throbber

`
`Nos. 18-587, 18-588, and 18-589
`================================================================================================================
`In The
`Supreme Court of the United States
`---------------------------------  ---------------------------------
`DEPARTMENT OF HOMELAND SECURITY, et al.,
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
`Respondents.
`
`---------------------------------  ---------------------------------
`DONALD J. TRUMP, President of the United States, et al.,
`Petitioners,
`
`v.
`NATIONAL ASSOCIATION FOR THE
`ADVANCEMENT OF COLORED PEOPLE, et al.,
`Respondents.
`
`---------------------------------  ---------------------------------
`KEVIN K. MCALEENAN,
`Acting Secretary of Homeland Security, et al.,
`Petitioners,
`
`v.
`MARTIN JONATHAN BATALLA VIDAL, et al.,
`Respondents.
`
`
`
`---------------------------------  ---------------------------------
`On Writs Of Certiorari To The
`United States Courts Of Appeals For The
`Ninth, District Of Columbia, and Second Circuits
`---------------------------------  ---------------------------------
`BRIEF OF ALIANZA AMERICAS AND 10 OTHER
`IMMIGRATION RIGHTS ORGANIZATIONS AS
`AMICI CURIAE IN SUPPORT OF RESPONDENTS
`---------------------------------  ---------------------------------
`NEIL V. MCKITTRICK
` Counsel of Record
`LORENZO R. CABANTOG
`OGLETREE, DEAKINS, NASH,
` SMOAK & STEWART, P.C.
`One Boston Place, Suite 3500
`Boston, MA 02108
`(617) 994-5726
`neil.mckittrick@ogletree.com
`Counsel for Amici Curiae
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`

`

`i
`
`TABLE OF CONTENTS
`
`4
`
`5
`
`Page
`TABLE OF CONTENTS ........................................
`i
`TABLE OF AUTHORITIES ...................................
`ii
`INTEREST OF THE AMICI CURIAE ...................
`1
`SUMMARY OF ARGUMENT ................................
`1
`ARGUMENT ...........................................................
`4
`
`I. DHS FAILED TO CONSIDER THE SIGNIF-
`ICANT RELIANCE INTERESTS CREATED
`BY THE DACA PROGRAM BEFORE IT
`DECIDED TO RESCIND DACA .................
`A. THE 2017 DUKE MEMORANDUM DID
`NOT CONSIDER AT ALL THE RELI-
`ANCE INTERESTS AT STAKE ...........
`B. THE JUNE 2018 NIELSON MEMO-
`RANDUM WAS A POST HOC RATION-
`ALIZATION THAT IS NOT PROPERLY
`PART OF THE ADMINISTRATIVE REC-
`ORD AND WHICH ALSO FAILED TO
`CONSIDER ADEQUATELY THE SUB-
`STANTIAL RELIANCE INTERESTS
`INVOLVED ............................................
` II. THE RELIANCE INTERESTS INVOLVE
`SIGNIFICANT SOCIAL AND ECONOMIC
`BENEFITS TO DACA RECIPIENTS AND
`THE COMMUNITY AT LARGE ................. 13
` III. RESCINDING DACA WOULD POTEN-
`TIALLY RESULT IN THE ENTRAPMENT
`OF RECIPIENTS ......................................... 17
`CONCLUSION ..................................................... 20
`
`APPENDIX A—LIST OF AMICI ............................... 1a
`
`9
`
`

