State of Texas, et al v. USA, et al, No. 15-40238 (5th Cir. 2015)

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This opinion or order relates to an opinion or order originally issued on May 26, 2015.

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Case: 15-40238 Document: 00513286295 Page: 1 Date Filed: 11/25/2015 REVISED November 25, 2015 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit __________ No. 15-40238 __________ FILED November 9, 2015 Lyle W. Cayce Clerk STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; PAUL R. LEPAGE, Governor, State of Maine; PATRICK L. MCCRORY, Governor, State of North Carolina; C. L. “BUTCH” OTTER, Governor, State of Idaho; PHIL BRYANT, Governor, State of Mississippi; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF FLORIDA; STATE OF ARIZONA; STATE OF ARKANSAS; ATTORNEY GENERAL BILL SCHUETTE; STATE OF NEVADA; STATE OF TENNESSEE, Plaintiffs−Appellees, versus UNITED STATES OF AMERICA; JEH CHARLES JOHNSON, Secretary, Department of Homeland Security; R. GIL KERLIKOWSKE, Commissioner of U.S. Customs and Border Protection; RONALD D. VITIELLO, Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection; SARAH R. SALDANA, Director of U.S. Immigration and Customs Enforcement; LEON RODRIGUEZ, Director of U.S. Citizenship and Immigration Services, Defendants−Appellants. _______________________ Appeal from the United States District Court for the Southern District of Texas _______________________ Case: 15-40238 Document: 00513286295 Page: 2 Date Filed: 11/25/2015 No. 15-40238 Before KING, SMITH, and ELROD, Circuit Judges. JERRY E. SMITH, Circuit Judge: The United States 1 appeals a preliminary injunction, pending trial, forbidding implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”). Twenty-six states (the “states” 2) challenged DAPA under the Administrative Procedure Act (“APA”) and the Take Care Clause of the Constitution; 3 in an impressive and thorough Memorandum Opinion and Order issued February 16, 2015, the district court enjoined the program on the ground that the states are likely to succeed on their claim that DAPA is subject to the APA’s procedural requirements. Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015). 4 The government appealed and moved to stay the injunction pending resolution of the merits. After extensive briefing and more than two hours of oral argument, a motions panel denied the stay after determining that the appeal was unlikely to succeed on its merits. Texas v. United States, 787 F.3d 733, 743 (5th Cir. 2015). Reviewing the district court’s order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction. 5 This opinion refers to the defendants collectively as “the United States” or “the government” unless otherwise indicated. 1 We refer to the plaintiffs collectively as “the states,” but as appropriate we refer only to Texas because it is the only state that the district court determined to have standing. 2 We find it unnecessary, at this early stage of the proceedings, to address or decide the challenge based on the Take Care Clause. 3 4 We cite the district court’s opinion as “Dist. Ct. Op., 86 F. Supp. 3d at ___.” 5 Our dedicated colleague has penned a careful dissent, with which we largely but 2 Case: 15-40238 Document: 00513286295 Page: 3 Date Filed: 11/25/2015 No. 15-40238 I. A. In June 2012, the Department of Homeland Security (“DHS”) implemented the Deferred Action for Childhood Arrivals program (“DACA”). 6 In the DACA Memo to agency heads, the DHS Secretary “set[] forth how, in the exercise of . . . prosecutorial discretion, [DHS] should enforce the Nation’s immigration laws against certain young people” and listed five “criteria [that] should be satisfied before an individual is considered for an exercise of prosecutorial discretion.” 7 The Secretary further instructed that “[n]o individual should receive deferred action . . . unless they [sic] first pass a background check and requests for relief . . . are to be decided on a case by case basis.” 8 Although stating that “[f]or individuals who are granted deferred action . . . , [U.S. Citizenship and Immigration Services (“USCIS”)] shall accept applications to determine whether these individuals qualify for work authorization,” the DACA Memo purported to “confer[] no substantive right, immigration status or pathway to citizenship.” 9 At least 1.2 million persons qualify for DACA, and approximately 636,000 applications were approved through 2014. respectfully disagree. It is well-researched, however, and bears a careful read. Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David Aguilar, Acting Comm’r, U.S. Customs and Border Prot., et al. 1 (June 15, 2012) (the “DACA Memo”), http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf. 6 Id. (stating that an individual may be considered if he “[1] came to the United States under the age of sixteen; [2] has continuously resided in the United States for a[t] least five years preceding [June 15, 2012] and is present in the United States on [June 15]; [3] is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the [military]; [4] has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and [5] is not above the age of thirty”). 7 8 Id. at 2. 9 Id. at 3. 3 Case: 15-40238 Document: 00513286295 Page: 4 Date Filed: 11/25/2015 No. 15-40238 Dist. Ct. Op., 86 F. Supp. 3d at 609. In November 2014, by what is termed the “DAPA Memo,” DHS expanded DACA by making millions more persons eligible for the program 10 and extending “[t]he period for which DACA and the accompanying employment authorization is granted . . . to three-year increments, rather than the current twoyear increments.” 11 The Secretary also “direct[ed] USCIS to establish a process, similar to DACA,” known as DAPA, which applies to “individuals who . . . have, [as of November 20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident” and meet five additional criteria. 12 The Secretary stated that, although “[d]eferred action does not confer any form of legal status in this country, much less citizenship[,] it [does] mean[] that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” 13 Of the approximately 11.3 million illegal aliens 14 in the United Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Leon Rodriguez, Dir., USCIS, et al. 3–4 (Nov. 20, 2014), http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf. 10 Id. at 3. The district court enjoined implementation of the following three DACA expansions, and they are included in the term “DAPA” in this opinion: (1) the “age restriction exclud[ing] those who were older than 31 on the date of the [DACA] announcement . . . will no longer apply,” id.; (2) “[t]he period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments,” id.; (3) “the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010,” id. at 4. Dist. Ct. Op., 86 F. Supp. 3d at 677–78 & n.111. 11 DAPA Memo at 4 (directing that individuals may be considered for deferred action if they “[1] have, on [November 20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident; [2] have continuously resided in the United States since before January 1, 2010; [3] are physically present in the United States on [November 20, 2014], and at the time of making a request for consideration of deferred action with USCIS; [4] have no lawful status on [November 20, 2014]; [5] are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and [6] present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate”). 12 13 Id. at 2 (emphasis added). 14 Although “[a]s a general rule, it is not a crime for a removable alien to remain 4 Case: 15-40238 Document: 00513286295 Page: 5 Date Filed: 11/25/2015 No. 15-40238 States, 4.3 million would be eligible for lawful presence pursuant to DAPA. Dist. Ct. Op., 86 F. Supp. 3d at 612 n.11, 670. “Lawful presence” is not an enforceable right to remain in the United States and can be revoked at any time, but that classification nevertheless has significant legal consequences. Unlawfully present aliens are generally not eligible to receive federal public benefits, see 8 U.S.C. § 1611, or state and local public benefits unless the state otherwise provides, see 8 U.S.C. § 1621. 15 But as the government admits in its opening brief, persons granted lawful presence pursuant to DAPA are no longer “bar[red] . . . from receiving social security present in the United States,” it is a civil offense. Arizona v. United States, 132 S. Ct. 2492, 2505 (2012); see 8 U.S.C. §§ 1182(a)(9)(B)(i), 1227(a)(1)(A)–(B). This opinion therefore refers to such persons as “illegal aliens”: The usual and preferable term in [American English] is illegal alien. The other forms have arisen as needless euphemisms, and should be avoided as neargobbledygook. The problem with undocumented is that it is intended to mean, by those who use it in this phrase, “not having the requisite documents to enter or stay in a country legally.” But the word strongly suggests “unaccounted for” to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning. More than one writer has argued in favor of undocumented alien . . . [to] avoid[] the implication that one’s unauthorized presence in the United States is a crime . . . . Moreover, it is wrong to equate illegality with criminality, since many illegal acts are not criminal. Illegal alien is not an opprobrious epithet: it describes one present in a country in violation of the immigration laws (hence “illegal”). BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed. 2011) (citations omitted). And as the district court pointed out, “it is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law.” Dist. Ct. Op., 86 F. Supp. 3d at 605 n.2 (citing Arizona v. United States, 132 S. Ct. 2492, 2497 (2012)). “[I]legal alien has going for it both history and well-documented, generally accepted use.” Matthew Salzwedel, The Lawyer’s Struggle to Write, 16 SCRIBES JOURNAL OF LEGAL WRITING 69, 76 (2015). Those provisions reflect Congress’s concern that “aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates” and that “[i]t is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits.” 8 U.S.C. § 1601. Moreover, the provisions incorporate a national policy that “aliens within the Nation’s borders not depend on public resources to meet their needs” and that “[s]elf-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.” Id. 15 5 Case: 15-40238 Document: 00513286295 Page: 6 Date Filed: 11/25/2015 No. 15-40238 retirement benefits, social security disability benefits, or health insurance under Part A of the Medicare program.” 16 That follows from § 1611(b)(2)–(3), which provides that the exclusion of benefits in § 1611(a) “shall not apply to any benefit[s] payable under title[s] II [and XVIII] of the Social Security Act . . . to an alien who is lawfully present in the United States as determined by the Attorney General . . . .” (emphasis added). A lawfully present alien is still required to satisfy independent qualification criteria before receiving those benefits, but the grant of lawful presence removes the categorical bar and thereby makes otherwise ineligible persons eligible to qualify. “Each person who applies for deferred action pursuant to the [DAPA] criteria . . . shall also be eligible to apply for work authorization for the [renewable three-year] period of deferred action.” DAPA Memo at 4. The United States concedes that “[a]n alien with work authorization may obtain a Social Security Number,” “accrue quarters of covered employment,” and “correct wage records to add prior covered employment within approximately three years of the year in which the wages were earned or in limited circumstances thereafter.” 17 The district court determined and the government does not dispute “that DAPA recipients would be eligible for earned income tax credits once they received a Social Security number.” 18 As for state benefits, although “[a] State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under 16 Brief for Appellants at 48–49 (citing 8 U.S.C. § 1611(b)(2)–(3)). Brief for Appellants at 49 (citation omitted) (citing 42 U.S.C. § 405(c)(1)(B), (4), (5)(A)–(J); 8 C.F.R. § 1.3(a)(4)(vi); 20 C.F.R. §§ 422.104(a)(2), 422.105(a)). 17 Dist. Ct. Op., 86 F. Supp. 3d at 654 n.64; see also 26 U.S.C. § 32(c)(1)(E), (m) (stating that eligibility for earned income tax credit is limited to individuals with Social Security numbers); 20 C.F.R. §§ 422.104(a)(2), 422.107(a), (e)(1). 18 6 Case: 15-40238 Document: 00513286295 Page: 7 Date Filed: 11/25/2015 No. 15-40238 subsection (a),” § 1621(d), Texas has chosen not to issue driver’s licenses to unlawfully present aliens. 19 Texas maintains that documentation confirming lawful presence pursuant to DAPA would allow otherwise ineligible aliens to become eligible for state-subsidized driver’s licenses. Likewise, certain unemployment compensation “[b]enefits are not payable based on services performed by an alien unless the alien . . . was lawfully present for purposes of performing the services . . . .” 20 Texas contends that DAPA recipients would also become eligible for unemployment insurance. B. The states sued to prevent DAPA’s implementation on three grounds. First, they asserted that DAPA violated the procedural requirements of the APA as a substantive rule that did not undergo the requisite notice-andcomment rulemaking. See 5 U.S.C. § 553. Second, the states claimed that DHS lacked the authority to implement the program even if it followed the correct rulemaking process, such that DAPA was substantively unlawful under the APA. See 5 U.S.C. § 706(2)(A)–(C). Third, the states urged that DAPA was an abrogation of the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3. The district court held that Texas has standing. It concluded that the state would suffer a financial injury by having to issue driver’s licenses to DAPA beneficiaries at a loss. Dist. Ct. Op., 86 F. Supp. 3d at 616–23. TEX. TRANSP. CODE § 521.142(a) (“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.” (emphasis added)). 19 TEX. LAB. CODE § 207.043(a)(2) (emphasis added); see also 26 U.S.C. § 3304(a)(14)(A) (approval of state laws making compensation not payable to aliens unless they are “lawfully present for purposes of performing such services” (emphasis added)). 20 7 Case: 15-40238 Document: 00513286295 Page: 8 Date Filed: 11/25/2015 No. 15-40238 Alternatively, the court relied on a new theory it called “abdication standing”: Texas had standing because the United States has exclusive authority over immigration but has refused to act in that area. Id. at 636–43. The court also considered but ultimately did not accept the notions that Texas could sue as parens patriae on behalf of citizens facing economic competition from DAPA beneficiaries and that the state had standing based on the losses it suffers generally from illegal immigration. Id. at 625–36. The court temporarily enjoined DAPA’s implementation after determining that Texas had shown a substantial likelihood of success on its claim that the program must undergo notice and comment. Id. at 677. Despite full briefing, the court did not rule on the “Plaintiffs’ likelihood of success on their substantive APA claim or their constitutional claims under the Take Care Clause/separation of powers doctrine.” Id. On appeal, the United States maintains that the states do not have standing or a right to judicial review and, alternatively, that DAPA is exempt from the notice-and-comment requirements. The government also contends that the injunction, including its nationwide scope, is improper as a matter of law. II. “We review a preliminary injunction for abuse of discretion.” 21 A preliminary injunction should issue only if the states, as movants, establish (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.[ 22] “As to each element of the district court’s preliminary-injunction analysis 21 Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013). 22 Id. (quoting Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)). 8 Case: 15-40238 Document: 00513286295 Page: 9 Date Filed: 11/25/2015 No. 15-40238 . . . findings of fact are subject to a clearly-erroneous standard of review, while conclusions of law are subject to broad review and will be reversed if incorrect.” 23 III. The government claims the states lack standing to challenge DAPA. As we will analyze, however, their standing is plain, based on the driver’s-license rationale, 24 so we need not address the other possible grounds for standing. As the parties invoking federal jurisdiction, the states have the burden of establishing standing. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013). They must show an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Id. at 1147 (citation omitted). “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007). “[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006). 23 Id. (quoting Janvey v. Alguire, 647 F.3d 585, 591–92 (5th Cir. 2011)). We did not reach this issue in Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015). There, we concluded that neither the State of Mississippi nor Immigration and Customs Enforcement (“ICE”) agents and deportation officers had standing to challenge DACA. Id. at 255. We explicitly determined that Mississippi had waived the theory that Texas now advances: 24 In a letter brief filed after oral argument, Mississippi put forward three new arguments in support of its standing, [including] (1) the cost of issuing driver’s licenses to DACA’s beneficiaries . . . . Because Mississippi failed to provide evidentiary support on these arguments and failed to make these arguments in their opening brief on appeal and below, they have been waived. Id. at 252 n.34. 9 Case: 15-40238 Document: 00513286295 Page: 10 Date Filed: 11/25/2015 No. 15-40238 A. We begin by considering whether the states are entitled to “special solicitude” in our standing inquiry under Massachusetts v. EPA. They are. The Court held that Massachusetts had standing to contest the EPA’s decision not to regulate greenhouse-gas emissions from new motor vehicles, which allegedly contributed to a rise in sea levels and a loss of the state’s coastal land. Massachusetts v. EPA, 549 U.S. at 526. “It is of considerable relevance that the party seeking review here is a sovereign State and not . . . a private individual” because “States are not normal litigants for the purposes of invoking federal jurisdiction.” Id. at 518. 25 The Court identified two additional considerations that entitled Massachusetts “to special solicitude in [the Court’s] standing analysis.” Id. at 520. 26 First, the Clean Air Act created a procedural right to challenge the EPA’s decision: The parties’ dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. That authorization is of critical importance to the standing inquiry: “Congress has the power to define injuries and articulate The dissent, throughout, cleverly refers to the states, more than forty times, as the “plaintiffs,” obscuring the fact that they are sovereign states (while referring to the defendants as the “government”). See Dissent, passim. 25 The dissent attempts to diminish the considerable significance of the “special solicitude” language, which, to say the least, is inconvenient to the United States in its effort to defeat standing. The dissent protests that it is “only a single, isolated phrase” that “appears only once.” Dissent at 9. 26 The dissent, however, avoids mention of the Court’s explanation that “[i]t is of considerable relevance that the party seeking review here is a sovereign State.” Massachusetts v. EPA, 549 U.S. at 518. In light of that enlargement on the “special solicitude” phrase, it is obvious that being a state greatly matters in the standing inquiry, and it makes no difference, in the words of the dissent, “whether the majority means that states are afforded a relaxed standing inquiry by virtue of their statehood or whether their statehood, in [and] of itself, helps confer standing.” Dissent at 9. 10 Case: 15-40238 Document: 00513286295 Page: 11 Date Filed: 11/25/2015 No. 15-40238 chains of causation that will give rise to a case or controversy where none existed before.” “In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” We will not, therefore, “entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.”[ 27] Second, the EPA’s decision affected Massachusetts’s “quasi-sovereign” interest in its territory: When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted. These sovereign prerogatives are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to the “emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”[ 28] Like Massachusetts, the instant plaintiffs the states “are not normal litigants for the purposes of invoking federal jurisdiction,” id. at 518, and the same two additional factors are present. First, “[t]he parties’ dispute turns on the proper construction of a congressional statute,” 29 the APA, which authorizes challenges to “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Similarly, the disagreement in Massachusetts v. EPA concerned the interpretation of the Clean Air Act, which provides for judicial review of “final action taken[] by the Administrator.” 27 Massachusetts v. EPA, 549 U.S. at 516–17 (citations omitted). Id. at 519–20 (alteration in original) (citation omitted) (quoting 42 U.S.C. § 7521(a)(1)). 28 29 Id. at 516. 11 Case: 15-40238 Document: 00513286295 Page: 12 Date Filed: 11/25/2015 No. 15-40238 42 U.S.C. § 7607(b)(1). Further, as we will explain, the states are within the zone of interests of the Immigration and Nationality Act (“INA”); 30 they are not asking us to “entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.” 31 In enacting the APA, Congress intended for those “suffering legal wrong because of agency action” to have judicial recourse, 32 and the states fall well within that definition. 33 The Clean Air Act’s review provision is more specific than the APA’s, but the latter is easily adequate to justify “special solicitude” here. The procedural right to challenge EPA decisions created by the Clean Air Act provided important support to Massachusetts because the challenge Massachusetts sought to bring a challenge to an agency’s decision not to act is traditionally the type for which it is most difficult to establish standing and a justiciable issue. 34 Texas, by contrast, challenges DHS’s affirmative decision to set guidelines for granting lawful presence to a broad class of illegal aliens. Because the states here challenge DHS’s decision to act, rather than its decision to remain inactive, a procedural right similar to that created by the Clean Air Act is not necessary to support standing. See 5 U.S.C. § 704. As we will show, DAPA would have a major effect on the states’ fiscs, causing millions of dollars of losses in Texas alone, and at least in Texas, the 30 See infra part IV. 31 Massachusetts v. EPA, 549 U.S. at 516–17 (citation omitted). 32 5 U.S.C. § 702. See New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 694, 696 n.13 (10th Cir. 2009) (holding that New Mexico was entitled to “special solicitude” where one of its claims was based on the APA); Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1241–42 (10th Cir. 2008) (holding that Wyoming was entitled to special solicitude where its only claim was based on the APA). 33 See Heckler v. Chaney, 470 U.S. 821, 831 (observing that “refusals to take enforcement steps” generally are subject to agency discretion, and the “presumption is that judicial review is not available.”). 34 12 Case: 15-40238 Document: 00513286295 Page: 13 Date Filed: 11/25/2015 No. 15-40238 causal chain is especially direct: DAPA would enable beneficiaries to apply for driver’s licenses, and many would do so, resulting in Texas’s injury. Second, DAPA affects the states’ “quasi-sovereign” interests by imposing substantial pressure on them to change their laws, which provide for issuing driver’s licenses to some aliens and subsidizing those licenses. 35 “[S]tates have a sovereign interest in ‘the power to create and enforce a legal code.’” 36 Pursuant to that interest, states may have standing based on (1) federal assertions of authority to regulate matters they believe they control, 37 (2) federal preemption of state law, 38 and (3) federal interference with the enforcement of state law, 39 at least where “the state statute at issue regulate[s] behavior or provide[s] for the administration of a state program” 40 and does not “simply purport[] to immunize [state] citizens from federal law.” 41 Those intrusions are analogous to pressure to change state law. 42 Moreover, these plaintiff states’ interests are like Massachusetts’s in See, e.g., TEX. TRANSP. CODE § 521.142(a) (specifying the requirements for licenses), .181 (providing for the issuance of licenses), .421(a) (setting the fees for licenses); Dist. Ct. Op., 86 F. Supp. 3d at 616–17 (finding that Texas subsidizes its licenses). 35 Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982)). 36 37 See id. See, e.g., Crank, 539 F.3d at 1242; Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 443–44 (D.C. Cir. 1989); Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 232– 33 (6th Cir. 1985); cf. Diamond v. Charles, 476 U.S. 54, 62 (1986) (commenting that “a State has standing to defend the constitutionality of its statute” but not relying on that principle). 38 See Crank, 539 F.3d at 1241–42; Celebrezze, 766 F.2d at 232–33; cf. Maine v. Taylor, 477 U.S. 131, 137 (1986) (observing in another context that “a State clearly has a legitimate interest in the continued enforceability of its own statutes”). 39 40 Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011). 41 Id. at 270. See Crank, 539 F.3d at 1241–42 (reasoning that Wyoming was entitled to “special solicitude” where its asserted injury was interference with the enforcement of state law). 42 13 Case: 15-40238 Document: 00513286295 Page: 14 Date Filed: 11/25/2015 No. 15-40238 ways that implicate the same sovereignty concerns. When the states joined the union, they surrendered some of their sovereign prerogatives over immigration. 43 They cannot establish their own classifications of aliens, 44 just as “Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions [and] cannot negotiate an emissions treaty with China or India.” 45 The states may not be able to discriminate against subsets of aliens in their driver’s license programs without running afoul of preemption or the Equal Protection Clause; 46 similarly, “in some circumstances[, Massachusetts’s] exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.” 47 Both these plaintiff states and Massachusetts now rely on the federal government to protect their interests. 48 These parallels confirm that DAPA affects the states’ “quasi-sovereign” interests. The significant opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015), announced shortly before oral argument herein, reinforces that conclusion. The Court held that the Arizona Legislature had standing to sue in response to a ballot initiative that removed its redistricting authority and vested it instead in an independent commission. Id. at 2665–66. The Court emphasized that the legislature was “an institutional plaintiff asserting an institutional injury” to what it believed was its constitutional power to regulate elections. Id. at 2664. So too 43 See generally Arizona v. United States, 132 S. Ct. at 2498–2501. See Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 536 (5th Cir. 2013) (en banc). 44 45 Massachusetts v. EPA, 549 U.S. at 519. The Ninth Circuit has suggested that, see Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1061–67 (9th Cir. 2014), but we need not decide the issue. 46 47 Massachusetts v. EPA, 549 U.S. at 519. 48 See id. 14 Case: 15-40238 Document: 00513286295 Page: 15 Date Filed: 11/25/2015 No. 15-40238 are the states asserting institutional injury to their lawmaking authority. The Court also cited Massachusetts v. EPA as opining that the state in that case was “entitled to special solicitude in our standing analysis.” Id. at 2664–65 n.10 (quoting Massachusetts v. EPA, 549 U.S. at 520). The United States suggests that three presumptions against standing apply here. The first is a presumption that a plaintiff lacks standing to challenge decisions to confer benefits on, or not to prosecute, a third party. But the cases the government cites for that proposition either did not involve standing; 49 concerned only nonprosecution (as distinguished from both nonprosecution and the conferral of benefits); 50 or merely reaffirmed that a plaintiff must satisfy the standing requirements. 51 The second presumption is against justiciability in the immigration context. None of the cases the government cites involved standing 52 and include only general language about the government’s authority over immigration; without a specific discussion of standing, they are of limited relevance. 53 The third presumption is that “[t]he [Supreme] Court’s standing analysis . . . has been ‘especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other See Chaney, 470 U.S. at 823; United States v. Cox, 342 F.2d 167, 170 (5th Cir. 1965) (en banc). 49 50 See Linda R.S. v. Richard D., 410 U.S. 614, 615–16 (1973). 51 See Henderson v. Stalder, 287 F.3d 374, 384 (5th Cir. 2002) (Jones, J., concurring). See Arizona v. United States, 132 S. Ct. at 2497; Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 886 (1984); Plyler v. Doe, 457 U.S. 202, 205 (1982); Fiallo v. Bell, 430 U.S. 787, 788 (1977); Mathews v. Diaz, 426 U.S. 67, 69 (1976). In the other case the government cites, “we assume[d], without deciding, that the plaintiffs have standing.” Texas v. United States, 106 F.3d 661, 664 n.2 (5th Cir. 1997). 52 53 We address justiciability in part V.B, infra. 15 Case: 15-40238 Document: 00513286295 Page: 16 Date Filed: 11/25/2015 No. 15-40238 two branches of the Federal Government was unconstitutional.’” 54 We decide this appeal, however, without resolving the constitutional claim. Therefore, the states are entitled to “special solicitude” in the standing inquiry. We stress that our decision is limited to these facts. In particular, the direct, substantial pressure directed at the states and the fact that they have surrendered some of their control over immigration to the federal government mean this case is sufficiently similar to Massachusetts v. EPA, but pressure to change state law may not be enough by itself in other situations. B. At least one state—Texas—has satisfied the first standing requirement by demonstrating that it would incur significant costs in issuing driver’s licenses to DAPA beneficiaries. Under current state law, licenses issued to beneficiaries would necessarily be at a financial loss. The Department of Public Safety “shall issue” a license to a qualified applicant. TEX. TRANSP. CODE § 521.181. A noncitizen “must present . . . documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States.” Id. § 521.142(a). If permitted to go into effect, DAPA would enable at least 500,000 illegal aliens in Texas 55 to satisfy that requirement with proof of lawful presence 56 or Ariz. State Legislature, 135 S. Ct. at 2665 n.12 (final alteration in original) (quoting Raines v. Byrd, 521 U.S. 811, 819–20 (1997)). 54 55 See Dist. Ct. Op., 86 F. Supp. 3d at 616. See TEX. DEP’T OF PUB. SAFETY, VERIFYING LAWFUL PRESENCE 4 (2013), https://www.txdps.state.tx.us/DriverLicense/documents/verifyingLawfulPresence.pdf (listing an acceptable document for a “Person granted deferred action” as “Immigration documentation with an alien number or I-94 number”); DAPA Memo at 2 (“Deferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.”). 56 16 Case: 15-40238 Document: 00513286295 Page: 17 Date Filed: 11/25/2015 No. 15-40238 employment authorization. 57 Texas subsidizes its licenses and would lose a minimum of $130.89 on each one it issued to a DAPA beneficiary. 58 Even a modest estimate would put the loss at “several million dollars.” Dist. Ct. Op., 86 F. Supp. 3d at 617. Instead of disputing those figures, the United States claims that the costs would be offset by other benefits to the state. It theorizes that, because DAPA beneficiaries would be eligible for licenses, they would register their vehicles, generating income for the state, and buy auto insurance, reducing the expenses associated with uninsured motorists. The government suggests employment authorization would lead to increased tax revenue and decreased reliance on social services. Even if the government is correct, that does not negate Texas’s injury, because we consider only those offsetting benefits that are of the same type and arise from the same transaction as the costs. 59 “Once injury is shown, no See TEX. DEP’T OF PUB. SAFETY, supra note 56, at 3 (stating that an “Employment Authorization Document” is sufficient proof of lawful presence); Dist. Ct. Op., 86 F. Supp. 3d at 616 n.14 (explaining that “[e]mployment authorization” is “a benefit that will be available to recipients of DAPA”). 57 See Dist. Ct. Op., 86 F. Supp. 3d at 617. Some of those costs are directly attributable to the United States. Under the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 302 (codified as amended in scattered sections of Titles 8 and 49 U.S.C.), Texas must verify each applicant’s immigration status through DHS, see 6 C.F.R. § 37.11(g), .13(b)(1), or the state’s licenses will no longer be valid for a number of purposes, including commercial air travel without a secondary form of identification, REAL ID Enforcement in Brief, U.S. DEPARTMENT OF HOMELAND SECURITY (July 27, 2015), http://www.dhs.gov/real-idenforcement-brief. Texas pays an average of 75¢ per applicant to comply with that mandate. See Dist. Ct. Op., 86 F. Supp. 3d at 617. 58 See, e.g., L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 656–59 (9th Cir. 2011) (holding that a hospice had standing to challenge a regulation that allegedly increased its costs in some ways even though the regulation may have saved it money in other ways or in other fiscal years); Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 570–75 (6th Cir. 2005) (concluding that a patient had standing to sue designers, manufacturers, and distributors of a medical device implanted in his body because it allegedly increased risk of medical problems even though it had not malfunctioned and had benefited him); Markva v. Haveman, 317 F.3d 59 17 Case: 15-40238 Document: 00513286295 Page: 18 Date Filed: 11/25/2015 No. 15-40238 attempt is made to ask whether the injury is outweighed by benefits the plaintiff has enjoyed from the relationship with the defendant. Standing is recognized to complain that some particular aspect of the relationship is unlawful and has caused injury.” 60 “Our standing analysis is not an accounting exercise . . . .” 61 The one case in which we concluded that the costs of a challenged program were offset by the benefits involved a much tighter nexus. In Henderson, 287 F.3d at 379–81, we determined that taxpayers lacked standing to challenge a Louisiana law authorizing a license plate bearing a pro-life message, reasoning that the plaintiffs had not shown that the program would use their tax dollars, because the extra fees paid by drivers who purchased the plates could have covered the associated expenses. The costs and benefits arose out of the same transaction, so the plaintiffs had not demonstrated injury. Here, none of the benefits the government identifies is sufficiently connected to the costs to qualify as an offset. The only benefits that are conceivably relevant are the increase in vehicle registration and the decrease in uninsured motorists, but even those are based on the independent decisions of DAPA beneficiaries and are not a direct result of the issuance of licenses. Analogously, the Third Circuit held that sports leagues had standing to challenge New Jersey’s decision to license sports gambling, explaining that damage to the leagues’ reputations was a cognizable injury despite evidence that more people would have watched sports had betting been allowed. NCAA, 730 F.3d 547, 557–58 (6th Cir. 2003) (deciding that grandparents had standing to challenge a requirement that they pay more for Medicaid benefits than would similarly situated parents, even though the grandparents may have received more of other types of welfare benefits). 