`
`Nos. 18-587, 18-588, & 18-589
`================================================================================================================
`In The
`Supreme Court of the United States
`--------------------------------- ---------------------------------
`UNITED STATES DEPARTMENT OF
`HOMELAND SECURITY, ET AL.,
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`--------------------------------- ---------------------------------
`DONALD J. TRUMP, PRESIDENT OF THE
`UNITED STATES, ET AL.,
`
`Petitioners,
`
`v.
`NATIONAL ASSOCIATION FOR THE
`ADVANCEMENT OF COLORED PEOPLE, ET AL.
`--------------------------------- ---------------------------------
`KEVIN K. MCALEENAN, ACTING SECRETARY
`OF HOMELAND SECURITY, ET AL.,
`Petitioners,
`
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`--------------------------------- ---------------------------------
`On Writs Of Certiorari To The
`United States Courts Of Appeals
`For The Ninth, D.C., And Second Circuits
`--------------------------------- ---------------------------------
`BRIEF OF NONPROFIT LEGAL SERVICES
`ORGANIZATIONS AS AMICI CURIAE
`IN SUPPORT OF RESPONDENTS
`--------------------------------- ---------------------------------
`MAUREEN P. ALGER
`JONATHAN S. KOLODNER
` Counsel of Record
`JESSA DEGROOTE
`DAVID Z. SCHWARTZ
`MONIQUE R. SHERMAN
`ABBEY GAUGER
`COOLEY LLP
`CLEARY GOTTLIEB STEEN
`3175 Hanover Street
` & HAMILTON LLP
`Palo Alto, CA 94304
`One Liberty Plaza
`(650) 843-5000
`New York, NY 10006
`malger@cooley.com
`(212) 225-2000
`
`Counsel for Amici Curiae
`[Additional Counsel Listed On Inside Cover]
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`
`
`MARY KATHRYN KELLEY
`COOLEY LLP
`4401 Eastgate Mall
`San Diego, CA 92121
`KYLE C. WONG
`COOLEY LLP
`101 California Street
`5th Floor
`San Francisco, CA 94111
`
`
`
`i
`
`TABLE OF CONTENTS
`
`5
`
`Page
`TABLE OF AUTHORITIES .................................
`iii
`INTEREST OF AMICI CURIAE .........................
`1
`SUMMARY OF ARGUMENT ..............................
`2
`ARGUMENT ........................................................
`5
`
`I. The Government Completely Failed to
`Consider How Rescinding DACA Would
`Affect Those Who Reasonably Relied on
`DACA and, as a Result, the Rescission Is
`Arbitrary and Capricious ..........................
`A. The Government Induced DACA Re-
`cipients to Rely on DACA and Then Ig-
`nored Their Reliance Interests, in
`Violation of the APA ............................
`B. DACA Recipients’ Reliance Interests
`Are Significant Because Most Do Not
`Qualify for Other Forms of Immigra-
`tion Relief ............................................ 12
`C. Most DACA Recipients Will Lose the
`Ability to Work, Drive, Pay for College,
`and Plan for Their Lives if DACA Is
`Rescinded ............................................. 15
`D. Rescinding DACA Will Also Harm Or-
`ganizations that Represent DACA-
`Eligible Individuals ............................. 20
` II. The Government’s Justifications for Re-
`scinding DACA Are Belied by the Nature
`of Its Implementation ................................ 27
`
`6
`
`
`
`ii
`
`TABLE OF CONTENTS—Continued
`
`Page
`A. The Government’s Justification for
`Rescission that DACA Was Illegal Was
`Inconsistent With Allowing Some
`DACA Recipients to Renew ................. 29
`B. The Chaotic Nature of the Rescission’s
`Implementation Refutes the Govern-
`ment’s Purported Desire for an “Or-
`derly Wind-Down” of DACA ................. 31
`CONCLUSION ..................................................... 34
`
`APPENDIX ................................................................. 1a
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Arpaio v. Obama,
`797 F.3d 11 (D.C. Cir. 2015) ...................................... 6
`Crane v. Johnson,
`783 F.3d 244 (5th Cir. 2015) ...................................... 6
`Encino Motorcars, LLC v. Navarro,
`136 S. Ct. 2117 (2016) ................................... 7, 10, 30
`FCC v. Fox Television Stations, Inc.,
`556 U.S. 502 (2009) ............................................. 7, 27
`Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
`Farm Mut. Auto. Ins. Co.,
`463 U.S. 29 (1983) ............................................. 30, 34
`Nat’l Ass’n for the Advancement of Colored
`People v. Trump,
`Civ. Action No. 17-1907 (JDB) (D.D.C.
