IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION CHRISTOPHER L. CRANE, DAVID A. ) ENGLE, ANASTASIA MAR IE ) CARROLL, RICARDO DIAZ, ) LORENZO GARZA, FELIX ) LUCIANO, TRE REBSTOCK, ) FERNANDO SILVA, SAMUEL ) MARTIN, and JAMES D. DOEBLER ) Civil Action No. ) 3:12-CV Plaintiffs, ) ) v. ) ) JANET NAPOLITANO, in her official ) capacity as Secretary of Homeland ) Security, JOHN MORTON, in his ) official capacity as Director of ) Immigration and Customs Enforcement, ) And ALEJANDRO MAYORKAS, in his ) Official capacity as Director of the United ) States Citizenship and Immigration Services ) ) ) Defendants. ) BRIEF OF PAMELA RESÉNDIZ, CAROLINA CANIZALEZ, AND THE UNIVERSITY LEADERSHIP INITIATIVE AS AMICI CURIAE IN SUPPORT OF DEFENDANTS

2 TABLE OF CONTENTS INRODUCTION AND SUMMARY OF ARGUMENT...2 ARGUMENT...3 I. PLAINTIFFS CANNOT SHOW INJURY-IN-FACT BECAUSE DACA-ELIGIBLE INDIVIDUALS ARE EXEMPT FROM 8 U.S.C. 1225(B)(2)(A)...3 II. III. IV. PLAINTIFFS MISINTERPRET THE GUIDANCE SET FORTH IN THE DHS MEMORANDUM AND DO NOT IMPLEMENT IT CORRECTLY...5 PLAINTIFFS SEEK DECLARATORY AND INJUNCTIVE RELIEF THAT IS OVERLY BROAD AND VAGUE...8 THE APA IS INAPPLICABLE TO DHS S ISSUANCE OF THE MORTON MEMORANDUM AND THE DHS MEMORANDUM...11 V. AN INJUNCTION WOULD ADVERSELY AFFECT THE PUBLIC INTEREST AND THE BALANCE OF THE HARDSHIPS FAVORS AMICI...13 CONCLUSION...15 i

3 TABLE OF AUTHORITIES CASES Aetna Life Ins. Co. v. Haworth, 300 U.S. 227(1937)...8 Arenas Yeses v. Gonzalez, 421 F.3d 111 (2d Cir. 2005)...9 Califano v. Yamasaki, 442 U.S. 682 (1979)...8 Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006)...6 Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir. 1981)...12 Graham v. Med. Mut. of Ohio, 130 F.3d 293 (7th Cir. 1997)...14 Gulf Pub. Co. v. Lee, 679 F.2d 44 (5th Cir. 1982)...7 Heckler v. Chaney, 740 U.S. 821 (1985)...11 John Doe #1 v. Veneman, 380 F.3d 807 (5th Cir. 2004)...8 Johnston v. United States, 85 F.3d 217 (5th Cir. 1996)...5 Lennon v. INS, 527 F.2d 187 (2d Cir. 1975)...11 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...5 Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 299 F.3d 643 (7th Cir. 2002)...6 Mason v. Mukasey, 306 Fed. Appx. 897 (6th Cir. 2009)...11 Meltzer v. Board of Public Instruction of Orange County, Fla., 480 F.2d 552 (5th Cir. 1973)...6 North Carolina v. Rice, 404 U.S. 244 (1971)...8 Pasquini v. Morris, 700 F.2d 658 (11th Cir. 1983)...12 Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471 (1999)...13 Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985)...11, 12 Sammartano v. First Judicial Dist. Ct., 303 F.3d 959 (9th Cir. 2002)...14 Samuels v. Wilder, 871 F.2d 1346 (7th Cir. 1989)...9 ii