`

`ii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490
`(1981) ......................................................................... 9
`Camp v. Pitts, 411 U.S. 138 (1973) ............................. 10
`Cox v. Louisiana, 379 U.S. 559 (1965) ........................ 18
`Encino Motorcars LLC v. Navarro, 136 S. Ct.
`2117 (2016) ............................................ 4, 6, 7, 11, 12
`FCC v. Fox Television Stations, Inc., 556 U.S. 502
`(2009) ......................................................... 4, 7, 11, 12
`Martin v. Occupational Safety & Health Review
`Comm’n, 499 U.S. 144 (1991) .................................. 12
`Matter of Bell Petroleum Servs., Inc., 3 F.3d 889
`(5th Cir. 1993) ............................................................ 9
`Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
`Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103
`S. Ct. 2856 (1983) ...................................................... 9
`NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C.),
`denied on reconsideration, 315 F. Supp. 3d 457
`(D.D.C. 2018) ............................................................. 5
`Raley v. Ohio, 360 U.S. 423, 79 S. Ct. 1257 (1959) ........ 18
`Regents of the Univ. of Cal. v. U.S. Dep’t of Home-
`land Sec., 279 F. Supp. 3d 1011 (N.D. Cal.
`2018) ................................................................ passim
`Regents of the Univ. of Cal. v. U.S. Dep’t of Home-
`land Sec., 908 F.3d 476 (9th Cir. 2018) ................... 10
`
`
`
`

`

`iii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Sec. and Exchange Comm’n v. Chenery Corp.,
`332 U.S. 194 (1947) ................................................... 9
`Vargas v. I.N.S., 938 F.2d 358 (2d Cir. 1991) ................ 9
`
`RULES
`S. Ct. R. 37.2(a) ............................................................. 1
`S. Ct. R. 37.6 .................................................................. 1
`
`OTHER AUTHORITIES
`Alex Horton, The military looked to ‘dreamers’ to
`use their vital skills. Now the U.S. might deport
`them. (Sept. 7, 2017) (available at https://www.
`washingtonpost.com/news/checkpoint/wp/2017/
`09/07/the-military-looked-to-dreamers-to-use-
`their-vital-skills-now-the-u-s-might-deport-them/) ....... 17
`Alexander Casey, An Estimated 123,000 “Dream-
`ers” Own Homes and Pay $380M in Property
`Taxes, Zillow (Sept. 20, 2017) (available at https://
`www.zillow.com/research/daca-homeowners-380M-
`taxes-16629) ............................................................. 15
`Blake Emerson, The Claims of Official Reason:
`Administrative Guidance on Social Inclusion,
`128 Yale L.J. 2122 (2019) .................................... 8, 17
`
`
`
`
`

`

`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Elaine C. Duke, Rescission of the June 15, 2012
`Memorandum Entitled “Exercising Prosecu-
`torial Discretion with Respect to Individuals
`Who Came to the United States as Children,”
`U.S. Dep’t Homeland Security (Sept. 5, 2017)
`(available at https://www.dhs.gov/news/2017/
`09/05/memorandum-rescission-daca) ....................... 2
`Form I-765, Application for Employment Au-
`thorization, Eligibility Category and Filing Type,
`fiscal years 2003-2018, available at https://
`www.uscis.gov/sites/default/files/USCIS/Resources/
`Reports%20and%20Studies/Immigration%20
`Forms%20Data/Employment-based/I-765_RAD_
`FY03-18.pdf ............................................................. 14
`Kirstjen M. Nielsen, Memorandum from Secre-
`tary Kirstjen M. Nielsen on the Rescission of
`Deferred Action for Childhood Arrivals (DACA)
`(June 22, 2018) (available at https://www.dhs.
`gov/sites/default/files/publications/18_0622_S1_
`Memorandum_DACA.pdf) ........................................ 2
`Remarks by the President on Immigration, June
`15, 2012 (available at https://obamawhitehouse.
`archives.gov/the-press-office/2012/06/15/remarks-
`president-immigration) ........................................... 19
`Roberto G. Gonzales et al., Becoming DACA-
`mented: Assessing the Short-Term Benefits of
`Deferred Action for Childhood Arrivals (DACA),
`58 Am. Behav. Scientist 1852 (2014) ...................... 15
`United States Citizenship and Immigration Ser-
`vices Form I-821D ................................................... 13
`
`

`

`v
`
`TABLE OF AUTHORITIES – Continued
`
`Zachary S. Price, Reliance on Nonenforcement,
`58 Wm. & Mary L. Rev. 937 (2017) ................... 18, 19
`
`Page
`
`
`
`

