JERRY E. SMITH, Circuit Judge.
Twenty-six states (the "states") are challenging the government's
In 2012, then-Department of Homeland Security ("DHS") Secretary Janet Napolitano announced the Deferred Action for Childhood Arrivals program ("DACA"), setting forth how officers should exercise "prosecutorial discretion" before enforcing "immigration laws against certain young people."
In November 2014, DHS Secretary Jeh Johnson instructed the same agencies to expand DACA in three areas.
That designation makes aliens who were not otherwise qualified for most federal public benefits eligible for "social security retirement benefits, social security disability benefits, [and] health insurance under Part A of the Medicare program."
The states sued to prevent implementation of the program. First, they claimed that DAPA is procedurally unlawful under the APA because it is a substantive rule that is required to undergo notice and
The district court held that Texas had standing because it would be required to issue driver's licenses to DAPA beneficiaries, and the costs of doing so would constitute a cognizable injury. Texas, ___ F.Supp.3d at ___ _ ___, 2015 WL 648579, at *11-17. Alternatively, the court held that Texas had standing based on a theory it called "abdication standing," under which a state has standing if the government has exclusive authority over a particular policy area but declines to act. Id. at ___ _ ___, 2015 WL 648579 at *28-34.
"We consider four factors in deciding whether to grant a stay pending appeal: `(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties
We begin by deciding whether the government has made a strong showing that it is likely to succeed on the merits of its claim that the states lack standing. It has not done so. We reach only the district court's first basis for standing—the driver's license rationale—because it is dispositive.
The states have the burden of establishing that at least one of them has Article III standing.
The first requirement is likely satisfied by Texas's proof of the costs of issuing driver's licenses to DAPA beneficiaries. "An applicant who is not a citizen of the United States must present . . . documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States before the applicant may be issued a driver's license." TEX. TRANSP. CODE § 521.142(a). Documentation confirming lawful presence pursuant to DAPA would qualify.
The government attacks that conclusion on two grounds. First, it claims that Texas will be required neither to issue licenses nor to subsidize them. Texas responds that it will have to do so in light of Arizona DREAM Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir.2014), which held that DACA beneficiaries were likely to succeed on their equal-protection challenge to Arizona's policy of issuing licenses to
But that does not resolve the matter. The flaw in the government's reasoning is that Texas's forced choice between incurring costs and changing its fee structure is itself an injury: A plaintiff suffers an injury even if it can avoid that injury by incurring other costs.
"[S]tates have a sovereign interest in `the power to create and enforce a legal code.'"
That well-established caselaw is dispositive because if pressure to change state law in some substantial way were not injury, states would have no standing to challenge bona fide harms because they could offset most financial losses by raising taxes or fees. Texas's forced choice between incurring costs and changing its laws is an injury because those laws exist for the administration of a state program, not to challenge federal law, and Texas did not enact them merely to create standing.
That approach is appropriate, if at all, where the costs and benefits are of the same type and arise from the same transaction because the plaintiff has suffered no real injury. By contrast, other circuits have declined to consider offsetting benefits of different types or from different transactions.
Most of the benefits the government cites—increased tax revenue, decreased reliance on state-subsidized health care, and better financial support for DAPA beneficiaries' children—are wholly separate from the costs of issuing licenses. The other benefits it identifies—increased revenue from vehicle fees and decreased auto insurance costs—are more closely associated with the costs of issuing licenses, but the caselaw illustrates that they are
For example, in NCAA, 730 F.3d at 222-23, the Third Circuit held that sports leagues had standing to challenge New Jersey's plan to license sports betting even though the damage to the leagues' reputations could have been outweighed by increased interest in watching sports. Likewise, in Markva, 317 F.3d at 557-58, the Sixth Circuit held that grandparents who cared for dependent children had standing to challenge a requirement that they spend more of their own money before obtaining Medicaid benefits, as compared to similarly situated parents, even though the grandparents arguably received more of other types of welfare benefits. Here, as in those cases and others,
Texas is likely to satisfy the second requirement by showing that its injury is "fairly traceable to the challenged action." Id. (quoting Monsanto, 561 U.S. at 149, 130 S.Ct. 2743). As we have explained,
In Massachusetts, 549 U.S. at 526, 127 S.Ct. 1438, the Court held that the erosion of the state's shoreline gave it standing to challenge the EPA's decision not to regulate greenhouse-gas emissions from new motor vehicles. The Court noted that the Clean Air Act authorizes judicial review of the EPA's denial of a rule-making petition, a fact that "is of critical importance to the standing inquiry [because] `Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.'" Id. at 516, 127 S.Ct. 1438 (quoting Defenders of Wildlife, 504 U.S. at 580, 112 S.Ct. 2130). Moreover, "States are not normal litigants for the purposes of invoking federal jurisdiction," id. at 518, 127 S.Ct. 1438, because they surrendered some of the sovereign powers necessary to protect themselves from harms such as climate change when they joined the union, id. at 519, 127 S.Ct. 1438. That point was especially relevant because the EPA's inaction had caused the erosion of Massachusetts's sovereign territory. See id. "Given that procedural right and Massachusetts's stake in protecting its quasi-sovereign interests, the Commonwealth [was] entitled to special solicitude in [the] standing analysis." Id. at 520, 127 S.Ct. 1438.