4 Soon Bok Yoon v. INS, 538 F.2d 1211 (5th Cir.1976)... 11, 12 Spiegel v. City of Houston, 636 F.2d 997 (5th Cir. 1981)...14 United States v. Martinez, 263 F.3d 436 (5th Cir. 2001)...10 United States Parole Comm'n v. Geraghty, 445 U.S. 388 (1980)...7, 8 United States v. Salerno, 481 U.S. 739 (1987)...6 United Transportation Union v. Foster, 205 F.3d 851 (5th Cir. 2000)...10 U.S. Steel Corp. v. United Mine Workers of Am., 519 F.2d 1236 (5th Cir. 1975)...8 Valley v. Rapides Parish Sch. Bd., 646 F.2d 925 (5th Cir.1981)...8 Velasco-Gutierrez v. Crossland, 732 F.2d 792 (10th Cir. 1984)...12 Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)...6 CONSTITUTIONAL PROVISIONS AND STATUTES 5 U.S.C. 553(b) U.S.C. 553(b)(3)(A) U.S.C U.S.C. 1103(a)(1) U.S.C. 1103(2)-(3) U.S.C. 1125(b) U.S.C , 4, 5, 9 8 U.S.C. 1225(a) U.S.C. 1225(a)(1) U.S.C. 1225(b) U.S.C. 1225(b)(1)...4 iii

5 8 U.S.C. 1225(b)(2) U.S.C. 1225(b)(1)(A) U.S.C. 1225(b)(1)(A)(iii) U.S.C. 1225(b)(2)(A)... passim 8 U.S.C. 1225(b)(2)(B)(ii)...3, 4, 5 8 U.S.C. 1229a...5, 9 8 C.F.R U.S.C FED. R. CIV. P FED. R. CIV. P. 65 (d)(1)(c)...6 iv

6 INTEREST OF AMICI When Defendant Secretary of Homeland Security Janet Napolitano issued the June 15, 2012 Memorandum entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (the DHS Memorandum or DACA ), Pamela Reséndiz and Carolina Canizalez were undocumented immigrant students 1 at the University of Texas at San Antonio ( UTSA ). See generally Mot. to Intervene, Exs. C and D. Both young women graduated that summer, Ms. Canizalez with honors. Mot. to Intervene, Exs. C and D. After the Department of Homeland Security ( DHS ) began accepting requests for consideration of deferred action pursuant to the DHS Memorandum on August 15, 2012, both Ms. Reséndiz and Ms. Canizalez determined that they were eligible and applied. See Mot. to Intervene, Ex. C at 5; Mot. to Intervene, Ex. D at 7. They received deferred action and approval for work authorization, and now work full-time. See Mot. to Intervene, Ex. C at 5, 7; Mot. to Intervene, Ex. D at 7-8. Ms. Reséndiz is employed as a facilitator for Advancing America Foundation, where she conducts outreach to Texas public schools to encourage at-risk students to pursue higher education. See Mot. to Intervene, Ex. C at 7. Ms. Canizalez is a National Coordinator for United We Dream, a national nonpartisan organization that advocates for the fair treatment of immigrant youth and families. See Mot. to Intervene, Ex. C at 8. Founded in 2005, the University Leadership Initiative ( ULI ) is a membership-based association and student organization of the University of Texas-Austin ( UT-Austin ). See Mot. to Intervene, Ex. E at 3-5. ULI s mission is to advance the educational attainment and civil rights of undocumented immigrant youth. 2 See id. at 10. ULI promotes higher education for immigrant students; encourages civic participation among undocumented immigrant students in 1 The term undocumented immigrant student(s) is used to describe students residing in the United States who do not have authorization by the U.S. government to reside in the United States. 2 See University Leadership Initiative, available at 1

7 secondary schools; and conducts outreach at the local, state and national level to address problems faced by undocumented immigrant students in college. See id. at ULI s membership is comprised of students currently attending UT-Austin. See id. ULI s members provide mentorship and support to undocumented immigrant students in secondary schools. See id. at 3. Through volunteer activities, ULI fulfills its organizational mission to encourage young, undocumented immigrant students to succeed academically, graduate from high school, and attend institutions of higher education. See id. Many undocumented immigrant student members of ULI have either received or are eligible for deferred action under the DHS Memorandum, and require deferred action so that they can continue to pursue higher education without the threat of deportation interfering with their studies. See id. at 18. Moreover, eligible student members rely on income earned through work authorization obtained through deferred action in order to be able to afford college. See id. at 19. INTRODUCTION AND SUMMARY OF ARGUMENT Pending before the Court is Plaintiffs Application for Preliminary Injunctive Relief. Dkt. 24. On April 23, 2013, after reviewing briefing from the parties and holding a hearing on the matter, the Court entered a Memorandum Opinion and Order that Plaintiffs are likely to succeed on the merits of their claim that the DHS Memorandum and related provisions of a June 17, 2011 memorandum issued by Defendant Morton (the Morton Memorandum ) violated 8 U.S.C. 1225(b)(2)(A), but deferred its ruling pending requested supplemental briefing from the parties. Dkt. 58 at 1. The Court did not complete its analysis of Plaintiffs Administrative Procedures Act ( APA ) claim, but inferred that Defendants may be likely to succeed on the merits of that claim. Id. at

