

11

Although Plaintiffs previously relied upon a host of other cases as purported authority for a Take Care
Clause claim, all of those cases are distinguishable, see Defs.’ Opp. at 30 n.25, and Plaintiffs have not
contested in their Reply Defendants’ arguments with respect to those cases.

-18-

conditions necessary to invoke two statutes that would have authorized the Executive to take
personal and real property under certain circumstances. Id. at 585-86. Instead, the Government
invoked, as a defense, the President’s inherent authority under Article II, including the Take
Care Clause, to act without statutory authority. Id. at 587. Thus, Youngstown’s use of the Take
Care Clause obtains only in the rare circumstance where the President takes action concededly
outside the authority conferred by statute and then relies solely on powers inherent in Article II
as a defense to a claim that his order was ultra vires. See Dalton v. Specter, 511 U.S. 462, 473
(1994) (explaining that Youngstown “involved the conceded absence of any statutory authority,
not a claim that the President acted in excess of such authority,” and holding that “claims simply
alleging that the President has exceeded his statutory authority” are not constitutional claims
subject to judicial review). That is categorically different from the situation here, where the
Secretary of Homeland Security has acted pursuant to a congressional mandate to prioritize
enforcement resources and within the Executive Branch’s longstanding enforcement discretion
under the immigration laws, Homeland Security Act, and other congressional enactments. See
Defs.’ Opp. at 33-34, 43. 12
Additionally, Plaintiffs here are not suing the President, nor are they challenging any
action taken by him. Unlike Youngstown, there has been no Executive Order issued by the
President; the only issue before the Court is whether the Secretary’s 2014 Deferred Action
Guidance is lawful within the framework of the INA and other immigration laws.

12

Plaintiffs mischaracterize the President’s prior statements concerning the Executive’s inability to grant
a non-statutory path to lawful immigration status (which the Secretary has not done here) as implying that
the immigration laws and other congressional enactments do not confer discretion upon the Secretary to
prioritize removals, including through the use of deferred action. But no such concession has been made,
and Supreme Court precedent makes clear that such discretion continues to exist. See Arizona, 132 S. Ct.
at 2499; AAADC, 525 U.S. at 483-84.

-19-

In all events, Plaintiffs’ Take Care Clause claim – even were it cognizable – necessarily
fails because Plaintiffs cannot demonstrate that the Executive acted contrary to the express
command of the statutes Congress has enacted. As explained below, the Secretary’s actions are
not foreclosed by statute, and, indeed, are consistent with recognized enforcement discretion
under the immigration laws. 13
B.

The Secretary’s Guidance Regarding the Exercise of Deferred Action
for Certain Low Priority Aliens Is an Unreviewable Form of
Prosecutorial Discretion Under Heckler v. Chaney

Quite apart from the other threshold bars to this suit discussed above, a challenge to an
agency’s decision not to exercise its enforcement authority, or to exercise it in a particular way,
is “presumed” to be “immune from judicial review under § 701(a)(2)” of the APA. See Defs.’
Opp. at 31-32 (citing Chaney, 470 U.S. at 832). Thus, the Court must determine whether the
statute bars the exercise of prosecutorial discretion here. See Perales v. Casillas, 903 F.2d 1043,
1048 (5th Cir. 1990) (holding, in challenge to immigration enforcement decisions, that “[r]eview
of agency nonenforcement decisions is permissible only where statutory language sets
constraints on the agency’s discretion.”); see also Pub. Citizen, Inc. v. EPA, 343 F.3d 449, 464
(5th Cir. 2003). Such standards are not present here, and thus the Federal Government’s
discretionary immigration enforcement efforts are not subject to judicial review. See Texas, 106
F.3d at 667 (“Real or perceived inadequate enforcement of immigration laws does not constitute
a reviewable abdication of duty”).

13

The OLC Memorandum’s discussion of Youngstown is consistent with the above points, as it cited the
Jackson concurrence for the obvious point that, as a statutory matter, enforcement decisions have to be
consonant with, rather than contrary to, congressional policies underlying the statute that the agency is
charged with administering. OLC Op. at 6 (Defs.’ Ex. 2). The Secretary has not exceeded those limits
here. Id. at 31.

-20-

1.

Chaney Applies Because Plaintiffs Do Not Identify Any Statutory
Provision Limiting the Exercise of Prosecutorial Discretion Through
Deferred Action

The Secretary’s use of deferred action is part of a comprehensive Departmental effort to
most effectively enforce the Nation’s immigration laws, consistent with the language and
purpose of the INA. See Defs.’ Opp. at 11. Specifically, Congress has afforded the Secretary
broad discretion to take necessary actions to carry out his authority, see 8 U.S.C. § 1103(a), and
directed him to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C.
§ 202(5). That is precisely what the Secretary has done with the 2014 Deferred Action
Guidance, which is part of a series of interrelated memoranda that set Department-wide
enforcement priorities and allow resources to be deployed most effectively in support of those
priorities. 14 This integrated approach allows DHS to implement its comprehensive scheme to
prioritize the removal of high priority aliens in a way that promotes national security and public
safety, as well as family unity, 15 and is consistent with the plain language and purpose of the
immigration laws. Because Congress has not foreclosed this discretion, Chaney applies.
In response, Plaintiffs contend that certain inapplicable provisions of the INA, which they
14

On November 20, 2014, the Secretary issued ten interrelated memoranda aimed at, among other things,
strengthening border security, revising removal priorities, improving personnel policies for ICE officers,
expanding availability of provisional waivers of inadmissibility under 8 U.S.C. § 1182(a)(9)(B)(v) to
spouses and children of U.S. citizens or lawful permanent residents, revising parole rules, promoting the
naturalization process, and supporting high-skilled business and workers. Although Plaintiffs only
challenge the 2014 Deferred Action Memorandum, see Am. Compl. ¶¶ 71, 83, 87 [ECF No. 14]; see also
Proposed Order on Mot. for Prelim. Inj. [ECF No. 5-1], copies of the other memoranda that have not
already been submitted in this case are attached hereto, at the Court’s request. See Exs. 36-43.
15
Plaintiffs base much of their argument on the conclusory assertion that “family unity” is not a proper
objective of the immigration laws. The immigration laws further a variety of Congressional objectives,
but it is well-established that maintenance of family unity and the liberal treatment of children represent
well-known goals of the INA. H.R. Rep. No. 82-1365, at 29 (1952), reprinted in 1952 U.S.C.C.A.N.
1653, 1680 (statute implements “the underlying intention of our immigration laws regarding the
preservation of the family unit”); see, e.g., Holder v. Martinez Gutierrez, --- U.S. ---, 132 S. Ct. 2011,
2019 (2012) (observing that the “objectives of providing relief to aliens with strong ties to the United
States and promoting family unity . . . underlie or inform many provisions of immigration law” (internal
quotation marks and citations omitted)).