This case implicates the same concerns. Texas is exercising a procedural right: Just as the Clean Air Act ("CAA") authorizes judicial review of "final action taken[] by the Administrator," 42 U.S.C.
The analysis of the "fairly traceable" requirement in Massachusetts is also highly relevant. The main causation issue was whether the connection between the EPA's inaction and the state's injury was too remote. See Massachusetts, 549 U.S. at 523, 127 S.Ct. 1438. The EPA maintained that the injury was not cognizable, because regulating greenhouse-gas emissions from new motor vehicles would have done little to prevent the erosion of the state's land. Id. at 523-24, 127 S.Ct. 1438. The Court rejected that theory, explaining that the fact "[t]hat a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law" and that "reducing domestic automobile emissions [was] hardly a tentative step," in any event. Id. at 524, 127 S.Ct. 1438.
The answer here is the same. Although Texas would not be directly regulated by DAPA, the program would have a direct and predictable effect on the state's driver's license regime, and the impact would be significant because at least 500,000 potential beneficiaries live in the state. Alternatively, Texas could change its law, but being pressured to do so is itself a substantial injury, as already discussed.
By contrast, where the Supreme Court has found that an injury is not fairly traceable, the intervening, independent act of a third party has been a necessary condition of the harm's occurrence, or the challenged action has played a minor role. For instance, the plaintiffs in Clapper
Texas's claim regarding driver's licenses suffers from neither of those deficiencies. The only intervening act of a third party is the beneficiaries' decisions to apply for licenses, but it is hardly speculative that they will do so—driving is a practical necessity in most of Texas, especially to get and hold a job, so many beneficiaries will be eager to obtain licenses. Further, DAPA is the only substantial cause of Texas's injury. In short, given the "special solicitude" that the Supreme Court directs us to afford to Texas, the parallels between this case and Massachusetts, and the differences between this case and those in which the Supreme Court has not found standing, the states are likely to satisfy the "fairly traceable" requirement.
The third requirement, that the injury be "redressable by a favorable ruling," Clapper, 133 S.Ct. at 1147 (quoting Monsanto, 561 U.S. at 149, 130 S.Ct. 2743), is easily met here. Enjoining the implementation of DAPA until it undergoes notice and comment could prompt DHS to reconsider its decision, which is all a litigant must show when asserting a procedural
Thus, the government has not made a strong showing that it is likely to succeed on the merits of its notion that the states lack standing. At least one state—Texas—is likely to satisfy all three requirements, so the government's challenge to standing is without merit.
In addition to having standing, the states must seek to protect interests that are "arguably within the zone of interests to be protected or regulated by the statute . . . in question."
The government has not made a strong showing that the interests the states seek to protect fall outside the zone of interests of the Immigration and Nationality Act ("INA"). "The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States," which "bear[] many of the consequences of unlawful immigration." Arizona v. United States, ___ U.S. ___, 132 S.Ct. 2492, 2500, 183 L.Ed.2d 351 (2012). In recognition of that fact, Congress permits states to deny many benefits to illegal aliens.
In deciding whether the United States has made a strong showing that judicial
"[O]nly upon a showing of `clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." Block v. Cmty. Nutrition Inst., 467 U.S. 340, 350, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). That "standard is not a rigid evidentiary test but a useful reminder . . . that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling." Id. at 351, 104 S.Ct. 2450. "Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." Id. at 345, 104 S.Ct. 2450.
The United States maintains that 8 U.S.C. § 1252(g)
Nor does the government's broad and exclusive authority over immigration policy mean that review is implicitly barred.
Moreover, judicial review of an action brought by states to enforce procedural rights under the APA is consistent with the protections Congress affords to states that decline to provide benefits to illegal aliens. As we have explained,
The Supreme Court's discussion of deferred action in AAADC suggests that judicial review may be available if there is an indication that deferred-action decisions are not made on a case-by-case basis. There, a group of aliens sought to stop deportation proceedings against them, but § 1252(g) deprived the courts of jurisdiction. AAADC, 525 U.S. at 487, 119 S.Ct. 936. Noting that § 1252(g) codified the Secretary's discretion to decline "the initiation or prosecution of various stages in the deportation process," id. at 483, 119 S.Ct. 936, the Court observed that "[p]rior to 1997, deferred-action decisions were governed by internal [Immigration and Naturalization Service ("INS")] guidelines which considered [a variety of factors]," id. at 484 n. 8, 119 S.Ct. 936. Although those guidelines had since been rescinded, the Court noted that "there [was] no indication that the INS has ceased making this sort of determination on a case-by-case basis." Id. The United States has not rebutted the strong presumption of reviewability with clear and convincing evidence that the INA precludes review.
The Secretary does, nonetheless, have broad enforcement discretion and maintains that deferred action under DAPA—a grant of "lawful presence" and subsequent eligibility for otherwise unavailable benefits—is a presumptively unreviewable exercise of that discretion.
Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary's decision—at least temporarily—not to enforce the immigration laws as to a class of what he deems to be low-priority aliens.
"[A]lthough prosecutorial discretion is broad, it is not `unfettered.'"
Our conclusion is bolstered by the Supreme Court's description of deferred action in AAADC:
Unlike the claim in AAADC, the states' procedural claim does not involve a challenge to the Secretary's decision to "decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation," nor does deferred action pursuant to DAPA mean merely that "no action will thereafter be taken to proceed against an apparently deportable alien." Under DAPA, "[d]eferred action. . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,"
"There is no judicial review of agency action `where statutes [granting agency discretion] are drawn in such broad terms that in a given case there is no law to apply.'"
The INA expressly identifies legal designations allowing defined classes of aliens to reside lawfully in the United States
Against that background, we would expect to find an explicit delegation of authority to implement DAPA—a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits—but no such provision exists.
Likewise, we do not construe the broad grants of authority in 6 U.S.C. § 202(5),
Our decision in Perales is not to the contrary. There, we recognized that the INS's decision not to grant pre-hearing voluntary departures and work authorizations to a group of aliens was committed to agency discretion because "there is nothing in the [INA] expressly providing for the grant of employment authorization or pre-hearing voluntary departure ... to [that class of aliens]." Perales, 903 F.2d at 1047. "An agency's inaction in such a situation is necessarily exempt from judicial review because there are no meaningful standards against which to judge the agency's exercise of discretion." Id. In this case, however, issuing work authorizations to DAPA beneficiaries is an affirmative action, and whether the Secretary has the authority to do so remains an open question.
And even assuming the Secretary has that power, it is the designation of lawful presence itself—the prerequisite for work authorization under DAPA—that causes Texas's injury because a document showing legal presence makes one eligible for a driver's license.
The government asserts that 8 C.F.R. § 274a.12(c)(14),
Because the United States has not made a strong showing that judicial review is precluded, we must decide whether it has made a strong showing that DAPA does not require notice and comment. The government does not dispute that DAPA is a rule
The government's main argument is that DAPA is a policy statement. We consider two criteria to determine whether a purported policy statement is actually a substantive rule: whether it (1) "impose[s] any rights and obligations" and (2) "genuinely leaves the agency and its decisionmakers free to exercise discretion."
Extrapolating from the implementation of DACA,
The agency's characterization of both the DACA and DAPA criteria exudes discretion —using terms such as "guidance," "case-by-case," and "prosecutorial discretion."
We are attentive to the difficulty of evaluating an agency's discretion where the action involves issuing benefits to self-selecting applicants, as distinguished from imposing obligations on a regulated industry. Although a person who expected to be denied DACA relief for discretionary reasons would be unlikely to apply, the self-selection issue is mitigated by the district court's finding that "the [g]overnment has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action (absent extraordinary circumstances)." Texas,
Moreover, the court did not rely exclusively on DACA's approval rate. It also considered the detailed nature of the DACA Operating Procedures and the declaration from Palinkas that, as with DACA, the DAPA application process itself would preclude discretion: "[R]outing DAPA applications through service centers instead of field offices ... created an application process that bypasses traditional in-person investigatory interviews with trained USCIS adjudications officers" and "prevents officers from conducting case-by-case investigations, undermines officers' abilities to detect fraud and national-security risks, and ensures that applications will be rubber-stamped."
There was conflicting evidence on the degree to which DACA allowed for discretion. Donald Neufeld, the Associate Director for Service Center Operations for USCIS, declared that "deferred action under DACA is a ... case-specific process" that "necessarily involves the exercise of the agency's discretion" and purported to identify several instances of discretionary denials.
A lack of discretion does not trigger notice-and-comment rulemaking if the rule is one "of agency organization, procedure, or practice," § 553(b)(A); agencies and their employees are of course expected to adhere to such rules. We use "the substantial impact test [as] the primary means ... [to] look beyond the label `procedural' to determine whether a rule is of the type Congress thought appropriate for public participation."
The District of Columbia Circuit has enunciated a more intricate process for distinguishing between procedural and substantive rules.
Applying those standards here yields the same result as does the substantialimpact test. Although the burden DAPA imposes on Texas is derivative of issuing lawful presence to beneficiaries, it is still substantial—Texas has a quasi-sovereign interest in not being forced to choose between incurring millions of dollars in costs and changing its laws. Moreover, DAPA establishes the "substantive standards by which the [agency] evaluates applications which seek a benefit that the agency has the power to provide"—a critical fact requiring notice and comment.
Section 553(a)(2) exempts rules "to the extent that there is involved ... a matter relating to ... public property, loans, grants, benefits, or contracts." § 553(a)(2). We construe the public-benefits exception very narrowly as applying only to agency action that "clearly and directly relate[s] to `benefits' as that word is used in section 553(a)(2)."
To the extent that DAPA relates to public benefits, it does not do so "clearly and directly." Although § 553(a)(2) suggests that "rulemaking requirements for agencies managing benefit programs are... voluntarily imposed,"
In summary, the United States has not made a strong showing that it is likely to succeed on the merits. We proceed to examine the remaining factors of the test for obtaining a stay pending appeal.