`Apr. 24, 2018) (slip op.) ....................................... 9, 30
`New Hampshire v. Maine,
`532 U.S. 742 (2001) ................................................. 10
`New York v. Trump,
`17-CV-5228 (NGG) (JO) (E.D.N.Y. Feb. 13,
`2018) (slip op.) ............................................... 8, 10, 30
`Perez v. Mortg. Bankers Ass’n,
`135 S. Ct. 1199 (2015) ............................................. 34
`Regents of Univ. of California v. United States
`Dep’t of Homeland Security,
`279 F. Supp. 3d 1011 (N.D. Cal. 2018) ................ 8, 30
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`STATUTES
`8 U.S.C.
` § 1101(a)(15)(T) ....................................................... 13
` § 1101(a)(15)(U) ...................................................... 13
` § 1101(a)(27) ............................................................ 13
` § 1101(a)(51) ............................................................ 13
` § 1158....................................................................... 13
` § 1182(a)(9)(B) ......................................................... 14
` § 1182(a)(9)(C) ......................................................... 14
`
`OTHER AUTHORITIES
`18 C. Wright, A. Miller, & E. Cooper, Federal
`Practice and Procedure § 4477 (1981) .................... 10
`Caitlin Dickerson, For DACA Recipients, Losing
`Protection and Work Permits Is Just the Start,
`The New York Times (Sept. 7, 2017) .......... 16, 17, 18
`Forum: Monday Political News Roundup, KQED
`(Feb. 26, 2018) ......................................................... 19
`Jessica Ferger, Rescinding DACA Could Spur a
`Public Health Crisis, from Lost Services to
`Higher Rates of Depression, Substance Abuse,
`Newsweek (Sept. 6, 2017) ................................. 16, 17
`Jose Magaña-Salgado & Tom K. Wong, Draining
`the Trust Funds: Ending DACA and the Conse-
`quences to Social Security and Medicare, Im-
`migrant Legal Resource Center (Oct. 2017) ............ 16
`
`
`
`v
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Julia Carrie Wong, Fear and Uncertainty for
`Dreamers as DACA Ends: ‘Where am I going
`to go?’, The Guardian (Sept. 5, 2017) ...................... 19
`Letter from Members of Congress to Elaine C.
`Duke, Acting Sec’y, Dep’t Homeland Security
`(Sept. 26, 2017) ........................................................ 32
`Maria Sacchetti, Patricia Sullivan and Ed
`O’Keefe, DACA Injunction Adds to Limbo for
`“Dreamers” as Trump Crackdown, Hill Talks
`Continue, The Washington Post (Jan. 10,
`2018) ........................................................................ 17
`Memorandum from Acting Secretary Elaine C.
`Duke on Rescission of Deferred Action for
`Childhood Arrivals (DACA) (Sept. 5, 2017) ........ 8, 30
`Memorandum from Janet Napolitano, Sec’y of
`Homeland Security, U.S. Dep’t of Homeland
`Security, to David V. Aguilar, Acting Comm’r,
`U.S. Customs and Border Prot., et al. (June 15,
`2012) ........................................................................ 28
`Memorandum from Secretary Kirstjen M. Niel-
`sen on the Rescission of Deferred Action for
`Childhood Arrivals (DACA) (June 22, 2018) ...... 9, 11
`Michelle Hackman, U.S. Immigration Courts’
`Backlog Exceeds One Million Cases, The Wall
`Street Journal (Sept. 18, 2019) ............................... 25
`Parija Davilanz, For Dreamers, DACA’s End
`Could Mean Losing Their Homes, CNN (Jan.