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mischaracterize in their Reply, invalidate the Secretary’s actions. See Pls.’ Reply at 9-14. The
logical extension of Plaintiffs’ statutory arguments would be that all grants of deferred action,
and not just the challenged policy, violate the INA – an outcome that the Supreme Court has
already foreclosed. Plaintiffs’ arguments cannot be squared with the language or purpose of the
immigration laws, nor with the Supreme Court’s and Congress’s historical recognition of the
valid exercise of prosecutorial discretion through deferred action. See Defs.’ Opp. at 33-37.
First, Plaintiffs’ argument that 8 U.S.C. § 1225(b)(2)(A) creates a mandatory duty of
removal 16 is inconsistent with the text of the statute and the Supreme Court’s recognition in
Arizona that “a principal feature of the removal system is the broad discretion exercised by
immigration officials,” which includes the decision “whether it makes sense to pursue removal at
all.” 17 132 S. Ct. at 2499. Moreover, Plaintiffs ignore the settled case law that a statute does not
foreclose prosecutorial discretion simply because it speaks in mandatory terms (e.g., “shall”).
See Town of Castle Rock v. Gonzales, 545 U.S. 748, 761 (2005) (recognizing “[t]he deep-rooted
nature of law-enforcement discretion, even in the presence of seemingly mandatory legislative

16

This legal question is currently before the 5th Circuit in Crane v. Johnson, No. 14-10049 (5th Cir.) (oral
argument to be heard Feb. 3, 2015).
17
Plaintiffs also misstate the scope of 8 U.S.C. § 1225(b)(2)(A), which states that “an alien seeking
admission . . . shall be detained for [removal proceedings].” Id. This provision, on its face, does not
apply to aliens who are already present within the United States and who are taking no action to “seek”
admission. Id. Although Plaintiffs contend otherwise, their argument rests on a conflation of those aliens
who are “seeking admission” with aliens who are “applicants for admission.” Some aliens who may be
considered for DACA and DAPA, who already must be physically present within the United States, may
be “deemed” to be “applicant[s] for admission” by operation of law. See 8 U.S.C. § 1225(a)(1). But
unlike aliens arriving at the border, or a port of entry, they are not engaged in any affirmative behavior
that qualifies as “seeking admission,” and instead are requesting temporary relief from removal. If
Congress intended section 1225(b)(2)(A) to apply to all aliens deemed “applicants for admission,” it
could easily have used that existing term of art instead of the distinct formulation of “seeking admission.”
See Russell v. Law Enforcement Assistance Admin., 637 F.2d 354, 356 (5th Cir. 1981) (“There is . . . a
well settled rule of statutory construction that where different language is used in the same connection in
different parts of a statute it is presumed that the Legislature intended a different meaning and effect.”).
Indeed, some aliens who may request DACA and DAPA are not even “applicants for admission,”
including aliens who were lawfully admitted but overstayed their period of authorized admission.

-22-

commands”); see also City of Seabrook v. Costle, 659 F.2d 1371, 1373-75 (5th Cir. 1981)
(concluding that the phrase “shall notify” did not create a nondiscretionary duty, given the
“broad discretion” afforded administrative agencies charged with enforcing the laws, as well as
their limited resources). Given that Congress granted the Secretary discretion to prioritize
enforcement efforts, and that Congress has not appropriated sufficient resources for DHS to
detain and commence proceedings against all removable aliens (including undocumented
immigrants, persons apprehended at the border, and lawfully authorized aliens who commit
crimes or otherwise violate the terms of their immigration status), Plaintiffs’ reading of section
1225 to create a mandatory duty to remove all undocumented immigrants would lead to an
“absurd result[].” 18 Bartholomew v. United States, 740 F.2d 526, 531 (7th Cir. 1984) (courts
should consider whether “a mandatory construction would yield harsh or absurd results”).
Second, ignoring the structure and complexity of the immigration laws, Plaintiffs attempt
to mischaracterize unrelated provisions of the INA to suggest that deferred action somehow
circumvents the INA’s scheme for lawful admission. See Pls.’ Reply at 10-14. But the
longstanding practice of deferred action does not confer lawful status on recipients or constitute
lawful admission. For purposes of the INA, “the terms ‘admission’ and ‘admitted’ mean . . .
lawful entry of the alien into the United States after inspection and authorization by an
immigration officer.” 8 U.S.C. § 1101(a)(13)(A); see also Martinez v. Mukasey, 519 F.3d 532,
543-44 (5th Cir. 2008). An alien who is present in the United States unlawfully – either because
he was not inspected and admitted by an immigration officer or because he overstayed his
18

Moreover, even under Plaintiffs’ interpretation, section 1225(b)(2)(A) applies only to the decision to
file a “notice to appear” commencing removal proceedings. Thus, the Government would remain free to
exercise prosecutorial discretion to terminate removal proceedings at any subsequent stage. Plaintiffs’
construction would thus have the illogical consequence of requiring the Government to spend its time and
resources to commence removal proceedings that it has no intention of prosecuting further. The language
of the statute does not compel such absurd results.

-23-

authorized period of admission as a nonimmigrant – cannot turn his or her unlawful status into a
lawful one simply by being granted deferred action. See Ariz. Dream Act Coalition, 757 F.3d at
1058 (“Like recipients of other forms of deferred action, DACA recipients enjoy no formal
immigration status.”). The statutory provisions concerning admission discussed by Plaintiffs are
thus irrelevant to the issues before the Court.
Plaintiffs suggest that deferred action contravenes provisions of the INA that place
conditions on the lawful admission of certain relatives of U.S. citizens or lawful permanent
residents (LPRs) pursuant to immigrant or nonimmigrant visas. 19 See Pls.’ Reply at 10-11, 1314 (citing, inter alia, 8 U.S.C. § 1151(a)(1), (a)(2)(A)(i)). But a grant of deferred action is
categorically different from admission pursuant to a visa: deferred action does not constitute
lawful admission, does not confer any lawful immigration status, does not provide a basis from
which to seek lawful permanent residence or U.S. citizenship, and can be revoked at any time for
any reason whatsoever. 20 In fact, Congress itself indicated that granting deferred action to
immediate relatives of LPRs did not contravene its statutory scheme, by expressly providing that
certain of those aliens were “eligible for deferred action” and “work authorization” in some
circumstances. USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b)(1), 115 Stat. 272,
361; National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136,
§ 1703(c)(1)(A), (d)(1), 117 Stat. 1392, 1694. Similarly, Plaintiffs’ reliance on the eligibility

19

Immigrant visas lead to lawful permanent residence (commonly known as having a “green card”) upon
admission. Nonimmigrant visas lead to lawful temporary status (such as H-1B specialty occupation
worker status) upon admission.
20
Under long-standing policy, deferred action tolls the accrual of “unlawful presence” for purposes of the
so-called “3- and 10-year bars” under 8 U.S.C. § 1182(a)(9)(B). Such tolling is irrelevant for virtually all
individuals who may be considered for deferred action under DACA or DAPA. An individual need only
have been here unlawfully for one year to trigger the 10-year bar. Additional unlawful presence triggers
no additional consequences or penalties, and neither tolling nor deferred action cures any unlawful
presence an individual has already accumulated.

-24-

criteria for cancellation of removal (a term of art for certain relief in the INA) is inapt, because,
unlike deferred action, a grant of cancellation of removal to an otherwise inadmissible and
removable alien confers LPR status and all the rights that come with such status, including
prospective eligibility for U.S. citizenship. See 8 U.S.C. § 1229b(b).
Indeed, none of the provisions cited by Plaintiffs demonstrates that deferred action is
prohibited by statute or that it confers lawful immigration status, which the Fifth Circuit has held
“implies a right protected by law.” Dhuka v. Holder, 716 F.3d 149, 156 (5th Cir. 2013). The
statutory provisions on which Plaintiffs rely reflect the intent to limit DHS’s ability to provide
lawful immigration status, which deferred action does not provide. No provision cited by
Plaintiffs – or in the immigration laws – reflects an intent to limit DHS’s enforcement discretion,
much less the clear intent that would be required to permit judicial review under Chaney.
2.