The remaining factors also favor the states. The United States has not demonstrated that it "will be irreparably injured absent a stay." Planned Parenthood, 734 F.3d at 410 (quoting Nken, 556 U.S. at 426, 129 S.Ct. 1749). It claims that the injunction offends separation of powers and federalism, but it is the resolution of the case on the merits, not whether the
The government urges that DHS will not be able to determine quickly whether illegal aliens it encounters are enforcement priorities, but even under the injunction, DHS can choose whom to remove first; the only thing it cannot do is grant classwide lawful presence and eligibility for accompanying benefits as incentives for lowpriority aliens to self-identify in advance. And the government's allegation that the injunction is delaying preparatory work is unpersuasive. Injunctions often cause delays, and the government can resume work if it prevails on the merits.
The states have shown that "issuance of the stay will substantially injure" them. Id. (quoting Nken, 556 U.S. at 426, 129 S.Ct. 1749). A stay would enable DAPA beneficiaries to apply for driver's licenses and other benefits, and it would be difficult for the states to retract those benefits or recoup their costs even if they won on the merits. That is particularly true in light of the district court's findings regarding the large number of potential beneficiaries, including at least 500,000 in Texas alone.
The last factor, "where the public interest lies," id. (quoting Nken, 556 U.S. at 426, 129 S.Ct. 1749), leans in favor of the states. The government identifies several important interests: It claims a stay would improve public safety and national security, provide humanitarian relief to the family members of citizens and lawful permanent residents, and increase tax revenue for state and local governments. To the contrary, however, and only by way of example, on March 16, 2015, the Attorney General, in opposing a motion to stay removal in an unrelated action, argued to this very panel that "granting a stay of removal ... would impede the government's interest in expeditiously ... controlling immigration into the United States."
The states say the injunction maintains the separation of powers and ensures that a major new policy undergoes notice and comment. And as a prudential matter, if the injunction is stayed but DAPA is ultimately invalidated, deportable aliens would have identified themselves without receiving the expected benefits. The public interest favors maintenance of the injunction, and even if that were not so, in light of the fact that the first three factors favor the states and that the injunction merely maintains the status quo while the court considers the issue,
The government maintains that the nationwide scope of the injunction is an
The motion to stay the preliminary injunction or narrow its scope pending appeal is DENIED.
STEPHEN A. HIGGINSON, Circuit Judge, dissenting:
Agreeing with the district court, the plaintiff-states recognize that removal and deportation of non-citizens is a power exclusively of the federal government. See Arizona v. United States, ___ U.S. ___, 132 S.Ct. 2492, 2498, 183 L.Ed.2d 351 (2012). Their complaint, however, is that the federal government isn't doing its job; that whereas Congress, through unambiguous law, requires the identification, apprehension, and removal of non-citizens who lack documentation to be in the United States, see 8 U.S.C. § 1225(a)(3) (inspection); id. § 1225(b)(2)(A) (detention); id. § 1227(a) (removal), the President is thwarting that law. According to the plaintiffs, the President refuses to remove immigrants Congress has said must be removed and has memorialized that obstruction in a Department of Homeland Security ("DHS") memorandum. This, plaintiffs contend, is a Take Care Clause violation, a Youngstown scenario courts must correct; furthermore, because deferring removal of immigrants causes states injury and has substantive impact, the plaintiffs contend that the DHS memorandum is invalid without the full apparatus of rulemaking, notice and comment and public participation, under the Administrative Procedure Act ("APA"). 5 U.S.C. § 553. The district court offered extensive viewpoints on the first point, but ruled in plaintiffs' favor only on the second. The government seeks to stay that ruling, which is the matter before us.
My colleagues conclude that the government has not made a "strong showing" of likelihood of success on the merits. Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (internal quotation marks and citation omitted). I am grateful to them for their analysis and collegiality, and our exchange has informed my views, although I dissent as follows.
On November 20, 2014, the Secretary of the Department of Homeland Security sent to the Director of U.S. Citizenship and Immigration Services, and the Acting Director of the U.S. Immigration and Customs Enforcement, and the Commissioner of the U.S. Customs and Border Protection a memorandum with the subject heading, "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect
The November 20 memorandum, on its face, gives notice of expanded eligibility criteria used by DHS to assess whether undocumented immigrants who seek "deferred action" should "for a specified period of time ... [be] permitted to be lawfully present in the United States." This memorandum, expanding on pre-existing guidance, permits undocumented immigrants who are "hard-working," "integrated members of American society," and "otherwise not enforcement priorities" to self-report and become a lower removal priority. The immigrant explicitly stays removable, but is not a removal priority. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (recognizing that deferred action, which was originally known as "nonpriority," is an appropriate exercise of the Executive's removal discretion); see also 8 C.F.R. § 274a.12(c)(14) (defining "deferred action" as "an act of administrative convenience to the government which gives some cases lower priority"). The parties have offered argument and submissions, but to date without adversarial and evidentiary testing, disagreeing about consequences that could follow from executive adherence to the November 20 memorandum.