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3531.4, at 147 (3d ed. 2015) (footnote omitted). 60 61 NCAA v. Governor of N.J., 730 F.3d 208, 223 (3d Cir. 2013). 18 Case: 15-40238 Document: 00513286295 Page: 19 Date Filed: 11/25/2015 No. 15-40238 at 222–24. The diminished public perception of the leagues and the greater interest in sports were attributable to the licensing plan but did not arise out of the same transaction and so could not be compared. In the instant case, the states have alleged an injury, and the government predicts that the later decisions of DAPA beneficiaries would produce offsetting benefits. Weighing those costs and benefits is precisely the type of “accounting exercise,” id. at 223, in which we cannot engage. Texas has shown injury. C. Texas has satisfied the second standing requirement by establishing that its injury is “fairly traceable” to DAPA. It is undisputed that DAPA would enable beneficiaries to apply for driver’s licenses, and there is little doubt that many would do so because driving is a practical necessity in most of the state. The United States urges that Texas’s injury is not cognizable, because the state could avoid injury by not issuing licenses to illegal aliens or by not subsidizing its licenses. Although Texas could avoid financial loss by requiring applicants to pay the full costs of licenses, it could not avoid injury altogether. “[S]tates have a sovereign interest in ‘the power to create and enforce a legal code,’” 62 and the possibility that a plaintiff could avoid injury by incurring other costs does not negate standing. 63 Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982)). 62 See Texas v. United States, 497 F.3d 491, 497 (5th Cir. 2007). The dissent theorizes that if “forcing Texas to change its laws would be an injury because states have a ‘sovereign interest in the “power to create and enforce a legal code,”’” then Pennsylvania v. New Jersey, 426 U.S. 660 (1976) (per curiam), must be wrongly decided. Dissent at 12 n.16. The dissent posits that Pennsylvania (there) and Texas (here) faced pressure to change their laws, so their Article III standing vel non must be the same. But the dissent ignores a key distinction between Pennsylvania v. New Jersey and the instant case: As we explain below, the pressure 63 19 Case: 15-40238 Document: 00513286295 Page: 20 Date Filed: 11/25/2015 No. 15-40238 Indeed, treating the availability of changing state law as a bar to standing would deprive states of judicial recourse for many bona fide harms. For instance, under that theory, federal preemption of state law could never be an injury, because a state could always change its law to avoid preemption. But courts have often held that states have standing based on preemption. 64 And states could offset almost any financial loss by raising taxes or fees. The existence of that alternative does not mean they lack standing. Relying primarily on Pennsylvania v. New Jersey, 426 U.S. 660 (1976) (per curiam), the United States maintains that Texas’s injury is self-inflicted because the state voluntarily chose to base its driver’s license policies on federal immigration law. In Pennsylvania v. New Jersey, id. at 664, 666, the Court held that several states lacked standing to contest other states’ laws taxing a portion of nonresidents’ incomes. The plaintiff states alleged that the defendant states’ taxes injured them because the plaintiffs gave their residents credits for taxes paid to other states, so the defendants’ taxes increased the amount of those credits, causing the plaintiffs to lose revenue. Id. at 663. The Court flatly rejected that theory of standing: In neither of the suits at bar has the defendant State inflicted any injury upon the plaintiff States through the imposition of the [challenged taxes]. The injuries to the plaintiffs’ fiscs were self-inflicted, resulting from decisions by their respective state legislatures. Nothing required Maine, Massachusetts, and Vermont to extend a tax credit to their residents for income taxes paid to New Hampshire, and nothing prevents Pennsylvania from withdrawing that credit for taxes paid to New Jersey. No State can be heard to complain about damage inflicted by its own hand. Id. at 664. that Pennsylvania faced to change its laws was self-inflicted; Texas’s is not. See, e.g., Crank, 539 F.3d at 1242; Alaska, 868 F.2d at 443-44; Celebrezze, 766 F.2d at 232–33. 64 20 Case: 15-40238 Document: 00513286295 Page: 21 Date Filed: 11/25/2015 No. 15-40238 The more recent decision in Wyoming v. Oklahoma, 502 U.S. 437 (1992), also informs our analysis. There, the Court held that Wyoming had standing to challenge an Oklahoma law requiring some Oklahoma power plants to burn at least 10% Oklahoma-mined coal. Id. at 447. The Court explained that Wyoming taxed the extraction of coal in the state and that Oklahoma’s law reduced demand for that coal and Wyoming’s corresponding revenue. Id. The Court emphasized that the case involved an “undisputed” “direct injury in the form of a loss of specific tax revenues.” Id. at 448. It rejected Oklahoma’s contention “that Wyoming is not itself engaged in the commerce affected, is not affected as a consumer, and thus has not suffered the type of direct injury cognizable in a Commerce Clause action,” id., concluding that Wyoming’s loss of revenue was sufficient, id. at 448–50. The Court did not cite Pennsylvania v. New Jersey or discuss the theory that Wyoming’s injury was self-inflicted. Both the Pennsylvania v. New Jersey plaintiffs and Wyoming structured their laws in ways that meant their finances would have been affected by changes in other states’ laws. Because the tax credits in Pennsylvania v. New Jersey were based on taxes paid to other states, any tax increases in other states would have decreased the plaintiffs’ revenues, and any tax cuts would have had the opposite effect. Analogously, Wyoming’s tax was based on the amount of coal extracted there, so any policies in other states that decreased demand for that coal would have diminished Wyoming’s revenues, and any policies that bolstered demand would have had the opposite effect. In other words, the schemes in both cases made the plaintiff states’ finances dependent on those of third parties—either resident taxpayers or coal companies—which in turn were affected by other states’ laws. The issues in Pennsylvania v. New Jersey and Wyoming v. Oklahoma were thus similar to the question here, but the Court announced different results. The two cases 21 Case: 15-40238 Document: 00513286295 Page: 22 Date Filed: 11/25/2015 No. 15-40238 are readily distinguishable, however, and, based on two considerations, Wyoming v. Oklahoma directs our decision. First, Texas and Wyoming sued in response to major changes in the defendant states’ policies. Texas sued after the United States had announced DAPA, which could make at least 500,000 illegal aliens eligible for driver’s licenses and cause millions of dollars of losses; Wyoming sued after Oklahoma had enacted a law that cost Wyoming over $1 million in tax revenues. See id. at 445–46 & n.6. Conversely, the Pennsylvania v. New Jersey plaintiffs sued not because of a change in the defendant states’ laws but because they believed that Austin v. New Hampshire, 420 U.S. 656 (1975), had rendered the defendants’ laws unconstitutional. See Pennsylvania v. New Jersey, 426 U.S. at 661– 63. The fact that Texas sued in response to a significant change in the defendants’ policies shows that its injury is not self-inflicted. Second, the plaintiffs’ options for accomplishing their policy goals were more limited in this case and in Wyoming v. Oklahoma than in Pennsylvania v. New Jersey. Texas seeks to issue licenses only to those lawfully present in the United States, and the state is required to use federal immigration classifications to do so. See Villas at Parkside Partners, 726 F.3d at 536. Likewise, Wyoming sought to tax the extraction of coal and had no way to avoid being affected by other states’ laws that reduced demand for that coal. 65 It follows that the dissent’s unsubstantiated claim that “Pennsylvania, like Texas, tied its law to that of another sovereign, whereas Wyoming did not” (emphasis added), is obvious error. Dissent at 12 n.16. The dissent ignores our explication of Texas’s and Wyoming’s policy goals. We do not assert that those states cannot change their laws to avoid injury from changes in the laws of another state. Rather, we demonstrate that Texas and Wyoming cannot both change their laws to avoid injury from amendments to another sovereign’s laws and achieve their policy goals. 65 For example, although, as we have said but the dissent overlooks, Wyoming easily could have avoided injury from changes in Oklahoma’s laws by abandoning entirely its tax on coal extraction, it would have surrendered its policy goal of taxing extraction in the first 22 Case: 15-40238 Document: 00513286295 Page: 23 Date Filed: 11/25/2015 No. 15-40238 By way of contrast, the plaintiff states in Pennsylvania v. New Jersey could have achieved their policy goal in myriad ways, such as basing their tax credits on residents’ out-of-state incomes instead of on taxes actually paid to other states. That alternative would have achieved those plaintiffs’ goal of allowing their residents to avoid double taxation of their out-of-state incomes, but it would not have tied the plaintiffs’ finances to other states’ laws. The fact that Texas had no similar option means its injury is not self-inflicted. The decision in Amnesty International supports this conclusion: The Court held that the plaintiffs lacked standing to challenge a provision of the Foreign Intelligence Surveillance Act authorizing the interception of certain electronic communications. Amnesty Int’l, 133 S. Ct. at 1155. The plaintiffs alleged that they had been forced to take costly steps to avoid surveillance, such as traveling to meet in person and not discussing certain topics by email or phone. Id. at 1150–51. The Court held that any such injuries were selfinflicted, id. at 1152–53, reasoning that plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Id. at 1151 (citing Pennsylvania v. New Jersey, 426 U.S. at 664). “If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III place. Similarly, Texas could avoid financial loss by increasing fees, not subsidizing its licenses, or perhaps not issuing licenses to lawfully present aliens, but the consequence would be that by taking those actions Texas would have abandoned its fully permissible policy goal of providing subsidized licenses only to those who are lawfully present in the United States a policy that, as we have repeatedly pointed out, Texas instituted well before the Secretary designed DACA or DAPA. In essence, the dissent would have us issue the following edict to Texas: “You may avoid injury to the pursuit of your policy goals—injury resulting from a change in federal immigration law—by changing your laws to pursue different goals or eliminating them altogether. Therefore, your injuries are self-inflicted.” Presumably the dissent would have liked for the Supreme Court to have issued a similar edict to Wyoming, which sought to tax the extraction of coal and had no way both to continue taxing extraction and to avoid being affected by Oklahoma’s laws that reduced demand for that coal. See Dissent at 12–13. 23 Case: 15-40238 Document: 00513286295 Page: 24 Date Filed: 11/25/2015 No. 15-40238 standing simply by making an expenditure based on a nonparanoid fear.” Id. By way of contrast, there is no allegation that Texas passed its driver’s license law to manufacture standing. The legislature enacted the law one year before DACA and three years before DAPA was announced, 66 and there is no hint that the state anticipated a change in immigration policy much less a change as sweeping and dramatic as DAPA. Despite the dissent’s bold suggestion that Texas’s license-plate-cost injury “is entirely manufactured by Plaintiffs for this case,” Dissent at 12, the injury is not self-inflicted. In addition to its notion that Texas could avoid injury, the government theorizes that Texas’s injury is not fairly traceable to DAPA because it is merely an incidental and attenuated consequence of the program. But Massachusetts v. EPA establishes that the causal connection is adequate. Texas is entitled to the same “special solicitude” as was Massachusetts, and the causal link is even closer here. For Texas to incur injury, DAPA beneficiaries would have to apply for driver’s licenses as a consequence of DHS’s action, and it is apparent that many would do so. For Massachusetts’s injury to have occurred, individuals would have had to drive less fuel-efficient cars as a result of the EPA’s decision, and that would have had to contribute meaningfully to a rise in sea levels, causing the erosion of the state’s shoreline. See Massachusetts v. EPA, 549 U.S. at 523. There was some uncertainty about whether the EPA’s inaction was a substantial cause of the state’s harm, considering the many other emissions sources involved. 67 But the Court held that Massachusetts had satisfied the causation See Certain State Fiscal Matters; Providing Penalties, ch. 4, sec. 72.03, § 521.101(f-2), 2011 Tex. Gen. Laws 5254, 5344 (codified at TEX. TRANSP. CODE § 521.142(a)). 66 See Massachusetts v. EPA, 549 U.S. at 523–24; id. at 540–45 (Roberts, C.J., dissenting) (questioning whether Massachusetts had lost land at all as a result of climate change and whether the EPA’s decision had contributed meaningfully to any erosion). 67 24 Case: 15-40238 Document: 00513286295 Page: 25 Date Filed: 11/25/2015 No. 15-40238 requirement because the possibility that the effect of the EPA’s decision was minor did not negate standing, and the evidence showed that the effect was significant in any event. Id. at 524–25. This case raises even less doubt about causation, so the result is the same. The matters in which the Supreme Court held that an injury was not fairly traceable to the challenged law reinforce this conclusion. In some of them, the independent act of a third party was a necessary condition of the harm’s occurrence, and it was uncertain whether the third party would take the required step. 68 Not so here. DAPA beneficiaries have strong incentives to obtain driver’s licenses, and it is hardly speculative that many would do so if they became eligible. In other cases, in which there was insufficient proof of causation, several factors potentially contributed to the injury, and the challenged policy likely played a minor role. 69 See, e.g., Amnesty Int’l, 133 S. Ct. at 1147–50 (explaining that, for a provision of the Foreign Intelligence Surveillance Act to have resulted in the monitoring of the plaintiffs’ communications, the Attorney General and the Director of National Intelligence would have had to authorize the collection of the communications, the Foreign Intelligence Surveillance Court would have had to approve the government’s request, and the government would have had to intercept the communications successfully); Whitmore v. Arkansas, 495 U.S. 149, 156– 60 (1990) (reasoning that, for a death-row inmate’s decision not to appeal to have harmed the plaintiff, who was another death row inmate, the court hearing any appeal would have had to rule in a way favorable to the plaintiff). 68 See, e.g., Already, LLC v. Nike, Inc., 133 S. Ct. 721, 731 (2013) (rejecting the theory “that a market participant is injured for Article III purposes whenever a competitor benefits from something allegedly unlawful—whether a trademark, the awarding of a contract, a landlord-tenant arrangement, or so on.”); McConnell v. FEC, 540 U.S. 93, 228 (2003) (commenting that the plaintiffs, candidates for public office, were unable to compete not because of increased hard-money limits but instead because of their personal decisions not to accept large contributions), overruled on other grounds by Citizens United v. FEC, 558 U.S. 310 (2010); Allen v. Wright, 468 U.S. 737, 756–59 (1984) (observing that any lack of opportunity for the plaintiffs’ children to attend racially integrated public schools was attributable not only to tax exemptions for discriminatory private schools but also to the decisions of privateschool administrators and other parents), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014). 69 25 Case: 15-40238 Document: 00513286295 Page: 26 Date Filed: 11/25/2015 No. 15-40238 Far from playing an insignificant role, DAPA would be the primary cause and likely the only one. Without the program, there would be little risk of a dramatic increase in the costs of the driver’s-license program. This case is far removed from those in which the Supreme Court has held an injury to be too incidental or attenuated. Texas’s injury is fairly traceable to DAPA. D. Texas has satisfied the third standing requirement, redressability. Enjoining DAPA based on the procedural APA claim could prompt DHS to reconsider the program, which is all a plaintiff must show when asserting a procedural right. See id. at 518. And enjoining DAPA based on the substantive APA claim would prevent Texas’s injury altogether. E. The United States submits that Texas’s theory of standing is flawed because it has no principled limit. In the government’s view, if Texas can challenge DAPA, it could also sue to block a grant of asylum to a single alien or any federal policy that adversely affects the state, such as an IRS revenue ruling that decreases a corporation’s federal taxable income and corresponding state franchise-tax liability. The flaw in the government’s reasoning is that Massachusetts v. EPA entailed similar risks, but the Court still held that Massachusetts had standing. Under that decision, Massachusetts conceivably could challenge the government’s decision to buy a car with poor fuel efficiency because the vehicle could contribute to global warming. The state might be able to contest any federal action that prompts more travel. Or it potentially could challenge any change in federal policy that indirectly results in greenhouse-gas emissions, such as a trade-promotion program that leads to more shipping. One of the 26 Case: 15-40238 Document: 00513286295 Page: 27 Date Filed: 11/25/2015 No. 15-40238 dissenting Justices in Massachusetts v. EPA criticized the decision on that ground, 70 but the majority found those concerns unpersuasive, just as they are here. After Massachusetts v. EPA, the answer to those criticisms is that there are other ways to cabin policy disagreements masquerading as legal claims. 71 First, a state that has standing still must have a cause of action. Even the APA—potentially the most versatile tool available to an enterprising state— imposes a number of limitations. A state must be defending concerns that are “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” 72 It is unclear whether a state dissatisfied with an IRS revenue ruling would be defending such an interest. Moreover, judicial review is unavailable where the statute precludes it or the matter is committed to agency discretion. 5 U.S.C. § 701(a). Because of those restrictions, a state would have limited ability to challenge many asylum determinations. See 8 U.S.C. § 1252(b)(4)(D). Further, numerous policies that adversely affect states either are not rules at all or are exempt from the noticeand-comment requirements. See generally 5 U.S.C. § 553. Second, the standing requirements would preclude much of the litigation the government describes. For example, it would be difficult to establish standing to challenge a grant of asylum to a single alien based on the driver’s-license theory. The state must allege an injury that has already occurred or is See Massachusetts v. EPA, 549 U.S. at 546 (Roberts, C.J., dissenting) (“Every little bit helps, so Massachusetts can sue over any little bit.”). 70 The dissent responds to this by asserting that “[t]he majority’s observation that this suit involves ‘policy disagreements masquerading as legal claims’ is also telling.” Dissent at 22. That of course is not what our sentence (which is not a description of the suit at hand) says at all. 71 Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396 (1987) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). 72 27 Case: 15-40238 Document: 00513286295 Page: 28 Date Filed: 11/25/2015 No. 15-40238 “certainly impending”; 73 it is easier to demonstrate that some DAPA beneficiaries would apply for licenses than it is to establish that a particular alien would. And causation could be a substantial obstacle. Although the district court’s calculation of Texas’s loss from DAPA was based largely on the need to hire employees, purchase equipment, and obtain office space, 74 those steps would be unnecessary to license one additional person. Third, our determination that Texas has standing is based in part on the “special solicitude” we afford it under Massachusetts v. EPA as reinforced by Arizona State Legislature. To be entitled to that presumption, a state likely must be exercising a procedural right created by Congress and protecting a “quasi-sovereign” interest. See Massachusetts v. EPA, 549 U.S. at 520. Those factors will seldom exist. For instance, a grant of asylum to a single alien would impose little pressure to change state law. Without “special solicitude,” it would be difficult for a state to establish standing, a heavy burden in many of the government’s hypotheticals. Fourth, as a practical matter, it is pure speculation that a state would sue about matters such as an IRS revenue ruling. Though not dispositive of the issue, the absence of any indication that such lawsuits will occur suggests the government’s parade of horribles is unfounded, 75 and its concerns about the possible future effects of Texas’s theory of standing do not alter our conclusion. The states have standing. Amnesty Int’l, 133 S. Ct. at 1147 (emphasis omitted) (quoting Defs. of Wildlife, 504 U.S. at 565 n.2). 73 See Dist. Ct. Op., 86 F. Supp. 3d at 616–17 (discussing the potential loss and citing a portion of a declaration addressing those expenses). 74 See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 710 (2012) (stating, in response to an alleged “parade of horribles,” that “[t]here will be time enough to address . . . other circumstances” in future cases without altering the Court’s present conclusion). 75 28 Case: 15-40238 Document: 00513286295 Page: 29 Date Filed: 11/25/2015 No. 15-40238 IV. Because the states are suing under the APA, they “must satisfy not only Article III’s standing requirements, but an additional test: The interest [they] assert[] must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that [they] say[] was violated.” 76 That “test . . . ‘is not meant to be especially demanding’” and is applied “in keeping with Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable.’” 77 The Supreme Court “ha[s] always conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff,” and “[w]e do not require any ‘indication of congressional purpose to benefit the would-be plaintiff.’” 78 “The test forecloses suit only when a plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’” 79 The interests the states seek to protect fall within the zone of interests of the INA. 80 “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, 132 S. Ct. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Data Processing, 397 U.S. at 153). 76 77 Id. (quoting Sec. Indus. Ass’n, 479 U.S. at 399). 78 Id. (quoting Sec. Indus. Ass’n, 479 U.S. at 399–400). 79 Id. (quoting Sec. Indus. Ass’n, 479 U.S. at 399). The INA “established a ‘comprehensive federal statutory scheme for regulation of immigration and naturalization’ and set ‘the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’” Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1973 (2011) (quoting DeCanas v. Bica, 424 U.S. 351, 353, 359 (1976)). 80 29 Case: 15-40238 Document: 00513286295 Page: 30 Date Filed: 11/25/2015 No. 15-40238 at 2500. Reflecting a concern that “aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates,” 8 U.S.C. § 1601, “Congress deemed some unlawfully present aliens ineligible for certain state and local public benefits unless the state explicitly provides otherwise.” 81 With limited exceptions, unlawfully present aliens are “not eligible for any State or local public benefit.” 8 U.S.C. § 1621(a). Contrary to the government’s assertion, Texas satisfies the zone-ofinterests test not on account of a generalized grievance but instead as a result of the same injury that gives it Article III standing—Congress has explicitly allowed states to deny public benefits to illegal aliens. Relying on that guarantee, Texas seeks to participate in notice and comment before the Secretary changes the immigration classification of millions of illegal aliens in a way that forces the state to the Hobson’s choice of spending millions of dollars to subsidize driver’s licenses or changing its statutes. V. The government maintains that judicial review is precluded even if the states are proper plaintiffs. “Any person ‘adversely affected or aggrieved’ by agency action . . . is entitled to ‘judicial review thereof,’ as long as the action is a ‘final agency action for which there is no other adequate remedy in a court.’” 82 “But before any review at all may be had, a party must first clear the hurdle of 5 U.S.C. § 701(a). That section provides that the chapter on judicial review ‘applies, according to the provisions thereof, except to the extent that— (1) statutes preclude judicial review; or (2) agency action is committed to United States v. Alabama, 691 F.3d 1269, 1298 (11th Cir. 2012) (emphasis added) (citing 8 U.S.C. § 1621). 81 Chaney, 470 U.S. at 828 (quoting 5 U.S.C. §§ 702, 704). The government does not dispute that DAPA is a “final agency action.” See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990). 82 30 Case: 15-40238 Document: 00513286295 Page: 31 Date Filed: 11/25/2015 No. 15-40238 agency discretion by law.’” Chaney, 470 U.S. at 828. “[T]here is a ‘well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action,’ and we will accordingly find an intent to preclude such review only if presented with ‘clear and convincing evidence.’” 83 The “‘strong presumption’ favoring judicial review of administrative action . . . is rebuttable: It fails when a statute’s language or structure demonstrates that Congress wanted an agency to police its own conduct.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015). Establishing unreviewability is a “heavy burden,” 84 and “where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984). “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. The United States relies on 8 U.S.C. § 1252(g) 85 for the proposition that the INA expressly prohibits judicial review. But the government’s broad reading is contrary to Reno v. American-Arab Anti-Discrimination Committee (“AAADC”), 525 U.S. 471, 482 (1999), in which the Court rejected “the Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63–64 (1993) (quoting McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991); Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)). 83 84 (1975)). Mach Mining, 135 S. Ct. at 1651 (quoting Dunlop v. Bachowski, 421 U.S. 560, 567 With limited exceptions, “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g). 85 31 Case: 15-40238 Document: 00513286295 Page: 32 Date Filed: 11/25/2015 No. 15-40238 unexamined assumption that § 1252(g) covers the universe of deportation claims—that it is a sort of ‘zipper’ clause that says ‘no judicial review in deportation cases unless this section provides judicial review.’” 86 The Court emphasized that § 1252(g) is not “a general jurisdictional limitation,” but rather “applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” 87 None of those actions is at issue here—the states’ claims do not arise from the Secretary’s “decision or action . . . to commence proceedings, adjudicate cases, or execute removal orders against any alien,” § 1252(g); instead, they stem from his decision to grant lawful presence to millions of illegal aliens on a class-wide basis. Further, the states are not bringing a “cause or claim by or on behalf of any alien”—they assert their own right to the APA’s procedural protections. Id. Congress has expressly limited or precluded judicial review of many immigration decisions, 88 including some that are made in the Secretary’s “sole and unreviewable discretion,” 89 but DAPA is not one of them. Judicial review of DAPA is consistent with the protections Congress affords to states that decline to provide public benefits to illegal aliens. “The AAADC, 525 U.S. at 482. “We are aware of no other instance in the United States Code in which language such as this has been used to impose a general jurisdictional limitation . . . .” Id. 86 87 Id. (quoting § 1252(g)). See AAADC, 525 U.S. at 486–87 (listing “8 U.S.C. § 1252(a)(2)(A) (limiting review of any claim arising from the inspection of aliens arriving in the United States), [(B)] (barring review of denials of discretionary relief authorized by various statutory provisions), [(C)] (barring review of final removal orders against criminal aliens), [(b)(4)(D)] (limiting review of asylum determinations)”); see also, e.g., 8 U.S.C. §§ 1182(a)(9)(B)(v) (barring review of waiver of reentry restrictions); 1226a(b)(1) (limiting review of detention of terrorist aliens); 1229c(e) (barring review of regulations limiting eligibility for voluntary departure), (f) (limiting review of denial of voluntary departure). 88 89 E.g., 8 U.S.C. §§ 1613(c)(2)(G), 1621(b)(4), 1641. 32 Case: 15-40238 Document: 00513286295 Page: 33 Date Filed: 11/25/2015 No. 15-40238 Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” 90 but, through § 1621, Congress has sought to protect states from “bear[ing] many of the consequences of unlawful immigration.” 91 Texas avails itself of some of those protections through Section 521.142(a) of the Texas Transportation Code, which allows the state to avoid the costs of issuing driver’s licenses to illegal aliens. If 500,000 unlawfully present aliens residing in Texas were reclassified as lawfully present pursuant to DAPA, they would become eligible for driver’s licenses at a subsidized fee. Congress did not intend to make immune from judicial review an agency action that reclassifies millions of illegal aliens in a way that imposes substantial costs on states that have relied on the protections conferred by § 1621. The states contend that DAPA is being implemented without discretion to deny applications that meet the objective criteria set forth in the DAPA Memo, and under AAADC, judicial review could be available if there is an indication that deferred-action decisions are not made on a case-by-case basis. In AAADC, a group of aliens “challenge[d] . . . the Attorney General’s decision to ‘commence [deportation] proceedings’ against them,” and the Court held that § 1252(g) squarely deprived it of jurisdiction. AAADC, 525 U.S. at 487. The Court noted that § 1252(g) codified the Secretary’s discretion to decline “the initiation or prosecution of various stages in the deportation process,” id. at 483, and the Court observed that “[p]rior to 1997, deferred-action decisions were governed by internal [INS] guidelines which considered [a variety of factors],” id. at 484 n.8. Although those guidelines “were apparently rescinded,” 90 Arizona v. United States, 132 S. Ct. at 2498. 91 Id. at 2500. 33 Case: 15-40238 Document: 00513286295 Page: 34 Date Filed: 11/25/2015 No. 15-40238 the Court observed that “there [was] no indication that the INS has ceased making this sort of determination on a case-by-case basis.” Id. But the government has not rebutted the strong presumption of reviewability with clear and convincing evidence that, inter alia, it is making case-by-case decisions here. 92 A. Title 5 § 701(a)(2) “preclude[s] judicial review of certain categories of administrative decisions that courts traditionally have regarded as “committed to agency discretion.” Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (citation omitted). For example, “an agency’s decision not to institute enforcement proceedings [is] presumptively unreviewable under § 701(a)(2).” Id. (citation omitted). Likewise, “[t]here is no judicial review of agency action ‘where statutes [granting agency discretion] are drawn in such broad terms that in a given case there is no law to apply,’” 93 such as “[t]he allocation of funds from a lump-sum appropriation.” Vigil, 508 U.S. at 192. 1. The Secretary has broad discretion to “decide whether it makes sense to pursue removal at all” 94 and urges that deferred action—a grant of “lawful presence” and subsequent eligibility for otherwise unavailable benefits—is a See, e.g., Gulf Restoration Network v. McCarthy, 783 F.3d 227, 235 (5th Cir. 2015) (Higginbotham, J.) (“[T]here is a ‘strong presumption,’ subject to Congressional language, that ‘action taken by a federal agency is reviewable in federal court.’” (quoting RSR Corp. v. Donovan, 747 F.2d 294, 299 n.23 (5th Cir. 1984))). 92 Perales v. Casillas, 903 F.2d 1043, 1047 (5th Cir. 1990) (alteration in original) (citation omitted). 93 Arizona v. United States, 132 S. Ct. at 2499 (“A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” (citation omitted)). 94 34 Case: 15-40238 Document: 00513286295 Page: 35 Date Filed: 11/25/2015 No. 15-40238 presumptively unreviewable exercise of prosecutorial discretion. 95 “The general exception to reviewability provided by § 701(a)(2) for action ‘committed to agency discretion’ remains a narrow one, but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise.” 96 Where, however, “an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.” 97 Part of DAPA involves the Secretary’s decision—at least temporarily— not to enforce the immigration laws as to a class of what he deems to be lowpriority illegal aliens. But importantly, the states have not challenged the priority levels he has established, 98 and neither the preliminary injunction nor compliance with the APA requires the Secretary to remove any alien or to alter his enforcement priorities. Deferred action, however, is much more than nonenforcement: It would affirmatively confer “lawful presence” and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already explained) eligibility for federal benefits— The dissent misleadingly declares, “In other words, deferred action itself is merely a brand of ‘presumptively unreviewable’ prosecutorial discretion.” Dissent at 14. The dissent attributes that statement to this panel majority when in fact, as shown above, we accurately cite the statement as coming from the Secretary. 95 96 Chaney, 470 U.S. at 838 (citation omitted); see Vigil, 508 U.S. at 190–91. 97 Chaney, 470 U.S. at 832. See Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Thomas Winkowski, Acting Dir., U.S. Immigration and Customs Enforcement, et al. (Nov. 20, 2014) (the “Prioritization Memo”), http://www.dhs.gov/sites/default/files/publications/14_1120_ memo_prosecutorial_discretion.pdf. 98 35 Case: 15-40238 Document: 00513286295 Page: 36 Date Filed: 11/25/2015 No. 15-40238 for example, under title II and XVIII of the Social Security Act 99—and state benefits—for example, driver’s licenses and unemployment insurance 100—that would not otherwise be available to illegal aliens. 