`

`1
`
`INTEREST OF THE AMICI CURIAE1
`
`This case involves an enforcement program deci-
`sion by the Department of Homeland Security (DHS)
`that will potentially impact hundreds of thousands of
`immigrants in this country. Amici are organizations
`that advocate on behalf of various immigrant popula-
`tions, including persons enrolled in the Deferred Ac-
`tion for Childhood Arrivals (DACA) program. Amici
`have among their members and the populations for
`which they advocate DACA recipients and their fami-
`lies. As a result of their work with, and advocacy for,
`immigrant populations, Amici have a breadth of under-
`standing of the significant reliance interests of these
`populations on DACA, which DHS failed to consider
`when deciding to rescind DACA. (A description of each
`of the Amici appears in Appendix A.)
`
`---------------------------------  ---------------------------------
`
`SUMMARY OF ARGUMENT
`
`DHS’s decision to rescind DACA was arbitrary
`and capricious because it failed to consider the signifi-
`cant reliance interests engendered by DACA. DACA
`recipients have relied on the program to make major,
`life-altering decisions. They have obtained Social Secu-
`rity numbers, advanced their education and signed
`
`
`1 All parties issued blanket consents to the filing of amicus
`
`briefs in this matter. See S. Ct. R. 37.2(a). Pursuant to S. Ct. R.
`37.6, no one other than Amici and their counsel have authored
`any part of this brief or funded its preparation and submission.
`
`
`
`

`

`2
`
`school loans, gained employment, undertaken military
`service, purchased homes and entered into mortgages,
`and become fully integrated into society. Yet, these
`facts and data were conspicuously ignored by DHS in
`its decision to rescind DACA.
`
`In two separate attempts to justify its rescission of
`
`DACA, DHS failed to consider in any meaningful way
`the reliance interests DACA had engendered. In 2017,
`DHS Acting Secretary Elaine Duke issued a memoran-
`dum eliminating DACA. See Elaine C. Duke, Rescission
`of the June 15, 2012 Memorandum Entitled “Exercising
`Prosecutorial Discretion with Respect to Individuals
`Who Came to the United States as Children,” U.S. Dep’t
`Homeland Security (Sept. 5, 2017) (available at https://
`www.dhs.gov/news/2017/09/05/memorandum-rescission-
`daca) (the “Duke Memorandum”). The Duke Memoran-
`dum ignored the extent to which DACA recipients
`relied on the program to make major life, educational,
`financial and employment decisions. The Duke Memo-
`randum’s failure to analyze, or even consider, the
`significant reliance interests violated Supreme Court
`precedent and a basic tenet of administrative law.
`
`In June 2018, DHS Secretary Kirstjen Nielsen is-
`
`sued a second memorandum attempting to justify her
`predecessor’s rescission of DACA. See Kirstjen M. Niel-
`sen, Memorandum from Secretary Kirstjen M. Nielsen
`on the Rescission of Deferred Action for Childhood
`Arrivals (DACA) (June 22, 2018) (available at https://
`www.dhs.gov/sites/default/files/publications/18_0622_S1_
`Memorandum_DACA.pdf) (the “Nielsen Memorandum”).
`The Nielsen Memorandum, published five months
`
`

`

`3
`
`following the decision by the District Court for the
`Northern District of California to enjoin the rescission
`of DACA and while the case was pending before the
`Ninth Circuit, was a post hoc rationalization of the
`DACA rescission, intended to address the administra-
`tive decision-making deficiencies identified by the Dis-
`trict Court. Indeed, it is not supported by its own
`administrative record; instead, it relied on the same
`record that was before Acting Secretary Duke. Although
`the Nielsen Memorandum mentioned the reliance in-
`terest in a conclusory manner, it did not contain any
`analysis of those interests.
`
`DACA’s rescission also potentially represents a
`
`form of entrapment. In exchange for deferred action
`and suspension of removal proceedings, DACA recipi-
`ents were required to submit personal biographical in-
`formation, including date and location of entry into the
`United States and all previous and current residential
`addresses, along with fingerprints and photographs.
`Undocumented immigrants provided this information
`on the condition of confidentiality and that DHS would
`not share the information with Immigration and Cus-
`toms Enforcement in connection with removal proceed-
`ings. With DACA eliminated, nothing prevents DHS
`from delivering the information to initiate immigrants’
`removal.
`
`
`
`---------------------------------  ---------------------------------
`
`
`
`
`