`24, 2018) .................................................................. 18
`
`
`
`vi
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`President Barack Obama, Remarks by the Pres-
`ident on Immigration (June 15, 2012) .................... 28
`Press Release, Congressional Hispanic Caucus,
`CHC Request Reset of DACA Renewal Dead-
`line (Oct. 3, 2017) .................................................... 32
`Press Release, Congressman Gutiérrez, Reps.
`Roybal-Allard, Lujan Grisham, Gutiérrez
`Statement on October 5th DACA Deadline
`(Sept. 28, 2017) ........................................................ 32
`Priscilla Alvarez, Will DACA Parents Be Forced
`to Leave Their U.S.-Citizen Children Behind?,
`The Atlantic (Oct. 21, 2017) .............................. 18, 19
`Sheryl Gay Stolberg and Yamiche Alcindor,
`Trump’s Support for Law to Protect ‘Dreamers’
`Lifts Its Chances, The New York Times (Sept.
`14, 2017) .................................................................. 29
`Sophie Tatum, Trump: I’ll ‘Revisit’ DACA if Con-
`gress Can’t Fix In 6 Months, CNN (Sept. 6,
`2017) ........................................................................ 29
`Tom K. Wong, et al., 2017 National DACA Study,
`Ctr. for Am. Progress (Aug. 28, 2017) ..................... 14
`Tom K. Wong, et al., Paths to Lawful Immigra-
`tion Status: Results and Implications from the
`PERSON Survey, 2 J. Migration and Hum. Se-
`curity 4 (2014) ......................................................... 13
`
`
`
`
`
`1
`
`INTEREST OF AMICI CURIAE1
`Amici curiae are nonprofit legal services organiza-
`
`tions that provide legal assistance on immigration is-
`sues to low-income immigrants. Amici include 47
`organizations, listed and described in the Appendix.
`Many of amici’s clients are eligible for Deferred Action
`for Childhood Arrivals (“DACA”). Cumulatively, amici
`helped thousands of young people apply for DACA be-
`tween 2012 and 2017 and have provided legal counsel-
`ing to many of these same youth in an effort to help
`them understand their immigration options since the
`Department of Homeland Security (“DHS”) decided to
`rescind DACA in September 2017. When DHS re-
`scinded DACA, eligible recipients initially had only
`four weeks to apply for renewal. As a result, amici
`scrambled to help their clients meet the new deadline
`and to consider whether there were any newly-availa-
`ble options to gain immigration status.2 Staff at many
`of the amici organizations worked around the clock to
`
`
`1 All parties have filed blanket consents to the filing of ami-
`
`cus briefs. Blanket Consents filed by Petitioner and Respondents,
`Dep’t of Homeland Security v. Regents of the Univ. of California
`(No. 18-587) (July 10, 2019, July 17, 2019, July 23, 2019, July 29,
`2019, July 30, 2019, July 31, 2019, and Aug. 1, 2019). Pursuant
`to Supreme Court Rule 37.6, counsel for amici represent that this
`brief was not authored in whole or in part by counsel for a party
`and that none of the parties or their counsel, nor any other person
`or entity other than amici, their members, or their counsel, made
`a monetary contribution intended to fund the preparation or sub-
`mission of this brief.
`2 Amici regularly screened clients for eligibility for forms of
`
`immigration relief that would lead to permanent immigration sta-
`tus before assisting clients with applications for DACA.