101 The United States maintains that DAPA is presumptively unreviewable prosecutorial discretion because “‘lawful presence’ is not a status and is not something that the alien can legally enforce; the agency can alter or revoke it at any time.” 102 The government further contends that “[e]very decision under [DAPA] to defer enforcement action against an alien necessarily entails allowing the individual to be lawfully present . . . . Deferred action under DAPA and ‘lawful presence’ during that limited period are thus two sides of the same coin.” 103 See supra part I.A. DAPA would also toll the duration of the recipients’ unlawful presence under the INA’s reentry bars, which would benefit aliens who receive lawful presence as minors because the unlawful-presence clock begins to run only at age eighteen. See 8 U.S.C. § 1182(a)(9)(B)(iii)(I). Most adult beneficiaries would be unlikely to benefit from tolling because, to be eligible for DAPA, one must have continuously resided in the United States since before January 1, 2010, and therefore would likely already be subject to the reentry bar for aliens who have “been unlawfully present in the United States for one year or more.” § 1182(a)(9)(B)(i)(II); see § 1182(a)(9)(C)(i)(I). 99 100 See supra part I.A. Cf. Memorandum from James Cole, Deputy Att’y Gen., to All U.S. Attorneys (Aug. 29, 2013) (the “Cole Memo”), http://www.justice.gov/iso/opa/resources/ 3052013829132756857467.pdf. The Cole Memo establishes how prosecutorial discretion will be used in relation to marihuana enforcement under the Controlled Substances Act. Unlike the DAPA Memo, it does not direct an agency to grant eligibility for affirmative benefits to anyone engaged in unlawful conduct. As we have explained, to receive public benefits, aliens accorded lawful presence must satisfy additional criteria set forth in the various benefit schemes, but they nevertheless become eligible to satisfy those criteria. That eligibility is itself a cognizable benefit. 101 Supplemental Brief for Appellants at 16. But see 8 U.S.C. § 1201(i) (“After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation.”); § 1227(a)(1)(B) (providing that any alien “whose nonimmigrant visa . . . has been revoked under section 1201(i) of this title, is deportable”). 102 103 Supplemental Brief for Appellants at 16 (emphasis omitted). 36 Case: 15-40238 Document: 00513286295 Page: 37 Date Filed: 11/25/2015 No. 15-40238 Revocability, however, is not the touchstone for whether agency is action is reviewable. Likewise, to be reviewable agency action, DAPA need not directly confer public benefits—removing a categorical bar on receipt of those benefits and thereby making a class of persons newly eligible for them “provides a focus for judicial review.” Chaney, 470 U.S. at 832. Moreover, if deferred action meant only nonprosecution, it would not necessarily result in lawful presence. “[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’” 104 Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change. Regardless of whether the Secretary has the authority to offer lawful presence and employment authorization in exchange for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion. This evident conclusion is reinforced by the Supreme Court’s description, in AAADC, of deferred action as a nonprosecution decision: To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action . . . . Approval of deferred action status means that . . . no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated.[ 105] In their procedural claim, the states do not challenge the Secretary’s decision Wayte v. United States, 470 U.S. 598, 608 (1985) (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)). 104 AAADC, 525 U.S. at 484 (emphasis added) (quoting 6 CHARLES GORDON, STANLEY MAILMAN & STEPHEN YALE-LOEHR, IMMIGRATION LAW AND PROCEDURE § 72.03[2][h] (1998)); accord Johns v. Dep’t of Justice, 653 F.2d 884, 890 (5th Cir. Aug. 1981) (“The Attorney General also determines whether (1) to refrain from (or, in administrative parlance, to defer in) executing an outstanding order of deportation, or (2) to stay the order of deportation.” (footnote omitted)); see also Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976) (per curiam). 105 37 Case: 15-40238 Document: 00513286295 Page: 38 Date Filed: 11/25/2015 No. 15-40238 to “decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation,” nor does deferred action mean merely that “no action will thereafter be taken to proceed against an apparently deportable alien.” 106 Under DAPA, “[d]eferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,” 107 a change in designation that confers eligibility for substantial federal and state benefits on a class of otherwise ineligible aliens. Thus, DAPA “provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.” 108 2. “The mere fact that a statute grants broad discretion to an agency does not render the agency’s decisions completely unreviewable under the ‘committed to agency discretion by law’ exception unless the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised.” 109 In Perales, 903 F.2d at 1051, we held that the INS’s decision not to grant pre-hearing voluntary departures and work authorizations to a group of aliens was committed to agency discretion because “[t]here are no statutory standards for the court to apply . . . . There is nothing AAADC, 525 U.S. at 484 (quoting GORDON, MAILMAN & YALE-LOEHR, supra note 105). 106 107 DAPA Memo at 2 (emphasis added). Chaney, 470 U.S. at 832. Because the challenged portion of DAPA’s deferred-action program is not an exercise of enforcement discretion, we do not reach the issue of whether the presumption against review of such discretion is rebutted. See id. at 832–34; Adams v. Richardson, 480 F.2d 1159, 1161–62 (D.C. Cir. 1973) (en banc) (per curiam). 108 Perales, 903 F.2d at 1051 (quoting Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985) (per curiam)). 109 38 Case: 15-40238 Document: 00513286295 Page: 39 Date Filed: 11/25/2015 No. 15-40238 in the [INA] expressly providing for the grant of employment authorization or pre-hearing voluntary departure to [the plaintiff class of aliens].” Although we stated that “the agency’s decision to grant voluntary departure and work authorization has been committed to agency discretion by law,” id. at 1045, that case involved a challenge to the denial of voluntary departure and work authorization. Under those facts, Perales faithfully applied Chaney’s presumption against judicial review of agency inaction “because there are no meaningful standards against which to judge the agency’s exercise of discretion.” Id. at 1047. But where there is affirmative agency action—as with DAPA’s issuance of lawful presence and employment authorization—and in light of the INA’s intricate regulatory scheme for changing immigration classifications and issuing employment authorization, 110 “[t]he action at least can be reviewed to determine whether the agency exceeded its statutory powers.” Chaney, 470 U.S. at 832. The United States asserts that 8 C.F.R. § 274a.12(c)(14), 111 rather than DAPA, makes aliens granted deferred action eligible for work authorizations. But if DAPA’s deferred-action program must be subjected to notice-andcomment, then work authorizations may not be validly issued pursuant to that subsection until that process has been completed and aliens have been “granted deferred action.” § 274a.12(c)(14). Moreover, the government’s limitless reading of that subsection— allowing for the issuance of employment authorizations to any class of illegal 110 See infra part VII. “An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, [may be able to obtain work authorization upon application] if the alien establishes an economic necessity for employment.” 8 C.F.R. § 274a.12(c)(14). 111 39 Case: 15-40238 Document: 00513286295 Page: 40 Date Filed: 11/25/2015 No. 15-40238 aliens whom DHS declines to remove—is beyond the scope of what the INA can reasonably be interpreted to authorize, as we will explain. 112 And even assuming, arguendo, that the government does have that power, Texas is also injured by the grant of lawful presence itself, which makes DAPA recipients newly eligible for state-subsidized driver’s licenses. 113 As an affirmative agency action with meaningful standards against which to judge it, DAPA is not an unreviewable “agency action . . . committed to agency discretion by law.” § 701(a)(2). B. The government urges that this case is not justiciable even though “‘a federal court’s “obligation”’ to hear and decide cases within its jurisdiction is ‘virtually unflagging.’” 114 We decline to depart from that well-established principle. 115 And in invoking our jurisdiction, the states do not demand that the federal government “control immigration and . . . pay for the consequences of federal immigration policy” or “prevent illegal immigration.” 116 Neither the preliminary injunction nor compliance with the APA requires the Secretary to enforce the immigration laws or change his priorities The class of aliens eligible for DAPA is not among those classes of aliens identified by Congress as eligible for deferred action and work authorization. See infra part VII. 112 113 See TEX. DEP’T OF PUB. SAFETY, VERIFYING LAWFUL PRESENCE, supra note 56. Lexmark, 134 S. Ct. at 1386 (quoting Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013)). 114 See Sprint Commc’ns, 134 S. Ct. at 590 (“Federal courts, it was early and famously said, have ‘no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.’” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821))). 115 Texas v. United States, 106 F.3d at 664; see also Sure-Tan, 467 U.S. at 897 (“[P]rivate persons . . . have no judicially cognizable interest in procuring enforcement of the immigration laws . . . .”); Fiallo, 430 U.S. at 792 (“[T]he power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953))). 116 40 Case: 15-40238 Document: 00513286295 Page: 41 Date Filed: 11/25/2015 No. 15-40238 for removal, which have expressly not been challenged. 117 Nor have the states “merely invited us to substitute our judgment for that of Congress in deciding which aliens shall be eligible to participate in [a benefits program].” Diaz, 426 U.S. at 84. 118 DAPA was enjoined because the states seek an opportunity See Brief for Appellees at 2 (“[T]he district court’s injunction does not touch—and this lawsuit has never challenged—the Executive’s separate memorandum establishing three categories for removal prioritization, or any decision by the Executive to forego a removal proceeding.”). 117 The main thrust of the dissent could be summarized as claiming that “[i]t’s Congress’s fault.” The President apparently agrees: As explained by the district court, “it was the failure of Congress to enact such a program that prompted [the President] . . . to ‘change the law.’” See infra note 200. The dissent opens by blaming Congress for insufficient funding to-wit, “decades of congressional appropriations decisions, which require DHS . . . to de-prioritize millions of removable each year due to these resource constraints.” Dissent at 5–6 (footnote omitted). 118 The dissent’s insistent invocation of what it perceives as Congress’s inadequate funding is regrettable and exposes the weakness of the government’s legal position. See, e.g., Dissent at 1 (“unless and until more resources are made available by Congress”); id. (“if Congress is able to make more resources for removal available”); id. at 4 (“given the resource constraints faced by DHS”); id. (“to maximize the resources that can be devoted to such ends”); id. at 5 (“decades of congressional appropriations decisions”); id. at 6 (“due to these resource constraints”); id. at 7 n.9 (“”if Congress were to substantially increase the amount of funding”); id at 14 (“DHS’s limited resources”); id. at 43 n.55 (“the decades-long failure of Congress to fund”); id. at [50] (“Congress’s choices as to the level of funding for immigration enforcement”). The facts, not commentary on political decisions, are what should matter. Thus the dissent’s notion that “this case essentially boils down to a policy dispute,” Dissent at 22, far misses the mark and avoids having to tackle the hard reality for the government of existing law. Similarly unimpressive is the dissent’s resort to hyperbole. E.g., Dissent at 10 (“[t]he majority’s breathtaking expansion of state standing”); id. at 11 (“the majority’s sweeping ‘special solicitude’ analysis”); id. at 11 n.14 (“the sweeping language the majority uses today”); id. at 42 n.54 (“this radical theory of standing”); id at 47 n.61 (“The majority’s ruling . . . is potentially devastating.”). The dissent also claims that despite limited funding, “DHS . . . has been removing individuals from the United States in record numbers.” Dissent at 20. At the very least, the statistics on which the dissent relies are highly misleading. Although DHS claims that a record-high of 0.44 million aliens were deported in 2013, it arrives at that number by using only “removals” (which are deportations by court order) per year and ignoring “returns” (which are deportations achieved without court order). If, more accurately, one counts total removals and returns by both ICE and the Border Patrol, deportations peaked at over 1.8 million in 2000 and plunged to less than half about 0.6 million in 2013. In that thirteenyear interim, the number of aliens deported per court directive (that is, removed) roughly 41 Case: 15-40238 Document: 00513286295 Page: 42 Date Filed: 11/25/2015 No. 15-40238 to be heard through notice and comment, not to have the judiciary formulate or rewrite immigration policy. “Consultation between federal and state officials is an important feature of the immigration system,” 119 and the notice-andcomment process, which “is designed to ensure that affected parties have an opportunity to participate in and influence agency decision making,” 120 facilitates that communication. At its core, this case is about the Secretary’s decision to change the immigration classification of millions of illegal aliens on a class-wide basis. The states properly maintain that DAPA’s grant of lawful presence and accompanying eligibility for benefits is a substantive rule that must go through notice and comment, before it imposes substantial costs on them, and that DAPA is substantively contrary to law. The federal courts are fully capable of adjudicating those disputes. VI. Because the interests that Texas seeks to protect are within the INA’s zone of interests, and judicial review is available, we address whether Texas has established a substantial likelihood of success on its claim that DAPA must be submitted for notice and comment. The United States urges that DAPA is exempt as an “interpretative rule[], general statement[] of policy, or rule[] of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A). “In contrast, if a rule is ‘substantive,’ the exemption is inapplicable, and the full panoply of notice-and-comment requirements must be adhered to scrupulously. The doubled from about 0.2 million to 0.44 million. The total number of deportations is at its lowest level since the mid-1970’s. U.S. DEP’T OF HOMELAND SEC., 2013 YEARBOOK OF IMMIGRATION STATISTICS 103tbl.39 (2014), http://www.dhs.gov/sites/default/files/publications/ois_yb_2013_0.pdf. 119 Arizona v. United States, 132 S. Ct. at 2508. 120 U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir. 1979). 42 Case: 15-40238 Document: 00513286295 Page: 43 Date Filed: 11/25/2015 No. 15-40238 ‘APA’s notice and comment exemptions must be narrowly construed.’” 121 A. The government advances the notion that DAPA is exempt from notice and comment as a policy statement. 122 We evaluate two criteria to distinguish policy statements from substantive rules: whether the rule (1) “impose[s] any rights and obligations” and (2) “genuinely leaves the agency and its decisionmakers free to exercise discretion.” 123 There is some overlap in the analysis of those prongs “because ‘[i]f a statement denies the decisionmaker discretion in the area of its coverage . . . then the statement is binding, and creates rights or obligations.’” 124 “While mindful but suspicious of the agency’s own characterization, we . . . focus[] primarily on whether the rule has binding effect on agency discretion or severely restricts it.” 125 “[A]n agency pronouncement will Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995) (footnote omitted) (quoting United States v. Picciotto, 875 F.2d 345, 347 (D.C. Cir. 1989)). 121 The government does not dispute that DAPA is a “rule,” which is defined by the APA as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes [various substantive agency functions] or practices bearing on any of the foregoing.” 5 U.S.C. § 551(4). 122 Prof’ls & Patients, 56 F.3d at 595 (quoting Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) (per curiam)); see also Vigil, 508 U.S. at 197 (describing 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.’” (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979))); Brown Express, Inc. v. United States, 607 F.2d 695, 701 (5th Cir. 1979) (“A general statement of policy is a statement by an administrative agency announcing motivating factors the agency will consider, or tentative goals toward which it will aim, in determining the resolution of a [s]ubstantive question of regulation.”). 123 Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002) (quoting McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988)). 125 Prof’ls & Patients, 56 F.3d at 595 (footnote omitted); accord id. (“[W]e are to give some deference, ‘albeit “not overwhelming,”’ to the agency’s characterization of its own rule.” (quoting Cmty. Nutrition Inst., 818 F.2d at 946)); Phillips Petroleum Co. v. Johnson, 22 F.3d 616, 619 (5th Cir. 1994) (“This court, however, must determine the category into which the rule falls: ‘[T]he label that the particular agency puts upon its given exercise of administrative power is not, for our purposes, conclusive; rather it is what the agency does in fact.’” 124 43 Case: 15-40238 Document: 00513286295 Page: 44 Date Filed: 11/25/2015 No. 15-40238 be considered binding as a practical matter if it either appears on its face to be binding, or is applied by the agency in a way that indicates it is binding.” Gen. Elec., 290 F.3d at 383 (citation omitted). Although the DAPA Memo facially purports to confer discretion, 126 the district court determined that “[n]othing about DAPA ‘genuinely leaves the agency and its [employees] free to exercise discretion,’” 127 a factual finding that we review for clear error. That finding was partly informed by analysis of the implementation of DACA, the precursor to DAPA. 128 Like the DAPA Memo, the DACA Memo instructed agencies to review applications on a case-by-case basis and exercise discretion, but the district court found that those statements were “merely pretext” 129 because only about 5% of the 723,000 applications accepted for evaluation had been denied, 130 and “[d]espite a request by the [district] [c]ourt, the [g]overnment’s (alteration in original) (quoting Brown Express, 607 F.2d at 700)). See Crane, 783 F.3d at 254–55. In Crane, we held that the plaintiff ICE agents and deportation officers had not “demonstrated the concrete and particularized injury required to give them standing” to challenge DACA, id. at 247, because, inter alia, they had not alleged a sufficient factual basis for their claim that an employment action against them was “certainly impending” if they “exercise[d] [their] discretion to detain an illegal alien,” id. at 255. That conclusion was informed by the express delegation of discretion on the face of the DACA Memo and by the fact that no sanctions or warnings had yet been issued. Id. at 254–55. We did not hold that DACA was an unreviewable exercise of prosecutorial discretion or that the DACA criteria did not have binding or severely restrictive effect on agency discretion. See id. at 254–55. 126 Dist. Ct. Op., 86 F. Supp. 3d at 670 (second alteration in original) (quoting Prof’ls & Patients, 56 F.3d at 595). 127 Id. at 579–60. See 3 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 15.05[3] (2014) (“In general, the agency’s past treatment of a rule will often indicate its nature.”). 128 129 Dist. Ct. Op., 86 F. Supp. 3d at 669 n.101. Id. at 609; see id. (noting that “[i]n response to a Senate inquiry, the USCIS told the Senate that the top four reasons for denials were: (1) the applicant used the wrong form; (2) the applicant failed to provide a valid signature; (3) the applicant failed to file or complete Form I–765 or failed to enclose the fee; and (4) the applicant was below the age of fifteen and thus ineligible to participate in the program”); id. at *669 n.101 (“[A]ll were denied for failure 130 44 Case: 15-40238 Document: 00513286295 Page: 45 Date Filed: 11/25/2015 No. 15-40238 counsel did not provide the number, if any, of requests that were denied [for discretionary reasons] even though the applicant met the DACA criteria . . . .” 131 The finding of pretext was also based on a declaration by Kenneth Palinkas, the president of the union representing the USCIS employees processing the DACA applications, that “DHS management has taken multiple steps to ensure that DACA applications are simply rubberstamped if the applicants meet the necessary criteria”; 132 DACA’s Operating Procedures, which “contain[] nearly 150 pages of specific instructions for granting or denying to meet the criteria (or ‘rejected’ for technical filing errors, errors in filling out the form or lying on the form, and failures to pay fees), or for fraud.”). Relying on the Neufeld declaration, the dissent tries to make much of the distinction between denials and rejections. Dissent at 37. The district court did in fact mistakenly write “denials” (used to describe applications refused for failure to meet the criteria) in the above quoted passage where the USCIS response actually said “rejections” (applications refused for procedural defects). USCIS reported that approximately 6% of DACA applicants were rejected and that an additional 4% were denied. USCIS does not draw a distinction between denials of applicants who did not meet the criteria and denials of those who met the criteria but were refused deferred action as a result of a discretionary choice. USCIS could not produce any applications that satisfied all of the criteria but were refused deferred action by an exercise of discretion. Id. at 669 n.101 (“[A]ll were denied for failure to meet the criteria or ‘rejected’ for technical filing errors, errors in filling out the form or lying on the form, and failures to pay fees), or for fraud.”).” Given that the government offered no evidence as to the bases for other denials, it was not error clear or otherwise for the district court to conclude that DHS issued DACA denials under mechanical formulae. Dist. Ct. Op., 86 F. Supp. 3d at 609. The parties had ample opportunity to inform the district court, submitting over 200 pages of briefing over a two-month period with more than 80 exhibits. The court held a hearing on the motion for a preliminary injunction, heard extensive argument from both sides, and “specifically asked for evidence of individuals who had been denied for reasons other than not meeting the criteria or technical errors with the form and/or filing.” Id. at 669 n.101. 131 132 Dist. Ct. Op., 86 F. Supp. 3d at 609–10. 45 Case: 15-40238 Document: 00513286295 Page: 46 Date Filed: 11/25/2015 No. 15-40238 deferred action”; 133 and some mandatory language in the DAPA Memo itself. 134 In denying the government’s motion for a stay of the injunction, the district court further noted that the President had made public statements suggesting that in reviewing applications pursuant to DAPA, DHS officials who “don’t follow the policy” will face “consequences,” and “they’ve got a problem.” 135 Id. at 669 (footnote omitted). For example, the DACA National Standard Operating Procedures (“SOP”) specifically directs officers on which evidence an applicant is required to submit, what evidence is to be considered, “the weight to be given” to evidence, and the standards of proof required to grant or deny an application. U.S. DEP’T OF HOMELAND SEC., NATIONAL STANDARD OPERATING PROCEDURES: DACA 42 (2012). To elaborate: An affidavit alone may not support an application, and DACA applicants must prove education and age criteria by documentary evidence. Id. at 8–10. The SOP also mandates, however, that “[o]fficers will NOT deny a DACA request solely because the DACA requestor failed to submit sufficient evidence with the request . . . officers will issue a [Request for Evidence (RFE)] . . . whenever possible.” Id. at 42. 133 DHS internal documents further provide that “a series of RFE [ ] templates have been developed and must be used,” and those documents remind repeatedly that “[u]se of these RFE templates is mandatory.” (Emphasis added.) And “[w]hen an RFE is issued, the response time given shall be 87 days.” SOP at 42. These specific evidentiary standards and RFE steps imposed by the SOP are just examples the district court had before it when it concluded that DACA and DAPA “severely restrict[ ]” agency discretion. Prof’ls & Patients, 56 F.3d at 595. Far from being clear error, such a finding was no error whatsoever. Dist. Ct. Op., 86 F. Supp. 3d at 648–49, 671 n.103. There the district court exhibited its keen awareness of the DAPA Memo by quoting the following from it: 134 I [the Secretary] hereby direct USCIS to establish a process, similar to DACA . . . . Applicants must file . . . . Applicants must also submit . . . . [Applicants] shall also be eligible . . . . Deferred action granted pursuant to the program shall be for a period of three years. . . . As with DACA, the above criteria are to be considered for all individuals . . . . ICE and CBP are instructed to immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the above criteria . . . . ICE is further instructed to review pending removal cases . . . . The USCIS process shall also be available to individuals subject to final orders of removal. Id. at 611–12 (paragraph breaks omitted.) This detailed explication of the DAPA Memo flies in the face of the dissent’s unjustified critique that the district court “eschew[ed] the plain language of the [DAPA] Memorandum.” Dissent at 31. 135 2015). Texas v. United States, No. B-14-254, 2015 WL 1540022, at *3 (S.D. Tex. Apr. 7, 46 Case: 15-40238 Document: 00513286295 Page: 47 Date Filed: 11/25/2015 No. 15-40238 The DACA and DAPA Memos purport to grant discretion, but a rule can be binding if it is “applied by the agency in a way that indicates it is binding,” 136 and there was evidence from DACA’s implementation that DAPA’s discretionary language was pretextual. For a number of reasons, any extrapolation from DACA must be done carefully. 137 First, DACA involved issuing benefits to self-selecting applicants, and persons who expected to be denied relief would seem unlikely to apply. But the issue of self-selection is partially mitigated by the finding that “the [g]overnment has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action (absent extraordinary circumstances).” Dist. Ct. Op., 86 F. Supp. 3d at 663 (footnote omitted). Second, DACA and DAPA are not identical: Eligibility for DACA was Gen. Elec., 290 F.3d at 383; accord McLouth Steel, 838 F.2d at 1321–22 (reviewing historical conformity as part of determination of whether rule was substantive or non-binding policy, despite language indicating that it was policy statement); id. at 1321 (“More critically than EPA’s language [,] . . . its later conduct applying it confirms its binding character.”). 136 The dissent, citing National Mining Ass’n v. McCarthy, 758 F.3d 243, 253 (D.C. Cir. 2014), criticizes the states and the district court for enjoining DAPA without “an early snapshot” of its implementation. Dissent at 32. First, the dissent overlooks a fundamental principle of preliminary injunctions: An injunction is of no help if one must wait to suffer injury before the court grants it. United States v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001) (“[T]he injury need not have been inflicted when application [for the injunction] is made or be certain to occur[.]”). 137 Second, the dissent assumes the conclusion of National Mining—that the agency action in question is not subject to pre-enforcement review—is applicable here and asserts that we need an “early snapshot” of DAPA enforcement. The two cases are easily distinguished. The court found EPA’s “Final Guidance” exempt from pre-enforcement review because it had “no legal impact.” National Mining, 758 F.3d at 253; see id., at 252 (“The most important factor concerns the actual legal effect (or lack thereof) of the agency action on regulated entities. . . . As a legal matter, the Final Guidance is meaningless . . . [and] has no legal impact.” DAPA, by contrast, has an effect on regulated entities (i.e. illegal aliens). DAPA removes a categorical bar to illegal aliens who are receiving state and federal benefits, so it places a cost on the states. The states are not required to suffer the injury of that legal impact before seeking an injunction. See id. 252. 47 Case: 15-40238 Document: 00513286295 Page: 48 Date Filed: 11/25/2015 No. 15-40238 restricted to a younger and less numerous population, 138 which suggests that DACA applicants are less likely to have backgrounds that would warrant a discretionary denial. Further, the DAPA Memo contains additional discretionary criteria: Applicants must not be “an enforcement priority as reflected in the [Prioritization Memo]; and [must] present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” DAPA Memo at 4. But despite those differences, there are important similarities: The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,” id. (emphasis added), and there was evidence that the DACA application process itself did not allow for discretion, regardless of the rates of approval and denial. 139 Instead of relying solely on the lack of evidence that any DACA application had been denied for discretionary reasons, the district court found pretext for additional reasons. It observed that “the ‘Operating Procedures’ for implementation of DACA contains nearly 150 pages of specific instructions for granting or denying deferred action to applicants” and that “[d]enials are Approximately 1.2 million illegal aliens are eligible for DACA and 4.3 million for DAPA. Dist. Ct. Op., 86 F. Supp. 3d at 609, 670. 138 Despite these differences and the dissent’s protestations to the contrary (see, e.g., Dissent at 34–38), DACA is an apt comparator to DAPA. The district court considered the DAPA Memo’s plain language, in which the Secretary equates the DACA and DAPA procedure, background checks, fee exemptions, eligibility for work authorizations, durations of lawful presence and work authorization, and orders DHS to establish, for DAPA, processes similar to those for DACA: 139 In order to align the DACA program more closely with the other deferred action authorization outlined below, . . . I hereby direct USCIS to establish a process, similar to DACA . . . . There will be no fee waivers, and like DACA . . . . As with DACA, the above criteria are to be considered for all individuals . . . . DAPA Memo at 4–5. See Dist. Ct. Op., 86 F. Supp. 3d at 610–11. The district court’s conclusion that DACA and DAPA would be applied similarly, based as it was in part on the memorandum’s plain language, was not clearly erroneous and indeed was not error under any standard of review. 48 Case: 15-40238 Document: 00513286295 Page: 49 Date Filed: 11/25/2015 No. 15-40238 recorded in a ‘check the box’ standardized form, for which USCIS personnel are provided templates. Certain denials of DAPA must be sent to a supervisor for approval[, and] there is no option for granting DAPA to an individual who does not meet each criterion.” Dist. Ct. Op., 86 F. Supp. 3d at 669 (footnotes omitted). The finding was also based on 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.” See id. at 609–10 (citing that declaration). As the government points out, there was conflicting evidence on the degree to which DACA allowed for discretion. Donald Neufeld, the Associate Director for Service Center Operations for USCIS, declared that “deferred action under DACA is a . . . case-specific process” that “necessarily involves the exercise of the agency’s discretion,” and he purported to identify several instances of discretionary denials. 140 Although Neufeld stated that approximately 200,000 requests for additional evidence had been made upon receipt of DACA applications, the government does not know the number, if any, that related to discretionary factors rather than the objective criteria. Similarly, The states properly maintain that those denials were not discretionary but instead were required because of failures to meet DACA’s objective criteria. For example, Neufeld averred that some discretionary denials occurred because applicants “pose[d] a public safety risk,” “[were] suspected of gang membership or gang-related activity, had a series of arrests without convictions” or “ongoing criminal investigations.” As the district court aptly noted, however, those allegedly discretionary grounds fell squarely within DACA’s objective criteria because DACA explicitly incorporated the enforcement priorities articulated in the DACA Operation Instructions and the memorandum styled Policies for Apprehension, Detention, and Removal of Undocumented Immigrants. Dist. Ct. Op., 86 F. Supp. 3d at 669 n.101. 140 49 Case: 15-40238 Document: 00513286295 Page: 50 Date Filed: 11/25/2015 No. 15-40238 the government did not provide the number of cases that service-center officials referred to field offices for interviews. 141 Although the district court did not make a formal credibility determination or hold an evidentiary hearing on the conflicting statements by Neufeld and Palinkas, the record indicates that it did not view the Neufeld declaration as creating a material factual dispute. 142 Further, the government did not seek an evidentiary hearing, nor does it argue on appeal that it was error not to conduct such a hearing. Reviewing for clear error, we conclude that the states have established a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion. B. A binding rule is not required to undergo notice and comment if it is one “of agency organization, procedure, or practice.” § 553(b)(A). “[T]he substantial impact test is the primary means by which [we] look beyond the label ‘procedural’ to determine whether a rule is of the type Congress thought appropriate for public participation.” 143 “An agency rule that modifies The United States was also given the chance to show that it planned to put DAPA into effect in a manner different from how it implemented DACA; it failed to take advantage of that opportunity. Further, after assuring the district court that “[USCIS] does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015,” the government later admitted to having approved dozens of DAPA applications and threeyear employment authorization to more than 100,000 aliens satisfying the original DACA criteria; the government could not demonstrate which applicants, if any, were rejected on purely discretionary grounds, as distinguished from failure to meet the requirements set forth in the memoranda. 141 After a hearing on the preliminary injunction, the government filed a sur-reply that included the Neufeld declaration. The government did not seek an evidentiary hearing, but the states requested one if the “new declarations create a fact dispute of material consequence to the motion.” No such hearing was held, and the court cited the Palinkas declaration favorably, e.g., Dist. Ct. Op., 86 F. Supp. 3d at 609–10, 613 n.13, 669 n.101, yet described other sources as providing insufficient detail, e.g., id. at 669 n.101. 