`

`4
`
`ARGUMENT
`I. DHS FAILED TO CONSIDER THE SIGNIFI-
`CANT RELIANCE INTERESTS CREATED
`BY THE DACA PROGRAM BEFORE IT DE-
`CIDED TO RESCIND DACA.
`
`A basic procedural requirement of administrative
`rulemaking is that an agency must provide adequate
`reasons for its decisions. See Encino Motorcars LLC v.
`Navarro, 136 S. Ct. 2117, 2125-26 (2016). If the agency
`fails to provide at least a minimal level of analysis, its
`action will be found to be arbitrary and capricious. See
`id. In cases involving a rescission or reversal of policy,
`an agency must provide “a more detailed justification”
`in certain circumstances, especially “when its prior pol-
`icy has engendered serious reliance interests that
`must be taken into account.” FCC v. Fox Television Sta-
`tions, Inc., 556 U.S. 502, 515 (2009); accord Encino, 136
`S. Ct. at 2125-26 (2016). It would be arbitrary and ca-
`pricious to ignore such reliance interests. See Fox, 556
`U.S. at 515.
`
`In its two separate attempts to justify its rescission
`
`of DACA, DHS failed to meet this reasoned decision-
`making standard. Initially, the 2017 memorandum is-
`sued by DHS Acting Secretary Duke wholly ignored
`the fact that DACA recipients relied on the deferred
`action program to make major life, educational, finan-
`cial and employment decisions. DHS’s subsequent attempt
`to rectify the deficiencies of the Duke Memorandum by
`issuing a memorandum in June 2018 by Secretary
`Nielsen was merely a post hoc rationalization un-
`supported by an administrative record. This second
`
`

`

`5
`
`attempt at establishing a reasoned rationale baldly as-
`serted, without any factual analysis, that Secretary
`Nielsen considered the reliance interests of DACA
`recipients. Neither attempted justification was suffi-
`cient to satisfy the reasoned analysis decision-making
`standard.
`
`
`
`A. THE 2017 DUKE MEMORANDUM DID
`NOT CONSIDER AT ALL THE RELIANCE
`INTERESTS AT STAKE.
`
`As the U.S. District Court for the District of Co-
`lumbia held in NAACP v. Trump, DHS’s rescission of
`DACA was “particularly egregious . . . in light of the
`reliance interests involved.” 298 F. Supp. 3d 209, 240
`(D.D.C.), denied on reconsideration, 315 F. Supp. 3d
`457 (D.D.C. 2018). As the Court noted, these reliance
`interests include: the participation by DACA recipients
`in international postgraduate research; their appli-
`cation for, and receipt of, student loans; employment
`opportunities they obtained by virtue of availing them-
`selves of DACA; and educational opportunities such as
`the pursuit of advanced degrees. Id. at 240 n.24. Al-
`though “hundreds of thousands” of DACA recipients
`had “structured their education, employment, and other
`life activities on the assumption that they would be
`able to renew their DACA benefits,” the 2017 Duke
`Memorandum made no effort to weigh such interests
`in the agency’s decision-making process. Id. at 240.
`
`In Regents v. DHS, the U.S. District Court for
`
`the Northern District of California likewise held that
`
`

`

`6
`
`Acting Secretary Duke did not weigh the reliance
`interests of DACA recipients in deciding to rescind
`DACA. Relying on this Court’s decisions in Encino and
`Fox, the court found that the abandonment of DACA
`was arbitrary and capricious because “the administra-
`tive record includes no consideration to the disruption
`a rescission would have on the lives of DACA recipi-
`ents, let alone their families, employers and employees,
`schools and communities.” Regents of the Univ. of Cal.
`v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011,
`1045-46 (N.D. Cal. 2018).
`
`As this Court explained in Fox, an agency chang-
`
`ing course on policy “must” account for serious reliance
`interests engendered by the previous policy. 556 U.S. at
`515. The agency’s failure to consider such interests
`renders its decision arbitrary and capricious. Id.
`
`Fox involved a Federal Communications Commis-
`
`sion (“FCC”) enforcement policy to refrain from prose-
`cuting broadcasters for “fleeting expletives,” but instead
`only bring enforcement actions against the “deliberate
`and repetitive use” of expletives. Id. at 506-08. Justice
`Scalia, writing for the Court, initially observed that an
`agency is generally not required to provide a more sub-
`stantial explanation when it changes a previous policy.
`Id. at 514. However, Justice Scalia subsequently ex-
`plained that “a more detailed justification” is required
`“when its prior policy has engendered serious reliance
`interests that must be taken into account.” Id. at 515.
`
`Encino also emphasized that an agency changing
`
`course must consider “reliance interests” that developed
`
`