`
`
`
`2
`
`contact and counsel as many clients subject to the new
`deadline as possible and to quickly organize legal clin-
`ics to meet their clients’ legal needs. Amici have ob-
`served firsthand the profound negative effects the
`Government’s decision to rescind DACA has had on
`their clients and the uncertainty their clients now face
`in every aspect of their lives. As a result of their work
`with undocumented immigrants generally, and DACA-
`eligible individuals in particular, amici are well-posi-
`tioned to articulate the nature of the reliance interests
`engendered by DACA, the legal framework DACA-eli-
`gible individuals must navigate if DACA is rescinded,
`and the effects rescission would have on their clients,
`their organizations, and the communities they serve.3
`
`--------------------------------- ---------------------------------
`
`SUMMARY OF ARGUMENT
`In applying for DACA, hundreds of thousands of
`
`brave young people raised their hands and announced
`their presence in the United States, encouraged by the
`federal government’s assurances that they would be
`considered for protection from immigration enforce-
`ment action. Relying on these assurances, DACA recip-
`ients applied for work authorization, pursued their
`educations, planned for their families’ futures, and im-
`proved their lives in ways they had dreamed of for
`
`
`3 Counsel for amici have interviewed and/or received infor-
`
`mation from the legal services organizations that are filing this
`brief. Information throughout the brief that relates to these or-
`ganizations’ clients was obtained through these interviews and/or
`related requests for information.
`
`
`
`3
`
`years. Then, on September 5, 2017, DHS abruptly re-
`scinded DACA, causing immediate chaos, uncertainty,
`and fear. If the judgments below are reversed and the
`rescission of DACA is reinstated, hundreds of thou-
`sands of young people will face a frightening and
`uncertain future, despite assurances from the Govern-
`ment that enticed them to come forward in the first
`place. Nearly all DACA recipients will lose the ability
`to apply for work authorization (likely leading them to
`lose their jobs and health insurance) and countless
`other resources they have worked hard to acquire. Los-
`ing DACA will leave most DACA recipients without
`any protection from deportation and force them either
`to leave the only country they have known since early
`childhood or to live in constant fear of removal. The re-
`scission of DACA would also harm many family mem-
`bers of DACA recipients,
`including U.S.-citizen
`children, who rely on them for support.
`
`If DACA is rescinded, amici—legal services organ-
`
`izations that serve these young people and other vulner-
`able immigrant populations—would also be harmed.
`They would struggle to meet the needs of an enormous
`population of immigrants suddenly in need of immedi-
`ate legal advice and assistance. Amici already experi-
`enced this situation once, when they were thrown into
`chaos after the Government issued its decision to re-
`scind DACA in September 2017, during the one-month
`window originally imposed for filing renewal applica-
`tions. At the same time that demands on their time
`would greatly increase, amici would also lose valuable
`
`
`
`4
`
`DACA-recipient staff, whom amici hired and trained in
`reliance on DACA.
`
`Despite all this, DHS did not consider, let alone ad-
`
`dress, the dire consequences its decision would have.
`Not only is it reckless for an administrative agency to
`play fast and loose with people’s lives in this way, it is
`also unlawful. This Court has made clear that, under
`the Administrative Procedure Act (“APA”), when an ad-
`ministrative agency changes policy it must consider,
`among other things, the reliance interests engendered
`by the previous policy. It must also provide an expla-
`nation for the change that is cogent and consistent.
`Where, as here, an agency neither considers reliance
`interests nor provides a cogent and consistent expla-
`nation for its decision, that decision is arbitrary and
`capricious. The reliance interests at stake here are
`substantial because hundreds of thousands of DACA
`recipients have no choice other than to rely upon the
`continuation of DACA. The rescission of DACA would
`inflict very real, tangible damage on hundreds of thou-
`sands of people who came forward to be counted and to
`contribute to this nation, on their dependents, and on
`the legal services organizations that work tirelessly to
`serve this community. The Government’s failure to
`even consider these foreseeable and significant conse-
`quences of its change in policy renders the rescission
`unlawful.
`
`
`
`--------------------------------- ---------------------------------
`
`
`
`
`
`
`5
`
`ARGUMENT
`I. The Government Completely Failed to Con-
`sider How Rescinding DACA Would Affect
`Those Who Reasonably Relied on DACA
`and, as a Result, the Rescission Is Arbitrary
`and Capricious.
`If the Government’s decision to rescind DACA is
`
`upheld, the effects on DACA recipients will be severe.
