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Casa De Maryland v. U.S. Department of Homeland Security

United States Court of Appeals, Fourth Circuit

May 17, 2019

CASA DE MARYLAND; COALITION FOR HUMANE IMMIGRANT RIGHTS (CHIRLA); FAIR IMMIGRATION MOVEMENT (FIRM); ONE AMERICA; PROMISE ARIZONA; MAKE THE ROAD PENNSYLVANIA; MICHIGAN UNITED; ARKANSAS UNITED COMMUNITY COALITION; JUNTA FOR PROGRESSIVE ACTION, INC.; ANGEL AGUILUZ; ESTEFANY RODRIGUEZ; HEYMI ELVIR MALDONADO; NATHALY URIBE ROBLEDO; ELISEO MAGES; JESUS EUSEBIO PEREZ; JOSUE AGUILUZ; MISSAEL GARCIA; JOSE AGUILUZ; MARICRUZ ABARCA; ANNABELLE MARTINES HERRA; MARIA JOSELINE CUELLAR BALDELOMAR; BRENDA MORENO MARTINEZ; LUIS AGUILAR; J.M.O., a minor child; ADRIANA GONZALES MAGOS, next of friend to J.M.O.; A.M., a minor child; ISABEL CRISTINA AGUILAR ARCE, next of friend to A.M., Plaintiffs - Appellants,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CUSTOMS AND BORDER PROTECTION; DONALD J. TRUMP, in his official capacity as President of the United States; WILLIAM P. BARR, in his official capacity as Attorney General of the United States; ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security; L. FRANCIS CISSNA, in his official capacity as Director of U.S. Citizenship and Immigration Services; RONALD D. VITIELLO, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement; KEVIN K. MCALEENAN, in his official capacity in his official capacity as Acting Commissioner of Custom and Border Protection; UNITED STATES OF AMERICA, Defendants - Appellees. CASA DE MARYLAND; COALITION FOR HUMANE IMMIGRANT RIGHTS (CHIRLA); FAIR IMMIGRATION MOVEMENT (FIRM); ONE AMERICA; PROMISE ARIZONA; MAKE THE ROAD PENNSYLVANIA; MICHIGAN UNITED; ARKANSAS UNITED COMMUNITY COALITION; JUNTA FOR PROGRESSIVE ACTION, INC.; ANGEL AGUILUZ; ESTEFANY RODRIGUEZ; HEYMI ELVIR MALDONADO; NATHALY URIBE ROBLEDO; ELISEO MAGES; JESUS EUSEBIO PEREZ; JOSUE AGUILUZ; MISSAEL GARCIA; JOSE AGUILUZ; MARICRUZ ABARCA; ANNABELLE MARTINES HERRA; MARIA JOSELINE CUELLAR BALDELOMAR; BRENDA MORENO MARTINEZ; LUIS AGUILAR; J.M.O., a minor child; ADRIANA GONZALES MAGOS, next of friend to J.M.O.; A.M., a minor child; ISABEL CRISTINA AGUILAR ARCE, next of friend to A.M., Plaintiffs - Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CUSTOMS AND BORDER PROTECTION; DONALD J. TRUMP, in his official capacity as President of the United States; WILLIAM P. BARR, in his official capacity as Attorney General of the United States; ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security; L. FRANCIS CISSNA, in his official capacity as Director of U.S. Citizenship and Immigration Services; RONALD D. VITIELLO, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement; KEVIN K. MCALEENAN, in his official capacity in his official capacity as Acting Commissioner of Custom and Border Protection; UNITED STATES OF AMERICA, Defendants - Appellants.

          Argued: December 11, 2018

          Appeals from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:17-cv-02942-RWT)

         ARGUED:

          John A. Freedman, Emily Newhouse Dillingham, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants/Cross-Appellees.

          Hashim M. Mooppan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees/Cross-Appellants.