8 Amici now respectfully seek to call the Court's attention to pertinent federal immigration law and facts in the pending matter that have not been raised and therefore may not have been considered by the Court. Specifically, Plaintiffs lack standing to bring their claim because DACA-eligible individuals like amici are exempt from 8 U.S.C. 1225(b)(2)(A) under 8 U.S.C. 1225(b)(2)(B)(ii), and therefore, Plaintiffs can suffer no injury from the implementation of the DHS Memorandum. In addition, Plaintiffs requested injunctive relief, if granted, is impermissibly overbroad and vague. Furthermore, the DHS Memorandum does not confer a substantive immigration benefit so as to trigger administrative rulemaking requirements. Finally, the balancing of the harms weighs in favor of denying a preliminary injunction where such would unnecessarily interfere with amici s pursuit of higher education without the threat of deportation interfering with their studies, and prevent access to income earned through work authorization obtained through deferred action. ARGUMENT I. PLAINTIFFS CANNOT SHOW INJURY-IN-FACT BECAUSE DACA-ELIGIBLE INDIVIDUALS ARE EXEMPT FROM 8 U.S.C. 1225(B)(2)(A). Plaintiffs base the entirety of their injury on an incorrect interpretation of 8 U.S.C As Plaintiffs counsel acknowledged during the hearing, 8 U.S.C only applies to aliens 3 who have been present in the country for less than two years. 4/8/13 Tr. at 120: Because Section 1225(b)(2)(A) specifically exempts aliens who have been present in the U.S. for more than two years, ICE agents are not permitted by the statute to issue Notices to Appear ( NTAs ) to DACA-eligible applicants for admission because DACA applicants must have been present for at least five years; thus, Plaintiffs cannot claim an injury on that basis. 3 This term connotes the same meaning as undocumented immigrant for purposes of this brief. 3

9 The statutory section at issue includes an exception at 8 U.S.C. 1225(b)(2)(B)(ii), providing that it is inapplicable to a person to whom 8 U.S.C. 1225(b)(1) applies. In turn, 8 U.S.C. 1225(b)(1) exempts from the description of persons who shall be detained as persons who establish to the satisfaction of the immigration officer, that...[s/he] has been physically present in the United States continuously for the 2-year period immediately prior to the officer s determination of inadmissibility under [8 U.S.C. 1225(b)(1)(A)]. 8 U.S.C. 1225(b)(1)(A)(iii). Thus, an ICE officer who is targeting a detainee must allow the detainee an opportunity to demonstrate the requisite two years of continuous presence that would exempt them from enforcement of the statute. To qualify for favorable discretion under DACA, the DHS Memorandum states that an applicant must show that s/he has continuously resided in the United States for at least five years preceding the date of the DACA directive. Dkt. 15, App. A at 1. Accordingly, Plaintiffs will not suffer negative employment consequences for refraining from initiating proceedings against DACA-eligible detainees under Section 1225(b), because those individuals are automatically exempted. Oddly, Plaintiffs requested injunctive relief would allow them to violate federal law, not comply with it. Plaintiffs misinterpretation of 8 U.S.C. 1225(b) is not limited to the two-year exemption set forth at 8 U.S.C. 1225(b)(2)(B)(ii). Plaintiffs also argue, incorrectly, that Section 1225(b) applies to all DACA-eligible applicants regardless of the manner in which they entered the United States. Dkt. 24 at 4-5; 4/8/13 Tr. at 120:7-10, Without any counter argument from Defendants, the Court accepted this argument. Dkt. 58 at 10. However, by its express terms, 8 U.S.C. 1225, only applies to arriving immigrants and those who have not been 4