142 143 U.S. Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984); accord 50 Case: 15-40238 Document: 00513286295 Page: 51 Date Filed: 11/25/2015 No. 15-40238 substantive rights and interests can only be nominally procedural, and the exemption for such rules of agency procedure cannot apply.” 144 DAPA undoubtedly meets that test—conferring lawful presence on 500,000 illegal aliens residing in Texas forces the state to choose between spending millions of dollars to subsidize driver’s licenses and amending its statutes. 145 The District of Columbia Circuit applies a more intricate test for distinguishing between procedural and substantive rules. 146 The court first looks at the “‘effect on those interests ultimately at stake in the agency proceeding.’ Hence, agency rules that impose ‘derivative,’ ‘incidental,’ or ‘mechanical’ burdens upon regulated individuals are considered procedural, rather than substantive.” 147 Further, “a procedural rule generally may not ‘encode [] a substantive value judgment or put[] a stamp of approval or disapproval on a given type of STEIN, supra, §15.05[5] (“Procedural and practice rules have been distinguished from substantive rules by applying the substantial impact test.”). 144 Kast Metals, 744 F.2d at 1153; accord Brown Express, 607 F.2d at 701–03. See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir. 1983) (“[Substantive] rules . . . grant rights, impose obligations, or produce other significant effects on private interests. They also narrowly constrict the discretion of agency officials by largely determining the issue addressed.” (omission in original) (quoting Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1980))). 145 Compare Kaspar Wire Works, Inc. v. Sec’y of Labor, 268 F.3d 1123, 1132 (D.C. Cir. 2001) (recognizing that the D.C. Circuit “has expressly rejected” “the Fifth Circuit’s ‘substantial impact’ standard for notice and comment requirements”), with City of Arlington v. FCC, 668 F.3d 229, 245 (5th Cir. 2012) (“The purpose of notice-and-comment rulemaking is to assure fairness and mature consideration of rules having a substantial impact on those regulated.” (quoting United States v. Johnson, 632 F.3d 912, 931 (5th Cir. 2011))), aff’d on other grounds, 133 S. Ct. 1863 (2013), and Phillips Petroleum, 22 F.3d at 620 (reaffirming substantial-impact test announced in Brown Express). 146 Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 107 (D.D.C. 2013) (citation omitted) (quoting Neighborhood TV Co. v. FCC, 742 F.2d 629, 637 (D.C. Cir. 1984); Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1051 (D.C. Cir. 1987)). 147 51 Case: 15-40238 Document: 00513286295 Page: 52 Date Filed: 11/25/2015 No. 15-40238 behavior,’” 148 but “the fact that the agency’s decision was based on a value judgment about procedural efficiency does not convert the resulting rule into a substantive one.” 149 “A corollary to this principle is that rules are generally considered procedural so long as they do not ‘change the substantive standards by which the [agency] evaluates’ applications which seek a benefit that the agency has the power to provide.” 150 Applying those considerations to DAPA yields the same result as does our substantial-impact test. Although the burden imposed on Texas is derivative of conferring lawful presence on beneficiaries, DAPA establishes “‘the substantive standards by which the [agency] evaluates applications’ which seek a benefit that the agency [purportedly] has the power to provide”—a critical fact requiring notice and comment. 151 Thus, DAPA is analogous to “the rules [that] changed the substantive criteria for [evaluating station allotment counter-proposals]” in Reeder v. FCC, 865 F.2d 1298, 1305 (D.C. Cir. 1989) (per curiam), holding that notice and comment was required. In contrast, the court in JEM Broadcasting, 22 F.3d at 327, observed that “[t]he critical fact here, however, is that the ‘hard look’ rules did not change the substantive standards by which the FCC evaluates license applications,” such that the rules were procedural. Further, receipt of DAPA benefits implies a “stamp of approval” from the government and “encodes a substantive value judgment,” such that the program cannot be Nat’l Sec. Counselors, 931 F. Supp. 2d at 107 (alterations in original) (quoting Am. Hosp., 834 F.2d at 1047). 148 149 2000)). Id. (quoting James V. Hurson Assocs. v. Glickman, 229 F.3d 277, 282 (D.C. Cir. Id. (alteration in original) (quoting JEM Broad. Co. v. FCC, 22 F.3d 320, 327 (D.C. Cir. 1994)). 150 151 Id. (first alteration in original) (quoting JEM Broad., 22 F.3d at 327). 52 Case: 15-40238 Document: 00513286295 Page: 53 Date Filed: 11/25/2015 No. 15-40238 considered procedural. Am. Hosp., 834 F.2d at 1047. C. Section 553(a)(2) exempts rules from notice and comment “to the extent that there is involved . . . a matter relating to . . . public property, loans, grants, benefits, or contracts.” To avoid “carv[ing] the heart out of the notice provisions of Section 553”, 152 the courts construe the public-benefits exception very narrowly as applying only to agency action that “clearly and directly relate[s] to ‘benefits’ as that word is used in section 553(a)(2).” 153 DAPA does not “clearly and directly” relate to public benefits as that term is used in § 553(a)(2). That subsection suggests that “rulemaking requirements for agencies managing benefit programs are . . . voluntarily imposed,” 154 but USCIS—the agency tasked with evaluating DAPA applications—is not an agency managing benefit programs. Persons who meet the DAPA criteria do not directly receive the kind of public benefit that has been recognized, or was likely to have been included, under this exception. 155 Hous. Auth. of Omaha v. U.S. Hous. Auth., 468 F.2d 1, 9 (8th Cir. 1972) (“The exemptions of matters under Section 553(a)(2) relating to ‘public benefits,’ could conceivably include virtually every activity of government. However, since an expansive reading of the exemption clause could easily carve the heart out of the notice provisions of Section 553, it is fairly obvious that Congress did not intend for the exemptions to be interpreted that broadly.”). 152 153 Baylor Univ. Med. Ctr. v. Heckler, 758 F.2d 1052, 1061 (5th Cir. 1985). 154 Alcaraz v. Block, 746 F.2d 593, 611 (9th Cir. 1984). See e.g., Vigil, 508 U.S. at 184, 196 (clinical services provided by Indian Health Service for handicapped children); Hoerner v. Veterans Admin., No. 88-3052, 1988 WL 97342, at *1–2 & n.10 (4th Cir. July 8, 1988) (per curiam) (unpublished) (benefits for veterans); Baylor Univ. Med. Ctr., 758 F.2d at 1058–59 (Medicare reimbursement regulations issued by Secretary of Health and Human Services); Rodway v. U.S. Dep’t of Agric., 514 F.2d 809, 813 (D.C. Cir. 1975) (food stamp allotment regulations). The Departments of Agriculture, Health and Human Services, and Labor have waived the exemption for matters relating to public property, loans, grants, benefits, or contracts. See 29 C.F.R. § 2.7 (Department of Labor); Public Participation in Rule Making, 36 Fed. Reg. 13,804, 13,804 (July 24, 1971) (Department of Agriculture); Public Participation in Rule Making, 36 Fed. Reg. 2532, 2532 (Jan. 28, 1971) 155 53 Case: 15-40238 Document: 00513286295 Page: 54 Date Filed: 11/25/2015 No. 15-40238 In summary, the states have established a substantial likelihood of success on the merits of their procedural claim. We proceed to address whether, in addition to that likelihood on the merits, the states make the same showing on their substantive APA claim. 156 VII. A “reviewing court shall . . . hold unlawful and set aside agency action . . . found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). Although the district court enjoined DAPA solely on the basis of the procedural APA claim, “it is an elementary proposition, and the supporting cases too numerous to cite, that this court may affirm the district court’s judgment on any grounds supported by the record.” 157 Therefore, as an alternate and additional ground for affirming the injunction, we address this substantive issue, which was fully briefed in the district court. 158 Assuming arguendo that Chevron 159 applies, 160 we first “ask whether (Department of Health and Human Services, then known as Health, Education, and Welfare). 156 We reiterate that DAPA is much more than a nonenforcement policy, which presumptively would be committed to agency discretion. Therefore, even where a party has standing and is within the requisite zone of interests, a traditional nonenforcement policy would not necessarily be subject to notice and comment just because DAPA must undergo notice-and-comment review. Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (citation and internal quotation marks omitted). 157 “This circuit follows the rule that alternative holdings are binding precedent and not obiter dictum.” United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011) (citation and internal quotation marks omitted). At oral argument, the parties agreed that no further factual development is needed to resolve the substantive APA challenge. 158 159 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). 160 “[T]he fact that the Agency previously reached its interpretation through means 54 Case: 15-40238 Document: 00513286295 Page: 55 Date Filed: 11/25/2015 No. 15-40238 Congress has ‘directly addressed the precise question at issue.’” 161 It has. “Federal governance of immigration and alien status is extensive and complex.” Arizona v. United States, 132 S. Ct. at 2499. The limited ways in which illegal aliens can lawfully reside in the United States reflect Congress’s concern that “aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates,” 8 U.S.C. § 1601(3), and that “[i]t is a compelling government interest to enact new rules for eligibility and sponsorship agreements in order to assure that aliens be self-reliant in accordance with national immigration policy,” § 1601(5). In specific and detailed provisions, the INA expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present 162 and confers eligibility for “discretionary relief allowing [aliens in less formal than ‘notice and comment’ rulemaking does not automatically deprive that interpretation of the judicial deference otherwise its due.” Barnhart v. Walton, 535 U.S. 212, 221 (2002) (citation omitted). Instead, we consider factors such as “the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time . . . .” Id. We need not decide whether DHS’s interpretation satisfies that test, however, because, as we explain, the agency cannot prevail even under Chevron. Chevron deference requires the courts to accept an agency’s reasonable construction of a statute as long as it is “not patently inconsistent with the statutory scheme.” Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788, 813 (5th Cir. 2000). As explained below, we decide that, assuming Chevron deference does apply, DAPA is not a reasonable construction of the INA, because it is “manifestly contrary” to the INA statutory scheme. Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 53 (2011). An agency construction that is manifestly contrary to a statutory scheme could not be persuasive under the test in Skidmore v. Swift & Co., 323 U.S. 134 (1944), a test that affords agency constructions less deference than does Chevron. See Gonzales v. Oregon, 546 U.S. 243, 256 (2006) (providing that under Skidmore, an “interpretation is entitled to respect only to the extent it has the power to persuade”). Therefore, our decision to forego discussion of the Walton factors is sensible. See Griffon v. U.S. Dep’t of Health & Human Servs., 802 F.2d 146, 148 n.3 (5th Cir. 1986) (noting that where an interpretive rule is unreasonable, “there is no need to decide whether Chevron or a less exacting standard applies”). 161 Mayo Found., 562 U.S. at 52 (quoting Chevron, 467 U.S. at 842). 162 E.g., lawful-permanent-resident (“LPR”) status, see 8 U.S.C. §§ 1101(a)(20), 1255; 55 Case: 15-40238 Document: 00513286295 Page: 56 Date Filed: 11/25/2015 No. 15-40238 deportation proceedings] to remain in the country.” 163 Congress has also identified narrow classes of aliens eligible for deferred action, including certain petitioners for immigration status under the Violence Against Women Act of 1994, 164 immediate family members of lawful permanent residents (“LPRs”) killed by terrorism, 165 and immediate family members of LPRs killed in combat and granted posthumous citizenship. 166 Entirely absent from those specific classes is the group of 4.3 million illegal aliens who would be eligible for lawful presence under DAPA were it not enjoined. See DAPA Memo at 4. Congress has enacted an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status: In general, an applicant must (i) have a U.S. citizen child who is at least twentyone years old, (ii) leave the United States, (iii) wait ten years, and then (iv) obtain one of the limited number of family-preference visas from a United States consulate. 167 Although DAPA does not confer the full panoply of nonimmigrant status, see §§ 1101(a)(15), 1201(a)(1); refugee and asylum status, see §§ 1101(a)(42), 1157–59, 1231(b)(3); humanitarian parole, see § 1182(d)(5); temporary protected status, see § 1254a. Cf. §§ 1182(a) (inadmissible aliens), 1227(a)–(b) (deportable aliens). Arizona v. United States, 132 S. Ct. at 2499 (citing 8 U.S.C. §§ 1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary departure)); see also § 1227(d) (administrative stays of removal for T- and U-visa applicants (victims of human trafficking, or of various serious crimes, who assist law enforcement)). 163 Pub. L. No. 103-322, tit. IV, 108 Stat. 1902 (codified as amended in scattered sections of the U.S. Code). See 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV). 164 165 USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361. National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694–95; see also 8 U.S.C. § 1227(d)(2) (specifying that “[t]he denial of a request for an administrative stay of removal [for T- and U-visa applicants] shall not preclude the alien from applying for . . . deferred action, or a continuance or abeyance of removal proceedings under any other provision of the immigration laws . . . .”). 166 See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255; see Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2199 (2014) (recognizing that legal immigration “takes time—and often a lot of it. . . . After a sponsoring petition is approved but before a visa application can be filed, a family-sponsored immigrant may stand in line for years—or even 167 56 Case: 15-40238 Document: 00513286295 Page: 57 Date Filed: 11/25/2015 No. 15-40238 benefits that a visa gives, DAPA would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration status without complying with any of the requirements, enumerated above, that Congress has deliberately imposed. DAPA requires only that prospective beneficiaries “have . . . a son or daughter who is a U.S. citizen or lawful permanent resident”—without regard to the age of the child—and there is no need to leave the United States or wait ten years 168 or obtain a visa. 169 Further, the INA does not contain a family-sponsorship process for parents of an LPR child, 170 but DAPA allows a parent to derive lawful presence from his child’s LPR status. The INA authorizes cancellation of removal and adjustment of status if, inter alia, “the alien has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application” and if “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(A) (emphasis added). Although LPR status is more substantial than is lawful presence, § 1229b(b)(1) is the most specific delegation of authority to the Secretary to change the immigration classification of removable aliens that meet only the DAPA criteria and do not fit within the specific decades—just waiting for an immigrant visa to become available.”). Although “[t]he Attorney General has sole discretion to waive [the ten-year reentry bar] in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien,” § 1182(a)(9)(B)(v) (emphasis added), there is no such provision for waiving the reentry bar for parents of U.S. citizen or LPR children. 168 169 DAPA Memo at 4. 170 See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1152(a)(4), 1153(a). 57 Case: 15-40238 Document: 00513286295 Page: 58 Date Filed: 11/25/2015 No. 15-40238 categories set forth in § 1229b(b)(2)–(6). Instead of a ten-year physical-presence period, DAPA grants lawful presence to persons who “have continuously resided in the United States since before January 1, 2010,” and there is no requirement that removal would result in exceptional and extremely unusual hardship. DAPA Memo at 4. Although the Secretary has discretion to make immigration decisions based on humanitarian grounds, that discretion is conferred only for particular family relationships and specific forms of relief—none of which includes granting lawful presence, on the basis of a child’s immigration status, to the class of aliens that would be eligible for DAPA. 171 The INA also specifies classes of aliens eligible 172 and ineligible 173 for work authorization, including those “eligible for work authorization and deferred action” with no mention of the class of persons whom DAPA would make eligible for work authorization. Congress “‘forcefully’ made combating the employment of illegal aliens central to ‘[t]he policy of immigration law,’” 174 in part by “establishing an extensive ‘employment verification system,’ designed to deny employment to aliens who . . . are not lawfully present in the See, e.g., 8 U.S.C. §§ 1182(a)(9)(B)(v), (C)(iii) (authorizing waiver of reentry bars for particular classes of inadmissible aliens), 1227(a)(1)(E)(iii) (authorizing waiver of inadmissibility for smuggling by particular classes of aliens). 171 E.g., 8 U.S.C. §§ 1101(i)(2) (human-trafficking victims in lawful-temporaryresident status pursuant to a T-visa), 1105a(a) (nonimmigrant battered spouses), 1154(a)(1)(K) (grantees of self-petitions under the Violence Against Women Act), 1158(c)(1)(B), (d)(2) (asylum applicants and grantees), 1160(a)(4) (certain agricultural workers in lawful-temporary-resident status), 1184(c)(2)(E), (e)(6) (spouses of L- and E-visa holders), (p)(3)(B) (certain victims of criminal activity in lawful-temporary-resident status pursuant to a U visa), 1254a(a)(1)(B) (temporary-protected status holders), 1255a(b)(3)(B) (temporary-resident status holders). 172 E.g., 8 U.S.C. §§ 1226(a)(3) (limits on work authorizations for aliens with pending removal proceedings), 1231(a)(7) (limits on work authorizations for aliens ordered removed). 173 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002) (alteration in original) (quoting INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 194 n.8 (1991)). 174 58 Case: 15-40238 Document: 00513286295 Page: 59 Date Filed: 11/25/2015 No. 15-40238 United States.” 175 The INA’s careful employment-authorization scheme “protect[s] against the displacement of workers in the United States,” 176 and a “primary purpose in restricting immigration is to preserve jobs for American workers.” 177 DAPA would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country. DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and “we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” 178 DAPA undoubtedly implicates “question[s] of deep ‘economic and political significance’ that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.” 179 But assuming arguendo that Chevron applies and that Congress has not directly addressed the precise 175 Id. (emphasis added) (citation omitted) (quoting 8 U.S.C. § 1324a(a)(1)). Nat’l Ctr. for Immigrants’ Rights, 502 U.S. at 194 (quoting Powers and Duties of Service Officers; Availability of Service Records; Employment Authorization; Excludable or Deportable Aliens, 48 Fed. Reg. 51,142, 51,142 (Nov. 7, 1983)). 176 Id. (quoting Sure-Tan, 467 U.S. at 893); see 8 U.S.C § 1182(a)(5)(A)(i) (listing among the classes of excludable aliens those who “seek[] to enter the United States for the purpose of performing skilled or unskilled labor . . . , unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed”). 177 178 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quoting Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014)). 179 59 Case: 15-40238 Document: 00513286295 Page: 60 Date Filed: 11/25/2015 No. 15-40238 question at hand, we would still strike down DAPA as an unreasonable interpretation that is “manifestly contrary” to the INA. See Mayo Found., 562 U.S. at 53. The dissent, relying on Texas Rural Legal Aid v. Legal Services Corp., 940 F.2d 685, 694 (D.C. Cir. 1991), theorizes that our analysis is nothing but an application of the expressio unius est exclusio alterius 180 canon of construction, which the dissent claims is of limited utility in administrative law. Dissent at 46. The dissent’s observation is astray, however, because our statutory analysis does not hinge on the expressio unius maxim. Moreover, the Supreme Court and this court have relied on expressio unius in deciding issues of administrative law. While noting “the limited usefulness of the expressio unius doctrine in the administrative context,” 181 some courts have declined to apply it mostly because they find it unhelpful for the specific statute at issue. 182 On other occasions, both our circuit and the Supreme Court have employed the canon in addressing administrative law. 183 Nor has the District of Columbia Circuit expressly foreclosed use of the canon on questions of statutory interpretation by agencies. 184 Our distinguished “A canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative.” BLACK’S LAW DICTIONARY 701 (10th ed. 2014). 180 181 Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 443–44 (5th Cir. 1999). Id. at 444 (concluding, on the basis of other statutory provisions, that “Congress intended to allow the FCC broad authority to implement this section”). 182 See, e.g., Christensen v. Harris Cnty., 529 U.S. 576, 582–83 (2000) (discussing expressio unius, and concluding that it does not inform the result, without suggesting that it has no applicability in administrative law); Rodriguez-Avalos v. Holder, 788 F.3d 444, 451 (5th Cir. 2015) (per curiam) (relying on the expression of a term in one section of the statute to infer that its absence in another section suggests intent to foreclose its implication in the latter, even though the statute was subject to interpretation by the Board of Immigration Appeals). 183 184 See Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 644 (D.C. Cir. 2000) 60 Case: 15-40238 Document: 00513286295 Page: 61 Date Filed: 11/25/2015 No. 15-40238 dissenting colleague, in fact, relied on expressio unius to uphold a decision of the Board of Immigration Appeals, concluding that the Equal Access to Justice Act did not provide for fee-shifting in proceedings before the Board. See Hodge v. Dep’t of Justice, 929 F.2d 153, 157 n.11 (5th Cir. 1991) (King, J.). For the authority to implement DAPA, the government relies in part on 8 U.S.C. § 1324a(h)(3), 185 a provision that does not mention lawful presence or deferred action, and that is listed as a “[m]iscellaneous” definitional provision expressly limited to § 1324a, a section concerning the “Unlawful employment of aliens”—an exceedingly unlikely place to find authorization for DAPA. 186 Likewise, the broad grants of authority in 6 U.S.C. § 202(5), 187 8 U.S.C. § 1103(a)(3), 188 and 8 U.S.C. § 1103(g)(2) 189 cannot reasonably be construed as (“The Comptroller argues that the expressio unius maxim cannot preclude an otherwise reasonable agency interpretation. This is not entirely correct. True, we have rejected the canon in some administrative law cases, but only where the logic of the maxim . . . simply did not hold up in the statutory context. . . . In this case, the two canons upon which we rely [expressio unius and avoidance of surplusage] inarguably compel our holding that § 24 (Seventh) unambiguously does not authorize national banks to engage in the general sale of insurance as ‘incidental’ to ‘the business of banking.’”); see also Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 CHI.-KENT L. REV.1253, 1280 (1997) (“[P]ost-Chevron cases have often set aside agency interpretations by drawing upon the full range of conventional statutory construction techniques at step one. Arguments from statutory structure and purpose . . . are regularly examined at that step. So are canons of construction.”) (footnotes omitted). “As used in this section, the term ‘unauthorized alien’ means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.” 185 See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”). 186 “The Secretary . . . shall be responsible for . . . [e]stablishing national immigration enforcement policies and priorities.” 187 “[The Secretary] . . . shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.” 188 189 “The Attorney General shall establish such regulations, prescribe such forms of 61 Case: 15-40238 Document: 00513286295 Page: 62 Date Filed: 11/25/2015 No. 15-40238 assigning “decisions of vast ‘economic and political significance,’” 190 such as DAPA, to an agency. 191 The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility. Even with bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.” Util. Air, 134 S. Ct. at 2444 (quoting Brown & Williamson, 529 U.S. at 159); accord id. (“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” (citation omitted) (quoting Brown & Williamson, 529 U.S. at 159)). 190 The dissent urges the courts to give DHS leeway to craft rules regarding deferred action because of the scope of the problem of illegal immigration and the insufficiency of congressional funding. Dissent at 50. That is unpersuasive. “Regardless of how serious the problem an administrative agency seeks to address, . . . it may not exercise its authority ‘in a manner that is inconsistent with the administrative structure that Congress enacted into law.’” Brown & Williamson, 529 U.S. at 125 (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517 (1988)). 191 Because we conclude, at Chevron Step One, that Congress has directly addressed lawful presence and work authorizations through the INA’s unambiguously specific and intricate provisions, we find no reason to allow DHS such leeway. There is no room among those specific and intricate provisions for the Secretary to “exercise discretion in selecting a different threshold” for class-wide grants of lawful presence and work authorization under DAPA. Util. Air, 134 S. Ct. at 2446 n.8. We merely apply the ordinary tools of statutory construction to conclude that Congress directly addressed, yet did not authorize, DAPA. See King, 135 S. Ct. at 2483 (noting that to determine whether Congress has expressed its intent, we “must read the words in their context and with a view to their place in the overall statutory scheme”; City of Arlington v. F.C.C., 133 S. Ct. 1863, 1868 (2013) (“First, applying the ordinary tools of statutory construction, the court must determine whether Congress has directly spoken to the precise question at issue.”); Util. Air, 134 S. Ct at 2441 (recognizing the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”). Now, even assuming the government had survived Chevron Step One, we would strike down DAPA as manifestly contrary to the INA under Step Two. See Chevron, 467 U.S. at 844; Mayo Found., 562 U.S. at 53. 62 Case: 15-40238 Document: 00513286295 Page: 63 Date Filed: 11/25/2015 No. 15-40238 “special deference” to the Secretary, 192 the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization. Presumably because DAPA is not authorized by statute, the United States posits that its authority is grounded in historical practice, but that “does not, by itself, create power,” 193 and in any event, previous deferred-action programs are not analogous to DAPA. “[M]ost . . . discretionary deferrals have been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters,” 194 but DAPA is not such a program. Likewise, many of the previous programs were bridges from one legal status to another, 195 Texas v. United States, 106 F.3d at 665 (“Courts must give special deference to congressional and executive branch policy choices pertaining to immigration.”). 192 Medellin v. Texas, 552 U.S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)). But see NLRB v. Noel Canning, 134 S. Ct. 2550, 2560 (2014) (“[T]he longstanding ‘practice of the government’ can inform our determination of ‘what the law is.’” (citation omitted) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))). 193 ANDORRA BRUNO ET AL., CONG. RESEARCH SERV., ANALYSIS OF JUNE 15, 2012 DHS MEMORANDUM, EXERCISING PROSECUTORIAL DISCRETION WITH RESPECT TO INDIVIDUALS WHO CAME TO THE UNITED STATES AS CHILDREN 9 (July 13, 2012); see CHARLOTTE J. MOORE, CONG. RESEARCH SERV., ED206779, REVIEW OF U.S. REFUGEE RESETTLEMENT PROGRAMS AND POLICIES 9, 12–14 (1980). 194 See Voluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses, 43 Fed. Reg. 2776, 2776 (Jan. 19, 1978) (deferring action on the removal of nonimmigrant nurses whose temporary licenses expired so that they could pass permanent licensure examinations); Memorandum from Michael Cronin, Acting Exec. Assoc. Comm’r, Office of Programs, INS, to Michael Pearson, Exec. Assoc. Comm’r, Office of Field Operations, INS 2 (Aug. 30, 2001) (directing that possible victims of the Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”), Pub. L. No. 106-386, 114 Stat. 1464, “should not be removed from the United States until they have had the opportunity to avail themselves of the . . . VTVPA,” including receipt of a T- or U-visa); Memorandum from Paul Virtue, Acting Exec. Assoc. Comm’r, INS, to Reg’l Dirs., INS, et al. 3 (May 6, 1997) (utilizing deferred action for VAWA self-petitioners “pending the availability of a visa number”); Press Release, USCIS, USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina 1 (Nov. 25, 2005) (deferring action on students “based upon the fact that the failure to maintain status is directly due to Hurricane Katrina”); see also United States ex rel. Parco v. Morris, 195 63 Case: 15-40238 Document: 00513286295 Page: 64 Date Filed: 11/25/2015 No. 15-40238 whereas DAPA awards lawful presence to persons who have never had a legal status 196 and may never receive one. 197 Although the “Family Fairness” program did grant voluntary departure to family members of legalized aliens while they “wait[ed] for a visa preference number to become available for family members,” that program was interstitial to a statutory legalization scheme. 198 DAPA is far from interstitial: Congress 426 F. Supp. 976, 980 (E.D. Pa. 1977) (discussing an INS policy that allowed aliens to “await the availability of a [Third Preference] visa while remaining in this country” under “extended voluntary departure”). 196 DAPA Memo at 4 (limiting DAPA to persons who “have no lawful status”). Id. at 5 (specifying that DAPA “confers no . . . immigration status or pathway to citizenship”). Throughout the dissent is the notion that DHS must pursue DAPA because Congress’s funding decisions have left the agency unable to deport as many illegal aliens as it would if funding were available. But the adequacy or insufficiency of legislative appropriations is not relevant to whether DHS has statutory authority to implement DAPA. Neither our nor the dissent’s reasoning hinges on the budgetary feasibility of a more thorough enforcement of the immigration laws; instead, our conclusion turns on whether the INA gives DHS the power to create and implement a sweeping class-wide rule changing the immigration status of the affected aliens without full notice-and-comment rulemaking, especially where as here the directive is flatly contrary to the statutory text. 197 The dissent’s repeated references to DAPA as the appropriate continuation of a longstanding practice, see, e.g., Dissent at 2, badly mischaracterizes the nature of DAPA. Previous iterations of deferred action were limited in time and extent, affecting only a few thousand aliens for months or, at most, a few years. MEMORANDUM ON THE DEP’T OF HOMELAND SEC.’S AUTH. TO PRIORITIZE REMOVAL OF CERTAIN ALIENS UNLAWFULLY PRESENT IN THE UNITED STATES AND TO DEFER REMOVAL OF OTHERS, Dep’t of Justice, Office of Legal Counsel, at *15–*17 (Nov. 19, 2014). Nothing like DAPA, which alters the status of more than four million aliens, has ever been contemplated absent direct statutory authorization. In its OLC memorandum, the Department of Justice noted that “extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action.” Id. at *18 n.8. Deferred action may be a decades-old tool, but it has never been used to affect so many aliens and to do so for so expansive a period of time. See Memorandum from Gene McNary, Comm’r, INS, to Reg’l Comm’rs, INS 1 (Feb. 2, 1990) (authorizing extended voluntary departure and work authorization for the spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359); see also Memorandum from Donald Neufeld, Acting Assoc. Dir., USCIS, to Field Leadership, USCIS 1 (Sept. 4, 2009) 198 64 Case: 15-40238 Document: 00513286295 Page: 65 Date Filed: 11/25/2015 No. 15-40238 has repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (“DREAM Act”), 199 features of which closely resemble DACA and DAPA. Historical practice that is so far afield from the challenged program sheds no light on the Secretary’s authority to implement DAPA. Indeed, as the district court recognized, the President explicitly stated that “it was the failure of Congress to enact such a program that prompted him . . . to ‘change the law.’” 200 At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes. And the dissent attempts to avoid the impact of the President’s statement by accusing the district court and this panel majority of “relying . . . on selected excerpts of the President’s public statements.” Dissent at 24, 33 n.41. The dissent repeatedly claims that congressional silence has conferred on DHS the power to act. E.g., Dissent at 46–47. To the contrary, any such inaction cannot create such power: “[D]eference is warranted only when Congress has left a gap for the agency to fill pursuant to an express or implied ‘delegation of authority to the agency.’” Chevron[,] 467 U.S. at 843–44[]. To suggest, as the [agency] effectively does, that Chevron step two is implicated at any (authorizing deferred action for “the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen’s death” because “no avenue of immigration relief exist[ed]” and “[t]his issue has caused a split among the circuit courts of appeal and is also the subject of proposed legislation in . . . Congress”). “[A] bill that would have become the ‘DREAM’ Act never became law[; it] passed the House of Representatives during the 111th Congress and then stalled in the Senate.” Common Cause v. Biden, 748 F.3d 1280, 1281 (D.C. Cir.) (citing H.R. 5281, 111th Cong. (2010)), cert. denied, 135 S. Ct. 451 (2014)). 199 Dist. Ct. Op., 86 F. Supp. 3d at 657 & n.71 (quoting Press Release, Remarks by the President on Immigration Chicago, Ill., The White House Office of the Press Sec’y (Nov. 25, 2014)). 200 65 Case: 15-40238 Document: 00513286295 Page: 66 Date Filed: 11/25/2015 No. 15-40238 time a statute does not expressly negate the existence of a claimed administrative power . . . is both flatly unfaithful to the principles of administrative law . . . and refuted by precedent. . . . Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well. Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995). Through the INA’s specific and intricate provisions, “Congress has ‘directly addressed the precise question at issue.’” Mayo Found., 562 U.S. at 52. As we have indicated, the INA prescribes how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization. DAPA is foreclosed by Congress’s careful plan; the program is “manifestly contrary to the statute” 201 and therefore was properly enjoined. 202 VIII. The states have satisfied the other requirements for a preliminary injunction. They have demonstrated “a substantial threat of irreparable injury if the injunction is not issued.” Sepulvado, 729 F.3d at 417 (quoting Byrum, 566 F.3d at 445). DAPA beneficiaries would be eligible for driver’s licenses and other benefits, and a substantial number of the more than four million potential beneficiaries—many of whom live in the plaintiff states—would take advantage of that opportunity. The district court found that retracting those benefits would be “substantially difficult—if not impossible,” Dist. Ct. Op., Mayo Found., 562 U.S. at 53 (quoting Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 242 (2004)). 201 We do not address whether single, ad hoc grants of deferred action made on a genuinely case-by-case basis are consistent with the INA; we conclude only that the INA does not grant the Secretary discretion to grant deferred action and lawful presence on a classwide basis to 4.3 million otherwise removable aliens. 202 66 Case: 15-40238 Document: 00513286295 Page: 67 Date Filed: 11/25/2015 No. 15-40238 86 F. Supp. 3d at 673, and the government has given us no reason to doubt that finding. The states have shown “that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted.” Sepulvado, 729 F.3d at 417 (quoting Byrum, 566 F.3d at 445). The states have alleged a concrete threatened injury in the form of millions of dollars of losses. The harms the United States has identified are less substantial. It claims that the injunction “obstructs a core Executive prerogative” and offends separation-of-powers and federalism principles. Those alleged harms are vague, and the principles the government cites are more likely to be affected by the resolution of the case on the merits than by the injunction. Separately, the United States postulates that the injunction prevents DHS from effectively prioritizing illegal aliens for removal. But the injunction “does not enjoin or impair the Secretary’s ability to marshal his assets or deploy the resources of the DHS [or] to set priorities,” including selecting whom to remove first, see Dist. Ct. Op., 86 F. Supp. 3d at 678, and any inefficiency is outweighed by the major financial losses the states face. The government also complains that the injunction imposes administrative burdens because DHS has already leased office space and begun hiring employees to implement DAPA. Such inconveniences are common incidental effects of injunctions, and the government could have avoided them by delaying preparatory work until the litigation was resolved. 203 Finally, the government reasonably speculates that the injunction burdens DAPA beneficiaries and Cf. Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 728 (3d Cir. 2004) (“[W]hen the potential harm to each party is weighed, a party ‘can hardly claim to be harmed [where] it brought any and all difficulties occasioned by the issuance of an injunction upon itself.’” (second alteration in original) (quoting Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 197 (3d Cir. 1990))). 203 67 Case: 15-40238 Document: 00513286295 Page: 68 Date Filed: 11/25/2015 No. 15-40238 their families and discourages them from cooperating with law-enforcement officers and paying taxes. But those are burdens that Congress knowingly created, and it is not our place to second-guess those decisions. The states have also sufficiently established that “an injunction will not disserve the public interest.” Sepulvado, 729 F.3d at 417 (quoting Byrum, 566 F.3d at 445). This factor overlaps considerably with the previous one, and most of the same analysis applies. 204 The main difference is that, instead of relying on their financial interests, the states refer to the public interest in protecting separation of powers by curtailing unlawful executive action. Although the United States cites the public interest in maintaining separation of powers and federalism by avoiding judicial and state interference with a legitimate executive function, there is an obvious difference: The interest the government has identified can be effectively vindicated after a trial on the merits. The interest the states have identified cannot be, given the difficulty of restoring the status quo ante if DAPA were to be implemented. 205 The public interest easily favors an injunction. IX. The government claims that the nationwide scope of the injunction is an abuse of discretion and requests that it be confined to Texas or the plaintiff Cf. Nken v. Holder, 556 U.S. 418, 435 (2009) (“Once an applicant satisfies the first two factors [for a stay of an alien’s removal pending judicial review], the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest. These factors merge when the Government is the opposing party.”). 204 See Wenner v. Tex. Lottery Comm’n, 123 F.3d 321, 326 (5th Cir. 1997) (“It is well settled that the issuance of a prohibitory injunction freezes the status quo, and is intended ‘to preserve the relative positions of the parties until a trial on the merits can be held.’ Preliminary injunctions commonly favor the status quo and seek to maintain things in their initial condition so far as possible until after a full hearing permits final relief to be fashioned.” (citation omitted) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981))). 205 68 Case: 15-40238 Document: 00513286295 Page: 69 Date Filed: 11/25/2015 No. 15-40238 states. But the Constitution requires “an uniform Rule of Naturalization”; 206 Congress has instructed that “the immigration laws of the United States should be enforced vigorously and uniformly”; 207 and the Supreme Court has described immigration policy as “a comprehensive and unified system.” 208 Partial implementation of DAPA would “detract[] from the ‘integrated scheme of regulation’ created by Congress,” 209 and there is a substantial likelihood that a geographically-limited injunction would be ineffective because DAPA beneficiaries would be free to move among states. Furthermore, the Constitution vests the District Court with “the judicial Power of the United States.” 210 That power is not limited to the district wherein the court sits but extends across the country. It is not beyond the power of a court, in appropriate circumstances, to issue a nationwide injunction. 211 206 U.S. CONST. art. I, § 8, cl. 4 (emphasis added). Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 115(1), 100 Stat. 3359, 3384 (emphasis added). 207 208 Arizona v. United States, 132 S. Ct. at 2502. Id. (quoting Wis. Dep’t of Indus., Labor & Human Relations v. Gould Inc., 475 U.S. 282, 288–89 (1986)). 209 210 U.S. CONST. art. III, § 1 See, e.g., Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir. 2006) (upholding a nationwide injunction after concluding it was “compelled by the text of [§ 706 of the] Administrative Procedure Act”), aff’d in part & rev’d in part on other grounds by Summers v. Earth Island Inst., 555 U.S. 488 (2009) (concluding that the plaintiff organizations lacked standing to challenge the forest service action in question); Chevron Chem. Co. v. Voluntary Purchasing Grps., 659 F.2d 695, 705–06 (Former 5th Cir. Oct. 1981) (instructing district court to issue broad, nationwide injunction); Brennan v. J.M. Fields, Inc., 488 F.2d 443, 449–50 (5th Cir. 1973) (upholding nationwide injunction against a national chain); Hodgson v. First Fed. Sav. & Loan Ass’n, 455 F.2d 818, 826 (5th Cir. 1972) (“[C]ourts should not be loath[ ] to issue injunctions of general applicability. . . . ‘The injunctive processes are a means of effecting general compliance with national policy as expressed by Congress, a public policy judges too must carry out—actuated by the spirit of the law and not begrudgingly as if it were a newly imposed fiat of a presidium.’” (quoting Mitchell v. Pidcock, 299 F.2d 281, 287 (5th Cir. 1962)). 211 69 Case: 15-40238 Document: 00513286295 Page: 70 Date Filed: 11/25/2015 No. 15-40238 “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Util. Air, 134 S. Ct. at 2444 (citation omitted). Agency announcements to the contrary are “greet[ed] . . . with a measure of skepticism.” Id. The district court did not err and most assuredly did not abuse its discretion. The order granting the preliminary injunction is AFFIRMED. 70 Case: 15-40238 Document: 00513286295 Page: 71 Date Filed: 11/25/2015 No. 15-40238 KING, Circuit Judge, dissenting: Although there are approximately 11.3 million removable aliens in this country today, for the last several years Congress has provided the Department of Homeland Security (DHS) with only enough resources to remove approximately 400,000 of those aliens per year. 1 Recognizing DHS’s congressionally granted prosecutorial discretion to set removal enforcement priorities, Congress has exhorted DHS to use those resources to “mak[e] our country safer.” In response, DHS has focused on removing “those who represent threats to national security, public safety, and border security.” The DAPA Memorandum at issue here focuses on a subset of removable aliens who are unlikely to be removed unless and until more resources are made available by Congress: those who are the parents of United States citizens or legal permanent residents, who have resided in the United States for at least the last five years, who lack a criminal record, and who are not otherwise removal priorities as determined by DHS. The DAPA Memorandum has three primary objectives for these aliens: (1) to permit them to be lawfully employed and thereby enhance their ability to be self-sufficient, a goal of United States immigration law since this country’s earliest immigration statutes; (2) to encourage them to come out of the shadows and to identify themselves and where they live, DHS’s prime law enforcement objective; and (3) to maintain flexibility so that if Congress is able to make more resources for removal available, DHS will be able to respond. Plaintiffs do not challenge DHS’s ability to allow the aliens subject to the DAPA Memorandum—up to 4.3 million, some estimate—to remain in this During the period from 2009 through 2014, approximately 2.4 million aliens were removed from the United States. DHS claims that this is a record number, and Plaintiffs do not dispute that point. 1 71 Case: 15-40238 Document: 00513286295 Page: 72 Date Filed: 11/25/2015 No. 15-40238 country indefinitely. Indeed, Plaintiffs admit that such removal decisions are well within DHS’s prosecutorial discretion. 2 Rather, Plaintiffs complain of the consequences of DHS’s decision to use its decades-long practice of granting “deferred action” to these individuals, specifically that these “illegal aliens” may temporarily work lawfully for a living and may also eventually become eligible for some public benefits. Plaintiffs contend that these consequences and benefits must be struck down even while the decision to allow the “illegal aliens” to remain stands. But Plaintiffs’ challenge cannot be so easily bifurcated. For the benefits of which Plaintiffs complain are not conferred by the DAPA Memorandum—the only policy being challenged in this case—but are inexorably tied to DHS’s deferred action decisions by a host of unchallenged, preexisting statutes and notice-and-comment regulations enacted by Congresses and administrations long past. Deferred action decisions, such as those contemplated by the DAPA Memorandum, are quintessential exercises of prosecutorial discretion. As the Supreme Court put it sixteen years ago, “[a]t each stage [of the removal process] the Executive has discretion to abandon the endeavor, [including by] engaging in a regular practice (which had come to be known as ‘deferred action’) of exercising that discretion for humanitarian reasons or simply for its own convenience.” 3 Because all parties agree that an exercise of prosecutorial discretion itself is unreviewable, this case should be dismissed on justiciability grounds. Even if this case were justiciable, the preliminary injunction, issued by the district court, is a mistake. If the Memorandum is implemented in the In their briefing on appeal, Plaintiffs refute the “mistaken premise that this lawsuit challenges [DHS]’s decision not to remove certain unauthorized aliens,” making clear that “[t]his lawsuit has never challenged any decision by the Executive to initiate or forego removal proceedings.” Appellees’ Suppl. Br. 18–19. 2 3 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84 (1999). 72 Case: 15-40238 Document: 00513286295 Page: 73 Date Filed: 11/25/2015 No. 15-40238 truly discretionary, case-by-case manner it contemplates, it is not subject to the APA’s notice-and-comment requirements, and the injunction cannot stand. Although the very face of the Memorandum makes clear that it must be applied with such discretion, the district court concluded on its own—prior to DAPA’s implementation, based on improper burden-shifting, and without seeing the need even to hold an evidentiary hearing—that the Memorandum is a sham, a mere “pretext” for the Executive’s plan “not [to] enforce the immigration laws as to over four million illegal aliens.” Texas v. United States, 86 F. Supp. 3d 591, 638 (S.D. Tex. 2015) [hereinafter Dist. Ct. Op.]. That conclusion is clearly erroneous. The majority affirms and goes one step further today. It holds, in the alternative, that the Memorandum is contrary to the INA and substantively violates the APA. These conclusions are wrong. The district court expressly declined to reach this issue without further development, id. at 677, and the limited briefing we have before us is unhelpful and unpersuasive. For these reasons, as set out below, I dissent. I. The DAPA Memorandum For all of the pounds of paper written about it, the DAPA Memorandum spans only five pages, and I attach it to this dissent for all to read. 4 The D.C. Circuit (which hears more of these administrative law cases than any other) has wisely observed that “[s]ometimes a simple reading of the document and study of its role in the regulatory scheme will yield the answer.” Pub. Citizen, Inc. v. U.S. Nuclear Regulatory Comm’n, 940 F.2d 679, 682 (D.C. Cir. 1991). The DAPA Memorandum is attached as Appendix A. As Appendix B, I also attach the Secretary’s November 20, 2014, memorandum entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (Enforcement Priorities Memorandum), which itself is unchallenged by Plaintiffs, but which the DAPA Memorandum incorporates by reference. 4 73 Case: 15-40238 Document: 00513286295 Page: 74 Date Filed: 11/25/2015 No. 15-40238 The DAPA Memorandum is one of a series of memoranda issued by Secretary of Homeland Security Jeh Johnson on November 20, 2014. Broadly speaking, the Memorandum does two things: (1) it expands certain parameters of the prior DACA Memorandum, which provided guidelines for the use of deferred action with respect to certain individuals who came to the United States as children; and (2) it includes “guidance for case-by-case use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities.” Appx. A, at 3. It is important to recognize at the outset the backdrop upon which the Memorandum was written. As noted above, given the resource constraints faced by DHS, the agency is faced with important prioritization decisions as to which aliens should be the subject of removal proceedings. Congress has made clear that those decisions are to be made by DHS, not by Congress itself—and certainly not by the courts. Indeed, Congress has delegated to the Secretary of Homeland Security the authority to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), 5 and to “establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out” his responsibilities, 8 U.S.C. § 1103(a)(3). 6 Congress has given the Secretary some direction, in appropriations bills, as to how removal resources should be spent—by specifically devoting funding toward “identify[ing] aliens convicted of a crime who may be deportable, and . . . remov[ing] them from the United States once they are judged deportable,” and by making clear that the Secretary “shall prioritize the identification and removal of aliens convicted of a crime by the severity of that 5 This statute was passed in 2002. 6 A version of this statute was first passed in 1990. 74 Case: 15-40238 Document: 00513286295 Page: 75 Date Filed: 11/25/2015 No. 15-40238 crime.” Department of Homeland Security Appropriations Act, Pub. L. No. 114-4, 129 Stat. 39, 43 (2015). In an apparent effort to maximize the resources that can be devoted to such ends and consistent with his congressionally granted authority to set enforcement priorities, the Secretary contends that he has chosen—through the DACA and DAPA Memoranda—to divert some of DHS’s resources away from the lowest priority aliens to better enforce the immigration laws against the highest priority aliens. See Arpaio v. Obama, 797 F.3d 11, 17–18 (D.C. Cir. 2015) (“DACA and DAPA . . . apply to the portion of the population that [DHS] considers not threatening to public safety and that has not had any involvement, or only minimal and minor involvement, with the criminal justice system.”). By granting deferred action to children who were brought to this country unlawfully, and to the parents of U.S. citizens and lawful permanent residents (who otherwise have clean records), DHS has sought to “encourage [those individuals] to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . and be counted.” Appx. A, at 3. Qualifying individuals can therefore work “on the books”—meaning, of course, that they will pay taxes on the income they earn. Furthermore, the Secretary points to the humanitarian aim of the DAPA Memorandum which, in conjunction with the DACA Memorandum, keeps families together—at least temporarily. Cf. Reno, 525 U.S. at 484 (describing “deferred action” as an “exercis[e] [of] discretion for humanitarian reasons or simply for [the Executive’s] own convenience”). And by encouraging removable aliens to selfidentify and register, both DACA and DAPA allow DHS to collect information (names, addresses, etc.) that will make it easier to locate these aliens in the future—if and when DHS ultimately decides to remove them. DHS is, of course, a law enforcement agency, and this is what we would call “good policing.” Although these programs will likely apply to a large number of 75 Case: 15-40238 Document: 00513286295 Page: 76 Date Filed: 11/25/2015 No. 15-40238 individuals, that result is the inevitable upshot of decades of congressional appropriations decisions, 7 which require DHS (whether by policy or by practice) to de-prioritize millions of removable aliens each year due to these resource constraints. The DAPA Memorandum operates in two ways. First, with respect to the expansion of DACA, the DAPA Memorandum: removes the age cap (the DACA Memorandum excluded applicants over 31 years of age); extends the period of deferred action from two to three years; and adjusts the date-of-entry requirement from June 15, 2007, to January 1, 2010. Second, the Memorandum establishes new deferred action guidance, “direct[ing] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals” who meet six threshold criteria: • have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident; • have continuously resided in the United States since before January 1, 2010; • are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS; • have no lawful status on the date of this memorandum; • are not an enforcement priority as reflected in the [Enforcement Priorities Memorandum 8]; and • present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate. The limited resources that Congress has made available to DHS for removals are most probably a product of the nation’s limited resources, not of penuriousness on the part of Congress. 7 The Enforcement Priorities Memorandum classifies aliens into three priority categories: (1) “Priority 1 (threats to national security, border security, and public safety)”; (2) “Priority 2 (misdemeanants and new immigration violators)”; and (3) “Priority 3 (other immigration violations).” Appx. B, at 3–4. It further states that “resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified.” Appx. B, at 5. 8 76 Case: 15-40238 Document: 00513286295 Page: 77 Date Filed: 11/25/2015 No. 15-40238 Appx. A, at 4. The Memorandum describes deferred action as a “form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.” 9 Appx. A, at 2. The Memorandum makes clear that deferred action: must be “granted on a case-by-case basis”; “may be terminated at any time at the agency’s discretion”; 10 and “does not confer any form of legal status in this country, much less citizenship.” Appx. A, at 2. The Memorandum also states that although “immigration officers will be provided with specific eligibility criteria for deferred action, . . . the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.” Appx. A, at 5. In addition, the Memorandum makes clear that applicants must submit to a background check and pay a $465 fee. 11 Appx. A, at 4–5. It notes that deferred action recipients are eligible to apply for employment authorization. 12 Appx. A, at 4. Finally, the Memorandum states that it “confers no substantive right, immigration status or pathway to citizenship.” Appx. A, at 5. Holding that Plaintiffs’ challenge to this Memorandum is likely to succeed on the merits, the majority reaches four conclusions, the first three of which were reached by the district court, to sustain the preliminary injunction: The Memorandum also summarizes the substantial past use of deferred action. Appx. A, at 2. 9 Therefore, if Congress were to substantially increase the amount of funding available to DHS for removals, deferred action would pose no impediment to the removal even of these low-priority aliens. 10 DHS contends that the fees collected will be sufficient to offset any administrative costs required to implement the DAPA Memorandum. 11 As discussed below, this is merely a statement of preexisting law. See 8 C.F.R. § 274a.12(c)(14). 12 77 Case: 15-40238 Document: 00513286295 Page: 78 Date Filed: 11/25/2015 No. 15-40238 (1) Plaintiffs have standing; (2) this case is justiciable and reviewable under the APA; (3) the DAPA Memorandum constitutes a substantive rule that must go through the notice-and-comment process; and (4) the DAPA Memorandum is not authorized by statute and is a substantive violation of the APA. As to the first conclusion, the majority finds that Texas is entitled to “special solicitude” in the standing analysis as DAPA implicates state “sovereignty concerns.” Majority Op. at 10, 14. Within this framework of standing, Texas has demonstrated an injury-in-fact because “it would incur significant costs in issuing driver’s licenses to DAPA beneficiaries.” Id. at 16. The majority contends that even though “Texas could avoid financial loss by requiring applicants to pay the full costs of licenses, it could not avoid injury altogether” because “avoid[ing] injury by incurring other costs does not negate standing.” Id. at 19. Second, the majority determines that this action is reviewable under the APA even though DAPA helps set “priority levels” for immigration enforcement, suggesting that it “is a presumptively unreviewable exercise of ‘prosecutorial discretion.’” Id. at 35. Despite this, the majority claims that DAPA is reviewable because it “affirmatively confer[s] ‘lawful presence’ and associated benefits.” Id. While reaching this conclusion the majority also casts doubt on the validity of one of these benefits—a decades-old regulation on employment authorization, previously unchallenged in this suit. See id. at 39– 40. Third, recognizing that the “DAPA Memo facially purports to confer discretion,” id. at 44, the majority nonetheless deems the DAPA Memorandum a substantive rule subject to the requirements of notice-and-comment rulemaking, id. at 44–54. According to the majority, the district court’s conclusion—that “[n]othing about DAPA ‘genuinely leaves the agency and its [employees] free to exercise discretion,’” Dist. Ct. Op., 86 F. Supp. 3d at 670— is not clearly erroneous, as there was at least “conflicting evidence on the degree to which DACA allowed for discretion.” Majority Op. at 49 (emphasis 78 Case: 15-40238 Document: 00513286295 Page: 79 Date Filed: 11/25/2015 No. 15-40238 added). Finally, the majority reaches beyond the district court’s judgment to conclude that DAPA constitutes a substantive violation of the APA because it “is not authorized by statute.” Id. at 63. I address each of these conclusions in turn. II. Standing While I would conclude that this case is non-justiciable, I write first to note my concerns with the majority’s primary theory of standing, premised on an expansive notion of state standing and Texas’s increased costs due to the issuance of driver’s licenses to DAPA recipients. Building off a single, isolated phrase in Massachusetts v. EPA, 549 U.S. 497, 520 (2007), the majority finds that Texas has “special solicitude” in the standing inquiry because “DAPA affects the states’ ‘quasi-sovereign’ interests.” Majority Op. at 13. It is altogether unclear whether the majority means that states are afforded a relaxed standing inquiry by virtue of their statehood or whether their statehood, in of itself, helps confer standing. In any event, both propositions are deeply troublesome for three reasons. First, this reasoning misconstrues the holding of Massachusetts. In that case, the Supreme Court held that Massachusetts had standing to challenge the EPA’s decision not to regulate greenhouse gas emissions. Massachusetts, 549 U.S. at 526. But it did so based on Massachusetts’ quasi-sovereign interests and a provision of the Clean Air Act that specifically “recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” Id. at 520 (citing 42 U.S.C. § 7607(b)(1)). The Court there recognized that this statutory “authorization [was] of critical importance to the standing inquiry.” Id. at 516. By contrast, neither the INA 79 Case: 15-40238 Document: 00513286295 Page: 80 Date Filed: 11/25/2015 No. 15-40238 nor the APA specifically authorizes this suit. 13 Massachusetts also provides little instruction as to how far this “special solicitude” reaches. The phrase appears only once in the Massachusetts majority opinion. And the Court has had no occasion to revisit it since. 14 Second, the majority’s ruling raises serious separation of powers concerns. Long recognized is “the foundational role that Article III standing plays in our separation of powers.” Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1443 (2011); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 125 n.20 (1998) (“[O]ur standing doctrine is rooted in separationof-powers concerns.”). By preserving the proper bounds of Article III standing, the judiciary prevents itself from “aggrandiz[ing] itself . . . at the expense of one of the other branches.” John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L.J. 1219, 1230 (1993). The majority’s breathtaking expansion of state standing would inject the courts into far more federal–state disputes and review of the political branches than is now the case. While the majority claims that the factors giving a state “special solicitude” to sue the federal government will “seldom exist,” its holding suggests otherwise. Majority Op. at 28. If the APA provides the requisite procedural right to file suit—as the majority indicates, see id. at 11— The majority suggests that the APA does provide specific authorization for suit here because it “authorizes challenges to ‘final agency action for which there is no other adequate remedy in a court.’” Majority Op. at 11 (citing 5 U.S.C. § 704). If this were the case, then presumably Massachusetts would have also referenced the APA as conferring a procedural right since the plaintiffs there challenged “final agency action” within the ambit of the APA. Massachusetts did not, however, even refer to the APA. And, as discussed below, it would be odd if the APA provided such an expansive procedural right to states. 13 The notion of “special solicitude” was cited in Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC), 135 S. Ct. 2652, 2664–65 n.10 (2015)—but as recognized by a treatise, in a footnote, in an opinion that did not concern federal–state suits. That footnote correctly observed that “[t]he cases on the standing of states to sue the federal government” are “hard to reconcile.” Id. (quoting R. Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 263–66 (6th ed. 2009)). 14 80 Case: 15-40238 Document: 00513286295 Page: 81 Date Filed: 11/25/2015 No. 15-40238 and a state need only assert a “quasi-sovereign interest” to get “special solicitude,” then states can presumably challenge a wide array of federal regulatory actions. The majority dismisses such a possibility as a “parade of horribles” and “unfounded” based on the lack of such lawsuits at the moment. Id. at 28. It is certainly possible to describe a parade of horribles that could result from the majority’s decision, but those horribles are only “unfounded” because the majority’s broad ruling is untested and unparalleled in any other court. 15 By relaxing standing for state suits against the federal government, we risk transforming ourselves into “ombudsmen of the administrative bureaucracy, a role for which [we] are ill-suited both institutionally and as a matter of democratic theory.” Roberts, supra, at 1232. Third, and relatedly, the majority’s sweeping “special solicitude” analysis “has no principled limit.” Majority Op. at 26. Recognizing that fact, it “stress[es] that [its] decision is limited to these facts.” Id. at 16. Really? If that were true, there would be no need to assuage concerns regarding the opinion’s breadth by arguing “that there are other ways to cabin policy disagreements masquerading as legal claims.” Id. at 27. It is hard for me to The majority cites a number of cases to show that courts have held that states have standing to sue the federal government. Majority Op. at 12–13. Many of these cases are inapposite. Alaska v. U.S. Department of Transportation, 868 F.2d 441, 443–45 (D.C. Cir. 1989), found standing because the FAA, much like the CAA in Massachusetts, created a procedural right to sue available to states. The court in Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 272 (4th Cir. 2011), actually denied standing. And Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982), Diamond v. Charles, 476 U.S. 54 (1986), and Maine v. Taylor, 477 U.S. 131 (1986), did not involve federal–state suits. It is true that courts found state standing against the federal government in Ohio ex rel. Celebrezze v. U.S. Department of Transportation, 766 F.2d 228, 232–33 (6th Cir. 1985), Texas Office of Public Utility v. Federal Communications Commission, 183 F.3d 393, 449 (5th Cir. 1999), Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1241–44 (10th Cir. 2008), and New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 696 n.13 (10th Cir. 2009), respectively. However, Celebrezze preceded the Supreme Court’s more rigorous standing cases (i.e., post-Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)). And Texas Office of Public Utility, Crank, and Richardson offered very cursory examinations of state standing bereft of the sweeping language the majority uses today. 15 81 Case: 15-40238 Document: 00513286295 Page: 82 Date Filed: 11/25/2015 No. 15-40238 see the bounds of the majority’s broad ruling. Circuit Judge Alvin B. Rubin of this court once wrote that “[a]ny appellate opinion worth publishing should not merely give a reasoned disposition of the particular matter; it should, in addition, articulate a standard or a rule that can be applied by lawyers and judges in future cases.” Alvin B. Rubin, Views From the Lower Court, 23 UCLA L. Rev. 448, 451 (1976). Anything else is a “‘railway ticket’ decision—good only for this day and station.” Id. Today’s decision is either just such a “railway ticket” (which, we are told, it actually aspires to be) or a broad, new-fangled concept of state standing with little instruction going forward. Apart from its “special solicitude” analysis, the majority also holds that Texas has standing because it suffered an injury-in-fact traceable to DAPA. This injury results from two independent decisions made by Texas: (1) an alleged decision to underwrite the costs of issuing driver’s licenses to all applicants; and (2) a decision to allow deferred action recipients to apply for driver’s licenses. The majority claims, at length, that there is a “pressure to change state law,” Majority Op. at 13, because the DAPA Memorandum has the downstream effect of expanding the pool of potential Texas driver’s license applicants, thus increasing the costs Texas has made the choice to bear. This “pressure” is entirely manufactured by Plaintiffs for this case, and the majority and the district court have signed on. Nothing in the DAPA Memorandum suggests changes in state law. And I am skeptical that an incidental increase in state costs is sufficient to confer standing for the purposes of Article III. See Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (“No State can be heard to complain about damage inflicted by its own hand.”). But see Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992) (holding a state had standing to sue another state when it suffered “a direct injury in the form of a loss of specific 82 Case: 15-40238 Document: 00513286295 Page: 83 Date Filed: 11/25/2015 No. 15-40238 tax revenues”). 16 Such a theory of standing—based on the indirect economic effects of agency action—could theoretically bestow upon states standing to challenge any number of federal programs as well (assuming states have the motivation to create the factual record to support those economic effects). I have serious misgivings about any theory of standing that appears to allow limitless state intrusion into exclusively federal matters—effectively enabling the states, through the courts, to second-guess federal policy decisions— especially when, as here, those decisions involve prosecutorial discretion. See AIRC, 135 S. Ct. at 2665 n.12 (“The Court’s standing analysis . . . has been ‘especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.’” (quoting Raines v. Byrd, 521 U.S. 811, 819–20 (1997)). III. Justiciability I would conclude, as did Judge Higginson in dissenting from the denial of a stay in this action, that this case is non-justiciable. I write only to supplement Judge Higginson’s thorough and forceful analysis as to this issue, Recognizing the tension between these two cases, the majority claims that Texas’s injury is like that of Wyoming in Wyoming v. Oklahoma, and not like that of Pennsylvania in Pennsylvania v. New Jersey. But a principal difference in these cases was that Pennsylvania, like Texas, tied its law to that of another sovereign, whereas Wyoming did not. See Pennsylvania, 426 U.S. at 663 (“Pennsylvania permits a tax credit to any of its residents for income taxes paid to other States, including, of course, New Jersey.”). The majority asserts that forcing Texas to change its laws would be an injury because states have “a sovereign interest in ‘the power to create and enforce a legal code.’” Majority Op. at 19 (footnote omitted). Yet if that is enough of an injury, then presumably Pennsylvania should have had standing in Pennsylvania v. New Jersey, as Pennsylvania was faced with an instance where it could avoid injury but would have had to change its laws by “withdrawing th[e] credit for taxes paid to New Jersey.” Pennsylvania, 426 U.S. at 664. The Court found that this was not a traceable injury, suggesting Texas’s injury today is similarly “selfinflicted.” Id. 16 83 Case: 15-40238 Document: 00513286295 Page: 84 Date Filed: 11/25/2015 No. 15-40238 with which I agree in full. See generally Texas v. United States, 787 F.3d 733, 769–84 (5th Cir. 2015) (Higginson, J., dissenting). Plaintiffs concede that if the DAPA Memorandum is only an exercise in enforcement discretion—without granting any “additional benefits”—it is unreviewable under 5 U.S.C. § 701(a). 