I would hold that Supreme Court and Fifth Circuit caselaw forecloses plaintiffs' arguments challenging in court this internal executive enforcement guideline. In an earlier Texas v. United States, 106 F.3d 661 (5th Cir.1997), we summarized and resolved the following statutory argument:
Id. at 667 (citations omitted). The authority our court relied on was Chief Justice Rehnquist's opinion for a unanimous Supreme Court in Heckler v. Chaney, which held "that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); see also Perales v. Casillas, 903 F.2d 1043, 1047-48 (5th Cir. 1990); see generally 5 U.S.C. § 701(a)(2); Ass'n of Flight Attendants-CWA, AFLCIO v. Huerta, 785 F.3d 710, 712-16, No. 13-1316, 2015 WL 2145776, at *1-4 (D.C.Cir. May 8, 2015) (holding that the court was without jurisdiction to review an internal guidance document that "inform[s] the exercise of discretion by agents and officers in the field").
The district court repeatedly acknowledged the controlling authority of Heckler and Texas that "`[r]eal or perceived inadequate enforcement of immigration laws does not constitute a reviewable abdication of duty,'" but held "[t]hat is not the situation here" because the November 20 memorandum is "an announced program of non-enforcement of the law that contradicts Congress' statutory goals." Texas v. United States, ___ F.Supp.3d ___, ___, No. B-14-254, 2015 WL 648579, at *50 (S.D.Tex. Feb. 16, 2015) (emphases added). This twofold extrapolation—focusing not on the memorandum itself set against current law, but instead on an embellishment
This characterization is the essential point of disagreement I have with the district court's ruling. Congress could, but has not, removed discretion from DHS as to which undocumented immigrants to apprehend and remove first. See 6 U.S.C. § 202(5) (directing Secretary to "[e]stablish[ ] national immigration enforcement policies and priorities"); 8 U.S.C. § 1103(a)(3) (vesting the Secretary with broad authority to "establish such regulations;... issue such instructions; and perform such other acts as he deems necessary for carrying out his authority" under the statute); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 94 L.Ed. 317 (1950) (describing immigration law as "`a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program'" (quoting Lichter v. United States, 334 U.S. 742, 785, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948))). Indeed, the Supreme Court recently revisited the interplay between Congressional law and coordinate Executive enforcement responsibility, clarifying that "[a] principal feature of the removal system is the broad discretion exercised by immigration officials," who "must decide whether it makes sense to pursue removal at all," taking into consideration, for example, "immediate human concerns," such as "[u]nauthorized workers trying to support their families ... [who] likely pose less danger than alien smugglers or aliens who commit a serious crime." Arizona, 132 S.Ct. at 2499; see also Crane, 783 F.3d at 249 (8 U.S.C. § 1225 "does not limit the authority of DHS to determine whether to pursue removal of the immigrant").
The plaintiffs point to no statutory removal of the executive discretion that the Supreme Court and our court emphasize vitally exists in the law. Regardless, it is undisputed that the Executive presently is deporting a total number of immigrants at a faster rate than any administration before, ever; that the Executive is and should allocate limited resources to deport violent and dangerous immigrants, ahead of citizen-children's parents who self-report to DHS acknowledging their illegal presence; and finally, that even categories of persons, like immigrants cooperating with the government in criminal cases or who contribute to our Armed Forces, historically
The district court did not view the November 20 memorandum as a non-prosecution policy. Instead, the district court reads the memorandum as agency action that affirmatively confers legal status and other benefits on undocumented immigrants. The district court, however, failed to recognize the important distinction between lawful "status" and lawful "presence." Whereas legal status implies "a right protected by law," legal presence simply reflects an "exercise of discretion by a public official." See Dhuka v. Holder, 716 F.3d 149, 156 (5th Cir.2013); see also Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir.2013) ("[U]nlawful presence and unlawful status are distinct concepts."). The November 20 memorandum like its precursors, dating back to 1975, contemplates categorizing deferred action recipients as being present for a temporary period of time, but does not change the applicant's lawful "status." Congress, separately through 8 U.S.C. § 1255, has codified exact ways non-citizens may gain lawful "status," but has left lawful "presence" broadly defined to include a discretionary "period of stay authorized by the Attorney
The plaintiff-states draw a further flavor of doubt from eligibility for work authorization, whereas amici-states see advantage and financial windfall. That choice is exclusively a task for Congress, however. See Perales, 903 F.2d at 1045, 1047 (holding that the INS's decision to grant work authorization has been "committed to agency discretion by law" and is therefore not subject to judicial review). Moreover, the November 20 memorandum does not itself "award" work authorization. See U.S. Dep't of Labor v. Kast Metals Corp., 744 F.2d 1145, 1156 (5th Cir.1984) (finding a rule non-substantive because its substantive effect was "purely derivative" of another statute and rules). Work authorization for deferred-action recipients is expressly authorized under a 1981 regulation that was promulgated through notice-and-comment rulemaking. See 8 C.F.R. § 274a.12(c)(14). That authorization has since been reinforced in the United States Code. See 8 U.S.C. § 1324a(h)(3). If an influx of applications makes the statutory availability of work authorization inadvisable, it is for Congress, not the courts, to recalibrate. See, e.g., 8 U.S.C. § 1158(c)(1)(B) (directing the Secretary to grant work authorization to certain categories of non-citizens); id. § 1226(a)(3) (directing the Secretary not to grant work authorization to a certain category of non-citizens).