`Most have no other available path to obtain work au-
`thorization, earn a living, or pursue an education, and
`will find themselves in legal uncertainty and without
`the means to support themselves and their families.
`The organizations that support them will lose the sig-
`nificant investments they have made in hiring and
`training their DACA-recipient employees and in devel-
`oping DACA-related programs. At the same time, these
`organizations will likely be overwhelmed with thou-
`sands of new requests for assistance as DACA recipi-
`ents struggle to find ways to protect what they have
`achieved since 2012. The Government’s decision to re-
`scind DACA without considering any of these harms to
`the individuals’ and organizations’ reliance interests
`was arbitrary and capricious.
`
`
`
`
`
`
`
`
`6
`
`A. The Government Induced DACA Recipi-
`ents to Rely on DACA and Then Ignored
`Their Reliance Interests, in Violation of
`the APA.
`The abrupt announcement that DHS was termi-
`
`nating DACA upended the lives of hundreds of thou-
`sands of DACA recipients, yet the agency had not even
`considered the effects its decision would have on their
`reliance interests. Through the implementation and
`continuation of DACA, the Government induced young
`undocumented immigrants brought to the United
`States as children to rely on DACA. Through DACA,
`they had new opportunities to obtain students loans to
`attend college, apply for work authorization so that
`they could work for living wages, obtain driver’s li-
`censes, and otherwise fully participate in society with-
`out fear of removal. During this period, DACA
`recipients have become even more integral to their
`communities, to which they have been making signifi-
`cant, positive contributions for years. Their reliance on
`DACA only increased over the five years that DACA
`remained in existence without adverse action by the
`Administration or the courts.4
`
`Despite the enormous reliance interests created
`
`by the incentives and opportunities the Government
`presented to recipients of DACA, upon which the Gov-
`ernment knew DACA recipients extensively relied, the
`Government nevertheless failed to consider these
`
`
`4 See, e.g., Crane v. Johnson, 783 F.3d 244, 255 (5th Cir.
`
`2015); Arpaio v. Obama, 797 F.3d 11, 25 (D.C. Cir. 2015).
`
`
`
`7
`
`reliance interests when it rescinded DACA, plunging
`hundreds of thousands of young people into legal, edu-
`cational, financial, and familial uncertainty. Rescind-
`ing DACA would strip recipients of the ability to plan
`for their futures in the only country they have known
`since early childhood and eliminate their ability to
`support themselves and those who rely on them—in-
`cluding their parents, spouses, and U.S.-citizen chil-
`dren. Instead of considering these interests—or even
`acknowledging them—DHS moved ahead with an ill-
`conceived policy change affecting hundreds of thou-
`sands of young people, overnight. That is not only bad
`policy, it is also unlawful because it renders the deci-
`sion arbitrary and capricious under the APA.
`
` When an agency has not engaged in a reasoned
`decision-making process, which, among other things,
`must include consideration of “serious reliance inter-
`ests” engendered by the previous policy, the agency’s
`decision is arbitrary and capricious and will not be up-
`held. FCC v. Fox Television Stations, Inc., 556 U.S. 502,
`514–15 (2009); see also Encino Motorcars, LLC v. Na-
`varro, 136 S. Ct. 2117, 2125–27 (2016). This is so even
`if the parties have no constitutionally-protected liberty
`or property interests in the continuation of the previ-
`ous policy. The agency cannot simply disregard reli-
`ance interests when changing policy. See Encino
`Motorcars, 136 S. Ct., at 2126 (explaining that an
`agency must articulate a reason for a changed position
`and take into account that “longstanding policies may
`have engendered serious reliance interests”).