`

`7
`
`under the previous policy. That case involved the De-
`partment of Labor’s about-face on its interpretation of
`a Fair Labor Standards Act regulation concerning the
`application of minimum wage and overtime provisions
`to certain car dealership employees. Encino, 136 S. Ct.
`at 2121. The Court held:
`
`In explaining its changed position, an agency
`must also be cognizant that longstanding pol-
`icies may have “engendered serious reliance
`interests that must be taken into account . . .
`In such cases, it is not that further justifica-
`tion is demanded by the mere fact of policy
`change; but that a reasoned explanation is
`needed for disregarding facts and circum-
`stances that underlay or were engendered by
`the prior policy.” Fox, 556 U.S. at 515-16. . . . It
`follows that an “unexplained inconsistency” in
`agency policy is “a reason for holding an inter-
`pretation to be an arbitrary and capricious
`change from agency practice.” National Cable
`& Telecommunication Assn. v. Brand X Inter-
`net Services, 545 U.S. 967, 981 (2005).
`
`Id. at 2126 (other internal citations omitted).
`
`The reliance interests of the DACA recipients are
`
`even more significant than the business interests at is-
`sue in Fox and Encino. The interests at stake here in-
`clude major life decisions by approximately 700,000
`people, each of whom provided considerable personal
`information to the government in reliance on the ex-
`pected protections of the DACA program. DHS strayed
`from this Court’s precedent in Fox and Encino when it
`failed to consider these “serious reliance interests.” The
`
`

`

`8
`
`rationale of the Duke Memorandum, which eliminated
`DACA, came down to one sentence: “Taking into con-
`sideration the Supreme Court’s and the Fifth Circuit’s
`rulings in the ongoing litigation, and the September 4,
`2017 letter from the Attorney General, it is clear that
`the June 15, 2012 DACA program should be termi-
`nated.” Duke Memorandum at 3.
`
` Missing from the Duke Memorandum was any
`mention or consideration of the significant educa-
`tional, employment, and financial decisions made by
`DACA recipients in reliance on the DACA program.
`Also absent was the consideration of, or even any ref-
`erence to, the significant reliance interests of third
`parties—including schools and universities, employers
`and businesses, families and communities—that will
`be affected by the government’s abrupt policy change.
`“[T]he interests and investments thereby created de-
`serve at least some minimal protection.” Blake Emer-
`son, The Claims of Official Reason: Administrative
`Guidance on Social Inclusion, 128 Yale L.J. 2122, 2205
`(2019). By protecting these expectations, “people and
`institutions [can] make plans against a relatively sta-
`ble background of rules and official practices.” Id. The
`Duke Memorandum considered none of these issues.
`
`
`
`
`
`
`