10 admitted. See 8 U.S.C. 1225(a)(1). 4 It excludes immigrants who were admitted and overstayed their visas. See id. Many DACA applicants were inspected and admitted upon their arrival to the United States. For example, Ms. Canizalez overstayed a validly-issued visa and was previously inspected by immigration officers. See Mot. to Intervene, Ex. D at 2. DACA applicants who were inspected and admitted prior to overstaying a non-immigrant visa do not trigger 8 U.S.C. 1225(a). In these instances, the shall be detained provision that Plaintiffs claim requires the initiation of removal proceedings cannot apply. See 8 U.S.C. 1225(b)(2)(A); 8 U.S.C. 1229a. Without the benefit of the accurate interpretation of 8 U.S.C. 1225(b)(2)(A), however, the Court adopted Plaintiffs interpretation, determining that the statute requires Plaintiffs to detain all applicants for admission who are not clearly and beyond a doubt entitled to be admitted, even those applicants who are DACA-eligible. Dkt. 58 at 22. Any federal court may review jurisdiction sua sponte at any time. See Johnston v. United States, 85 F.3d 217, 218 n.2 (5th Cir. 1996) (citation omitted). For the reasons stated here, Plaintiffs cannot establish an injury-in-fact that is fairly traceable to the challenged memoranda or that the injury will be "redressed by a favorable decision" and, consequently, this case should be dismissed for lack of jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992). II. PLAINTIFFS MISINTERPRET THE GUIDANCE SET FORTH IN THE DHS MEMORANDUM AND DO NOT IMPLEMENT IT CORRECTLY. Plaintiffs claims are based on facial challenges to the DHS and Morton Memoranda in their Amended Complaint. See Dkt. 15 at Plaintiffs can only succeed in a facial 4 An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission. 8 U.S.C. 1225(a)(1) (emphasis added). Section 1225 (b)(2) then only applies to an alien who is an applicant for admission. 8 U.S.C. 1225(b)(2). 5

11 challenge to the constitutionality of the memoranda by establishing that no set of circumstances exists under which [they] would be valid. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 1190 & n.6 (2008) (citing United States v. Salerno, 481 U.S. 739, 745 (1987)); Center for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006). Their facial challenge must fail. First, Plaintiffs never identify the relevant provisions of the Morton Memorandum that they challenge on their face. 5 In their Amended Complaint, Plaintiffs identify (and misquote) one partial sentence from the Morton Memorandum, stating that the Morton Memorandum asserts prosecutorial discretion... [not] to issue, reissue, serve, file, or cancel a Notice to Appear (NTA)... Dkt. 15 at 15. If this is the provision that Plaintiffs challenge, the Morton Memorandum indicates that prosecutorial discretion may be exercised by ICE officers and agents, and applies to a range of discretionary enforcement decisions, including but not limited to... deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA). Dkt. 34, Att. A at 2 (emphasis added). Therefore, the Morton Memorandum preserves officer discretion on its face, especially if the officer was to encounter a detainee who threatened public safety. Similarly, the DHS Memorandum states explicitly that agencies should consider DACA applicants for deferred action on a case-by-case individual basis, and that relief will not be granted in all cases. Dkt. 15, App. A at 2. On their face, these memoranda simply do not strip Plaintiffs of their discretion to issue NTAs in violation of 8 U.S.C. 1225(b)(2)(A) as alleged by Plaintiffs. Although Plaintiffs were not required to carry their burden on the merits in full at the 5 The act to be restrained1 or required cannot be described by reference to the complaint or other documents. Fed. R. Civ. P. 65(d)(1)(C); see also Meltzer v. Board of Public Instruction of Orange County, Fla., 480 F.2d 552, 554 (5th Cir. 1973); Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 299 F.3d 643, 646 (7th Cir. 2002) (injunction must be self-contained). 6