The Secretary Has Exercised His Statutory Responsibilities by
Providing a Framework for the Exercise of Prosecutorial Discretion

Plaintiffs also fail to support their claim that Chaney does not apply because Defendants
allegedly have abdicated a statutory duty by announcing a framework for the exercise of
prosecutorial discretion. See Pls.’ Reply at 9, 32 (citing Adams v. Richardson, 480 F.2d 1159
(D.C. Cir. 1973)). Specifically, they argue that the challenged policy does not conserve
resources and that its use of deferred action is different in “kind or scale” than past exercises of
agency discretion. See Pls.’ Reply at 18-23, 27. These arguments, while lacking in merit, fail to
demonstrate that the Secretary is violating an express statutory mandate akin to Adams. As the
Fifth Circuit has held, real or perceived inadequacies in federal immigration enforcement policy
do not constitute an abdication of a statutory duty, especially given the broad discretionary
authority conferred upon the Secretary by the immigration laws. See Texas, 106 F.3d at 667; see
also Arizona, 132 S. Ct. at 2499. For similar reasons, DHS’s decisions regarding how to deploy
-25-

enforcement resources or how to design guidelines for exercising prosecutorial discretion for a
group do not constitute an abdication of statutory responsibilities under the INA. See Defs.’
Opp. at 37-44. To the contrary, these decisions fulfil the Secretary’s charge under the Homeland
Security Act to “establish[] national immigration enforcement policies and priorities.” 6 U.S.C.
§ 202(5).
Plaintiffs first argue that the granting of deferred action to a high percentage of DACA
requestors is indicative of an abdication of a statutory duty similar to Adams v. Richardson. Pls.’
Reply at 32. But contrary to Plaintiffs’ characterization, the D.C. Circuit’s holding in Adams did
not hinge on the number of noncompliant school districts that were receiving Title VI funds from
the Department of Health, Education, and Welfare, but rather focused on the Department’s
failure to carry out a “clear and direct statutory mandate.” See Cutler v. Hayes, 818 F.2d 879,
893 (D.C. Cir. 1987). Here, on the other hand, Congress has enacted no provision forbidding
the exercise of deferred action, comparable to the provisions of the Civil Rights Act that were
dispositive in Adams. 21 In addition, the existence of unreviewable discretion here is further
supported by the fact that “the [agency] lacks the resources necessary to locate and prosecute
every [statutory] violator.” Adams, 480 F.2d at 1162.
Plaintiffs also have failed to demonstrate the kind of extreme conduct required to
establish even a remotely colorable claim of abdication under Chaney. Plaintiffs do not dispute
that DHS lacks funds to pursue removal of anything more than a small fraction of the removable

21

Numerous courts have distinguished Adams on the ground that plaintiffs have failed to demonstrate
extreme dereliction or complete abandonment of enforcement efforts. See, e.g., Ass’n of Civilian
Technicians, Inc. v. FLRA, 283 F.3d 339, 344 (D.C. Cir. 2002); Block v. SEC, 50 F.3d 1078, 1082-84
(D.C. Cir. 1995); Wash. Legal Found. v. Alexander, 984 F.2d 483, 487-88 (D.C. Cir. 1993); Sierra Club
v. Yeutter, 911 F.2d 1405, 1412 (10th Cir. 1990); Sierra Club v. Larson, 882 F.2d 128, 132-33 (4th Cir.
1989); Cutler v. Hayes, 818 F.2d 879, 892-93 (D.C. Cir. 1987); Gillis v. U.S. Dep’t of Health & Human
Servs., 759 F.2d 565, 578-79 (6th Cir. 1985).

-26-

aliens present in the United States and encountered at the border, nor do they contest that DHS is
using all funds appropriated to it for removal. Instead, they contend that implementation of the
2014 Deferred Action Guidance does not conserve resources, Pls.’ Reply at 27, questioning
resource allocation decisions uniquely within the agency’s expertise and discretion. Notably,
though, Plaintiffs ignore the fact that the costs of administering the Deferred Action Guidance
will be covered through fees submitted by requestors and not with congressionally appropriated
funds. See Decl. of Donald W. Neufeld (“Neufeld Decl.”) ¶¶ 5, 26 (Ex. 44); see also OLC Op. at
10 (citing, inter alia, 8 U.S.C. § 1356(m); 8 C.F.R. § 103.7(b)(1)(i)(C), (b)(1)(i)(HH)). Plaintiffs
also disregard that by using USCIS’s fee-funded resources to investigate potential candidates for
non-removal and to provide a means for identifying them on a prospective basis, DHS has
enabled U.S. Immigration and Customs Enforcement (“ICE”) and U.S. Customs and Border
Protection (“CBP”) to more easily identify low-priority aliens and instead focus on the aliens that
Congress has prioritized for removal. See OLC Op. at 28. This includes being able to more
efficiently devote manpower to border security, expend resources attempting to locate,
apprehend, and remove criminal aliens who were released by state and local authorities, and
reduce costs associated with detaining low priority aliens and obtaining travel documents and
transporting them back to their home countries, particularly those countries not contiguous to the
United States. 22 See generally Defs.’ Ex. 3 at 4 (DHS Immigration Enforcement Actions: 2013),

22

For example, between fiscal years 2011 and 2013, the total number of aliens apprehended at the border
rose, including the number and percentage from non-contiguous countries (i.e., other than Mexico), see
Defs.’ Ex. 3 at 4. Generally, the removal of nationals to non-contiguous countries is far more costly,
takes significantly more time, and requires added officer resources, as compared to removals of Mexican
nationals. See Defs.’ Ex. 4 at 4, 9. In addition, the influx of unaccompanied children (UACs) at the
border in FY2014 required ICE to reassign 800 officers from the interior to support southwest border
operations, as well as to construct and staff additional detention facilities. See id. at 3. During FY2014,
Congress did not act upon a DHS request for emergency supplemental funding, requiring DHS to
reprogram funds from other key homeland security priorities. Id. Finally, ICE has been challenged by an