`

`9
`
`B. THE JUNE 2018 NIELSON MEMORAN-
`DUM WAS A POST HOC RATIONALIZA-
`TION THAT IS NOT PROPERLY PART
`OF THE ADMINISTRATIVE RECORD AND
`WHICH ALSO FAILED TO CONSIDER
`ADEQUATELY THE SUBSTANTIAL RE-
`LIANCE INTERESTS INVOLVED.
`
`This Court has repeatedly held that after-the-fact
`attempts by agencies to justify their actions “cannot
`serve as a sufficient predicate for agency action.” Am.
`Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 539 (1981);
`accord Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
`Farm Mut. Auto. Ins. Co., 463 U.S. 29, 49, 103 S. Ct.
`2856, 2870 (1983). Indeed, agency actions are judged
`“solely by the grounds invoked by the agency” at the
`time the decision is made. Sec. and Exchange Comm’n
`v. Chenery Corp., 332 U.S. 194, 196 (1947).
`
`Courts have been loathe to accept after-the-fact
`
`explanations to justify agency action. See, e.g., Vargas
`v. I.N.S., 938 F.2d 358, 363 (2d Cir. 1991) (“Post hoc
`explanations—especially those offered by appellate
`counsel—are simply an inadequate basis for the exer-
`cise of substantive review of an administrative deci-
`sion.”); Matter of Bell Petroleum Servs., Inc., 3 F.3d 889,
`905 (5th Cir. 1993) (“We will not accept the [agency’s]
`post-hoc rationalizations in justification of its decision,
`nor will we attempt to supply a basis for its decision
`that is not supported by the administrative record.”).
`While these cases typically critique arguments made
`by agency counsel on appeal, the principle applies with
`equal force to any after-the-fact explanation offered by
`
`

`

`10
`
`an agency that attempts to defend a challenged deci-
`sion. Moreover, the timing and circumstances sur-
`rounding the publication of the Nielsen Memorandum
`demonstrate that it is not itself agency action. See Pe-
`titioner’s Brief (“Pet. Br.”) at 29. Indeed, DHS counsel
`submitted a letter concerning the Nielsen Memoran-
`dum to the Ninth Circuit five months after the North-
`ern District of California’s decision in Regents and
`while the case was pending on appeal. Regents of the
`Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d
`476, 510 n.24 (9th Cir. 2018).
`
`The focal point for judicial review is the adminis-
`
`trative record in existence when the agency made the
`decision, not the response provided by an agency after
`a court rules on that agency decision. See Camp v. Pitts,
`411 U.S. 138, 142 (1973). DHS made the decision to re-
`scind DACA in 2017, and it provided the Duke Memo-
`randum to justify that decision. There is nothing in the
`Duke Memorandum to suggest that the Department
`ever considered the significant reliance interests in-
`volved at that time.
`
`If the Nielsen Memorandum was in fact a stand-
`
`alone policy, it would be supported by its own admin-
`istrative record. It is not. The entire administrative
`record consisted of 256 pages that were submitted to
`the district court before DHS issued the Nielsen Mem-
`orandum. Regents, 279 F. Supp. 3d at 1028. Nothing in
`the 256-page record indicated that either Acting Sec-
`retary Duke or Secretary Nielsen considered, in any
`
`

`

`11
`
`meaningful way, the reliance interests of DACA recip-
`ients.2
`
`The circumstances of the Nielsen Memorandum
`
`suggest that it was created to address the deficiencies
`of the Duke Memorandum, as identified by the district
`court. Although Secretary Nielsen’s Memorandum as-
`serted that she was “keenly aware” of the reliance in-
`terests, that she “does not believe that the asserted
`reliance interests outweigh the questionable legality of
`the DACA policy,” and that she “did not come to these
`conclusions lightly,” Nielsen Memorandum at 3, it does
`not mean that such interests were actually considered.
`Recitation of such buzzwords, absent evidence of ac-
`tual consideration in the administrative decision, is
`insufficient to satisfy the standard established by
`Fox and Encino. As the Court explained in Encino,
`“the agency ‘must examine the relevant data and artic-
`ulate a satisfactory explanation for its action including
`a rational connection between the facts found and
`the choice made.’ ” Encino, 136 S. Ct. at 2125 (quoting
`State Farm, 463 U.S. at 43) (emphasis added). The
`Nielsen Memorandum contains no data or analysis of
`facts related to the reliance interests at issue. Instead,
`it contains only conclusory statements unsupported by
`
`
`2 The administrative record contains three letters from mem-
`
`bers of Congress, one to Acting Secretary Duke and two to the
`President, about DACA recipients, but as noted above, Acting
`Secretary Duke did not mention any reliance interests at all, and
`Secretary Nielsen merely referred to reliance in a conclusory
`manner, without any analysis, or specific discussion of any par-
`ticular aspect of reliance and/or the weight, if any, to be accorded
`such reliance.
`
`