12 hearing, they made no effort to meet their burden of persuasion on their facial claims, and those claims must fail. To the extent that Plaintiffs advance an as-applied challenge, and the Court permits them to assert a claim not pled, that challenge must also fail. Plaintiffs provided no evidence that any agent has suffered or will suffer negative employment consequences as a result of implementing the memoranda correctly, perhaps because DACA-eligible applicants are exempt from 8 U.S.C. 1125(b), as discussed in Part I. Although there was some discussion during the hearing of one Plaintiff who received a letter threatening disciplinary action, that letter was not introduced as evidence in briefing or during the hearing, and at best, shows that one supervisor likely misunderstood the guidance set forth on the face of the memoranda. 4/18/13 Tr. at 141: The testimony of Plaintiffs Crane and Martin, at best, shows that there are some ICE supervisors on the ground in El Paso and possibly other parts of the country who are misinterpreting the guidance set forth in the memoranda. Their misapprehension is unfortunate but certainly does not color a meritorious asapplied claim for Plaintiffs. Indeed, Plaintiffs misapplication of Section 1225 and the DHS Memorandum turns to a more serious issue: that this Court lacks jurisdiction because there is no actual case or controversy. Under Article III of the U.S. Constitution, there must be an actual controversy between the parties before legal questions can be answered. See Gulf Pub. Co. v. Lee, 679 F.2d 44, (5th Cir. 1982); see also 28 U.S.C (Declaratory Judgment Act requiring an actual controversy ). [F]ederal courts are without power to decide questions that cannot affect the rights of litigants in the case before them, and lack jurisdiction over cases that do touch upon the legal relationship between the parties having adverse legal interests. United States 7

13 Parole Comm'n v. Geraghty, 445 U.S. 388, 411 (1980) (citing North Carolina v. Rice, 404 U.S. 244, 246 (1971) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, (1937)). Here, there is no actual controversy between the parties because Section 1225 exempts persons whom Plaintiffs want to target for the issuance of NTAs and the DHS Memorandum instructs Plaintiffs not to release persons deemed to be threats to public safety. III. PLAINTIFFS SEEK DECLARATORY AND INJUNCTIVE RELIEF THAT IS OVERLY BROAD AND VAGUE. Plaintiffs are not entitled to a broad-sweeping injunction against the implementation and enforcement of the Morton Memorandum and the DHS Memorandum because such relief is not narrowly tailored. Declaratory and injunctive relief must be narrowly tailored to remedy the actual controversy between the parties. Rule 65 of the Federal Rules of Civil Procedure requires an injunction to be specific in terms.... Fed. R. Civ. P. 65. [T]he scope of injunctive relief is dictated by the extent of the violation established.... Califano v. Yamasaki, 442 U.S. 682, 702 (1979). The district court must narrowly tailor an injunction to remedy the specific action which gives rise to the order. See John Doe #1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004) (citing Valley v. Rapides Parish Sch. Bd., 646 F.2d 925, 942 (5th Cir.1981)). Plaintiffs have not established an injury or controversy that would warrant enjoining Defendants from implementing or enforcing the DHS Memorandum in its entirety. An injunction fails to meet narrow tailoring when it is overbroad or vague. See Veneman, 380 F.3d at 818. Broadness... refers to the range of proscribed activity, while vagueness refers [to] the particularity with which the proscribed activity is described. Id. (citing U.S. Steel Corp. v. United Mine Workers of Am., 519 F.2d 1236, 1246, n.19 (5th Cir. 1975)). Id. (citing U.S. Steel Corp. v. United Mine Workers of Am., 519 F.2d 1236, 1246, n.19 (5th Cir. 1975)). 8