On this record, as well as focusing below on the four corners of the November 20 memorandum, I would say DHS is adhering to law, not derogating from it. The Supreme Court in Heckler noted that derogation and abdication occur rarely, where there is statutory language removing non-enforcement discretion yet still "a refusal by the agency to institute proceedings" or "`consciously and expressly adopt[ing] a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities." 470 U.S. at 833 n., 105 S.Ct. 16494 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C.Cir.1973)). Neither exists here. The DHS memorandum guides executive policy that has allowed enforcement and more removals per year than under any prior presidency. Although executive abdication, if renunciatory of Congress, extreme and diametric, must be checked, courts should not truncate the myriad political processes whereby most executive intention, good and bad, is ever balanced. See Lincoln v. Vigil, 508 U.S. 182, 193, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) ("[W]e hardly need to note that an agency's decision to ignore congressional expectations may expose it to grave political consequences."); Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543-44, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) ("[T]his much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances the administrative agencies should be free to fashion their own rules of
In fact, if the Supreme Court has insisted on any one constant as it relates to immigration disputes, it is to redirect disputes from the multiplicity of state reactions back to dialogue between our coequal federal political branches so that nationwide concerns and practicalities are weighed, Congress's purse dispensed as it chooses, and the Executive refines its enforcement priorities or is compelled by Congress to do so. If internal executive policy-setting authority—adjusting to limited resources and making critical offender severity determinations, all superintended by Congress—now instead becomes challengeable in courts and forced into "the often cumbersome and time-consuming mechanisms of public input," Kast Metals, 744 F.2d at 1152, this case, as precedent, may well rise, swell, and burst with clutter beyond judicial control over immigration removal (in)action. Id. at 1156 (noting that notice and comment "would foresee aeons of rulemaking proceedings when all the agency seeks to do is operate in a rational manner"). See generally Ramah Navajo Sch. Bd. v. Babbitt, 87 F.3d 1338, 1353, 1354 (D.C.Cir.1996) (Silberman, J., dissenting) (cautioning courts against "teas[ing] statutory law out of a vacuum" created by Congress and ignoring "the zero sum game" of limited Congressional appropriations which require executive agencies to communicate prioritizations via policies).
For the foregoing reasons, I would grant a stay of the district court's preliminary injunction because I believe the policy articulated in the November 20 memorandum is non-justiciable.
The district court highlighted that "well-developed" caselaw exists to distinguish executive action that is internal policy-setting
The starting point for analysis under § 553(b), though not the deciding factor, is an agency's own characterization of its action, and specifically whether the agency itself seeks to impose binding obligations as a basis for enforcement action. Prof'ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 596 (5th Cir. 1995); see also Kast Metals, 744 F.2d at 1149; Pac. Gas & Elec. Co. v. Fed. Power Comm'n, 506 F.2d 33, 39 (D.C.Cir.1974). DHS titles its memorandum as internal policy statements expanding prosecutorial discretion for undocumented immigrants who seek "deferred action" instead of removal from the United States. That description is neither a boilerplate beginning nor a final caveat, weak bookends around an imposed regulatory regime. See Huerta, 785 F.3d at 717, 2015 WL 2145776, at *5 ("The language employed by the agency may play an important role [in determining whether a document is a policy statement or legislative rule]; a document that reads like an edict is likely to be binding, while one riddled with caveats is not."); Nat'l Mining Ass'n, 758 F.3d at 251-53. No fewer than ten times, the November 20 memorandum instructs immigration officers that: (1) "DHS must exercise prosecutorial discretion in the enforcement of the law"; (2) "[immigration laws] are not designed to be blindly enforced without consideration given to the individual circumstances of each case"; (3) "[d]eferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual's case for humanitarian reasons, administrative convenience, or in the interest of the Department's overall enforcement mission"; (4) "deferred action is legally available so long as it is granted on a case-by-case, and it may be terminated at any time at the agency's discretion"; (5) "[c]ase-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation's security and economic interests and make common sense"; (6) "this Department's limited enforcement resources ... must continue to be focused on those who represent threats to national security"; (7) "USCIS [should] establish a process, similar to DACA [2012], for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis"; (8) "ICE is further instructed to review pending removal cases... and to refer [certain] individuals to USCIS for case-by-case determinations"; (9) "immigration officers will be provided with specific eligibility criteria for deferred
Looking behind an agency's stated purpose claiming or disclaiming the force and effect of law, courts also give a close, four-corners look for language that reads like an edict, commanding language, to discern if a priority statement nonetheless will operate bindingly on regulatees. Nat'l Mining Ass'n, 758 F.3d at 252 ("The most important factor concerns the actual legal effect (or lack thereof) of the agency action in question on regulated entities.").