`

`12
`
`the record. This Court’s holding in Encino applies
`equally well here: “In light of the serious reliance in-
`terest at stake, the Department’s conclusory state-
`ments do not suffice to explain its decision.” Encino,
`136 S. Ct. at 2127 (citing Fox, 556 U.S. at 515-16).
`
`DHS’s reliance on Martin v. Occupational Safety
`
`& Health Review Comm’n, 499 U.S. 144 (1991), for the
`proposition that the Nielsen Memorandum, “is agency
`action,” is misplaced for two reasons. First, Martin did
`not involve a rescission of policy. As this Court has held
`in Fox and Encino, an agency “must” provide a rea-
`soned analysis where a previous policy has engendered
`serious reliance interests. Second, the agency action at
`issue in Martin was the Secretary of Labor’s first-time
`interpretation of a safety regulation during an adjudi-
`cation before the Occupational Safety and Health Re-
`view Commission. In contrast, Secretary Nielsen’s
`Memorandum was DHS’s second bite at the apple, an
`attempt to salvage her predecessor’s rule-making deci-
`sion by claiming that she had considered the relevant
`reliance interests.
`
`Neither the 2017 Duke Memorandum nor the
`
`2018 Nielsen Memorandum adequately considered
`the significant reliance interests involved. Accordingly,
`DHS failed to satisfy the fundamental principle of Fox
`and Encino to evaluate the reliance interests impacted
`by the reversal of agency policy.
`
`
`
`
`
`
`

`

`13
`
`II. THE RELIANCE INTERESTS INVOLVE SIG-
`NIFICANT SOCIAL AND ECONOMIC BEN-
`EFITS TO DACA RECIPIENTS AND THE
`COMMUNITY AT LARGE.
`
`DACA recipients relied on the deferred action pro-
`gram to their detriment. To be eligible for the program,
`individuals underwent an extensive background check
`and completed USCIS Form I-821D, which requested
`personal data, including biographical information, date
`and point of entry into the country, immigration status
`(or lack thereof ), educational history, and all previous
`residential addresses since entering the United States.
`See Regents, 279 F. Supp. 3d at 1022. Applicants pro-
`vided documented proof of identity and continuous res-
`idence in the United States, as well as photographs,
`fingerprints and signatures.
`
`As the Northern District of California recognized
`
`in Regents, DACA conferred significant protections in
`exchange for an applicant’s enrolling in the program
`and providing significant personal information:
`
`First, under pre-existing regulations, DACA
`recipients became eligible to receive employ-
`ment authorization for the period of deferred
`action, thereby allowing them to obtain social
`security numbers and to become legitimate
`taxpayers and contributing members of our
`open economy. 8 C.F.R. § 274a.12(c)(14). Sec-
`ond, deferred action provided a measure of
`safety for a period of two years from detention
`and removal, albeit always subject to termina-
`tion at any time in any individual case. Third,
`DACA recipients could apply for “advance
`
`

`

`14
`
`parole” to obtain permission to travel overseas
`and be paroled back into the United States.
`8 C.F.R. § 212.5(f ). Fourth, also pursuant to
`pre-existing regulations, DACA recipients
`avoided accrual of time for “unlawful pres-
`ence” under the INA’s bar on re-entry. 8 U.S.C.
`§ 1182(a)(9)(B)–(C) (establishing three-year,
`ten-year, and permanent bars on the admis-
`sion of aliens after specified periods of “unlaw-
`ful presence”).
`
`Id. at 1023.
`
`In addition to the submission of substantial per-
`
`sonal identifying information to the government,
`DACA recipients paid significant fees and planned
`their lives in reliance on the government’s promises to
`provide tangible protections pursuant to DACA. Argu-
`ably, the most significant and tangible promises to
`DACA recipients included the ability to obtain a tem-
`porary Social Security number and a two-year renew-
`able employment authorization.3 These protections
`increase an immigrant’s potential to improve his or her
`incorporation into society and mobility trajectory. See
`
`
`3 The government has only rarely denied a renewal applica-
`
`tion for work authorization. In 2017, for example, the government
`received approximately 431,197 renewal applications. It denied
`only 3,352, for a renewal rate of approximately 99.3%. See Form
`I-765, Application for Employment Authorization, Eligibility Cat-
`egory and Filing Type, fiscal years 2003-2018, available at https://
`www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and
`%20Studies/Immigration%20Forms%20Data/Employment-based/
`I-765_RAD_FY03-18.pdf. Therefore, DACA recipients could rea-
`sonably rely on the near-certain expectation that their work au-
`thorizations would be renewed.
`
`