`
`
`
`8
`
`The record establishes that DHS paid no attention
`
`to the reliance interests of DACA recipients or others
`affected by its decision until months after the decision
`was made. DHS only acknowledged these interests at
`all after courts began holding that the agency was re-
`quired to consider such reliance interests. Indeed, the
`Duke Memorandum rescinding DACA made no refer-
`ence whatsoever to the rescission’s effect on DACA re-
`cipients. Memorandum from Acting Secretary Elaine
`C. Duke on Rescission of Deferred Action for Childhood
`Arrivals (DACA) (Sept. 5, 2017), available at https://
`www.dhs.gov/news/2017/09/05/memorandum-rescission-
`daca (hereinafter the “Duke Memorandum”). Four
`months later, in January 2018, the U.S. District Court
`for the Northern District of California noted that the
`Secretary should have weighed “DACA’s programmatic
`objectives as well as the reliance interests of DACA re-
`cipients,” but failed to do so. Regents of Univ. of Cali-
`fornia v. United States Dep’t of Homeland Security, 279
`F. Supp. 3d 1011, 1044 (N.D. Cal. 2018). Similarly, in
`February 2018, when the U.S. District Court for the
`Eastern District of New York enjoined the Government
`from rescinding DACA, it determined that there was
`no evidence whatsoever in the record that DHS had
`considered how rescission would affect DACA recipi-
`ents. New York v. Trump, 17-CV-5228 (NGG) (JO)
`(E.D.N.Y. Feb. 13, 2018) (slip op., at 43) (“The record
`does not indicate that Defendants acknowledged, let
`alone considered, these or any other reliance interests
`engendered by the DACA program.” (emphasis added)).
`
`
`
`
`9
`
`A few months later, in April 2018, the U.S. District
`Court for the District of Columbia “vacated” the Duke
`Memorandum but stayed its decision to allow the Gov-
`ernment an opportunity to more fully explain its deci-
`sion. Order, Nat’l Ass’n for the Advancement of Colored
`People v. Trump, Civ. Action No. 17-1907 (JDB) (D.D.C.
`Apr. 24, 2018) (hereinafter the “D.D.C. Order”) (“Be-
`cause DHS failed to even acknowledge how heavily
`DACA beneficiaries had come to rely on the expecta-
`tion that they would be able to renew their DACA ben-
`efits, its barebones legal interpretation was doubly
`insufficient and cannot support DACA’s rescission.”).
`
`It was not until June 2018, nine months after the
`
`Duke Memorandum, and six months after the Northern
`District of California enjoined the DACA rescission,
`that DHS paid lip-service to the idea of considering
`DACA recipients’ reliance interests in a memorandum
`issued in response to an order from the D.C. District
`Court. See Memorandum from Secretary Kirstjen M.
`Nielsen on the Rescission of Deferred Action for Child-
`hood Arrivals (DACA) at 3 (June 22, 2018) (hereinafter
`the “Nielsen Memorandum”). Even then, the Secretary
`merely asserted, without providing any reasoning,
`analysis, or explanation, that any reliance interests
`that existed were outweighed by the allegedly ques-
`tionable legality of DACA and “other reasons for end-
`ing the policy.” Id. This perfunctory nod to reliance
`interests is insufficient, especially in light of DHS’s
`earlier contention in the litigation that any reliance
`
`
`
`
`10
`
`interests were not longstanding or serious enough to
`even require consideration. See Memorandum of Law
`in Opp’n Pl.’s Mots. Prelim. Injunction, New York v.
`Trump, 1:17-CV-5228 (NGG) (JO) (E.D.N.Y. Jan. 13,
`2018) at 16–17. “[A]bsent any good explanation, a
`party should not be allowed to gain an advantage by
`litigation on one theory, and then seek an inconsistent
`advantage by pursuing an incompatible theory.” New
`Hampshire v. Maine, 532 U.S. 742, 749 (2001) (citing 18
`C. Wright, A. Miller, & E. Cooper, Federal Practice and
`Procedure § 4477 at 782 (1981)).