As a preliminary matter, it is undisputed that any "directing" here is internal only, not binding with respect to regulated entities. And to the extent that DHS directs internally, it directs immigration officers to "establish a process, similar to DACA [2012], for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis," (emphasis added), containing features common to nonbinding statements of policy (exempt from notice and comment procedure), and dissimilar from binding substantive regulations (requiring APA rulemaking and public participation).
First, the memorandum guides only as to when to exercise broad lenity, i.e. delayed enforcement. The memorandum channels when DHS will not act, much like longstanding Department of Justice internal prosecution guidelines, such as the "Petite Policy," which "precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s).... This policy constitutes an exercise of the Department's prosecutorial discretion, and applies even where a prior state prosecution would not legally bar a subsequent federal prosecution...." Dual and Successive Prosecution Policy ("Petite Policy"), United States
Second, the memorandum neither continues nor imposes a regulatory regime. There is no threat to conform. No obligation or prohibition is placed on regulated entities. Instead, DHS has expanded on its preexisting guidance, allowing immigrants to self-report their illegal presence but show they fall outside DHS's "enforcement priorities" and also are not otherwise "inappropriate" for deferred action. The memorandum describes opt-in procedures, whose incontestable accomplishment is that persons illegally here will be identified and located and submit to a criminal background check, all the while allowing DHS to tighten border interdiction and target violent and dangerous felons. It goes without saying that to prosecute a fugitive, the government must first find him. Every applicant under the November 20 memorandum voluntarily will self-report as illegally present and provide information DHS then will use in a criminal background check coordinated with Immigration and Customs Enforcement ("ICE") to effectuate priority removals. Nov. 20 Memo at 3 ("Case-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation's security and economic interests and make common sense, because they encourage these people to come out of the shadows, submit to background checks, pay fees, ... and be counted.").
Third, plaintiffs cite no § 553 caselaw relating to a statutory regime whose flexibility the Supreme Court has highlighted, Arizona, 132 S.Ct. at 2499 ("A principal feature of the removal system is the broad discretion exercised by immigration officials."); 6 U.S.C. § 202(5) (affording the Secretary authority to "[e]stablish[ ] national immigration enforcement policies and priorities"), set against agency policy guidance that incorporates this same flexibility, such as the criteria that the applicant (1) not be an "enforcement priority"; and (2) "present no other factors that, in the exercise of discretion, makes the grant
Behind label and language, courts vigilantly will look to any post-guidelines implementation data to assure, again, that an agency policy announcement does not inadvertently or strategically cause binding effect equivalent to a legislative rule. The concern is to not allow an agency speak one way—claiming resource constraints and discretion—yet carry out de facto regulation, binding regulatees. Put delicately, is the announced discretion "pretext"? Put indelicately, as the district court held, is the Executive being "disingenuous"? Texas, ___ F.Supp.3d at ___, 2015 WL 648579, at *53.
The district court held that "[d]espite the [November 20] memorandum's use of phrases such as `case-by-case' and `discretion'" the criteria set forth in the November 20 memorandum were actually "binding." But because it enjoined the November 20 memorandum before it went into effect, no post-guidance evidence exists to help determine "whether the agency has applied the guidance as if it were binding." Nat'l Mining Ass'n, 758 F.3d at 253. Instead, as noted earlier, the district court looked above DHS, the executive agency, to President Obama, the executive-in-chief to find contradiction to DHS stated purpose and emphasis on case-by-case discretion. For good reason, however, the Supreme Court has not relied on press statements to discern government motivation and test the legality of governmental action, much less inaction. See Hamdan v. Rumsfeld, 548 U.S. 557, 624 n. 52, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) ("We have not heretofore, in evaluating the legality of executive action, deferred to comments made by such officials to the media."). Presidents, like governors and legislators, often describe law enthusiastically yet defend the same law narrowly. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 647, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J.) (noting "[t]he claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy" yet warning against the use of such "unadjudicated claims of power" to answer constitutional questions). In addition, our court has noted that "informal communications often exhibit a lack of `precision of draftsmanship'" and therefore
More significant, the district court discerned pretext—inferred intent to bind—from the fact that the majority of DACA 2012 deferred action applications have been granted. I disagree for factual and legal reasons.
First, without evidence-taking and testing, I question the relevance of DACA 2012 implementation data. The DACA 2012 memorandum purports to guide the exercise of prosecutorial discretion "with respect to individuals who came to the United States as children," a subset of undocumented immigrants who are particularly inculpable as they "were brought to this country as children" and, thus, "lacked the intent to violate the law." That memorandum, in its original form, applies only to individuals who came to the United States under the age of sixteen, have not yet reached the age of thirty, and who have achieved a certain level of education. The November 20 memorandum being challenged here, and specifically its DAPA provisions, on the other hand, casts a much wider net, applying to a larger and broader group of individuals, but then narrows its deferred-action-availability reach through the use of more discretionary criteria than in DACA 2012. Despite these dissimilarities, the district court concluded that "[t]here is no reason to believe that DAPA will be implemented any differently than DACA [2012]" and there was no "suggestion that DAPA will be implemented in a fashion different from DACA [2012]." Texas, ___ F.Supp.3d at ___, ___ n. 96, 2015 WL 648579, at *39, *55 n. 96. The court did not explore, however, the government's contention that a significant difference existed between the two programs, specifically, the catch-all discretionary exception that was added to the November 20 memorandum—"present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate." The district court rejected this distinction because, the court contended, using circular reasoning, that the approval rate under the DACA 2012 program persuaded the Court that "this `factor' is merely pretext." Id. at ___ n. 101, 2015 WL 648579 at *55 n. 101.