14 Here, Plaintiffs argued, and the Court agreed, that a controversy exists because Plaintiffs suffered an invasion of a legally protected interest - the threat of disciplinary action if they issue an NTA to a DACA-eligible immigrant. Dkt. 58 at Yet, Plaintiffs request declaratory and injunctive relief that far exceeds their ability to issue an NTA. They seek a declaration that relevant provisions of the Morton Memo and the DHS Memorandum violate 8 U.S.C. 1225, and an injunction preventing Defendants and their subordinate officers, employees, and agents from implementing or enforcing the Directive, or taking any adverse action against Plaintiffs pursuant to the Directive or for not following the Directive. Dkt. 15 at The DHS Memorandum applies to many different situations outside the issuance of an NTA. Examples include, but are not limited to: - A Customs and Border Patrol ( CBP ) agent who encounters an applicant for admission (or arriving alien ) at the border, airport, or seaport, can opt not to perform an expedited removal and instead release the individual on parole so that they can file an I-821D, Consideration of Deferred Action for Childhood Arrivals; - An ICE attorney can opt not to file the NTA, thereby not commencing removal proceedings under 8 U.S.C. 1229a; see also Arenas Yeses v. Gonzalez, 421 F.3d 111, (2d Cir. 2005) (proceedings not commenced until NTA, formerly an Order to Show Cause ( OSC ), is filed); - An ICE attorney could agree to close administratively the case in order to allow the potentially DACA-eligible respondent to file an I-821D; 6 The injunctive relief that Plaintiffs seek in their Amended Complaint also conflicts with the relief they request in their Application for Preliminary Injunction. In their Amended Complaint, Plaintiffs only seek to enjoin the implementation of the DHS Memorandum. Dkt. 15 at 24. In their Application for Preliminary Injunction, they seek to enjoin both the Morton Memorandum and the DHS Memorandum. Dkt. 24 at 25. Plaintiffs requested relief under the preliminary injunction should fail because it was not adequately pled in their Amended Complaint. See, e.g., Samuels v. Wilder, 871 F.2d 1346, 1350 (7th Cir. 1989) (issues not raised in the complaint were not considered by the court). 9

15 - An ICE attorney can terminate proceedings altogether for someone who has already been granted deferred action; - USCIS adjudicators receive, process and decide whether to approve or deny I-821D applications. The relief Plaintiffs seek is vague because, as shown above, they do not identify what the relevant provisions of the Morton Memorandum are in their Application for Preliminary Injunction. See generally Dkt Instead, Plaintiffs simply refer to relevant or related provisions of the Morton Memorandum. See, e.g., Dkt. 15 at 23; Dkt. 24 at 25. An injunction against the implementation of relevant provisions would be impermissibly vague. Declaratory judgments similarly must be limited to the resolution of an actual controversy. United Transportation Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000) (citation omitted). As shown above, supra Part II, Plaintiffs have not claimed that the DHS Memorandum and the Morton Memorandum are unconstitutional in every application. Instead, their claim is very narrowly applied to their issuance of NTAs to applicants for admission. Dkt. 15 at 15-16; Dkt. 24 at 3-5. Nevertheless, Plaintiffs seek a declaration that the entire DHS Memorandum violates federal law, a declaration that is overbroad and not tailored to the specific controversy. Dkt. 15 at 23. If the Court were to rule in Plaintiffs favor, it could only address their specific injury. At most, the injunction could only prohibit negative employment consequences to Plaintiffs specifically for issuing an NTA to any individual who cannot establish two years of continuous presence. Relief beyond this scope would not be narrowly tailored. 7 A party waives any issues that are not adequately briefed. See United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001). 10