-27-

Ex.4 at 2-6, 9 (ICE Enforcement and Removal Operations Report, FY2014). As recognized by
Chaney, the need to efficiently allocate scarce enforcement resources is a quintessential basis for
an agency’s exercise of enforcement discretion. 470 U.S. at 831.
Plaintiffs also argue that prior programs identifying certain groups of aliens who may be
eligible for an exercise of discretion were of a different “kind or scale.” See Pls.’ Reply at 18-19.
Of course, this alone is not dispositive of the lawfulness of the present initiative. In any event,
Plaintiffs fail to distinguish the 2014 Deferred Action Guidance from the Family Fairness
Program of 1990, which addressed a similar type of family-based classification 23 and reflected a
statutory concern for promoting unity among U.S. citizens and their undocumented families. As
to the scope, although a limited number of potential recipients ultimately applied for temporary
relief under the 1990 Family Fairness Program, see Pls.’ Reply at 19, the relevant data point for
comparison purposes is the number of potential applicants estimated at the time of the program’s
announcement, which was 1.5 million. 24 As a percentage of the total estimated undocumented
population at present (11.3 million), the estimated potential applicant pool under the 2014
Deferred Action Guidance (35%, or 4 million) is below the estimated potential requestor pool for
the Family Fairness Program (43%, or 1.5 million) as a percentage of the total undocumented

increasing number of state and local jurisdictions that are declining to honor ICE immigration detainers.
Id. at 4. This has meant that ICE has to use additional resources to try to locate, apprehend, and remove
criminal aliens who are released by state and local authorities. Id. at 5.
23
In that program, the Executive granted “extended voluntary departure” and provided work authorization
for certain aliens who were ineligible for legal status under the Immigration Reform and Control Act of
1986 but who were the spouses and children of aliens who qualified for legal status under the Act. See
Defs.’ Opp. at 42 (citing OLC Op. at 14-15).
24
See Defs.’ Ex. 8 (“At the time, [INS Commissioner] McNary stated that an estimated 1.5 million
unauthorized aliens would benefit from the policy.”); see also Decision Mem. to Gene McNary, The
Implementation of the Family Fairness Policy at 1 (Feb. 8, 1990) (Ex. 45) (stating that the program would
provide voluntary departure and employment authorization “to potentially millions of individuals”); Draft
Processing Plan, Processing of Family Fairness Applications, Utilizing Direct Mail Procedures at 1
(Feb. 8, 1990) (estimating that “greater than one million IRCA-ineligible family members” would file for
relief under the announced policy) (Ex. 46).

-28-

population at the time when that program was first announced (3.5 million). 25 See OLC Op. at 1,
14-15, 30-31. Given these relative percentages, combined with Congress’s implicit approval of
the Family Fairness policy, see OLC Op. at 30 n. 15, the 2014 Deferred Action Guidance is not,
by virtue of its kind and scale, inconsistent with what Congress has previously deemed to be a
reasonable exercise of enforcement discretion. 26 Id. at 31.
Although Plaintiffs contend that prior deferred action programs were limited to providing
a “temporary bridge” to lawful status for which recipients were already eligible by statute, that
was true of neither the 1990 Family Fairness Program nor 2012 DACA (which Plaintiffs are not
challenging here). 27 Plaintiffs have cited no statute or regulation that confines the Executive’s
exercise of deferred action to only providing a temporary bridge to lawful status. Nor could
they, as Congress has long been aware of the practice of granting deferred action, including
through the use of categorical framework, and has never acted to disapprove or limit the practice.
OLC Op. at 18. To the extent that Congress has considered legislation that would limit the
practice of granting deferred action, it has never enacted such a measure. See OLC Op. at 18 n.
25

There remains uncertainty regarding how many people will apply for or receive deferred action under
the 2014 Guidance. Approximately 1.2 million people, for example, were estimated to be eligible for
deferred action under 2012 DACA when the program was announced. But as of December 31, 2014, only
638,897 of DACA eligible individuals had been granted deferred action. See Neufeld Decl. ¶ 23.
Moreover, any comparison between the number of aliens who may receive deferred action under the 2014
guidance and those who received temporary relief under the Family Fairness Program would also have to
take into account that Congress enacted a statute in 1990 providing certain relief less than a year after the
program’s announcement, thereby rendering the program unnecessary. See infra note 25.
26
Indeed, other high-level officials have in the past exercised their discretion to set policies that exempted
large numbers of people from prosecution, including based on bright-line categories. See, e.g., Wayte v.
United States, 470 U.S. 598, 604, 609-10 (1985) (upholding application of policy that categorically
exempted from prosecution 99.96% of a class of 674,000 violators of the selective-service registration
requirement).
27
After INS implemented the Family Fairness policy, Congress enacted a separate statute granting
recipients under the Family Fairness program an indefinite stay of deportation. See Immigration Act of
1990, Pub. L. No. 101-649, § 301, 104 Stat. 4978, 5030. Although that grant of relief did not take effect
for nearly a year, Congress clarified that “the delay in effectiveness of this section shall not be construed
as reflecting a Congressional belief that the existing family fairness program should be modified in any
way before such date.” Id. § 301(g).

-29-

9. Plaintiffs’ contention that the House of Representatives has issued a “rebuke[]” of the
Secretary’s November 20 guidance, Pls.’ Reply at 24, is irrelevant. As the Supreme Court has
made clear, an unenacted bill is an unreliable indicator of legislative intent. See Red Lion Broad.
Co. v. FCC, 395 U.S. 367, 381 n. 11(1969); see also Metro. Wash. Airports Auth. v. Citizens for
the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276 (1991).
For all of these reasons, the Secretary’s proposed exercise of deferred action at issue here
does not constitute an abdication of a statutory duty and hence is not reviewable by this Court.
3.

The Secretary’s 2014 Deferred Action Guidance Appropriately
Reflects the Exercise of the Agency’s Prosecutorial Discretion at
Several Different Levels

Contrary to Plaintiffs’ claim, the fact that the Secretary has established a framework for
the exercise of DHS’s prosecutorial discretion, which nevertheless preserves ultimate
decisionmaking on a case-by-case basis, does not remove that exercise of discretion from the
rule of Chaney and the non-reviewability of exercised of enforcement discretion. As explained
previously, the creation of a framework itself is an exercise of discretion. See Lopez v. Davis,
531 U.S. 230, 243-44 (2001). And DAPA’s framework for the exercise of this discretion in
individual cases helps ensure that it is not employed arbitrarily, see Defs.’ Opp. at 40 (citing
cases), and that this discretion is being exercised both at a Department-level and on a case-bycase basis. Id. at 41-42. Consistent with his statutory charge to set Department-wide
enforcement priorities, see 6 U.S.C. § 202(5), the Secretary in the exercise of his discretion has
first established general guidelines for who may be considered—for example, having a U.S.
citizen or LPR son or daughter, continuous residence for five years, and no current lawful status.
These parameters, reflecting the exercise of discretion by the agency’s top law-enforcement
official, are designed to ensure that the policy is limited in scope, reflects enforcement priorities,

-30-

and at the same time serves a particularized humanitarian interest in promoting family unity and
is consonant with congressional policies embodied in the immigration laws.
The Guidance further preserves significant judgment and discretion to be exercised on a
case-by-case basis, by including broad and flexible criteria, such as whether the person
constitutes a threat to public safety or whether the person presents any other “factors that, in the
exercise of discretion, [would] make[] the grant of deferred action inappropriate.” Deferred
Action Guidance at 4. Plaintiffs incorrectly claim that each guideline is akin to a check-box that
allows no discretion, when in fact many of the guidelines, such as the public safety factor,
necessarily require USCIS adjudicators to exercise significant discretion. Although Plaintiffs
speculate, without foundation, that this discretion may not be implemented on a case-by-case
basis, see, e.g., Pls.’ Reply at 28-32, what matters for purposes of this Court’s inquiry under
Chaney is that the Deferred Action Guidance reflects multiple layers of prosecutorial discretion
on a matter committed by law to agency discretion.
Plaintiffs’ argument that the Deferred Action Guidance will amount to “rubberstamping,” see Pls.’ Reply at 28-29, is also contrary to the Secretary’s policy. Because Plaintiffs
challenge a memorandum that has not yet gone into effect, it would be inappropriate and
contrary to law for this Court to assume that the Government will not administer the policy in
keeping with its terms, which clearly contemplate case-by-case consideration. See USPS v.
Gregory, 534 U.S. 1, 10 (2001) (“[A] presumption of regularity attaches to the actions of
Government agencies”). Plaintiffs have cited no case in which a court has rejected an exercise of
prosecutorial discretion by second-guessing the manner in which an agency implemented a
policy that is lawful on its face, let alone based on an assumption about the agency’s presumed
failure to comply with the policy as written before it has gone into effect.