17 See Majority Op. at 54 n.156 (recognizing that “a nonenforcement policy . . . presumptively would be committed to agency discretion”); see also Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“[A]n 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.”); Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997) (“An agency’s decision not to take enforcement actions is unreviewable . . . .”). Even the district court concluded that “decisions as to how to marshal DHS resources, how to best utilize DHS manpower, and where to concentrate its activities are discretionary decisions solely within the purview of the Executive Branch.” Dist. Ct. Op., 86 F. Supp. 3d at 645. But those are exactly the type of decisions the DAPA Memorandum contemplates. The Memorandum is a statement embodying the Secretary’s tentative decision, based on an assessment of the best uses of DHS’s limited resources and under his congressionally delegated authority to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), not to remove qualifying applicants for a certain period of time. In other words, deferred action itself is merely a brand of “presumptively unreviewable” prosecutorial 8 C.F.R. § 274a.12(c)(14) discretion. (describing Majority “deferred action” Op. as at “an 35; act see of For this very reason, Plaintiffs do not challenge the Enforcement Priorities Memorandum. See Majority Op. at 35 (“[T]he states have not challenged the priority levels [the Secretary] has established.” (footnote omitted)). 17 84 Case: 15-40238 Document: 00513286295 Page: 85 Date Filed: 11/25/2015 No. 15-40238 administrative convenience to the government which gives some cases lower priority”); see also Reno, 525 U.S. at 483–84 (“At each stage [of the removal process] the Executive has discretion to abandon the endeavor, [including by] engaging in a regular practice (which had come to be known as ‘deferred action’) of exercising that discretion for humanitarian reasons or simply for its own convenience.”); Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 545 n.3 (5th Cir. 2013) (en banc) (Dennis, J., concurring) (describing DACA as an “exercise of . . . prosecutorial discretion”); Arpaio, 2015 WL 4772774, at *3 (“One form of discretion the Secretary of Homeland Security exercises is ‘deferred action,’ which entails temporarily postponing the removal of individuals unlawfully present in the United States.”); 6 Charles Gordon et al., Immigration Law & Procedure § 72.03[2][h] (2014) (“To ameliorate a harsh and unjust outcome, the immigration agency may decline to institute proceedings, may terminate proceedings, or may decline to execute a final order of deportation. This commendable exercise in administrative discretion . . . is now designated as deferred action.”); Steel on Immigration Law § 14:42 (2014) (defining “deferred action” as the exercise of “discretionary authority by Immigration and Customs Enforcement, before or after a removal proceeding, not to remove the alien”). Much like pretrial diversion in the criminal context—which also developed over a period of decades without express statutory authorization—deferred action channels limited resources by allowing certain low-priority offenders to work openly and contribute taxes, thus reducing their burden on the system. Notably, such prosecutorial discretion is heightened in the immigration context. See Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (“A principal feature of the 85 Case: 15-40238 Document: 00513286295 Page: 86 Date Filed: 11/25/2015 No. 15-40238 removal system is the broad discretion exercised by immigration officials.”); 18 Reno, 525 U.S. at 490 (stating that concerns of judicial intrusion into enforcement decisions “are greatly magnified in the deportation context”); see also 8 U.S.C. § 1252(g) (stripping courts of jurisdiction “to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien”). To the extent the exercise of deferred action “trigger[s]” other benefits, those are not new or “associated” benefits contained within the DAPA Memorandum itself. Majority Op. at 35–36. 19 Rather, those benefits are a function of statutes and regulations that were enacted by Congresses and administrations long past—statutes and regulations which, vitally, Plaintiffs do not challenge in this action. The ability to apply for work authorization, the benefit on which the district court most heavily relied, has been tied to deferred action by a federal regulation since the early 1980s. The most current such regulation, promulgated in 1987, states that “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority,” may apply for work authorization “if the alien establishes an economic necessity for employment.” 20 8 C.F.R. The majority repeatedly cites Arizona to support its position, including an assertion that “[t]he pervasiveness of federal regulation does not diminish the importance of immigration policy to the States.” Majority Op. at 29–30 (citing Arizona, 132 S. Ct. at 2500). To say the least, the majority’s reliance on Arizona is misplaced. Arizona repeatedly approved of broad discretion in federal immigration enforcement and actually held that a state law concerning immigration was preempted. 18 Nor does the DAPA Memorandum do anything to change the eligibility criteria for these benefits. 19 A predecessor regulation enacted in 1981 similarly stated that “[a]ny alien in whose case the district director recommends consideration of deferred action, an act of administrative convenience to the government which gives some cases lower priority” may apply for work authorization “[p]rovided, [t]he alien establishes to the satisfaction of the district director that he/she is financially unable to maintain himself/herself and family 20 86 Case: 15-40238 Document: 00513286295 Page: 87 Date Filed: 11/25/2015 No. 15-40238 § 274a.12(c)(14). It is this regulation, not the DAPA Memorandum, which affords those granted deferred action the ability to apply for work authorization. Plaintiffs did not challenge the validity of this regulation, 21 and for good reason—it was promulgated via the notice-and-comment process. 22 The majority nevertheless states that § 274a.12(c)(14) as applied “to any class of illegal aliens whom DHS declines to remove—is beyond the scope of what the INA can reasonably be interpreted to authorize.” Majority Op. at 40. This broad holding is very damaging to DHS’s immigration enforcement policy, which has operated, from time to time, on a class-wide basis. It stems from a deeply flawed reading of the INA that I discuss below. Each of the other benefits relied on by the district court and the majority—not one of which is even mentioned on the face of the DAPA Memorandum—results, if at all, from prior statutes and notice-and-comment regulations: (1) the suspension of the accrual of certain time periods for without employment.” 46 Fed. Reg. 25,079, 25,081 (May 5, 1981) (formerly codified at 8 C.F.R. § 109.1(b)(6)). Plaintiffs suggested at oral argument that they were challenging the statutory underpinnings of 8 C.F.R. § 274a.12(c)(14), but that position is inconsistent with their briefing on appeal, in which they contend that the work authorization regulation “is not facially invalid,” and in which they “assum[e] arguendo that the regulation is valid in all applications.” Appellees’ Br. 21 n.9. Moreover, throughout this litigation, Plaintiffs stated that they were challenging only the validity of the DAPA Memorandum; this is underscored by the complaint, which does not mention any challenge to the validity of 8 C.F.R. § 274a.12(c)(14). In any event, Plaintiffs’ minimal and inconsistent briefing as to this issue cannot be considered sufficient to mount a challenge to a notice-and-comment regulation that has been on the books for decades, and we should not decide this issue. See United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (“A party that asserts an argument on appeal, but fails to adequately brief it, is deemed to have waived it. It is not enough to merely mention or allude to a legal theory.” (internal citations omitted)). 21 Congress, of course, can limit those to whom work authorization is granted, see 8 U.S.C. § 1226(a)(3) (barring the Attorney General from granting work authorization to aliens who are “arrested and detained pending a decision on whether the alien is to be removed from the United States”), but it has not done so with respect to those eligible for deferred action under DAPA. 22 87 Case: 15-40238 Document: 00513286295 Page: 88 Date Filed: 11/25/2015 No. 15-40238 purposes of the INA’s illegal reentry bars; 23 (2) eligibility for certain Social Security and Medicare benefits; 24 and (3) the ability to obtain a Social Security number. 25 Like work authorization, these benefits are conferred not by the DAPA Memorandum, but by federal statutes or notice-and-comment regulations that are not being directly challenged in this case. And to the extent there are “state benefits,” Majority Op. at 36, to individuals granted deferred action, those benefits stem from state statutes or regulations, none of which is being challenged here. Accordingly, DAPA itself grants no new rights or benefits. It merely announces guidelines for the granting of deferred action (which may trigger benefits under this framework of preexisting law) in an effort to “encourage [qualifying individuals] to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . and be See 8 U.S.C. § 1182(a)(9)(B)(ii) (passed in 1997) (stating that “[f]or purposes of [the illegal entry bars], an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled” (emphasis added)); Dhuka v. Holder, 716 F.3d 149, 156 (5th Cir. 2013) (“‘[A]uthorized by the Attorney General’ describes an exercise of discretion by a public official.” (quoting 8 U.S.C. § 1182(a)(9)(B)(ii))). DHS contends that this “benefit” is largely irrelevant here, as the vast majority of potential DAPA recipients have already accrued sufficient unlawful presence to trigger these statutory bars to admissibility. 23 See 8 U.S.C. § 1611(b)(2)–(3) (passed in 1997) (stating that aliens “lawfully present in the United States as determined by the Attorney General” are not barred from receiving certain Social Security and Medicare benefits); 8 C.F.R. § 1.3(a)(4)(vi) (promulgated in 2011) (defining an “alien who is lawfully present in the United States” to include “[a]liens currently in deferred action status”). 24 See 20 C.F.R. § 422.104(a)(2) (promulgated in 2003) (stating that “[a]n alien . . . under other authority of law permitting [the alien] to work in the United States” is “eligible for SSN assignment”); 20 C.F.R. § 422.105(a) (promulgated in 2004) (stating that “a current document authorized by [DHS] that verifies authorization to work has been granted” is sufficient documentation “to enable SSA to issue an SSN card that is valid for work”). Under preexisting statutes and regulations, obtaining a Social Security number may also trigger other benefits, such as earned income tax benefits. See 26 U.S.C. § 32(c)(1)(E), (m) (passed in 1997). 25 88 Case: 15-40238 Document: 00513286295 Page: 89 Date Filed: 11/25/2015 No. 15-40238 counted.” 26 Appx. A, at 3. Even absent this announcement, the above benefits would attach to any grant of deferred action. These tangible benefits aside, the majority concludes that the term “lawful presence” itself constitutes a benefit bestowed by the DAPA Memorandum because it is “a change in designation that confers eligibility for substantial federal and state benefits on a class of otherwise ineligible aliens.” Majority Op. at 38. The majority ascribes some added importance to “lawful presence.” The Memorandum uses the phrase “lawful presence” to describe what deferred action is: “Deferred action . . . simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” Appx. A, at 2. As the Memorandum makes clear, “[d]eferred action does not confer any form of legal status in this country, much less citizenship,” and it “may be terminated at any time at the agency’s discretion.” Id. at 2; see also Dhuka, 716 F.3d at 156 (“We conclude that ‘lawful status’ implies a right protected by law, while ‘[lawful presence]’ describes an exercise of discretion by a public official.”); Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013) (“It is entirely possible for aliens to be lawfully present (i.e., in a ‘period of stay authorized by the Attorney General’) even though their lawful status has expired.”). Thus, “lawful presence” does not “confer[] legal status upon its recipients,” Dist. Ct. Op., 86 F. Supp. 3d at 637 n.45 (emphasis added), nor does it constitute “a change in designation,” Majority Op. at 38. Rather, both “lawful presence” and “deferred action” refer to nothing more than DHS’s tentative decision, revocable at any time, not to remove an individual for the time being—i.e., the decision to exercise prosecutorial discretion. Even the majority Of course, the DAPA Memorandum itself does not grant anyone deferred action. Those decisions will be made in the future by DHS agents guided by the DAPA Memorandum. 26 89 Case: 15-40238 Document: 00513286295 Page: 90 Date Filed: 11/25/2015 No. 15-40238 acknowledges that, at its core, “deferred action [is] a nonprosecution decision.” Id. at 37 (citing Reno, 525 U.S. at 484). 27 The Memorandum provides guidelines for this exercise of prosecutorial discretion, and thus falls squarely within DHS’s “broad discretion to ‘decide whether it makes sense to pursue removal at all.’” Id. at 34; see also Dist. Ct. Op., 86 F. Supp. 3d at 645 (noting the Secretary’s “virtually unlimited discretion when prioritizing enforcement objectives and allocating its limited resources”). Accordingly, precedent compels the conclusion that this case is non-justiciable. 28 See Texas, 106 F.3d at 667 (concluding that an “allegation that defendants have failed to enforce the immigration laws . . . is not subject to judicial review . . . because a court has no workable standard against which to judge the agency’s exercise of discretion”); see also Heckler, 470 U.S. at 831 (noting “the general unsuitability for judicial review of agency decisions to refuse enforcement”); Johns v. Dep’t of Justice, 653 F.2d 884, 893 (5th Cir. 1981) (“Th[e] discretion [to commence deportation proceedings] is, like prosecutorial discretion, immune from review in the courts.”). That a prior statute or regulation ties a benefit to the exercise of prosecutorial discretion does not make that ordinarily unreviewable exercise of prosecutorial discretion reviewable or turn it into “affirmative agency action.” Majority Op. at 39. Rather, the challenge is properly leveled at the prior legislation that does the Strangely, the majority cites to Reno to support its conclusion that Plaintiffs’ claims are justiciable. Reno stressed the broad discretion afforded to federal immigration officials and found the case at hand to be non-justiciable based on certain jurisdiction-stripping provisions of the INA. Reno, 525 U.S. at 484–92. 27 This approach would not, as Plaintiffs suggest, constitute a “novel extension of Heckler,” allowing DHS to insulate grants of benefits from judicial review by attaching them to any enforcement policy. Appellees’ Br. 18. Rather, the crucial fact rendering this action non-justiciable is that the benefits at issue are not being granted by the Memorandum itself. Thus, Plaintiffs’ doomsday scenario of DHS “grant[ing] . . . voting rights . . . in conjunction with a non-removal policy,” Appellees’ Br. 18–19, would certainly be reviewable, as no preexisting statute or regulation grants voting rights to deferred action recipients. 28 90 Case: 15-40238 Document: 00513286295 Page: 91 Date Filed: 11/25/2015 No. 15-40238 tying. See U.S. Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1156 (5th Cir. 1984) (deeming a rule non-substantive where the rule’s “substantive effect . . . is purely derivative” of preexisting statutes and regulations). Plaintiffs’ failure to formally challenge the statutes and regulations discussed above—either through the political process at the time of their enactment or in this litigation—does not change the equation. It is always a risk that a different administration will be more generous with its discretion than the one in place at the time the statutes or regulations are passed. Moreover, that these decisions will likely be made with respect to a large number of individuals, and that DHS seeks to organize the process by memorializing these decisions and notifying applicants of the results, does not transform deferred action into anything other than an exercise of prosecutorial discretion. Rather, as noted above, the scale of this policy is a direct function of Congress’s past appropriations decisions. Nor can it possibly be maintained that this exercise of prosecutorial discretion may be reviewed because DHS, which has been removing individuals from the United States in record numbers, “‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 29 Heckler, 470 U.S. at 833 n.4. Although Plaintiffs may prefer a different approach to immigration In determining that DHS has adopted such a policy, the district court reasoned that “the Government here is ‘doing nothing to enforce’ the removal laws against a class of millions of individuals.” Dist. Ct. Op., 86 F. Supp. 3d at 663 (quoting Texas, 106 F.3d at 667). But by cabining its sample size only to DAPA-eligible individuals, and ignoring DHS’s record number of enforcement efforts against others, the district court’s conclusion was preordained. Under the district court’s logic, if DHS grants deferred action to ten individuals, it would have “abdicated its duty” to enforce the immigration laws as to those ten individuals— rendering that action reviewable. Reading Heckler’s narrow exception so broadly would swallow the general rule that “an agency’s decision not to take enforcement action should be presumed immune from judicial review.” Heckler, 470 U.S. at 832. The majority does not appear to endorse this misrepresentation today. 29 91 Case: 15-40238 Document: 00513286295 Page: 92 Date Filed: 11/25/2015 No. 15-40238 enforcement, they “do[] not contend that federal defendants are doing nothing to enforce the immigration laws.” Texas, 106 F.3d at 667 (emphasis added). As we have stated, “[r]eal or perceived inadequate enforcement of immigration laws does not constitute a reviewable abdication of duty.” Id.; see also Heckler, 470 U.S. at 834 (“The danger that agencies may not carry out their delegated powers with sufficient vigor does not necessarily lead to the conclusion that courts are the most appropriate body to police this aspect of their performance.”). Finally, I would note that characterizing any “associated” benefits as flowing exclusively from the DAPA Memorandum—despite the fact that they stem from separate legal authorities—sets a dangerous precedent. The majority concludes that, in order to be reviewable, “DAPA need not directly confer public benefits”; merely “removing a categorical bar on receipt of those benefits and thereby making a class of persons newly eligible for them ‘provides a focus for judicial review.’” Majority Op. at 37. Under this logic, any non-enforcement decision that triggers a collateral benefit somewhere within the background regulatory and statutory scheme is subject to review by the judiciary. As DHS notes, many exercises of prosecutorial discretion trigger such benefits. For example, a prosecutor’s decision to place an individual in a federal pretrial diversion program in lieu of prosecution may result in that individual receiving drug treatment. See Thomas E. Ulrich, Pretrial Diversion in the Federal Court System, Fed. Prob., Dec. 2002 at 30, 32. 30 At the very least, the majority’s reasoning would render reviewable every single exercise While the majority suggests DAPA is more than “nonprosecution” because it “remov[es] a categorical bar on [the] receipt of . . . benefits,” Majority Op. at 37, diversion also removes a categorical bar on the receipt of benefits as convicted drug offenders are otherwise ineligible for certain public benefits. See, e.g., 21 U.S.C. § 862a(a) (preventing these offenders from receiving TANF and food stamps). 30 92 Case: 15-40238 Document: 00513286295 Page: 93 Date Filed: 11/25/2015 No. 15-40238 of deferred action—programmatic or ad hoc—as any grant of deferred action triggers benefits under the statutes and regulations discussed above. While the district court distinguished away many past exercises of deferred action as “different in kind and scope” from DAPA for the purposes of reviewability, 31 Dist. Ct. Op., 86 F. Supp. 3d at 664, the majority does not cabin its conclusion. In fact, it suggests that all exercises of deferred action would be subject to judicial scrutiny. Majority Op. at 35 (“Deferred action . . . is much more than nonenforcement.”) This is logic to which I cannot subscribe. Because the DAPA Memorandum contains only guidelines for the exercise of prosecutorial discretion and does not itself confer any benefits to DAPA recipients, I would deem this case non-justiciable. The policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process. That this case essentially boils down to a policy dispute is underscored not only by the dozens of amicus briefs filed in this case by interested parties across the ideological spectrum—Mayors, Senators, Representatives, and law enforcement officials, among others—but also by the district court’s opinion, which repeatedly expresses frustration that the Secretary is “actively act[ing] to thwart” the immigration laws and “is not just rewriting the laws [but is] creating them from scratch.” Dist. Ct. Op., 86 F. Supp. 3d at 663. The majority’s observation that this suit involves “policy disagreements masquerading as legal claims” is also telling. Majority Op. at 27. Whether or not the district court’s characterization of this case is accurate—though the record number of removals in recent years demonstrates that it is not—to the extent some are As noted by DHS and various amici, the granting of deferred action—even to whole classes of individuals—has occurred for decades, under both Republican and Democratic administrations. 31 93 Case: 15-40238 Document: 00513286295 Page: 94 Date Filed: 11/25/2015 No. 15-40238 unhappy with the vigor of DHS’s enforcement efforts, their remedies lie in the political process, not in litigation. See Mathews v. Diaz, 426 U.S. 67, 81 (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.”). Congress is free to constrain DHS’s discretion, and, ultimately, the voters are free to express their approval or disapproval of DAPA through their choice of elected officials. See Lincoln v. Vigil, 508 U.S. 182, 193 (1993) (“[W]e hardly need to note that an agency’s decision to ignore congressional expectations may expose it to grave political consequences.”). Accordingly, this case should be dismissed on justiciability grounds. However, for the sake of thoroughness and to correct serious errors committed by the district court in granting the preliminary injunction and the majority in affirming that grant, I discuss below the merits of both APA claims. IV. APA Procedural Claim Our precedent is clear: “As long as the agency remains free to consider the individual facts in the various cases that arise, then the agency action in question has not established a binding norm,” and thus need not go through the procedures of notice-and-comment. Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 596–97 (5th Cir. 1995) (citation omitted). 32 Therefore, As the Fifth Circuit has noted, in determining whether a rule is substantive, and thus subject to notice-and-comment procedures, we must “focus[] primarily on whether the rule has binding effect on agency discretion or severely restricts it.” Prof’ls & Patients, 56 F.3d at 595 (footnote omitted). Plaintiffs now appear to argue (for the first time) on appeal that regardless of the discretion it confers, the DAPA Memorandum is a substantive rule because it “changed the law” by granting benefits to 4.3 million individuals. But as discussed above, the DAPA Memorandum itself confers no additional benefits. Moreover, the scale of the program has no bearing on the substantive rule inquiry—i.e., whether the policy will be administered with case-by-case discretion. See id.; McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988) (“The question for purposes of [5 U.S.C.] § 553 is whether a statement is a rule of present binding effect; the answer depends on whether the statement constrains the agency’s discretion.”). Indeed, Plaintiffs put it best in a letter brief filed with 32 94 Case: 15-40238 Document: 00513286295 Page: 95 Date Filed: 11/25/2015 No. 15-40238 in order for Plaintiffs to establish a substantial likelihood of success on the merits—the required showing for a preliminary injunction, Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 452 (5th Cir. 2014)—Plaintiffs bore the burden of demonstrating that the Memorandum was non-discretionary. As the majority admits, the Memorandum “facially purports to confer discretion.” Majority Op. at 44. But the district court ignored this clear language, concluding that agency officials implementing DAPA will defy the Memorandum and simply rubberstamp applications. In so doing, the district court disregarded a mountain of highly probative evidence from DHS officials charged with implementing DAPA, relying instead on selected excerpts of the President’s public statements, facts relating to a program materially distinguishable from the one at issue here, and improper burden-shifting. The majority now adopts the district court’s conclusions wholesale and without question. Id. at 50. For the reasons set out below, I would hold that the Memorandum is nothing more than a general statement of policy and that the district court’s findings cannot stand, even under clear error review. A. The Language and Substance of the DAPA Memorandum In determining whether the DAPA Memorandum constitutes a substantive rule, we must begin with the words of the Memorandum itself. See Prof’ls & Patients, 56 F.3d at 596. The Memorandum states that it reflects “new policies,” Appx. A, at 1, and “guidance for case-by-case use of deferred action,” Appx. A, at 3. Accordingly, the Secretary characterizes the Memorandum as a “general statement[] of policy”—which is not subject to the notice-and-comment process. 5 U.S.C. § 553(b)(3)(A); see also Prof’ls & Patients, 56 F.3d at 596 (“[T]he description as ‘policy’ in the [statement] the district court: “To be sure, ‘case-by-case discretion’ determines whether the [Memorandum] is a ‘substantive rule’ under the APA.” 95 Case: 15-40238 Document: 00513286295 Page: 96 Date Filed: 11/25/2015 No. 15-40238 itself . . . militate[s] in favor of a holding that [the statement] is not a substantive rule.”). The Memorandum also repeatedly references (more than ten times) the discretionary, “case-by-case” determinations to be made by agents in deciding whether to grant deferred action. It emphasizes that, despite the criteria contained therein, “the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.” 33 Appx. A, at 5; see also Ass’n of Flight Attendants-CWA v. Huerta, 785 F.3d 710, 717 (D.C. Cir. 2015) (stating that a document “riddled with caveats is not” likely to constitute a substantive rule); Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986) (Scalia, J.) (concluding that agency guidelines for determining when to take enforcement action against mine operators did not constitute a substantive rule where “[t]he language of the guidelines is replete with indications that the Secretary retained his discretion to cite production-operators as he saw fit”). Indeed, this court has already recognized the “discretion expressly granted under” DAPA—discretion that allows “agent[s] to deal with each alien on a case by case basis.” Crane v. The Memorandum also states that (1) “DHS must exercise prosecutorial discretion in the enforcement of the law”; (2) our 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 basis, and it may be terminated at any time at the agency’s discretion”; (5) “[h]istorically, deferred action has been used . . . on a case-by-case basis”; (6) “I am now expanding certain parameters of DACA and issuing guidance for caseby-case use of deferred action”; (7) “[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”; (8) “I hereby direct USCIS to establish a process . . . for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis”; (9) “ICE is . . . instructed to review pending removal cases . . . of individuals identified who meet the above criteria, and to refer such individuals to USCIS for case-by-case determinations”; and (10) “[i]t remains within the authority of the Executive Branch . . . to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law.” Appx. A, at 1–5. 33 96 Case: 15-40238 Document: 00513286295 Page: 97 Date Filed: 11/25/2015 No. 15-40238 Johnson, 783 F.3d 244, 255 (5th Cir. 2015) (concluding that, on the record in Crane, the plaintiffs lacked standing to challenge DACA). The discretionary nature of the DAPA Memorandum is further supported by the policy’s substance. Although some of the Memorandum’s criteria can be routinely applied, 34 many will require agents to make discretionary judgments as to the application of the respective criteria to the facts of a particular case. For example, agents must determine whether an applicant “pose[s] a danger to national security,” Appx. B, at 3, whether the applicant is “a threat to . . . border security” or “public safety,” Appx. B, at 4, and whether the applicant has “significantly abused the visa or visa waiver programs,” 35 Appx. B, at 4. Such criteria cannot be mechanically applied, but rather entail a degree of judgment; in other words, they are “imprecise and discretionary—not exact and certain.” 36 Prof’ls & Patients, 56 F.3d at 600 (concluding that an FDA policy delineating nine factors the agency should consider in determining whether to bring an enforcement action did not constitute a substantive rule). This aspect of the DAPA Memorandum appears to have been overlooked by the district court, which—in analyzing whether the Memorandum allows for case-by-case discretion—was fixated on the extent to which applicants meeting DAPA’s criteria would nonetheless be denied For example: whether the applicant has “a son or daughter who is a U.S. citizen or lawful permanent resident.” Appx. A, at 4. 34 Although these criteria come from the Enforcement Priorities Memorandum, the DAPA Memorandum incorporates these criteria into its own, stating that deferred action may be granted to individuals who “are not an enforcement priority as reflected in the” Enforcement Priorities Memorandum. Appx. A, at 4. 35 Similarly, an agent implementing the DACA Memorandum must make the threshold discretionary determinations of whether the applicant has been convicted of “a significant misdemeanor,” and whether the applicant “poses a threat to national security or public safety.” And as we concluded in Crane, the DACA Memorandum too “makes it clear that the Agents shall exercise their discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis.” Crane, 783 F.3d at 254–55. 36 97 Case: 15-40238 Document: 00513286295 Page: 98 Date Filed: 11/25/2015 No. 15-40238 deferred action. 37 Such an approach ignores the fact that applying these threshold criteria itself involves an exercise of discretion. Most strikingly, the last criterion contained in the DAPA Memorandum is entirely open-ended, stating that deferred action should be granted only if the applicant “present[s] no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” Appx. A, at 4. The Memorandum does not elaborate on what such “other factors” should be considered—leaving this analysis entirely to the judgment of the agents processing the applications. This court has held that such a caveat “express[ing] that [a] list of . . . factors is neither dispositive nor exhaustive,” “clearly leaves to the sound discretion of the agency in each case the ultimate decision whether to bring an enforcement action.” Prof’ls & Patients, 56 F.3d at 600–01. Indeed, construing the DAPA memorandum as a categorical grant of deferred action for all applicants meeting the other DAPA criteria would render this last criterion meaningless. Cf. Brock, 796 F.2d at 538. Thus, due to the presence of these various flexible and indefinite criteria, the DAPA Memorandum is not a substantive rule that “so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule’s criterion.” Huerta, 785 F.3d at 718 (citation omitted); cf. Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1113 (D.C. Cir. 1974) (concluding that the “formula like” guidance for determining the length of parole constituted a substantive rule, as it involved the “purely mechanical operation” of computing a score using exclusive criteria). The majority perpetuates this error today by accepting the district court’s characterizations of DAPA without question—despite recognizing that there was “conflicting evidence” below and that extrapolating DAPA from DACA needed to “be done carefully.” Majority Op. at 47, 49. 37 98 Case: 15-40238 Document: 00513286295 Page: 99 Date Filed: 11/25/2015 No. 15-40238 As Judge Kavanaugh, writing for the D.C. Circuit, has stated, “[t]he most important factor” in distinguishing between a substantive rule and a general statement of policy “concerns the actual legal effect (or lack thereof) of the agency action in question on regulated entities.” Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 252 (D.C. Cir. 2014). Here, the Memorandum makes clear that it “confers no substantive right, immigration status or pathway to citizenship.” Appx. A, at 5. The majority suggests that DAPA “modifies substantive rights and interests,” by “conferring lawful presence on 500,000 illegal aliens” and forcing Texas to change its laws. Majority Op. at 50–51. None of this appears on the face of the Memorandum though. 38 In fact, nothing in the Memorandum indicates that it is legally binding—i.e., that an applicant who is not granted deferred action can challenge that decision in court, or that DHS would be barred from removing an applicant who appears to satisfy the Memorandum’s criteria. See Tex. Sav. & Cmty. Bankers Ass’n v. Fed. Hous. Fin. Bd., 201 F.3d 551, 556 (5th Cir. 2000) (“Substantive or legislative rules affect individual rights and obligations and are binding on the courts.”); cf. Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 948 (D.C. Cir. 1987) (per curiam) (deeming enforcement criteria a substantive rule where, “[a]s FDA conceded at oral argument, it would be daunting indeed to try to convince a court that the agency could appropriately prosecute a producer [who did not meet the agency’s criteria for enforcement]”). Nor does anyone assert that the Memorandum “impose[s] any obligation or prohibition on regulated entities,” i.e., the potential DAPA applicants. 39 Huerta, 785 F.3d at 717; cf. Heckler, “Lawful presence,” as previously indicated, is also not a substantive right, but rather a form of nonprosecution that can be revoked at any time. Any purported harm to Texas is incidental and not contemplated by DAPA. 38 The majority suggests that there is a “burden imposed on Texas” by DAPA and even then concedes that this “is derivative of issuing lawful presence to beneficiaries.” 