16 IV. THE APA IS INAPPLICABLE TO DHS S ISSUANCE OF THE MORTON MEMORANDUM AND THE DHS MEMORANDUM. Intra-agency memoranda such as those at issue here are not subject to notice and comment rulemaking under the APA, namely because they do not confer substantive rights or contain the force of law. 8 See, e.g., Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985). Here, because deferred action is not a substantive benefit, it is not subject to administrative rulemaking. The Administrative Procedures Act requires that substantive or legislative rules, which have the force and effect of law, are subject to the APA's notice-and-comment rulemaking requirements. See 5 U.S.C. 553(b). The APA imposes several requirements on agency rulemaking, such as issuance of notice through publication in the Federal Register, formation of rulemaking committees, and fact-finding and public comment periods prior to enactment. See 5 U.S.C The APA exempts interpretative rules, general statements of policy, and rules of agency organization, procedure, or practice. 5 U.S.C. 553(b)(3)(A). A number of federal courts, including the Fifth Circuit, have analyzed whether Operations Instructions (INS documents that originally outlined the basis for prosecutorial discretion) on deferred action operate as substantive rules subject to notice and comment 8 The Morton Memorandum and the DHS Memorandum are not unprecedented uses of Executive authority. Instead, they are part of a decades-long series of directives and internal analyses relying on prosecutorial discretion in immigration enforcement to defer removal action against individuals on a case-by-case basis. Plaintiffs asserted accurately in their preliminary injunction application and at the hearing that deferred action is not set out explicitly in federal code. Instead, it is established in the powers of the Secretary of Homeland Security, who is responsible for the administration and enforcement of the immigration laws of the United States, 8 U.S.C. 1103(a)(1), and who has the ability to establish such regulations... deemed necessary for carrying out his [or her] authority under the provisions of this Act. 8 U.S.C. 1103(2)-(3). In Heckler v. Chaney, the Supreme Court interpreted these provisions to include prosecutorial discretion - the exclusive authority to initiate or terminate removal proceedings. See 740 U.S. 821, 831 (1985). Prosecutorial discretion allows the executive branch to initiate or terminate removal proceedings at will. See, e.g., Mason v. Mukasey, 306 Fed. Appx. 897 (6th Cir. 2009) (finding that deferred action, one type of prosecutorial discretion, allows enforcement agencies to terminate proceedings, or to decline initiating proceedings or executing a final order of deportation). Before deferred action was formally recognized in 1975, it was known within the former INS as non-priority status and was described as an informal administrative stay of deportation. Lennon v. INS, 527 F.2d 187, (2nd Cir. 1975); Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976). 11

17 rulemaking under the APA. These courts hold that such documents do not create a substantive right, but instead function as internal guidelines and/or general statements of policy that fall completely to the discretion of the defendants. See, e.g., Soon Bok Yoon, 538 F.2d at 1213 (affirming that non-priority status as originally set forth in Operations Instructions is not a substantive right); see also Romeiro de Silva, 773 F.2d at 1024 (providing review of other federal courts which concluded that the Operations Instruction is an intra-agency guideline which confers no substantive benefit on aliens seeking inclusion in the deferred action category); Pasquini v. Morris, 700 F.2d 658, 661 (11th Cir. 1983); Velasco-Gutierrez v. Crossland, 732 F.2d 792, 798 (10th Cir. 1984). Because intra-agency memoranda, like Operations Instructions, do not confer substantive rights or contain the force of law, they are not subject to APA requirements. See, e.g., Pasquini, 700 F.2d at 662. The DHS and Morton Memoranda do not have the force of law because, as shown in Part II, their provisions are not mandatory, should be applied on a case-by-case basis, and do not grant relief in all cases. The DHS could also withdraw the DHS Memorandum at any time by issuing a new memorandum detailing different guidance. See 8 C.F.R Furthermore, the DHS Memorandum does not confer substantive rights because deferred action is not a substantive benefit. As described above, intra-agency guidelines, which first outlined deferred action, confer no substantive immigration benefit, or a benefit having the force and effect of substantive law. Romeiro de Silva, 773 F.2d at 1024 (citing Pasquini v. Morris, 700 F.2d at 661 (citing Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir. 1981) (en banc))). 9 8 C.F.R 2.1 provides: All authorities and functions of the Department of Homeland Security to administer and enforce the immigration laws are vested in the Secretary of Homeland Security. The Secretary of Homeland Security may, in the Secretary's discretion, delegate any such authority or function to any official, officer, or employee of the Department of Homeland Security, including delegation through successive redelegation, or to any employee of the United States to the extent authorized by law. Such delegation may be made by regulation, directive, memorandum, or other means as deemed appropriate by the Secretary in the exercise of the Secretary's discretion. 12