-31-

In any event, Plaintiffs’ claim of “rubber-stamping” with respect to the existing DACA
policy that they carefully avoid challenging is incorrect and rests on erroneous assumptions. 28
As an initial matter, approximately six percent of adjudicated DACA requests have been denied,
in addition to the six percent that were initially rejected when filed. Defs.’ Opp. at 41. 29 The
denials have been based on an adjudicator’s case-by-case determination that the requestor has
not met the substantive criteria of the policy or for other discretionary reasons. Neufeld Decl.
¶ 15. While these numbers alone (in addition to the express terms of the 2012 DACA policy
itself) show that discretion is being exercised under that policy, there are also concrete examples
in which requests have been denied based on decidedly discretionary grounds (although the
absence of such cases in the record would not be dispositive of the relevant legal issues). See id.
¶¶ 17, 18, 24; see also Amicus Br. of Am. Immigration Council et al. at 2 [ECF No. 39-1)
(noting amici’s experience seeing “individuals who meet all of the DACA eligibility
requirements [but are] still denied deferred action”). For example, requests have been denied for
public safety reasons where the requestor was suspected of gang membership or gang-related
28

For example, Plaintiffs’ complaint about the relatively high rate of approval under 2012 DACA fails to
take into account that an individual who may not merit deferred action, e.g., one who has multiple arrests,
is unlikely to apply in the first place. Defs.’ Opp. at 41-42.
29
In the Neufeld Declaration, Defendants provide further details about DHS’s implementation of 2012
DACA at the request of the Court and to respond to some of the points made in Plaintiffs’ papers.
Because the 2014 Deferred Action Guidance is, on its face, a valid exercise of DHS’s prosecutorial
discretion for the reasons discussed above, the details about the agency’s implementation of 2012 DACA
are not necessary to reject Plaintiffs’ pre-enforcement challenge to that Guidance. Moreover, challenges
brought pursuant to the APA are ordinarily confined to the administrative record or appropriately
explanatory materials. This is in contrast to the Kenneth Palinkas Declaration (Pls.’ Ex. 23) [ECF No. 6442] submitted by Plaintiffs, which, aside from reflecting conclusory, generalized assertions lacking
support, is unrelated to the agency’s administrative action, and thus does not bear on whether Plaintiffs
can demonstrate a likelihood of success on the merits. See Camp v. Pitts, 411 U.S. 138, 142 (1973); see
also Harvard Pilgrim Health Care v. Thompson, 318 F. Supp. 2d 1, 10 (D.R.I. 2004) (when constitutional
and APA claims overlap, review must be on the administrative record); cf. Seafarers Int’l Union of N.
Am. v. U.S., 891 F. Supp. 641, 647 (D.D.C. 1995) (“Although judicial review is normally confined to the
administrative record, agency affidavits may be used to supplement the administrative record to further
explain the administrative record and describe the background information that was available to the
agency”) (emphasis added).

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activity or had a series of arrests without convictions, arrests resulting in a pre-trial diversionary
program, or an ongoing criminal investigation. Neufeld Decl. ¶ 24. In addition, requests have
been denied on the basis of factors not expressly set forth in the 2012 DACA guidance, such as
where the requestor had made false prior claims of U.S. citizenship. Id. ¶¶ 18, 24. Thus,
contrary to Plaintiffs’ unsupported contentions, implementation of 2012 DACA demonstrates the
entirely appropriate use of case-by-case discretion. 30
Plaintiffs question USCIS’s ability to exercise discretion under the upcoming 2014
Deferred Action Guidance on two additional grounds, see Pls.’ Reply at 31-32, both of which are
flawed. First, Plaintiffs contend that the use of service centers to process requests under DACA
has “prevent[ed] investigators from interviewing applicants.” Pls.’ Reply at 31 (citing Palinkas
Decl. ¶ 8). This contention is unfounded. USCIS uses its service centers for substantive
processing of DACA requests because they are capable of handling high-volume caseloads. See
Neufeld Decl. ¶ 8. And such handling is not dissimilar from several other programs through
which individuals may receive deferred action. Id. ¶ 8 n.1. As explained in the Neufeld
Declaration, after a DACA request is received and determined to be complete, it is subject to a
substantive determination by a USCIS adjudicator, in which the adjudicator considers the
guidelines and weighs the evidence submitted by the requestor. Id. ¶¶ 14-18. The USCIS
service center has the authority to refer a case for interview at a USCIS field office in order to
30

Other documents submitted by Plaintiffs describing the 2012 DACA program also fail to show that
USCIS is not exercising discretion in adjudicating DACA requests. Plaintiffs cite a letter from USCIS
Director Rodriguez to Senator Grassley in support of this point, but that letter lists only the four most
common reasons why DACA requests were rejected during the time period from August 15, 2012 to
August 31, 2014 (all of which relate to failing to meet the guidelines), Pls.’ Ex. 29; the letter does not
address why DACA requests were denied for other discretionary reasons. DACA rejections are based on
a deficiency in the request (e.g., missing fee) or failure to meet one of the age-related guidelines, while
denials require adjudication of particular factors and weighing of evidence. Neufeld Decl. ¶¶ 14-15. The
Migration Policy Institute Study (also cited by Plaintiffs) similarly does not address the reasons for
DACA denials, including any discretionary reasons for those denials. See Pls.’ Ex. 6.

-33-

resolve outstanding concerns on DACA requestors, examples of which are attached to the
Neufeld Declaration. Id. ¶ 20. Thus, contrary to Mr. Palinkas’s unsupported and conclusory
assertions, see, e.g., Palinkas Decl. ¶ 10, the process for consideration of DACA requests by the
service centers preserves the case-by-case consideration contemplated by the policy.
Plaintiffs also err when they contend that the existence of agency-wide procedures for
accepting evidentiary submissions and sending notices to requestors somehow indicates that
adjudicators are prevented from exercising discretion under DACA. Pls.’ Reply at 31-32. Such
instructions do not indicate a lack of discretion; rather, they highlight that DACA requests must
be supported by evidence presented in each case and that officers are encouraged to consider all
relevant factors and evidence before determining whether deferred action is appropriate. See
Neufeld Decl. ¶¶ 18-19. Likewise, Plaintiffs’ assertion that DACA involves solely the
mechanical use of “templates,” see Pls.’ Reply at 32, is baseless: the portion of the DACA
Standard Operation Procedures they cite in support of this claim clearly reflects that, even
though standardized forms are used to record decisions, those decisions are to be made “on a
case-by-case basis, according to the facts and circumstances of a particular case.” Pls.’ Ex. 10.
In the end, the existence of standardized forms and procedures for administering DACA shows
only that the agency has processes in place for managing work flows and for ensuring that
discretion is exercised consistent with articulated enforcement priorities and in a non-arbitrary
fashion. 31

31

Contrary to Plaintiffs’ contention, see Pls.’ Reply at 32-34, deferred action has been terminated under
DACA for discretionary reasons, see Ltr. from USCIS Dir. Leon Rodriguez to Sen. Charles Grassley,
Oct. 9, 2014, Enclosure 1, Pls.’ Ex. 29 (listing twelve different reasons that deferred action has been
terminated under DACA). The fact that there have not been more terminations should not be held against
the agency, as it most likely indicates that discretion is being exercised carefully in the initial
consideration of DACA requests.