`
`In its opening brief, the Government does not even
`
`meaningfully contest its failure to consider reliance in-
`terests. Pet. Br. at 42–43. Instead, it argues that Secre-
`tary Nielsen need not have considered any reliance
`interests held by stakeholders because DACA was a
`“temporary stop-gap measure” that “confer[red] no sub-
`stantive right.” Id. But, merely asserting that DACA
`was not intended to create reliance interests does not
`demonstrate that those interests did not exist, let
`alone that the agency may ignore such interests. See
`Encino Motorcars, 136 S. Ct. at 2126. The Eastern Dis-
`trict of New York noted as much when it correctly dis-
`missed DHS’s argument, explaining that a substantive
`right need not exist for the agency to be required to
`consider reliance interests engendered by a policy the
`agency seeks to change. New York v. Trump, 17-CV-
`5228 (NGG) (JO) (slip op., at 4) (citing Encino Motorcars,
`136 S. Ct., at 2124–26); see also D.D.C. Order (“Because
`DHS failed to even acknowledge how heavily DACA
`beneficiaries had come to rely on the expectation that
`
`
`
`11
`
`they would be able to renew their DACA benefits, its
`barebones legal interpretation was doubly insufficient
`and cannot support DACA’s rescission.”). Even Secre-
`tary Nielsen explicitly acknowledged that “recipients
`have availed themselves of [DACA] in continuing their
`presence in this country and pursuing their lives.”
`Nielsen Memorandum at 3.
`
`The Government also failed to consider any other
`
`reliance interests, including those of amici, who have
`worked tirelessly to assist DACA recipients and have
`built extensive programs and infrastructure within
`their organizations in reliance on DACA. They have
`also hired and trained DACA recipients in reliance on
`DACA. Even if the Secretary’s statements constituted
`adequate consideration of the reliance interests of
`DACA recipients—and they do not—there is nothing
`in the record that indicates the Government gave any
`consideration to reliance interests of amici or the harm
`they would suffer upon DACA’s rescission.
`
`The rescission of DACA and its effects on both re-
`
`cipients and the organizations who serve and employ
`them would mean that hundreds of thousands of peo-
`ple may suddenly face the complicated immigration re-
`moval system alone and without legal assistance,
`given the serious limitations on resources many amici
`(and other organizations like them) will face, described
`infra. Given the enormity of the interests at stake and
`the profound reliance interests generated over the
`course of years, DHS’s failure to consider these inter-
`ests when it rescinded DACA renders that decision ar-
`bitrary and capricious.
`
`
`
`12
`
`B. DACA Recipients’ Reliance Interests Are
`Significant Because Most Do Not Qualify
`for Other Forms of Immigration Relief.
`Amici routinely screened DACA-eligible immi-
`
`grants to determine whether they qualified for immi-
`gration relief under any available program. The vast
`majority of their DACA-eligible clients do not qualify
`for permanent immigration status or any other form of
`protection from removal from the United States.5
`Moreover, contrary to popular perception, there is no
`provision that protects DACA recipients from removal
`based on how long they have lived in the United States,
`even if they have been here nearly all their lives, con-
`tributed positively to their communities, and excelled
`academically. Additionally, despite arguments made in
`other contexts, such as the ongoing litigation in the
`U.S. District Court for the Southern District of Texas,
`DACA did not create a “loophole” by which DACA re-
`cipients could “cut in line” to obtain immigration relief
`or citizenship ahead of those applicants who applied
`from their home countries. See, e.g., Pl.’s Mot. Prelim.
`Injunction and Memorandum in Support, Texas v.
`United States, 1:18-cv-68 (S.D. Tex. 2018) at 3. Rather,
`
`
`5 As Respondents note, DACA is consistent with various Acts
`
`of Congress that view undocumented immigrants who came here
`as children or have been in the United States for a long time as
`low enforcement priorities. See Brief of Respondents the States of
`California, et al. at 32 n. 11, Dep’t of Homeland Security v. Regents
`of the Univ. of California, Nos. 18-587, 18-588, 18-589 (U.S. Sept.
`27, 2019). As set forth in the Office of Legal Counsel opinion cited
`therein, DACA is consistent with this legislation. Id. at 4, 43; J.A.
`827 n. 8.
`
`
`
`13
`
`DACA provided young people who had no choice
`whether to immigrate to the United States with a path
`to obtain immigration relief that is entirely distinct
`from DHS’s visa-granting programs. The tiny fraction
`of DACA recipients who have obtained lawful immi-
`gration status were eligible for such status inde-
`pendently of DACA.