18 Deferred action is an act of administrative convenience, not a statutory entitlement, and is nonappealable, and non-permanent. See Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471, 486 (1999). The DHS Memorandum does not provide conditional permanent residency, a path to citizenship, amnesty, or legal status. Instead, it effectively grants a stay of deportation that is renewable, but not guaranteed, every two years. Dkt. 15, App. A at 2. Ms. Canizalez and Ms. Résendiz essentially have a temporary promise from the federal government that they will not be deported. Technically, they do not have lawful status under the law, and their previous periods of unlawful presence have not been excused. 10 The DHS Memorandum itself states that it confers no substantive rights, immigration status, or pathway to citizenship. Dkt. 15, App. A at 3. A subsequent memorandum issued by Defendant Morton describing the DHS Memorandum also emphasizes: [a]s there is no right to the favorable exercise of discretion by the agency, nothing in this memorandum should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States or to limit the legal authority of DHS or any of its personnel to enforce federal immigration law. Similarly, this memorandum, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. See DHS Memorandum: Secretary Napolitano's Memorandum Concerning the Exercise of Prosecutorial Discretion for Certain Removable Individuals Who Entered the United States as a Child, June 15, 2012, p V. AN INJUNCTION WOULD ADVERSELY AFFECT THE PUBLIC INTEREST AND THE BALANCE OF THE HARDSHIPS FAVORS AMICI. 10 Unlawful presence is the duration of time during which an immigrant over the age of 18 is present in the United States without permission and may later prevent admissibility under the Immigration and Nationality Act (INA). INA 212(a)(9)(B). 11 Available at This is a separate memorandum from the DACA and the Morton Memoranda discussed above. 13

19 In addition to interfering with legitimate immigration law enforcement by Defendants, 12 an injunction would also cause substantial harm to nonparties such as amici in this case. Plaintiffs have failed to show that any potential injury outweighs the injury of nonparties like amici if the DHS Memorandum is enjoined. See, e.g., Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997) (noting that the court must consider the impact of an injunction on nonparties). The effect of injunctive relief on nonparties is a compelling reason for denying injunctive relief, especially in light of an overly broad injunction. See, e.g., Spiegel, 636 F.2d at ; Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002). As of January 17, 2013, United States Citizenship and Immigration Services ( USCIS ) had approved more than 268,000 individuals for deferred action, out of more than 488,792 applicants, since it began accepting applications for DACA. 13 Ms. Reséndiz, Ms. Canizalez, and the undocumented immigrant student members of ULI are representative of those individuals and are the true face of DACA. They are young people who came to the United States without choice, are Americans in their hearts and minds, and wish to pursue higher education, earn income to support their families, and contribute meaningfully to their communities without the specter of deportation. Mot. to Intervene, Ex. C at 5, 7; Mot. to Intervene, Ex. D at 7-8. Without deferred action under the DHS Memorandum, they would not be able to remain in the country lawfully, pursue educational opportunities without the constant fear of deportation, or work to support themselves. In addition, thousands of American employers would be harmed substantially if hundreds of thousands of DACA employees suddenly lose work authorization. 12 See Dkt. 34 at 23-24; Spiegel v. City of Houston, 636 F.2d 997, (5th Cir. 1981) (holding that public interest was harmed when injunction prevented legitimate law enforcement activities). 13 USCIS Office of Performance and Quality (OPQ), Deferred Action for Childhood Arrivals Process, April. 2013, available at on%20forms%20data/all%20form%20types/daca/ %20daca%20final%20monthly%20report.pdf. 14

20 For these reasons, Movants respectfully urge the Court to deny the preliminary injunction of DACA, which would have a substantial adverse affect on the public interest that outweighs any effect on Plaintiffs. CONCLUSION For the foregoing reasons, amici respectfully request that the Court deny Plaintiffs Application for Preliminary Injunction. Dated: May 6, 2013 Respectfully submitted, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, INC. s/marisa Bono Marisa Bono State Bar No David G. Hinojosa State Bar No Nina Perales State Bar No Broadway, Ste. 300 San Antonio, Texas mbono@maldef.org Telephone: (210) Telecopier: (210) CLOUTMAN AND CLOUTMAN Edward B. Cloutman III State Bar No Edward B. Cloutman IV State Bar No Elm St. Dallas, TX crawfish11@prodigy.net Telephone: (214) Telecopier: (214) Attorneys for Proposed Defendant-Intervenors 15

21 CERTIFICATE OF SERVICE I hereby certify that on May 6, 2013, I electronically filed the foregoing with the Clerk of court by using the CM/ECF system which will send a notice of electronic filing to counsel of record who are registered participants of the Courts CM/ECF system. I further certify that I mailed the foregoing document and the notice of electronic filing by first-class mail to counsel of record who are not CM/ECF participants as indicated in the notice of electronic filing. By: s/marisa Bono 16