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4.

Work Authorization for Deferred Action Is Based on Longstanding
Legal Authority

Plaintiffs also erroneously characterize the 2014 Deferred Action Guidance as a “massive
new permitting scheme” not subject to Chaney’s limits on judicial review of prosecutorial
discretion, Pls.’ Reply at 27, on the ground that it may ultimately lead to the grant of federal
work authorization to individuals granted deferred action. Federal work authorization is made
available not through the challenged guidance, but through a separate statutory and regulatory
scheme that confers discretion to the Secretary to consider which aliens are authorized to be
employed in the United States – a legal scheme Plaintiffs do not separately challenge. See Am.
Compl. ¶¶ 71, 83, 87. Accordingly, any subsequent grant of work authorization is irrelevant to
the agency’s exercise of prosecutorial discretion under the Guidance. It is not legally significant,
for purposes of Chaney, that Plaintiffs complain of what they anticipate to be the independent
statutory and regulatory consequences of a discretionary decision to defer removal. See Texas,
106 F.3d at 667 (regardless of costs to State from defendants’ alleged failure to control illegal
immigration, Attorney General’s immigration enforcement decisions are not subject to a
“workable standard against which to judge the agency’s exercise of discretion”).
In any event, the statutory and regulatory scheme for granting federal work authorization
to deferred action recipients is well-grounded in established law and precedent. Federal
immigration officials are specifically authorized by statute to determine which aliens are
authorized to work in the United States. See 8 U.S.C. § 1324a(h)(3) (defining “unauthorized
alien” not entitled to work as an alien who is neither a legal permanent resident nor “authorized
to be . . . employed by [the INA] or by the Attorney General [now the Secretary of Homeland
Security].”) (emphasis added). Other provisions also indicate that federal immigration officials

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possess broad discretion in determining when aliens may work in the United States. 32 Congress
has therefore provided the Secretary with authority to address which aliens may work under
these circumstances. See Arizona Dream Act Coalition, 757 F.3d at 1062 (“Congress has given
the Executive Branch broad discretion to determine when noncitizens may work”) (citing 8
U.S.C. § 1324a(h)(3)). Exercising the discretion within these statutory provisions, the Secretary
has determined that those granted deferred action may ordinarily apply for work authorization. 8
C.F.R. § 274a.12(c)(14). This regulation, which was subject to notice-and-comment, dates back
to 1981, and in both its original and current form, defines “deferred action” as an “act of
administrative convenience to the government which gives some cases lower priority.” See
Employment Authorization to Aliens in the United States, 46 Fed. Reg. 25079-03, 25081 (May
5, 1981); 8 C.F.R. § 274a.12(c)(14). In numerous enactments since, Congress has indicated its
approval of this longstanding practice of granting work authorization to recipients of deferred
action. See Pub. L. No. 107-56, § 423(b)(1) (certain relatives of LPRs “may be eligible for
deferred action and work authorization” (emphasis added)); Pub. L. No. 108-136,
§ 1703(c)(1)(A), (d)(1) (certain immediate relatives “shall be eligible for deferred action . . . and
work authorization” (emphasis added)); 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (certain children

32

See, e.g., 8 U.S.C. § 1324a(h)(l) (providing that Attorney General is responsible for documenting
aliens’ right to work in the United States); § 1324a(b)(1)(C)(ii) (providing that a document is valid as
evidence of employment authorization if “the Attorney General finds [it], by regulation, to be acceptable”
for that purpose). Moreover, in the few instances in which Congress has determined to limit employment
authorization for certain classes of aliens, it has done so expressly. See, e.g., 8 U.S.C. § 1158(d)(2) (“An
[asylum] applicant who is not otherwise eligible for employment authorization shall not be granted such
authorization prior to 180 days after the date of filing of the application for asylum.”); § 1226(a)(3)
(restricting employment authorization for aliens who have been arrested and are in removal proceedings
unless the alien is a lawful permanent resident “or otherwise would (without regard to removal
proceedings) be provided [work] authorization”); § 1231(a)(7) (providing that alien who has been ordered
removed is ineligible for work authorization unless the Secretary finds that the alien cannot be removed
for lack of a country willing to receive the alien or “the removal of the alien is otherwise impracticable or
contrary to the public interest”).

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are “eligible for deferred action and work authorization” (emphasis added)).
Plaintiffs argue that 8 U.S.C. § 1324a(h)(3) is a “definitional provision” and that the
Secretary’s interpretation is inconsistent with other provisions of the INA. Pls.’ Reply at 15-16.
Shortly after Congress enacted 8 U.S.C. § 1324a(h)(3) as part of the Immigration Reform and
Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359, the Immigration and
Naturalization Service (“INS”) was presented with the identical argument as part of a petition for
rescission of the employment authorization regulation. See Employment Authorization; Classes
of Aliens Eligible, 52 Fed. Reg. 46,092, 46,093 (Dec. 4, 1987). INS rejected the argument that 8
U.S.C. § 1324a(h)(3) precludes the Secretary (then the Attorney General) from granting work
authorization. Rather, INS concluded “that Congress, being fully aware of the Attorney
General’s authority to promulgate regulations, and approving of the manner in which he has
exercised that authority in this matter, defined ‘unauthorized alien’ in such fashion as to exclude
aliens who have been authorized employment by the Attorney General through the regulatory
process, in addition to those . . . authorized by statute.” 52 Fed. Reg. at 46,093. Given that an
agency’s “contemporaneous interpretation of the statute it is entrusted to administer” is given
“considerable weight,” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 844
(1986), Plaintiffs’ argument fails.
Further, the Fifth Circuit has explicitly recognized that 8 U.S.C. § 1324a(h)(3) provides
federal immigration officials with extensive flexibility in granting work authorization. See
Perales, 903 F.2d at 1048-50. In Perales, immigration visa applicants brought a class action
requesting that INS “change its method of considering petitions for voluntary departure and
employment authorization for certain types of aliens.” Id. at 1045. The Fifth Circuit found that,
under Chaney, neither 8 U.S.C. § 1324a(h)(3) nor 8 C.F.R. § 274a.12(c) provides a court with

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judicially manageable standards for reviewing the manner in which federal immigration officials
exercise their discretionary power to grant work authorizations. See Perales, 903 F.2d at 104850. 33
In short, the provision of federal work authorization for deferred action recipients,
whether related to DACA or DAPA or some other grant of deferred action, has a strong statutory
and regulatory basis and does not contravene the express or implied will of Congress.
C.