`
`Amici’s experience, based upon years of screening
`
`and advising DACA-eligible clients, is that most have
`not suffered the requisite harm to be eligible for hu-
`manitarian forms of immigration relief, and do not
`have qualifying relatives through whom they can ap-
`ply for family-based relief. Academic research confirms
`amici’s experience. See, e.g., Tom K. Wong, et al., Paths
`to Lawful Immigration Status: Results and Implications
`from the PERSON Survey, 2 J. Migration and Hum. Se-
`curity 4, 287–304 (2014). The rescission of DACA there-
`fore would leave the vast majority of DACA recipients
`without any protection from deportation.
`
`Humanitarian-based immigration options, such as
`
`asylum, Special Immigrant Juvenile Status (“SIJS”),
`and U and T visas, are narrowly-tailored forms of relief
`that typically require applicants to have survived per-
`secution; parental neglect, abandonment, or abuse; a
`serious crime; or a severe form of human trafficking.6
`
`
`6 See 8 U.S.C. § 1158 (asylum) (based on past persecution or
`
`a well-founded fear for future persecution); 8 U.S.C. § 1101(a)(27)
`(SIJS); 8 U.S.C. § 1101(a)(15)(U) (U visas); 8 U.S.C. § 1101(a)(15)(T)
`(T visas); 8 U.S.C. § 1101(a)(51) (VAWA).
`
`
`
`14
`
`Most DACA recipients have not experienced these
`hardships and do not qualify for these forms of relief.
`
` Most DACA recipients are also not eligible for
`family-based immigration relief because they do not
`have a qualifying relative. Even those very few DACA
`recipients who might have a qualifying relative would
`typically have to leave the country to apply for a fam-
`ily-based visa at a U.S. consulate abroad. Moreover,
`most would face strict bars to re-entry because their
`original entry (even though they were children at the
`time) was unlawful, resulting in the accrual of “unlaw-
`ful presence” between the age of 18 and receipt of
`DACA.7 8 U.S.C. § 1182(a)(9)(B)–(C). The average DACA
`recipient who applied in 2012 was 20 years old and
`thus had already accrued two years of unlawful pres-
`ence before receiving DACA, which results in a ten-
`year bar to re-entering the United States. See Tom K.
`Wong, et al., 2017 National DACA Study, Ctr. for Am.
`Progress (Aug. 28, 2017) at 12 (hereinafter the “2017
`National DACA Study”); 8 U.S.C. § 1182(a)(9)(B)(i)(II).
`DACA recipients would have to abandon their families,
`jobs, and schools, and leave the only country most of
`them have ever known since early childhood, to wait
`out this ten-year period in their country of birth. Al-
`though unlawful presence may be waived, the stand-
`ards are so difficult to meet that few DACA recipients
`
`
`7 DACA recipients who have accrued unlawful presence
`
`and depart the United States are barred from re-entry for varying
`lengths of time, depending on their length of unlawful presence
`and number of entries. 8 U.S.C. §§ 1182(a)(9)(B)(i)(I)–(II);
`1182(a)(9)(C).
`
`
`
`15
`
`are likely to qualify. In practice, then, these time bars
`act as complete barriers to relief.
`
`Given how few DACA recipients qualify for immi-
`
`gration status or relief from removal, and the legal
`and practical hurdles they face even if they do qualify,
`the reality is that rescinding DACA would strip most
`recipients of the ability to work legally and obtain pro-
`tection from deportation—and therefore will inevita-
`bly result in real and profound damage to the reliance
`interests that DACA recipients have nurtured since
`DACA’s inception.
`
`
`
`C. Most DACA Recipients Will Lose the Abil-
`ity to Work, Drive, Pay for College, and
`Plan for Their Lives if DACA Is Re-
`scinded.
`The reliance interests that DHS so blithely ig-
`
`nored in deciding to rescind DACA involve matters
`that are fundamental to DACA recipients’ lives—in-
`deed, they are matters fundamental to nearly all
`Americans. Because the vast majority of DACA recipi-
`ents are
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