39 99 Case: 15-40238 Document: 00513286295 Page: 100 Date Filed: 11/25/2015 No. 15-40238 470 U.S. at 832 (“[W]hen an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect.”). Moreover, even absent the DAPA Memorandum, DHS would have the authority to take the action of which Plaintiffs complain—i.e., by granting deferred action on an ad hoc basis. See McCarthy, 758 F.3d at 253 (“When the agency applies a general statement of policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.” (internal brackets omitted)). Accordingly, based on its language and substance, the Memorandum does not constitute a binding substantive rule subject to the requirements of notice-and-comment. The majority recognizes that the plain language of Memorandum “facially purports to confer discretion” and does not argue that DAPA creates a substantive rule from its four corners alone. Majority Op. at 44. Nonetheless, the district court reached the opposite conclusion. And it bears identifying the errors committed by the district court in holding that DAPA was a substantive rule on its face. The district court focused on the Memorandum’s “mandatory term[s], instruction[s], [and] command[s]”—in particular, the Secretary’s “direct[ion]” to USCIS to begin implementing DAPA. Dist. Ct. Op., 86 F. Supp. 3d at 671 n.103. But it should be no surprise that the Memorandum “direct[s]” the USCIS to establish a process for implementing this guidance, Appx. A, at 4; certainly the Secretary did not intend for it to be ignored, see Prof’ls & Patients, 56 F.3d at 599 (“[W]hat purpose would an agency’s statement of policy serve if agency employees could not refer to it for guidance?”). Although “the Majority Op. at 52. But the analysis centers on the effect of the policy statement on regulated entities, and Texas is plainly not regulated by or even mentioned in the DAPA Memorandum. 100 Case: 15-40238 Document: 00513286295 Page: 101 Date Filed: 11/25/2015 No. 15-40238 mandatory tone of the factors is undoubtedly calculated to encourage compliance,” such language does not transform a statement of policy into a substantive rule so long as there is “an opportunity for individualized determinations.” Id. at 597. Our discussion in Professionals and Patients is particularly instructive on this point: True, the FDA had even greater discretion in bringing enforcement actions before [the policy for determining whether to bring enforcement actions against pharmacies] issued; prior to that time inspectors were apparently provided with no official guidance whatsoever. In that sense, therefore, [the policy] has “channeled” the FDA’s enforcement discretion, providing direction—where once there was none—by helping to determine whether a pharmacy is engaged in traditional compounding or drug manufacturing. But all statements of policy channel discretion to some degree—indeed, that is their purpose. The more cogent question therefore is whether [the policy] is so restrictive in defining which pharmacies are engaged in drug manufacturing that it effectively removes most, if not all, of the FDA’s discretion in deciding against which pharmacies it will bring an enforcement action. We cannot read [the policy] that restrictively. Id. at 600. Nor should the DAPA Memorandum be read so restrictively. Its channeling of agency enforcement discretion—through the use of nonexhaustive, flexible criteria—is entirely consistent with a non-substantive rule. See, e.g., Nat’l Roofing Contractors Ass’n v. U.S. Dep’t of Labor, 639 F.3d 339, 341–42 (7th Cir. 2011) (“The Secretary committed to paper the criteria for allowing regulatory violations to exist without redress, a step essential to control her many subordinates. This does not make the exercise less discretionary.”); Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. 101 Case: 15-40238 Document: 00513286295 Page: 102 Date Filed: 11/25/2015 No. 15-40238 Corp., 589 F.2d 658, 667 (D.C. Cir. 1978) (“The mandatory tone of the specifications for audits and auditors doubtless encourages compliance. However, an opportunity for an individualized determination is afforded.”); see also Kast Metals Corp., 744 F.2d at 1152 n.13 (“[A]gency instructions to agency officers are not legislative rules.”). This is the law for good reason. Requiring each and every policy channeling prosecutorial discretion to go through the notice-and-comment process would perversely encourage unwritten, arbitrary enforcement policies. The plain language of the Memorandum cannot be characterized as “draw[ing] a ‘line in the sand’ that, once crossed, removes all discretion from the agency.” Prof’ls & Patients, 56 F.3d at 601. Furthermore, the fact that the DAPA Memorandum relates to two areas in which courts should be reluctant to interfere—immigration and prosecutorial discretion—counsels in favor of concluding that it does not constitute a substantive rule. See Brock, 796 F.2d at 538 (“Our decision [that the rule is non-substantive] is reinforced by the fact that the statement here in question pertains to an agency’s exercise of its enforcement discretion—an area in which the courts have traditionally been most reluctant to interfere.”). Rather than relying on the language of the Memorandum, the majority concludes that DAPA is a substantive rule because it “would not genuinely leave [DHS] and its employees free to exercise discretion” in practice. Majority Op. at 50; see also Prof’ls & Patients, 56 F.3d at 595 (quoting Young, 818 F.2d at 946). But in doing so, the majority relies unquestioningly on the district court’s finding that the discretionary language in DAPA was “merely pretext” and that DHS officials would not exercise case-by-case discretion of removals under DAPA. Majority Op. at 44; see also id. at 52 (“DAPA establishes ‘the substantive standards by which the [agency] evaluates 102 Case: 15-40238 Document: 00513286295 Page: 103 Date Filed: 11/25/2015 No. 15-40238 applications.” (alterations in original)). The district court’s finding was clearly erroneous, however, and I turn to it next. B. Evidence of Pretext The district court erred not only in its analysis of the legal effect of the DAPA Memorandum, but also in its resolution of the facts. By eschewing the plain language of the Memorandum, and concluding that its discretionary aspects are “merely pretext,” Dist. Ct. Op., 86 F. Supp. 3d at 669 n.101, the district court committed reversible error. To the extent the district court’s pretext conclusion constitutes a factual finding entitled to “clear error” review, that does not mean that we “rubber stamp the district court’s findings simply because they were entered.” McLennan v. Am. Eurocopter Corp., 245 F.3d 403, 409 (5th Cir. 2001). Rather, “[c]lear error exists when this court is left with the definite and firm conviction that a mistake has been made.” Ogden v. Comm’r, 244 F.3d 970, 971 (5th Cir. 2001) (per curiam). I am left with such a conviction for three independent reasons: (1) the record lacks any probative evidence of DAPA’s implementation; (2) the district court erroneously equated DAPA with DACA; and (3) even assuming DAPA and DACA can be equated, the evidence of DACA’s implementation fails to establish pretext. It is true that the plain language of the Memorandum—which, in the majority’s words, “facially purports to confer discretion”—may not be conclusive if rebutted by “what the agency does in fact.” Prof’ls & Patients, 56 F.3d at 596. Here, however, there is no such evidence of what the agency has done “in fact,” as DAPA has yet to be implemented. The district court ruled even before it had “an early snapshot” of the policy’s implementation. McCarthy, 758 F.3d at 253 (stating that, “because . . . recently issued guidance will have been implemented in only a few instances,” courts “look[ing] to postguidance events to determine whether the agency has applied the guidance as 103 Case: 15-40238 Document: 00513286295 Page: 104 Date Filed: 11/25/2015 No. 15-40238 if it were binding” must rely on “an early snapshot”). 40 Plaintiffs have cited no authority, and I am not aware of any, deeming a statement of policy pretextual without direct evidence of the policy’s implementation. Cf. Interstate Nat. Gas Ass’n of Am. v. FERC, 285 F.3d 18, 60 (D.C. Cir. 2002) (“[I]f there have so far been any applications of the [agency]’s policy, neither side has seen fit to bring it to our attention. So there is no basis here for any claim that the [agency] has actually treated the policy with the de facto inflexibility of a binding norm.”). Nor should pretext be found here absent such evidence. As noted at the outset, courts should not be quick to conclude that when a coordinate branch of government describes a policy as discretionary, it does not mean what it says. How, then, did the district court reach the conclusion that the DAPA Memorandum’s express inclusion of case-by-case discretion is “merely pretext”? First, the district court selectively relied on public statements the President made in describing the DAPA Memorandum to the public. Majority Op. at 46. But there is no precedent for a court relying on such general pronouncements in determining a program’s effect on the agency and on those being regulated. As Judge Higginson aptly noted in his dissent from As several amici argue, a challenge to a statement of policy as pretextual may be unripe prior to the policy’s implementation. For example, where: 40 [T]he facts are so wholly ambiguous and unsharpened as not to present a purely legal question ‘fit . . . for judicial decision,’ and where the agency’s characterization of its action would fit them cleanly into a § 553 exemption, . . . the most prudent course [is] to await the sharpened facts that come from the actual workings of the regulation in question before striking the objective down as violative of the APA. Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1056 (D.C. Cir. 1987) (first alteration in original) (internal citation omitted); see Hudson v. FAA, 192 F.3d 1031, 1034–35 (D.C. Cir. 1999); Pub. Citizen, Inc., 940 F.2d at 683. 104 Case: 15-40238 Document: 00513286295 Page: 105 Date Filed: 11/25/2015 No. 15-40238 the denial of the motion for a stay, “Presidents, like governors and legislators, often describe [a] law enthusiastically yet defend the same law narrowly.” Texas, 787 F.3d at 780 (Higginson, J., dissenting); see also Prof’ls & Patients, 56 F.3d at 599 (reasoning that “informal communications often exhibit a lack of ‘precision of draftsmanship’ and . . . internal inconsistencies” and thus are “entitled to limited weight”). 41 More importantly, the statements relied upon by the district court are not inconsistent with the DAPA Memorandum’s grant of discretion to agency decision makers. For example, the President’s statement that those who “meet the [DAPA] criteria . . . can come out of the shadows,” Dist. Ct. Op., 86 F. Supp. 3d at 668, does not suggest that applications will be rubberstamped, given that (as discussed above) those very criteria involve the exercise of discretion. Similarly, the President’s suggestion that agents who do not follow DAPA’s guidelines may suffer consequences does not support the conclusion that the Memorandum is pretextual. Rather, it supports the opposite conclusion—that the terms of the DAPA Memorandum, which incorporate case-by-case discretion, will be followed. An order to “use your discretion” is not a substantive rule. The district court’s reliance on language contained in DHS’s DAPA website—a source apparently not even cited by the parties and not mentioned by the majority—rests on even shakier ground. According to the district court, the DHS website’s characterization of DAPA as a “program” and an “initiative” somehow contradicts DHS’s position that the Memorandum constitutes “guidance.” Of course, DAPA may very well be all three, but this has no bearing on whether the Memorandum constitutes a substantive rule—i.e., The majority appears to endorse the district court’s reliance on presidential statements as it too cites the President’s remark that he “‘change[d] the law’” as support for concluding that DAPA is beyond the scope of the INA. Majority Op. at 65. 41 105 Case: 15-40238 Document: 00513286295 Page: 106 Date Filed: 11/25/2015 No. 15-40238 whether the “program” or “initiative” or “guidance” genuinely allows the agency to exercise its discretion on a case-by-case basis. Even more dubious is the district court’s argument that, by using the word “initiative” on its website, DHS was intending to use the word in its technical legal sense to reference voter initiatives, thus implying a “legislative process.” 42 Id. at 667–68. Lacking any probative evidence as to DAPA’s implementation, the district court relied most heavily on evidence of DACA’s implementation— concluding unequivocally that DAPA will be “implemented exactly like DACA.” Id. at 663. It is this analysis that the majority finds convincing, all the while noting that “any extrapolation from DACA must be done carefully.” Majority Op. at 47. The district court reached this conclusion on two flawed bases: (1) the DAPA Memorandum’s statement directing the USCIS to “establish a process, similar to DACA” for implementing DAPA, Appx. A, at 4; and (2) the “lack of any suggestion that DAPA will be implemented in a fashion different from DACA,” Dist. Ct. Op., 86 F. Supp. 3d at 649. With respect to the former, this single, nebulous statement does not specify how the DAPA and DACA processes would be similar; the phrase cannot be construed to mean that DAPA and DACA will be implemented identically. The latter is pure burden- shifting—the district court implies that the burden is on DHS to show that the two programs will be implemented differently. Of course, in the preliminary injunction context, Plaintiffs, “by a clear showing, carr[y] the burden of persuasion.” Harris Cnty. v. CarMax Auto Superstores Inc., 177 F.3d 306, 312 The district court noted that this voter initiative definition is the “sole definition offered for ‘initiative’” in Black’s Law Dictionary. Dist. Ct. Op., 86 F. Supp. 3d at 668. There are, of course, other dictionaries—dictionaries far more likely to capture DHS’s intended use of the word in a website created to describe DAPA to the public (rather than to attorneys or judges). For example, the first definition of “initiative” in the Oxford English Dictionary is “[t]hat which initiates, begins, or originates,” Initiative, The Oxford English Dictionary (2d ed. 1989)—a definition that certainly does not imply a binding norm. 42 106 Case: 15-40238 Document: 00513286295 Page: 107 Date Filed: 11/25/2015 No. 15-40238 (5th Cir. 1999). The district court also completely ignored the statement contained in the Declaration of Donald W. Neufeld—the Associate Director for Service Center Operations for USCIS—that “USCIS is in the process of determining the procedures for reviewing requests under DAPA, and thus USCIS has not yet determined whether the process to adjudicate DAPA requests will be similar to the DACA process.” More importantly, the fact that the administration of the two programs may be similar is not evidence that the substantive review under both programs will be the same. As discussed in more detail below, the district court relied heavily on the denial rates of applications submitted under DACA. But those rates are irrelevant for one simple reason, a reason the district court failed to confront: the substantive criteria under DACA and DAPA are different. And even the majority concedes that “DACA and DAPA are not identical.” Majority Op. at 47. Review under the DACA Memorandum does not, for example, require reference to the various discretionary factors contained in the Enforcement Priorities Memorandum, nor does DACA contain DAPA’s criterion that the applicant “present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” Appx. A, at 4; see also Majority Op. at 48 (“Further, the DAPA Memo contains additional discretionary criteria.”). Thus, even assuming DACA and DAPA applications are reviewed using the exact same administrative process, the district court had no basis for concluding that the results of that process—a process that would involve the application of markedly different, discretionary criteria— would be the same. For this reason alone—that is, the district court’s heavy 107 Case: 15-40238 Document: 00513286295 Page: 108 Date Filed: 11/25/2015 No. 15-40238 reliance upon this minimally probative evidence—I would conclude that the district court clearly erred. 43 There are additional reasons, however, to discount the DACA-related evidence on which the district court based its decision and which the majority now accepts. First, even assuming DACA’s 5% denial rate has some probative value, and assuming that rate can be properly characterized as low, 44 a low rate would be unsurprising given the self-selecting nature of the program, as the majority concedes. Majority Op. at 47. It should be expected that only those highly likely to receive deferred action will apply; otherwise, applicants would risk revealing their immigration status and other identifying information to authorities, thereby risking removal (and the loss of a sizeable fee). The majority recognizes this issue but finds that it “is partially mitigated by the finding that ‘the [g]overnment has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action.” Id. (citing Dist. Ct. Op., 86 F. Supp. 3d at 663). But this public declaration, cited by the district court, comes from an informational DHS website that never states that DHS will make no attempt to enforce the law. 45 In addition, as Judge Higginson noted in his dissent, DACA is materially distinguishable from DAPA because the former applies only to “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.’” Texas, 787 F.3d at 781 (Higginson, J., dissenting) (quoting the DACA Memorandum). Accordingly, it would be reasonable to expect that denial rates under DAPA would be higher than those under DACA, as DACA applicants are far less likely to exhibit other factors (e.g., a threat to national security) that would prompt an exercise of discretion not to grant deferred action. 43 This rate represents 38,080 denials out of the 723,358 applications accepted for processing at USCIS service centers through December 2014. There were an additional 42,919 applications rejected for purely administrative reasons during this time period. Neither of these numbers suggests an agency on autopilot. 44 The majority’s acceptance of this passage is but one illustration of the problem with relying on the district court’s factual conclusions. 45 108 Case: 15-40238 Document: 00513286295 Page: 109 Date Filed: 11/25/2015 No. 15-40238 The district court also erred in its mischaracterization of a letter written by León Rodríguez, Director of USCIS, to Senator Charles Grassley, suggesting that the top four reasons for DACA denials are: (1) the applicant used the wrong form; (2) the applicant failed to provide a valid signature; (3) the applicant failed to file or complete Form I-765 or failed to enclose the fee; and (4) the applicant was below the age of fifteen and thus ineligible to participate in the program. Dist. Ct. Op., 86 F. Supp. 3d at 609. This, however, is not what the letter says. The letter actually states that these were the top four reasons for DACA application rejections, not denials. As made clear in DHS’s Neufeld Declaration, “a DACA request is ‘rejected’ when [it is] determine[d] upon intake that the [application] has a fatal flaw,” while “[a] DACA request is ‘denied’ when a USCIS adjudicator, on a case-by-case basis, determines that the requestor has not demonstrated that they satisfy the guidelines for DACA or when an adjudicator determines that deferred action should be denied even though the threshold guidelines are met.” By conflating rejections with denials, the district court suggested that most denials are made for mechanical administrative reasons and thus could not have been discretionary. But the five percent denial rate does not even take into account these administrative rejections. The district court also appeared singularly focused on one metric for measuring whether DACA (and by implication, DAPA) is implemented in a discretionary manner. The court insisted that DHS provide: “the number, if any, of requests that were denied even though the applicant met the DACA 109 Case: 15-40238 Document: 00513286295 Page: 110 Date Filed: 11/25/2015 No. 15-40238 criteria as set out in Secretary Napolitano’s DACA memorandum.” 46 Id. at 609. In yet another instance of improper burden-shifting, the court reasoned that “[b]ecause the Government could not produce evidence concerning applicants who met the program’s criteria but were denied DACA status, this Court accepts the States’ evidence as correct.” Id. at 609 n.8. But the burden of showing DAPA is non-discretionary was on Plaintiffs—the States—and Plaintiffs provided no evidence as to the number of these denials. Rather, the district court accepted as true Plaintiffs’ bare assertion that there were no such denials, concluding unequivocally that “[n]o DACA application that has met the criteria has been denied based on an exercise of individualized discretion.” Id. at 669 n.101. The district court reached this conclusion in the face of uncontested evidence contained in the Neufeld Declaration that DACA applications “have also been denied on the basis that deferred action was not appropriate for other reasons not expressly set forth in [the] 2012 DACA Memorandum.” The district court also failed to acknowledge the reason DHS did not introduce statistics as to these denials: it had no ability to do so. As stated in the Neufeld Declaration, “[u]ntil very recently, USCIS lacked any ability to automatically track and sort the reasons for DACA denials,” presumably because it had no reason to track such data prior to this litigation. Although this point is undisputed, the district court and now the majority nonetheless fault DHS for failing to provide the information the district court requested. See Majority Op. at 50 (“[T]he government did not provide the number of cases that service-center officials referred to field offices for interviews.”). Yet it was not DHS’s burden to disprove Plaintiffs’ assertions of As discussed above, this focus was misplaced, as application of both the DACA and DAPA criteria themselves involves the exercise of discretion. 46 110 Case: 15-40238 Document: 00513286295 Page: 111 Date Filed: 11/25/2015 No. 15-40238 pretext, nor must DHS (anticipatorily) track data in a way that may be convenient to an adversary in future litigation. The district court also relied on a four-page declaration by Kenneth Palinkas, President of the National Citizenship and Immigration Services Council (the union representing USCIS employees processing DACA applications), for the proposition that “DACA applications are simply rubberstamped if the applicants meet the necessary criteria.” 47 Dist. Ct. Op., 86 F. Supp. 3d at 610. Yet lay witness conclusions are only competent evidence if rationally drawn from facts personally observed. See Fed. R. Evid. 701. Here, Palinkas’s conclusion was supported only by the fact that DACA applications are routed to “service centers instead of field offices,” and that “USCIS officers in service centers . . . do not interview applicants”—a weak basis on which to conclude that DHS’s representations (both to the public and to the courts) are “merely pretext.” 48 See 11A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2949 (3d ed. 2015) (“Preliminary injunctions frequently are denied if the affidavits are too vague or conclusory to demonstrate a clear right to relief under Rule 65.”). Indeed, Palinkas’s assertions are rebutted—and the step-by-step process for reviewing DACA applications is explained—in the detailed affidavit filed by Donald Neufeld, the head of those very USCIS service centers. Neufeld declares that the service centers “are designed to adjudicate applications, petitions and requests” for various programs “that have higher-volume caseloads.” Neufeld goes on to describe 47 the “multi-step, case-specific process” for reviewing DACA Yet again, this focus ignores the discretion inherent in those criteria. Palinkas also focuses on the USCIS’s announcement that it will create a new service center for the processing of DAPA applications, to be staffed by approximately 700 USCIS employees and 300 federal contractors. But the fact that so many agents are necessary to assess DAPA applications is inconsistent with the notion that the review will be conducted in a mechanical, pro forma manner. 48 111 Case: 15-40238 Document: 00513286295 Page: 112 Date Filed: 11/25/2015 No. 15-40238 applications: “Once a case arrives at a Service Center, a specially trained USCIS adjudicator is assigned to determine whether the requestor satisfies the DACA guidelines and ultimately determine whether a request should be approved or denied.” 49 Adjudicators “evaluate the evidence each requestor submits in conjunction with the relevant DACA guidelines” and “assess the appropriate weight to accord such evidence.” 50 Citing various examples, Neufeld explains that “[e]ven if it is determined that a requestor has satisfied the threshold DACA guidelines, USCIS may exercise discretion to deny a request where other factors make the grant of deferred action inappropriate.” 51 As a part of their review, adjudicators can investigate the facts and evidence supporting the application “by contacting educational institutions, other government agencies, employers, or other entities.” Moreover, although the Palinkas Declaration accurately states that adjudicators at USCIS service centers do not have the capability to interview applicants, the Neufeld Declaration clarifies that service center adjudicators “may refer a case for interview at a Field Office”—for example, “when the adjudicator determines, after careful review of the request and supporting documents, that a request is deniable, but potentially curable, with information that can best be received through an interview.” Adjudicators may also request that applicants submit additional evidence in support of their applications for deferred action; this was no rare occurrence, as nearly 200,000 such requests for additional evidence were issued by adjudicators. “In addition, all DACA requestors must submit Applications are first mailed to USCIS “lockboxes,” where they are reviewed to determine whether they should be rejected for administrative reasons. 49 Neufeld notes, consistent with the discussion above, that “USCIS must . . . exercise significant discretion in determining whether” some of the DACA guidelines apply; for example, “determining whether a requestor ‘poses a threat to national security or public safety’ necessarily involves the exercise of the agency’s discretion.” 50 51 Such discretionary denials are generally reviewed at USCIS headquarters. 112 Case: 15-40238 Document: 00513286295 Page: 113 Date Filed: 11/25/2015 No. 15-40238 to background checks, and requests are denied if these background checks show that deferred action would be inappropriate.” Placing these declarations side-by-side, the detailed Neufeld Declaration does not simply rebut the conclusory assertions contained in the Palinkas Declaration—it provides undisputed context for how USCIS service centers actually work and how DACA application decisions are made. Or at the very least, as the majority concedes, the two in tandem create “conflicting evidence on the degree to which DACA allowed for discretion.” Majority Op. at 49. Yet the district court concluded that the Neufeld Declaration did not provide “the level of detail that the Court requested.” 52 Dist. Ct. Op., 86 F. Supp. 3d at 609. It is difficult to imagine what level of detail would have satisfied the district court. At a minimum, as recognized by Judge Higginson in his dissent to the denial of the stay pending appeal, the Neufeld Declaration created a factual dispute warranting an evidentiary hearing. 53 See Texas, 787 F.3d at 781–82 (Higginson, J., dissenting) (citing authorities); see also Landmark Land Co. v. Office of Thrift Supervision, 990 F.2d 807, 812 (5th Cir. 1993) (“The record reveals several disputes of material fact that the district court must necessarily resolve in deciding whether to issue the injunction. An evidentiary hearing thus is in order upon remand.”); Marshall Durbin Farms, Inc. v. Nat’l Farmers Org., Inc., 446 F.2d 353, 356 n.4 (5th Cir. 1971) (“[W]here so very much turns upon an accurate presentation of numerous facts . . . the propriety of proceeding upon affidavits becomes the most questionable.”); Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir. 2004) (“Particularly when a court must make The district court did not, however, make an express finding that it deemed the Palinkas Declaration more credible than the Neufeld Declaration. 52 Even Plaintiffs noted, after DHS submitted the Neufeld Declaration, that “if the Court decides that the Defendants’ new declarations create a material fact dispute of material consequence to the motion . . . , the correct step would be to hold a second hearing.” 53 113 Case: 15-40238 Document: 00513286295 Page: 114 Date Filed: 11/25/2015 No. 15-40238 credibility determinations to resolve key factual disputes in favor of the moving party, it is an abuse of discretion for the court to settle the question on the basis of documents alone, without an evidentiary hearing.” (emphasis added)). The district court’s failure to hold an evidentiary hearing further undermines faith in its factual conclusions. The district court also looked to the operating procedures governing the implementation of DACA, noting that they “contain[] nearly 150 pages of specific instructions for granting or denying deferred action” and involve the use of standardized forms for recording denials—a fact the majority mentions. Dist. Ct. Op., 86 F. Supp. 3d at 669 (footnote omitted). But no such operating procedures for the implementation of DAPA appear in the record—a fact the majority does not mention. As noted above, the USCIS is currently “in the process of determining the procedures for reviewing requests under DAPA.” In any event, even “specific and detailed requirements” may qualify as a “‘general’ statement of policy.” Guardian Fed. Sav. & Loan Ass’n, 589 F.2d at 667. And the “purpose” of a statement of policy is to “channel discretion” of agency decision makers; such channeling does not trigger the requirements of noticeand-comment unless it is “so restrictive . . . that it effectively removes most, if not all, of the [agency]’s discretion.” Prof’ls & Patients, 56 F.3d at 600. As for the use of standardized forms to record denials, what matters is not whether DAPA decisions are memorialized in a mechanical fashion, but whether they are made in such a fashion. For the many reasons discussed above, the district court had no legitimate basis for concluding that they will be. Finally, the district court’s lengthy discussion of an “abdication theory” of standing—a theory for which Plaintiffs have not even expressly advocated— 114 Case: 15-40238 Document: 00513286295 Page: 115 Date Filed: 11/25/2015 No. 15-40238 provides context for the district court’s conclusions as to pretext. 54 In determining that the DAPA Memorandum constituted an “abdication” of DHS’s duties, the district court asserted (repeatedly) that it “cannot be disputed” that “the Government has abandoned its duty to enforce the law.” Dist. Ct. Op., 86 F. Supp. 3d at 638. The district court deemed it “evident that the Government has determined that it will not enforce the law as it applies to over 40% of the illegal alien population that qualify for DAPA.” 55 Id. at 639 (emphasis added). Such blanket assertions—made without discussing any of the evidence set out above—assume a lack of discretion in the review of DAPA applications. This assumption—which the district court apparently required DHS to rebut—infects the opinion below, yet has no evidentiary basis. The majority accepts the district court’s factual conclusions almost carte blanche. But clear error review is not a rubber stamp, and the litany of errors committed by the district court become readily apparent from a review of the It appears that no court in the country has accepted this radical theory of standing. Indeed, the district court admitted that it had “not found a case where the plaintiff’s standing was supported solely on this basis.” Dist. Ct. Op., 86 F. Supp. 3d at 643 n.48. The majority’s broad concept of state standing based on harm to “quasi-sovereign interests” is strikingly similar to this theory of standing. See Majority Op. at 14 (“When the states joined the union, they surrendered some of their sovereign prerogatives over immigration.”). 54 In addition, the district court stated: (1) “DHS has clearly announced that it has decided not to enforce the immigration laws as they apply to approximately 4.3 million individuals”; (2) “Secretary Johnson announced that the DHS will not enforce the immigration laws as to over four million illegal aliens eligible for DAPA, despite the fact that they are otherwise deportable”; (3) “As demonstrated by DACA and DAPA . . . , the Government has decided that it will not enforce these immigration laws as they apply to well over five million people”; (4) “The DHS unilaterally established the parameters for DAPA and determined that it would not enforce the immigration laws as they apply to millions of individuals”; and (5) “the DHS does not seek compliance with the federal law in any form, but instead establishes a pathway for non-compliance and completely abandons entire sections of this country’s immigration law.” Id. at 637 n.45, 638–43. The district court also characterized DAPA as an “announced policy of non-enforcement.” Id. at 637 n.45. Although these quotations from the district court’s opinion focus on what it perceives to be the failures of DHS to enforce the immigration laws, at other places in that opinion, the district court identifies the decades-long failure of Congress to fund what the district court would consider adequate enforcement. 55 115 Case: 15-40238 Document: 00513286295 Page: 116 Date Filed: 11/25/2015 No. 15-40238 record. The record before us, when read properly, shows that DAPA is merely a general statement of policy. As such, it is exempt from the notice-andcomment requirements of 5 U.S.C. § 553. V. APA Substantive Claim The majority’s conclusion that the states are substantially likely to succeed on their APA procedural claim should presumably be enough to affirm the decision below. Yet, for reasons altogether unclear, the majority stretches beyond the judgment of the district court and concludes that DAPA and a long, preexisting regulation (8 C.F.R. § 274a.12(c)(14)), as applied to DAPA, are substantive APA violations. See Majority Op. at 54–66. Prudence and judicial economy warrant against going this far, and I would not reach this issue on the record before us. For one, “the district court enjoined DAPA solely on the basis of the procedural APA claim.” Id. at 54. It did not evaluate the substantive APA claim at issue. See Dist. Ct. Op., 86 F. Supp. 3d at 677 (“[T]he Court is specifically not addressing Plaintiffs’ likelihood of success on their substantive APA claim.”). In fact, the district court eschewed determination of this issue and Plaintiffs’ constitutional claim “until there [could be] further development of the record.” Id. 56 On appeal, the parties offered only sparse arguments on the substantive APA claim. The parties filed briefs totaling 203 pages, of which ten pages addressed the substantive APA claim. 