Even If It Were Reviewable, the Deferred Action Guidance Must Be Upheld
as a Valid Exercise of Discretion Under the APA

Even if the Guidance Memorandum were subject to judicial review on the merits—which
it is not—Plaintiffs’ vague and unsupported argument that it violates the substantive
requirements of the APA, see Pls.’ Reply at 40-42, is without merit. Plaintiffs’ first claim is that
the Deferred Action Guidance violates “Congress’s clear statutory commands.” Id. at 41. But as
Defendants demonstrated above, Plaintiffs fail to show that the Guidance violates any provision
of the INA. See supra Part II.B.1.
To the extent that Plaintiffs separately contend that the Deferred Action Guidance is
arbitrary and capricious, even though it is not contrary to the terms of the immigration laws,
Plaintiffs fall far short of meeting the extremely high bar for such a showing. See FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 513 (2009) (“We have made clear . . . that ‘a court is not
to substitute its judgment for that of the agency.”’); Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (courts should “uphold a decision of less than ideal
33

Moreover, there is a long history of the Executive providing work authorization for categories of
individuals who have had their removals deferred. Under the Family Fairness Program in 1990, the
Executive granted “extended voluntary departure” and provided work authorization for certain aliens who
were ineligible for legal status under IRCA but who were the spouses and children of aliens who qualified
for legal status under the Act. See OLC Op. at 14-15. Likewise, students who wished to apply for
deferred action under a program for foreign student affected by Hurricane Katrina were required to
submit an application for work authorization. Id. at 16.

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clarity if the agency’s path may reasonably be discerned.”). Under this standard, a court must
presume the validity of agency action. See Ala. Nursing Home Ass’n v. Harris, 617 F.2d 388,
393 (5th Cir.1980). Plaintiffs have made no effort whatsoever to explain how they can overcome
this presumption.
Plaintiffs’ only other ground for invalidating the Guidance under the APA—a meritless
non-delegation argument that they raise for the first time in their Reply—fares no better. The
Supreme Court has repeatedly endorsed broad grants of discretion to agencies to carry out
legislative commands. See, Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474-75 (2001)
(citing Nat’l Broadcasting Co. v. United States, 319 U.S. 190, 194, 225-26 (1943) (upholding
delegation to the FCC to regulate airwaves in the “public interest”)). Also, Arizona makes clear
that discretion pervades the INA. Because Plaintiffs have failed to raise any colorable challenge
to the Secretary’s use of deferred action, the Court should deny their motion.
D.

Plaintiffs Fail to State a Procedural Challenge Under the APA

Plaintiffs’ procedural claim that the Guidance violates the APA because it was not issued
using notice-and-comment procedures rests on a fundamental misunderstanding of the principles
of administrative law and the relevant precedent. It is not the law, as Plaintiffs claim, that if “the
APA applies” to a particular agency action, that agency action – regardless of its content and
form – can be issued only after notice to the public and opportunity to comment. See Pls.’ Reply
at 34. As Defendants have already explained, the APA does not subject general statements of
policy to the notice-and-comment requirements set forth in 5 U.S.C. § 553. See id.
§ 553(b)(3)(A). Plaintiffs are thus flatly incorrect when they suggest that Defendants “concede
that they will lose if the Court reaches the merits [of their notice-and-comment] claim, because
they [have] undisputedly failed to engage in notice-and-comment rulemaking.” Pls.’ Reply at

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34-35. To be sure, Plaintiffs’ notice-and-comment claim is not subject to review, because
Plaintiffs are not within the relevant zone of interests under the APA. See supra Part I.D.2; cf.
Mendoza v. Perez, 754 F.3d 1002, 1016 (D.C. Cir. 2014) (“Although the plaintiffs here assert a
[notice and comment] cause of action under the APA, in considering whether plaintiffs are
authorized to sue . . . we look to whether they fall within the zone of interests sought to be
protected by the substantive statute pursuant to which [agency] acted”). But even if their claim
were properly presented, it fails as a matter of law because the 2014 Deferred Action Guidance is
expressly exempt from the requirement of notice-and-comment rulemaking, as a “statement of
general policy.” Defs.’ Opp. at 44-47.
In Lincoln v. Vigil—a case Plaintiffs fail to cite, let alone distinguish—the Supreme
Court defined “general statements of policy” as “statements issued by an agency to advise the
public prospectively of the manner in which the agency proposes to exercise a discretionary
power.” 508 U.S 182, 197 (1993) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31
(1979). The 2014 Deferred Action Guidance, which seeks to inform the public prospectively
about the manner in which DHS proposes to exercise prosecutorial discretion in certain
instances, falls squarely within the statutory exemption. See id.; see also Prof’ls & Patients for
Customized Care v. Shalala, 56 F.3d 592, 601 (5th Cir. 1995) (“PPCC”) (finding FDA policy
announcing nine factors it will consider in bringing discretionary enforcement action fits the
Fifth Circuit’s definition of general statement of policy “to a tee”). The policy itself is an
exercise of discretion and should be exempt from notice-and-comment requirements on that
ground alone; and in any event, it further contemplates the exercise of discretion on a case-bycase basis without proscribing any result.
Plaintiffs erroneously claim that general statements of policy must be “legally

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meaningless.” See Pls.’ Reply at 38. However, that is contrary to the standard recognized by the
Fifth Circuit, which has provided that a general statement of policy is one that “does not impose
any rights and obligations” and that “genuinely leaves the agency and its decisionmakers free to
exercise discretion.” PPCC, 56 F. 3d at 595. In PPCC, the Fifth Circuit found that FDA-issued
guidance setting forth enforcement standards qualified as a “statement of policy” after first
analyzing the plain language of the policy itself to determine whether it created binding norms.
Id. at 597. The court noted that, although the policy directed that the FDA “will consider” nine
factors that were included in the guidance, the policy “afford[ed] an opportunity for
individualized determinations,” and noted that even if the factors were met, the FDA retained
discretion on whether to bring an enforcement action. Id. at 597-98. The Court also noted that
the policy included “broad, general, [and] elastic” criteria that required discretion to apply. Id. at
598. The same is true of the Deferred Action Guidance. See supra Part II.B.3.
Plaintiffs’ argument that the Deferred Action Guidance cannot be a general policy
statement because it has “substantive effects,” see Pls.’ Reply at 37-38, is also unavailing. First,
contrary to Plaintiffs’ suggestion, deferred action is not “conferred through the [Guidance],” id.
at 38; rather, it is conferred through the determination by an immigration officer to defer removal
in a given case. Moreover, it was irrelevant to the Supreme Court’s definition of a “general
statement of policy” in Vigil whether such a policy has some substantive impact. 508 U.S. at
197. The argument that a rule has some substantive impact “alone does not undercut the
conclusion that . . . [it is a] general statement[] of policy.” Guardian Fed. Sav. and Loan Ass’n v.
Fed. Sav. and Loan Ins. Corp., 589 F.2d 658, 668 (D.C. Cir. 1978).
Plaintiffs assert that the Guidance “uses a series of shalls and musts,” Pls.’ Reply at 36,
but none of these verbs directs officials to deny or grant particular requests for deferred action.