         ON BRIEF:

          Elizabeth J. Bower, Kevin B. Clark, Priya R. Aiyar, WILLKIE FARR & GALLAGHER LLP, Washington, D.C.; Dennis A. Corkery, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, Washington, D.C.; Ajmel A. Quereshi, HOWARD UNIVERSITY SCHOOL OF LAW, Washington, D.C., for Appellants/Cross-Appellees.

          Chad A. Readler, Acting Assistant Attorney General, Mark B. Stern, Abby C. Wright, Thomas Pulham, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees/Cross-Appellants.

          Before KING, DIAZ, and RICHARDSON, Circuit Judges.

          DIAZ, CIRCUIT JUDGE

         In 2012, the Secretary of Homeland Security established the Deferred Action for Childhood Arrivals ("DACA") policy. Under this policy, certain noncitizens who came to the United States as children could receive deferred action-a decision forbearing their removal from the country. Hundreds of thousands of individuals, including those who appear as Plaintiffs in these appeals, applied for and received grants of deferred action under DACA.

         In 2017, the Acting Secretary of Homeland Security rescinded DACA, which prompted a flurry of lawsuits across the country challenging the action. Plaintiffs in these appeals (a group of individuals and organizations) allege that the government's decision to rescind DACA (and its changes to policies governing the use of information provided by DACA applicants) violates the Fifth Amendment to the U.S. Constitution, as well as the Administrative Procedure Act ("APA"), 5 U.S.C. § 500 et seq., and common law principles of estoppel.

         On the government's motion for summary judgment, the district court determined that Plaintiffs' challenges were subject to judicial review, that the rescission of DACA and changes to the government's policies on use of DACA applicant information did not violate the APA, that the constitutional claims were without merit, and that DACA's rescission did not violate principles of estoppel. The court, however, ordered the government (on grounds of estoppel) to comply with the policies promulgated in 2012 on the use of information provided by DACA applicants and enjoined it from altering these policies.

         As we explain, we agree with the district court that Plaintiffs' challenges are subject to judicial review. We also agree with the district court that the government's decision to rescind DACA did not require notice and comment under the APA. But the decision nonetheless violated the APA because-on the administrative record before us-it was not adequately explained and thus was arbitrary and capricious. We also conclude that the district court erred in ordering the government to comply with its policies promulgated in 2012 on the use of information provided by DACA applicants and enjoining it from altering those policies.

         Given our resolution, we decline, under the doctrine of constitutional avoidance, to decide whether Plaintiffs' Fifth Amendment rights were violated. Nor do we address Plaintiffs' remaining arguments challenging the district court's grant of summary judgment.

         I.

         A.

         Before turning to the record material, some context is in order. The Secretary of Homeland Security is "charged with the administration and enforcement" of the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1103(a)(1). One of the enforcement tools available under the INA is the removal of aliens from the United States. "Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law." Arizona v. United States, 567 U.S. 387, 396 (2012); see 8 U.S.C. §§ 1182(a), 1227(a) (listing classes of deportable and inadmissible aliens).

         Because of the "practical fact," however, that the government can't possibly remove all such aliens, the Secretary has discretion to prioritize the removal of some and to deprioritize the removal of others. Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015); see 6 U.S.C. § 202(5) (charging the Secretary of Homeland Security with "[e]stablishing national immigration enforcement policies and priorities"). One form of discretion the government exercises is deferred action, which "is a decision by Executive Branch officials not to pursue deportation proceedings against an individual or class of individuals otherwise eligible for removal from this country." Regents of the Univ. of Cal. v. DHS, 908 F.3d 476, 487 (9th Cir. 2018), petition for cert. filed, 87 U.S.L.W. 3201 (U.S. Nov. 5 & 19, 2018) (No. 18-587).

         Immigration authorities have granted deferred action and related forms of relief from deportation or removal since at least the early 1960s. See id. at 487-89; The Department of Homeland Security's Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, 38 Op. O.L.C. ___, 2014 WL 10788677, at *10-13 (Nov. 19, 2014) ("2014 OLC Opinion")[1] (addressing the Department's practices of granting deferred action ad hoc and through broad policies making relief from removal available to particular groups of aliens). The Supreme Court also has recognized deferred action by name, describing it as the executive branch's "regular practice . . . of exercising . . . discretion for humanitarian reasons or simply for its own convenience." Reno v. Am.-Arab Anti-Discrimination Comm. ("AAADC"), 525 U.S. 471, 484 (1999).