Second, the district court placed the burden on the government to put forth "evidence of individuals who had been denied [under DACA 2012] for reasons other than not meeting the criteria or technical errors with the form and/or filing." Id. But "[t]he plaintiff has the burden of introducing sufficient evidence to justify the grant of a preliminary injunction." See PCI Transp., Inc. v. Fort Worth & W.R. Co., 418 F.3d 535, 545 (5th Cir.2005). The district court then reached its conclusions about the agency's binding intent without giving any weight to the government's contrary evidence or justification for discrediting that evidence. See Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1211 (11th Cir. 2003) (holding that the district court abused its discretion when it "effectively issued and upheld the injunction based on evidence presented by only one party" and without holding an evidentiary hearing); cf. Fed. Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554, 558-59 (5th Cir.1987) (finding that the district court did not abuse its discretion by declining to hold an evidentiary hearing where there were no material
Third, DACA 2012 itself contains classic markers of discretion, including the ability to interview applicants, request additional evidence, and contact the applicant's educational institution, other government agencies, employers, or other entities to verify documents and facts. This discretion was actually exercised by DHS; the executive made nearly 200,000 requests for additional evidence under the DACA 2012 program, a fact the district court does not mention. Applications have been denied after an official exercised discretion in applying the criteria set forth in the DACA 2012 memorandum (i.e., making a subjective determination that the applicant posed a public safety risk), and for reasons not expressly set forth in the DACA 2012 memorandum.
Fourth, and especially significant, placing determinative weight on the approval rate of applicants under DACA 2012 fails to take into account the crucial voluntary aspect of this memorandum, that applicants will not apply if they are ineligible—essentially self-reporting for removal—or, if eligible, when they have any other flaw they do not want revealed. In light of this manifest self-selection bias, it is unclear why the appropriate piece of data would be the approval rate of only applicants, crucially relied on by the district court to infer pretext, rather than the approval rate of all those who qualify. Again, the district court did not address at all this self-selection bias inherent in DACA 2012 and the November 20 memorandum.
Finally, as a leading administrative law scholar has observed, it is to be expected and encouraged that subordinate executive officers will follow enforcement guidelines. See Pierce, Administrative Law Treatise, § 6.3, at 424-25; see also Prof'ls & Patients, 56 F.3d at 599 (agents' conformance with agency guidance is "not particularly probative whether the rule is substantive" because "what purpose would an agency's statement of policy serve if agency employees could not refer to it for guidance?"). This positive should not become a negative to invalidate the very delineation of executive authority the APA exists to assure.
Judge Kavanaugh brackets his National Mining Association framework for the § 553 analysis applied above with commonsense. First, he offers that "agency action that merely explains how the agency will enforce a statute . . . in other words, how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule—is a general statement of policy." Nat'l Mining Ass'n, 758 F.3d at 252. The Supreme Court, in Arizona, resolved that immigration officials have "broad discretion" to enforce the federal immigration laws, including the "deci[sion] whether it makes sense to pursue removal at all." Arizona, 132 S.Ct. at 2499. Second, Judge Kavanaugh notes that a token of a general statement of policy is that the agency would have legal authority to undertake the action absent the guidance document. See Nat'l Mining Ass'n, 758 F.3d at 253 ("[W]hen the agency applies [a general statement of] policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued." (internal quotation marks and citation
I would hold that the underlying issue presented to us—the order in which non-citizens without documentation must be removed from the United States—must be decided, presently is being decided, and always has been decided, by the federal political branches. See Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) ("For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government."). On the expedience of immigration measures, sensible things can be said on all sides, mindful that our country is an immigrant society itself.
BRYAN A. GARNER, GARNER'S DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed.2011) (citations omitted).
Wyoming controls here. The plaintiffs in Pennsylvania chose to base their tax credits on other states' tax policies; they could have used other methods to accomplish a similar result, such as basing the credits on residents' out-of-state incomes, rather than taxes actually paid to other states. By contrast, Wyoming did nothing to tie its severance tax to Oklahoma law. Like Wyoming, Texas has few options to avoid being affected by what it believes are unlawful changes to federal immigration policies: It must rely on federal immigration classifications if it seeks to issue licenses only to those lawfully present in the United States. The government acknowledges this in its motion for stay, noting that "[s]tates may choose to issue driver's licenses to deferred action recipients or not, as long as they base eligibility on federal immigration classifications rather than creating new state-law classifications of aliens." Because Texas does not have the level of choice the plaintiffs in Pennsylvania enjoyed, its injury is not self-inflicted.