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Accordingly, this language is irrelevant to the inquiry, which turns on whether “the rule has
binding effect on agency discretion.” PPCC, 56 F.3d at 595 (emphasis added); see also
Guardian Fed. Sav. and Loan Ass’n, 589 F.2d at 667 (concluding that rule was “statement of
policy,” notwithstanding its “mandatory tone”). Plaintiffs’ reliance on Appalachian Power Co.
v. EPA, 208 F.3d 1015 (D.C. Cir. 2000), is also misplaced. In that case, the agency’s guidance
“from beginning to end . . . read[] like a ukase,” [i.e., an unfair edict] id. at 1024, which
manifestly cannot be said about the guidance here. In addition, the policy at issue in
Appalachian Power, unlike the present one, purported to impose new legal obligations on
regulated parties that commanded compliance. Id. at 1023. In contrast, the Guidance here is
akin to the FDA enforcement guidance that the Fifth Circuit found to be exempt from noticeand-comment requirements in PPCC.
Plaintiffs invite the Court to ignore that the guidance is a “policy statement,” as well as
the language of the Guidance generally, and to find that it leaves no discretion to agency officials
to make individualized determinations. See Pls.’ Reply at 38-39. Thus, even though the
Guidance expressly provides that “the ultimate judgment as to whether an immigrant is granted
deferred action will be determined on a case-by-case basis,” Deferred Action Guidance at 5,
Plaintiffs ask this Court to assume the contrary. This approach is not permitted under the law of
this Circuit. PPCC, 56 F. 3d at 596 (“[T]he starting point is ‘the agency’s characterization of the
rule.’”); see also Nat’l Ass’n of Broadcasters v. F.C.C., 569 F.3d 416, 426 (D.C. Cir. 2009)
(determination of “whether the agency has imposed any rights and obligations or has left itself
free to exercise discretion” must “tak[e] into account the agency’s phrasing”).
Further, this argument fails for the reasons previously explained in Part II.B.3, supra. As
noted, Plaintiffs’ claim that “it is undisputed that the [Guidance] has yielded a 99.5-94.4%

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approval rate,” Pls.’ Reply at 37, is wrong. To begin with, the 2014 Deferred Action Guidance
has not gone into effect yet, so it cannot have “yielded” any approval rate. To the extent
Plaintiffs refer to the approval rate of 2012 DACA requests, this statistic is both inaccurate and
irrelevant, as 2012 DACA is not at issue in this case. Moreover, Plaintiffs have identified no
case in which a court has determined that a policy such as this one, which is addressed to the
exercise of agency discretion, was subject to notice-and-comment requirements based on the rate
at which that discretion was ultimately exercised under the policy. 34 Further, Plaintiffs’ claim
that immigration “officers have no discretion to grant a reprieve” to an individual who does not
meet the guidelines, Pls.’ Reply at 36, ignores the fact that USCIS retains discretion to grant
deferred action or certain forms of discretionary relief to such an individual. See Neufeld Decl.
¶ 27. The Deferred Action Guidance does not purport to restrict the existing discretion that
immigration officers have to defer removal or provide certain forms of discretionary relief.
For all of these reasons, the Court must reject Plaintiffs’ procedural APA claim.
III.

Plaintiffs Have Failed To Establish Irreparable Harm or That the Balance of the
Harms Favor an Injunction
Because Plaintiffs have failed to establish that they will suffer a concrete injury as a

result of the 2014 Deferred Action Guidance, and thus lack standing, they have necessarily failed
to show that they will suffer irreparable injury absent an injunction. Defs.’ Opp. at 49; cf. Safari
Club Int'l v. Salazar, 852 F. Supp. 2d 102, 123 (D.D.C. 2012) (no irreparable harm when
plaintiffs could avoid harm). Indeed, Plaintiffs’ assertion that, absent an injunction, future
34

Plaintiffs suggestion that Chamber of Commerce v. U.S. Dep’t of Labor, 174 F.3d 206 (D.C. Cir. 1999),
found a “70%-90% rate” to be “sufficient” to show that a rule is substantive and binding, Pls.’ Reply at
37, is quite misleading. That case did not involve consideration of the rate of grants or denials of
discretionary relief under the policy subject to challenge; rather, it involved a policy that, on its face, left
“no room for discretionary choices by inspectors in the field,” and provided that every company that did
not comply with its terms would be inspected, which meant that the effect of the rule was to “inform
employers of a decision already made.” 174 F.3d at 213.

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Presidents will be emboldened to exceed their authority, Pls.’ Reply at 66-67, underscores the
highly speculative and abstract nature of Plaintiffs’ claims of harm, which are insufficient to
justify the extraordinary remedy of a preliminary injunction. See Defs.’ Opp. at 49.
And although Plaintiffs contend that Defendants “cannot claim any countervailing
injury,” Pls.’ Reply at 65, it is Plaintiffs, not Defendants, who have the burden of showing that
“the threatened harm to [Plaintiffs] will outweigh any potential injury the injunction may cause
[to Defendants]” and that the injunction “will not be adverse to public interest.” Star Satellite,
Inc. v. City of Biloxi, 779 F. 2d 1074, 1079 (5th Cir. 1986). Plaintiffs have failed to meet this
burden. As demonstrated by the numerous amicus briefs submitted in opposition to Plaintiffs’
Motion, a preliminary injunction would have a significant negative impact on other States, and
on municipalities and communities nationwide. See ECF Nos. 39-1, 49-2, 81, 121. Among
other things, DACA and DAPA will have important public safety benefits, as leading law
enforcement officials from a wide range of cities (including in the Plaintiff States) have
explained, and an injunction will prevent communities from reaping those benefits. See ECF No.
83-1. Plaintiffs weakly contend that an injunction cannot harm the public because “the status
quo has existed ‘for years.’” Pls.’ Reply at 65. But Plaintiffs ignore the need to address the
challenges DHS confronts in enforcing our immigration laws. As Defendants explained in their
Opposition, the need for the 2014 Deferred Action Guidance, which allows DHS to efficiently
identify and temporarily set aside aliens who are low priorities for removal, and thus to focus on
its top enforcement priorities (threats to public safety, national security risks, and recent border
crossers), is especially acute in light of recent demographic shifts in the immigrant population,
restrictions on ICE’s use of detainers, the backlog in the immigration courts, and DHS’s limited
resources. Defs.’ Opp. at 51-54. DACA and DAPA are tools that help DHS address these

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challenges while promoting other legitimate immigration objectives, such as humanitarian
concerns and family unity. Id. at 52-53. Halting or delaying policies that promote national
security, public safety, administrative efficiency, and humanitarian concerns is not in the public
interest. Id. at 54.
CONCLUSION
This Court should deny Plaintiffs’ motion for preliminary injunction and dismiss
Plaintiffs’ Complaint for lack of subject matter jurisdiction.
Dated: January 30, 2015

Respectfully submitted,

KENNETH MAGIDSON
United States Attorney

JOYCE R. BRANDA
Acting Assistant Attorney General

DANIEL DAVID HU
Assistant United States Attorney
Deputy Chief, Civil Division

KATHLEEN R. HARTNETT
Deputy Assistant Attorney General
DIANE KELLEHER
Assistant Branch Director
/s/ Kyle R. Freeny
KYLE R. FREENY (Cal. Bar No. 247857)
Attorney-in-Charge
HECTOR G. BLADUELL
BRADLEY H. COHEN
ADAM D. KIRSCHNER
JULIE S. SALTMAN
Civil Division, Federal Programs Branch
U.S. Department of Justice
P.O. Box 883
Washington, D.C. 20044
Tel.: [phone]
Fax: [phone]
[e-mail]
Counsel for Defendants

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