57 This hardly seems to be enough to help us answer a complicated question of statutory interpretation and administrative law. I would not address the substantive APA claim in light of this limited record while cognizant of the principle that “[c]ases are to be There might not be much left in the way of factual development of the record, see Majority Op. at 54 n.158, but there is much left wanting in the way of legal development. 56 Appellees’ Br. 47–50; Appellants’ Reply Br. 21–23; Appellants’ Suppl. Br. 27–29; Appellees’ Suppl. Br. 15–17. 57 116 Case: 15-40238 Document: 00513286295 Page: 117 Date Filed: 11/25/2015 decided on the narrowest legal grounds available.” Korioth v. Briscoe, No. 15-40238 523 F.2d 1271, 1275 (5th Cir. 1975). That said, were I to reach the substantive APA claim I would find the majority’s conclusion unpersuasive on the limited record before us. The argument that DAPA is a substantive APA violation, as I read it, appears to be the following: (1) DAPA is “manifestly contrary,” Majority Op. at 66, to the text of the INA and deserves no deference partly because Congress would not assign it such a “decision[] of vast ‘economic and political significance,’” id. at 62 (citation omitted); and (2) even if DHS deserved deference, DAPA is not a reasonable interpretation of the INA. Questions of how agencies construe their governing statutes fall under the two-step inquiry announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). It bears reiterating this framework as I believe the majority misapplies it and its associated precedents. At step one of Chevron, courts are to look at “whether Congress has directly spoken to the precise question at issue.” Id. at 842. If Congress has directly spoken, then the court “must give effect to [its] unambiguously expressed intent.” Id. at 843. But “if the statute is silent or ambiguous,” then at step two, a court is to defer to an agency’s interpretation of a statute so long as it is “reasonable.” Id. at 843–44. The majority first states that DAPA fails Chevron step one because Congress has directly Majority Op. at 55–56. addressed the issue of deferred action. To bolster its conclusion, the majority points to provisions of the INA that delineate which aliens can receive lawful permanent resident (LPR) status, can be eligible for deferred action, and can receive LPR status by having a citizen family member. Id. at 55–57. These provisions are, indeed, “specific and detailed,” id. at 55, but none of them precisely prohibits or addresses the kind of deferred action provided for under DAPA. 117 The Case: 15-40238 Document: 00513286295 Page: 118 Date Filed: 11/25/2015 No. 15-40238 question under step one is whether the language of a statute is “precisely directed to the question,” not whether “parsing of general terms in the text of the statute will reveal an actual intent of Congress.” Chevron, 467 U.S. at 861– 62. Most of the provisions identified by the majority are directed at the requirements for legal status, not the lawful presence permitted by DAPA. And even the majority acknowledges the two are not the same. See Majority Op. at 57 (“LPR status is more substantial than is lawful presence.”). DAPA does not purport to create “a lawful immigration classification.” Id. at 56. It is true that Congress has specified certain categories of aliens that are eligible for deferred action. See id. at 56. This line of argument follows from the legal maxim expressio unius est exclusio alterius (“the expression of one is the exclusion of others”) suggesting that because DAPA was not specified by Congress, it is contrary to the INA. But this argument is nonetheless incorrect. The expressio unius “canon has little force in the administrative setting.” Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 694 (D.C. Cir. 1991). And the inquiry at step one is “whether Congress has directly spoken to the precise question at issue,” not whether it legislated in the general area or around the periphery. Chevron, 467 U.S. at 842 (emphasis added). Congress has never prohibited or limited ad hoc deferred action, which is no different than DAPA other than scale. 58 In fact, each time Congress spoke to this general issue, it did so incidentally and as part of larger statutes not concerned The majority makes much of the scope of DAPA in concluding that it violates the APA. See Majority Op. at 56, 59. Yet the conclusions regarding DAPA’s legality are similarly applicable to ad hoc deferred action. Ad hoc deferred action triggers the same eligibility for benefits and Congress has not directly mentioned it by statute. It should follow then that ad hoc deferred action is also not authorized by the INA and is a substantive APA violation. But this cannot be the case for the reasons mentioned below. Despite the majority’s emphasis on the scale of DAPA, its size plays no role in whether or not it is authorized by statute. I am aware of no principle that makes scale relevant in this analysis, and the majority does not cite any authority otherwise. The question of whether an agency has violated its governing statute does not change if its actions affect one person or “4.3 million” persons. Id. at 56. 58 118 Case: 15-40238 Document: 00513286295 Page: 119 Date Filed: 11/25/2015 No. 15-40238 with deferred action. See, e.g., USA PATRIOT ACT of 2001, Pub L. No. 10756, § 423(b), 115 Stat. 272, 361 (discussing deferred action for family members of LPRs killed by terrorism within a far larger statute aimed primarily at combatting terrorism). And the language regarding deferred action was worded in permissive terms, not prohibitive terms. See, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II) (stating that a qualifying individual “is eligible for deferred action and work authorization”). More importantly, in enacting these provisos, Congress was legislating against a backdrop of longstanding practice of federal immigration officials exercising ad hoc deferred action. By the time Congress specified categories of aliens eligible for deferred action, immigration officials were already “engaging in a regular practice . . . of exercising [deferred action] for humanitarian reasons or simply for its own convenience.” Reno, 525 U.S. at 484. 59 Yet Congress did nothing to upset this practice. The provisions cited by the majority, if anything, highlight Congress’s continued acceptance of flexible and discretionary deferred action. 60 Denying DHS’s ability to grant The Court in Reno noted that “[p]rior to 1997, deferred-action decisions were governed by internal INS guidelines which considered [a variety of factors].” Reno, 525 U.S. at 484 n.8. Although the guidelines were rescinded, the Court also observed that “there [was] no indication that the INS has ceased making this sort of determination on a case-by-case basis.” Id. 59 The Office of Legal Counsel, in its evaluation of DAPA, noted that Congress had given its “implicit approval” to deferred action over the years. Office of Legal Counsel, The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others 30–31 (2014), available at http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19auth-prioritize-removal.pdf. 60 119 Case: 15-40238 Document: 00513286295 Page: 120 Date Filed: 11/25/2015 No. 15-40238 deferred action on a “class-wide basis,” Majority Op. at 32, as the majority does, severely constrains the agency. 61 The majority makes a similar mistake with respect to the work authorization regulation, 8 C.F.R. § 274a.12(c)(14). The majority holds that this regulation as “to any class of illegal aliens whom DHS declines to remove– is beyond the scope of what the INA can reasonably be interpreted to authorize.” Majority Op. at 40. It bases its conclusion on provisions of the INA that specify classes of aliens eligible and ineligible for work authorization and scattered statements from past cases supposedly stating that Congress restricted immigration to preserve jobs for American workers. Yet, much like with deferred action, Congress has never directly spoken to the question at issue and, if anything, has indirectly approved of it. In one form or another, 8 C.F.R. § 274a.12(c)(14) has been on the books since 1981. It follows from a grant of discretion to the Secretary to establish work authorizations for aliens, see 8 U.S.C. § 1324a(h)(3), and it predates the INA provisions the majority cites. See Perales v. Casillas, 903 F.2d 1043, 1048 (5th Cir. 1990) (noting that up to that point there was “nothing in the [INA] [that] expressly provid[ed] for the grant of employment authorization”). Had Congress wanted to negate this regulation, it presumably would have done so expressly, but by specifying the categories of aliens eligible for work authorization, Congress signaled its implicit approval of this longstanding regulation. Furthermore, no court, until today, has ever cast doubt on this regulation. Our own circuit in Perales found no problems with 8 C.F.R. § 274a.12(c)(14) in concluding that a challenge to The majority’s ruling that class-wide deferred action violates the INA is potentially devastating. The definition of a class is expansive: “A group of people, things, qualities, or activities that have common characteristics or attributes.” Class, Black’s Law Dictionary (10th ed. 2014). I suspect that DHS frequently grants deferred action to two or more aliens with common characteristics. 61 120 Case: 15-40238 Document: 00513286295 Page: 121 Date Filed: 11/25/2015 No. 15-40238 employment authorization denials was non-justiciable. Id. 62 The majority’s snapshot of Supreme Court opinions discussing the aims of the immigration laws does not speak to this issue and is misleading. Those opinions noted that the immigration laws regarding employment authorization were also concerned with creating an “extensive ‘employment verification system’ . . . designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002) (citing 8 U.S.C. § 1324a) (emphasis added). DAPA and 8 C.F.R. § 274a.12(c)(14) further both these aims and also promote the “[s]elf-sufficiency” of aliens by giving them work authorization and making them less reliant on public benefits. See 8 U.S.C. § 1601(1) (“Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”). The majority next holds that DAPA, fails Chevron step one because the INA’s broad grants of authority “cannot reasonably be construed as assigning [DHS] ‘decisions of vast economic and political significance,’ such as DAPA.” Majority Op. at 61–62 (footnote omitted). To the contrary, immigration decisions often have substantial economic and political significance. In Arizona, the Court noted that “discretionary decisions” made in the enforcement of immigration law “involve policy choices that bear on this Nation’s international relations.” 132 S. Ct. at 2499. “Removal decisions,” it has been observed, “‘may implicate our relations with foreign powers’ and require consideration of ‘changing political and economic circumstances.’” Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 348 (2005) (quoting If 8 C.F.R. § 274a.12(c)(14) were contrary to the INA, then presumably the challenge in Perales would have been justiciable since an agency’s “abdication of its statutory responsibilities” is sufficient to overcome the presumption that agency inaction is unreviewable. Heckler, 470 U.S. at 833 n.4. 62 121 Case: 15-40238 Document: 00513286295 Page: 122 Date Filed: 11/25/2015 No. 15-40238 Matthews v. Diaz, 426 U.S. 67, 81 (1976)). And deferred action—whether ad hoc or through DAPA—is not an effort by DHS to “hide elephants in mouseholes,” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001), but rather “[a] principal feature of the removal system,” Arizona, 132 S. Ct. at 2499. The majority’s reliance on King v. Burwell, 135 S. Ct. 2480 (2015), for its conclusion is misplaced. The Court in King held that it was unlikely Congress delegated a key reform of the ACA to the IRS—an agency not charged with implementing the ACA and with “no expertise in crafting health insurance policy.” Id. at 2489. By contrast, DHS is tasked with enforcement of the immigration laws, see, e.g., 6 U.S.C. § 202, and its substantial expertise in this area has been noted time and time again. See, e.g., Arizona, 132 S. Ct. at 2506 (“[T]he removal process is entrusted to the discretion of the Federal Government.”). Lastly, the majority concludes that “[e]ven with ‘special deference’ to the Secretary,” DAPA is an unreasonable Majority Op. at 62–63 (footnote omitted). interpretation of the INA. Reasonableness at step two of Chevron requires only a “minimum level of reasonability,” Tex. Office of Pub. Util. Counsel, 183 F.3d at 420, and will be found so long as an agency’s interpretation is “not patently inconsistent with the statutory scheme,” Am. Airlines, Inc. v. Dep't of Transp., 202 F.3d 788, 813 (5th Cir. 2000) (citation omitted). It is hard to see how DAPA is unreasonable on the record before us. DAPA does not negate or conflict with any provision of the INA. See Whitman, 531 U.S. at 484. DHS has repeatedly asserted its right to engage in deferred action. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 146 (2000) (concluding an agency was not entitled to deference where it previously disavowed its enforcement authority). And DAPA appears to further DHS’s 122 Case: 15-40238 Document: 00513286295 Page: 123 Date Filed: 11/25/2015 No. 15-40238 mission of “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). Indeed, if DAPA were unreasonable under the INA, then it follows that ad hoc grants of deferred action are unreasonable as well—something the majority declines to reach. See Majority Op. at 66 n.202. But, as previously mentioned, there is no difference between the two other than scale, and ad hoc deferred action has been repeatedly acknowledged by Congress and the courts as a key feature of immigration enforcement. See Reno, 525 U.S. at 483–84. After all, agencies are “far better equipped than the courts to deal with the many variables involved in the proper ordering of [their] priorities,” Heckler, 470 U.S. at 831–32, and “[t]he responsibilities for assessing the wisdom of such policy choices . . . are not judicial ones,” Chevron, 467 U.S. at 866. From the limited record before us, I would conclude that the DAPA Memorandum is not a substantive APA violation. VI. Conclusion There can be little doubt that Congress’s choices as to the level of funding for immigration enforcement have left DHS with difficult prioritization decisions. But those decisions, which are embodied in the DAPA Memorandum, have been delegated to the Secretary by Congress. Because federal courts should not inject themselves into such matters of prosecutorial discretion, I would dismiss this case as non-justiciable. Furthermore, the evidence in the record (the importance of which should not be overlooked) makes clear that the injunction cannot stand. A determination of “pretext” on the part of DHS must have a basis in concrete evidence. Of course, as appellate judges, we may not substitute our own view of the facts for that of the district court. But we must also embrace our duty to correct clear errors of fact—that is, to ensure that factual determinations are based not on conjecture, intuition, or preconception, but on evidence. Based 123 Case: 15-40238 Document: 00513286295 Page: 124 Date Filed: 11/25/2015 No. 15-40238 on the record as it currently stands, the district court’s conclusion that DAPA applications will not be reviewed on a discretionary, case-by-case basis cannot withstand even the most deferential scrutiny. Today’s opinion preserves this error and, by reaching the substantive APA claim, propounds its own. I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this “expedited” appeal. There is no justification for that delay. I dissent. 124 Case: 15-40238 Document: 00513286295 Page: 125 Date Filed: 11/25/2015 APPENDIX A Secretary U.S. Department of Homeland Security Washington, DC 20528 Homeland Security November 20, 2014 MEMORANDUM FOR: Le6n Rodriguez Director U.S. Citizenship and Immigration Services Thomas S. Winkowski Acting Director U.S. Immigration and Customs Enforcement R. Gil Kerlikowske Commissioner U.S. Customs and Bor FROM: Secretary SUBJECT: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents This memorandum is intended to reflect new policies for the use of deferred action. By memorandum dated June 15, 2012, Secretary Napolitano issued guidance entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children. The following supplements and amends that guidance. The Department of Homeland Security (DHS) and its immigration components are responsible for enforcing the Nation' s immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. Secretary Napolitano noted two years ago, when she issued her prosecutorial discretion guidance regarding children, that "[o]ur Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case." 1 www.dhs.gov Case: 15-40238 Document: 00513286295 Page: 126 Date Filed: 11/25/2015 Deferred action is a long-standing administrative mechanism dating back decades, by which the Secretary of Homeland Security may defer the removal of an undocumented immigrant for a period oftime. 1 A form of administrative relief similar to deferred action, known then as "indefinite voluntary departure," was originally authorized by the Reagan and Bush Administrations to defer the deportations of an estimated 1.5 million undocumented spouses and minor children who did not qualify for legalization under the Immigration Reform and Control Act of 1986. Known as the "Family Fairness" program, the policy was specifically implemented to promote the humane enforcement of the law and ensure family unity. Deferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual's case for humanitarian reasons, administrative convenience, or in the interest of the Department's overall enforcement mission. As an act of prosecutorial discretion, deferred action is legally available so long as it is granted on a case-by-case basis, and it may be terminated at any time at the agency's discretion. Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States. Nor can deferred action itself lead to a green card. Although deferred action is not expressly conferred by statute, the practice is referenced and therefore endorsed by implication in several federal statutes. 2 Historically, deferred action has been used on behalf of particular individuals, and on a case-by-case basis, for classes of unlawfully present individuals, such as the spouses and minor children of certain legalized immigrants, widows of U.S. citizens, or victims of trafficking and domestic violence. 3 Most recently, beginning in 2012, Secretary Napolitano issued guidance for case-by-case deferred action with respect to those who came to the United States as children, commonly referred to as "DACA." 1 Deferred action, in one form or another, dates back to at least the 1960s. "Deferred action" per se dates back at least as far as 1975. See, Immigration and Naturalization Service, Operation Instructions § 103.l (a)(l)(ii) (1975). 2 INA§ 204(a)(l)(D)(i)(II), (IV) (Violence Against Women Act (VA WA) self-petitioners not in removal proceedings are "eligible for deferred action and employment authorization "); INA§ 237(d)(2) (DHS may grant stay ofremoval to applicants for Tor U visas but that denial of a stay request "shall not preclude the alien from applying for . . . deferred action"); REAL ID Act of 2005 § 202(c)(2)(B)(viii), Pub. L. 109-13 (requiring states to examine documentary evidence oflawfal status for driver 's license eligibility purposes, including "approved deferred action status"); National Defense Authorization Act for Fiscal Year 2004 § 1703(c) (d) Pub. L. 108-136 (spouse, parent or child ofcertain US. citizen who died as a result ofhonorable service may self-petition for permanent residence and "shall be eligible for deferred action, advance parole, and work authorization "). 3 In August 2001 , the former-Immigration and Naturalization Service issued guidance providing deferred action to individuals who were eligible for the recently created U and T visas. Two years later, USCJS issued subsequent guidance, instructing its officers to use existing mechanisms like deferred action for certain U visa applicants facing potential removal. More recently, in June 2009, USCIS issued a memorandum providing deferred action to certain surviving spouses of deceased U.S. citizens and their children while Congress considered legislation to allow these individuals to qualify for permanent residence status. 2 Case: 15-40238 Document: 00513286295 Page: 127 Date Filed: 11/25/2015 By this memorandum, I am now expanding certain parameters of DACA and issuing guidance for case-by-case use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities, as set forth in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum. The reality is that most individuals in the categories set forth below are hard-working people who have become integrated members of American society. Provided they do not commit serious crimes or otherwise become enforcement priorities, these people are extremely unlikely to be deported given this Department's limited enforcement resources-which must continue to be focused on those who represent threats to national security, public safety, and border security. Case-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation's security and economic interests and make common sense, because they encourage these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization (which by separate authority I may grant), and be counted. A. Expanding DACA DACA provides that those who were under the age of 31 on June 15, 2012, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria, are eligible for deferred action on a case-by-case basis. The initial DACA announcement of June 15, 20 12 provided deferred action for a period of two years. On June 5, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that DACA recipients could request to renew their deferred action for an additional two years. In order to further effectuate this program, I hereby direct USCIS to expand DACA as follows: Remove the age cap. DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i.e., those who were born before June 15, 1981 ). That restriction will no longer apply. Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014 . Beginning on that date, USCIS should issue all work 3 Case: 15-40238 Document: 00513286295 Page: 128 Date Filed: 11/25/2015 authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years. Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010. USCIS should begin accepting applications under the new criteria from applicants no later than ninety (90) days from the date of this announcement. B. Expanding Deferred Action I hereby direct USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals who: • have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident; • have continuously resided in the United States since before January 1, 2010; • are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS; • have no lawful status on the date of this memorandum; • are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and • present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate. Applicants must file the requisite applications for deferred action pursuant to the new criteria described above. Applicants must also submit biometrics for USCIS to conduct background checks similar to the background check that is required for DACA applicants. Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of 4 Case: 15-40238 Document: 00513286295 Page: 129 Date Filed: 11/25/2015 the Immigration and Nationality Act. 4 Deferred action granted pursuant to the program shall be for a period of three years. Applicants will pay the work authorization and biometrics fees, which currently amount to $465. There will be no fee waivers and, like DACA, very limited fee exemptions. USCIS should begin accepting applications from eligible applicants no later than one hundred and eighty (180) days after the date of this announcement. As with DACA, the above criteria are to be considered for all individuals encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or USCIS, whether or not the individual is already in removal proceedings or subject to a final order of removal. Specifically: • ICE and CBP are instructed to immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the above criteria and may thus be eligible for deferred action to prevent the further expenditure of enforcement resources with regard to these individuals. • ICE is further instructed to review pending removal cases, and seek administrative closure or termination of the cases of individuals identified who meet the above criteria, and to refer such individuals to USCIS for case-by-case determinations. ICE should also establish a process to allow individuals in removal proceedings to identify themselves as candidates for deferred action. • USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear. The USCIS process shall also be available to individuals subject to final orders of removal who otherwise meet the above criteria. Under any of the proposals outlined above, immigration officers will be provided with specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis. This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights. It remains within the authority of the Executive Branch, however, to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law. This memorandum is an exercise of that authority. 4 INA § 274A(h)(3), 8 U.S.C. § 1324a(h)(3) ("As used in this section, the term ' unauthorized alien' means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (8) authorized to be so employed by this chapter or by the[Secretary] ."); 8 C.F.R. § 274a. J 2 (regulations establishing classes of aliens eligible for work authorization). 5 Case: 15-40238 Document: 00513286295 Page: 130 Date Filed: 11/25/2015 APPENDIX B Secretary U.S. Department of Homeland Security Washington, DC 20528 Homeland Security November 20, 2014 MEMORANDUM FOR: Thomas S. Winkowski Acting Director U.S. Immigration and Customs Enforcement R. Gil Kerlikowske Commissioner U.S. Customs and Border Protection Leon Rodriguez Director U.S. Citizenship and Immigration Services Alan D. Bersin Acting Assistant Secretary for Policy FROM: Jeh Charles Johnson Secretary SUBJECT: Policies for the Apprehension, Deten tion and Removal of Undocumented Immigrants This memorandum reflects new policies for the apprehension, detention, and removal of aliens in this country. This memorandum should be considered Department-wide guidance, applicable to the activities of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS). This memorandum should inform enforcement and removal activity, detention decisions, budget requests and execution, and strategic planning. In general, our enforcement and removal policies should continue to prioritize threats to national security, public safety, and border security. The intent of this new policy is to provide clearer and more effective guidance in the pursu it of those priorities. To promote public confidence in our enforcement activities, I am also directing herein greater transparenc y in the annual reporting of our removal statistics, to include data that tracks the priorities outlined below. www.dhs..gov Case: 15-40238 Document: 00513286295 Page: 131 Date Filed: 11/25/2015 The Department of Homeland Security (DHS) and its immigration componentsCBP, ICE, and USCIS-are responsible for enforcing the nation's immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. And, in the exercise of that discretion, DHS can and should develop smart enforcement priorities, and ensure that use of its limited resources is devoted to the pursuit of those priorities. DHS's enforcement priorities are, have been, and will continue to be national security, border security, and public safety. DHS personnel are directed to prioritize the use of enforcement personnel , detention space, and removal assets accordingly. In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question , and arrest; whom to detain or release; whether to settle, dismiss, appeal , or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. While DHS may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing enforcement and removal of higher priority cases. Thus, DHS personnel are expected to exercise discretion and pursue these priorities at all stages of the enforcement process-from the earliest investigative stage to enforcing final orders of removal-subject to their chains of command and to the particular responsibilities and authorities applicable to their specific position. Except as noted below, the following memoranda are hereby rescinded and superseded: John Morton, Civil Immigration Enforcem ent: Priorities for the Apprehension , Detention , and Removal of Aliens, March 2, 20 11; John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities of the Agency for the Apprehension , Detention and Removal of Aliens , June 17, 20 11; Peter Vincent, Case-by-Case Review of Incoming and Certain Pending Cases, November 17, 2011; Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems, December 21, 2012; National Fugitive Operations Program: Priorities, Goals, and Expectations, December 8, 2009. 2 Case: 15-40238 A. Document: 00513286295 Page: 132 Date Filed: 11/25/2015 Civil Immigration Enforcement Priorities The following shall constitute the Department's civil immigration enforcement priorities: Priority 1 (threats to national security, border security, and public safety) Aliens described in this priority represent the highest priority to which enforcement resources should be directed: (a) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security; (b) aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States; (c) aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 52 l(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang; (d) aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien's immigration status; and (e) aliens convicted of an "aggravated felony," as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction. The removal of these aliens must be prioritized unless they qualify for asylum or another form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority. Priority 2 (misdemeanants and new immigration violators) Aliens described in this priority , who are also not described in Priority 1, represent the second-highest priority for apprehension and removal. Resources should be dedicated accordingly to the removal of the following: (a) aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element 3 Case: 15-40238 Document: 00513286295 Page: 133 Date Filed: 11/25/2015 was the alien's immigration status, provided the offenses arise out of three separate incidents; (b) aliens convicted of a "significant misdemeanor," which for these purposes is an offense of domestic violence ;1 sexual abuse or exploitation; burglary ; un lawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence); (c) aliens apprehended anywhere in the United States after unlawfu lly entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014 ; and (d) aliens who, in the judgmen t of an ICE Field Office Director , USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs. These aliens should be removed unless they qualify for asylum or anoth er form of relief under our laws or, unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or users Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety, and should not therefore be an enforcement priority. Priority 3 (other immigration violations) Priority 3 aliens are those who have been issued a final order of removal2 on or after January 1, 20 14. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority. 1 ln eval uating whether the offense is a significant misdemeanor involving ..domestic violence," careful consideration should be given to whether the convicted alien was also the victim of domestic violence; if so, this should be a mitigating factor. See generally, John Morton, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, June 17, 201 1. 2 For present purposes, "final order" is defined as it is in 8 C.F.R. § 124 l.1. 4 Case: 15-40238 B. Document: 00513286295 Page: 134 Date Filed: 11/25/2015 Apprehension, Deten tion , and Removal of Other Aliens Unlawfully in the United States Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein. However, resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein , provided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest. C. Detention As a general rule, DHS detention resources should be used to support the enforcement pr iorities noted above or for aliens subject to mandatory detention by law. Absent extraordinary circumstances or the requirement of mandatory detention, field office directors should not expend detention resource s on aliens who are known to be suffering from serious physical or mental illness, who are disabled, elderly , pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest. To detain aliens in those categories who are not subject to mandatory detention, DHS officers or special agents must obtain approval from the ICE F ield Office Director. If an alien falls within the above categories and is subject to mand atory detention, field office directors are encouraged to contact their local Office of Chief Counsel for guidance. D. Exercising Prosecutorial Discretion Section A, above, requires DHS personnel to exercise discretion based on individual circumstances. As noted above, aliens in Priority l must be prioritized for removal unless they qualify for asylum or other form of relief under our laws, or unl ess, in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority. Likewise, aliens in Priority 2 should be removed unless they qualify for asylum or other forms of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operation s, USCIS District Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority . Similarly, aliens in Priority 3 should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the 5 Case: 15-40238 Document: 00513286295 Page: 135 Date Filed: 11/25/2015 integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority. In making such judgment s, DHS personnel should consider factors such as: extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanit arian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances. E. Implementation The revised guidance shall be effective on January 5, 201 5. Implementing training and guidance will be provided to the workforce prior to the effective date. The revised guidance in this memorandum applies only to aliens encountered or apprehended on or after the effective date, and aliens detained, in removal proceedings, or subject to removal orders who have not been removed from the United States as of the effective date. Nothing in this guidance is intended to modify USCIS Notice to Appear policies, which remain in force and effect to the extent they are not inconsistent with this memorandum. F. Data By this memorandum I am directing the Office of Immigration Statistics to create the capability to collect, maintain, and report to the Secretary data reflecting the numbers of those apprehended, removed, returned, or otherwise repatriat ed by any component of DHS and to report that data in accordance with the priorities set forth above. I direct CBP, ICE, and USCIS to cooperate in this effort. I intend for this data to be part of the package of data released by DHS to the public annually. G. No Private Right Statement These guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or ben efit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. 6