`

`15
`
`Roberto G. Gonzales et al., Becoming DACAmented: As-
`sessing the Short-Term Benefits of Deferred Action for
`Childhood Arrivals (DACA), 58 Am. Behav. Scientist
`1852, 1853 (2014). Sixteen months after DACA was im-
`plemented, recipients experienced greater access to ed-
`ucation, employment, and societal opportunities. Id. at
`1866. Many attend universities and have started in-
`ternships which provided them with the opportunity to
`be in a “better position to leverage their education to
`pursue better jobs with higher earnings.” Id. at 1857.
`Without DACA, however, undocumented youth could
`not obtain greater access to educational opportunities.
`Id. at 1855. Accordingly, they would be “excluded from
`work, study opportunities, and paid internships.” Id. at
`1854. Indeed, some internships require Social Security
`numbers to process background checks, thus “exclud-
`ing undocumented youth from gaining applied skills
`and expanding professional networks.” Id.
`
`In addition to vastly improved educational oppor-
`
`tunities, DACA confers significant financial and em-
`ployment opportunities. Social Security numbers allow
`DACA recipients to open bank accounts and obtain
`credit cards, thereby improving their financial stabil-
`ity. See id. at 1863.4 DACA recipients are more likely
`than undocumented immigrants to obtain drivers’
`
`
`4 An on-line real estate database company estimated that, as
`
`of 2017, 123,000 DACA enrollees were homeowners, paying an es-
`timated $380 million per year in property taxes. Alexander Casey,
`An Estimated 123,000 “Dreamers” Own Homes and Pay $380M in
`Property Taxes, Zillow (Sept. 20, 2017) (available at https://www.
`zillow.com/research/daca-homeowners-380M-taxes-16629).
`
`

`

`16
`
`licenses, which lead to greater educational and em-
`ployment opportunities for young immigrants. See id.
`
`The significant reliance interests also implicate
`
`the interests of DACA recipients’ families, employers,
`schools, and communities. As DACA recipients receive
`Social Security numbers and obtain employment au-
`thorizations, they are deeply integrated into society
`through employment and educational opportunities.
`This not only benefits DACA recipients but also im-
`pacts educational institutions, employers and commu-
`nities at large. As the Regents of the University of
`California explained, they have “invested considerable
`resources in recruiting students and staff who are
`DACA recipients,” and the University will “lose signif-
`icant intellectual capital and productivity” as a result
`of the rescission. Regents, 279 F. Supp. 3d at 1026. In
`addition, DACA recipients will lose their work author-
`izations, and the various states and counties that em-
`ploy them will lose the time and resources in training
`these employees. Id. at 1027. Rescission of DACA also
`will cause harm to the county and state economies by
`decreasing tax revenue and will result in immigrants’
`increased dependency on subsidized health care. Id. at
`1027, 1034.
`
`Schools, employers, and the community at-large
`
`have thus relied on the continuation of DACA. A sud-
`den about-face will have a significant impact on the en-
`tities that employ and educate DACA recipients. In
`light of the significant economic reliance interests at
`stake, “review of the bases for the rescission should be
`
`

`

`17
`
`relatively intense.” Emerson, Official Reason, 128 Yale
`L.J. at 2205.
`
`DACA recipients have come to rely on DACA’s ben-
`
`efits to obtain undergraduate and postgraduate educa-
`tion, private and public employment, and social and
`economic integration.5 Thus, a searching review for the
`agency’s reasons for rescission of the program is

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