         B.

         Turning now to the record material, the essential undisputed facts are as follows. To ensure government resources were not spent on the "low priority cases" of "certain young people who were brought to [the United States] as children and know only this country as home," J.A. 129, then Secretary of Homeland Security Janet Napolitano announced in a June 15, 2012, memorandum the policy that has become known as DACA. The DACA Memo made renewable two-year terms of deferred action from removal and authorization for employment available to individuals who came to the United States as children, satisfied certain other eligibility criteria, [2] and passed background checks.

         To be considered for deferred action under DACA, applicants had to submit to biometric screening and provide extensive personal information to the Department of Homeland Security. The Department informed applicants that the information provided was "protected from disclosure . . . for the purpose of immigration enforcement proceedings" unless the requestor met criteria for commencement of removal proceedings or referral to U.S. Immigration and Customs Enforcement for a determination whether to commence removal proceedings.[3] J.A. 1004. The Department warned, however, that these policies could be "modified, superseded, or rescinded at any time without notice" and were "not intended to" and did not "create any right or benefit, substantive or procedural, enforceable at law by any party." Id.

         The DACA Memo made clear that it "confer[red] no substantive right, immigration status[, ] or pathway to citizenship." J.A. 131. DACA recipients, however, were eligible to receive a host of other benefits under preexisting statutes and regulations, including advance parole allowing reentry into the United States after travel abroad, social security benefits, and certain forms of public assistance. See 8 U.S.C. §§ 1182(d)(5)(A), 1611(b)(1), 1621(b)(1), (d); 8 C.F.R. §§ 1.3(a)(4)(vi), 212.5. DACA recipients also were eligible to receive employment authorization on a showing of economic necessity. See 8 U.S.C. § 1324a(h)(3); 8 C.F.R. § 274a.12(c)(14).

         In November 2014, then Secretary of Homeland Security Jeh Johnson announced a separate deferred action policy for certain parents of United States citizens and lawful permanent residents that became known as Deferred Action for Parents of Americans ("DAPA").[4] The DAPA memorandum also expanded DACA by (1) extending the deferred action and employment authorization terms from two to three years; (2) removing the "age cap" that previously excluded certain individuals from DACA eligibility; and (3) reducing the period of time that someone needed to be physically present in the United States to be eligible for DACA. See J.A. 167-68.

         A coalition of states led by Texas sued to block implementation of the DAPA policy (and its proposed expansions to DACA) on the grounds that it violated the APA and the Take Care Clause of the Constitution, U.S. Const. art. II, § 3 (the "Texas litigation"). See Texas v. United States, 86 F.Supp.3d 591, 604 & n.1, 607 (S.D. Tex. 2015). The district court in that case granted injunctive relief, id. at 671-72, 677-78 & n.111, and the Fifth Circuit affirmed, Texas v. United States, 809 F.3d 134, 178-79, 186, 188 (5th Cir. 2015). The Supreme Court affirmed the Fifth Circuit's judgment by an equally divided vote. United States v. Texas, 136 S.Ct. 2271 (2016) (per curiam).

         In June 2017 (approximately five months after the Trump administration took office), then Secretary of Homeland Security John Kelly rescinded DAPA but left in place DACA and the deferred action relief and employment authorizations granted between the issuance of the DAPA Memo and the district court's decision in the Texas litigation.

         On September 4, 2017, Attorney General Jefferson Sessions wrote to then Acting Secretary Elaine Duke, advising her to rescind DACA. According to the Attorney General:

DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch. The related . . . DAPA . . . policy was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of multiple legal grounds and then by the Supreme Court by an equally divided vote. . . . Because the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.[5]
In light of the costs and burdens that will be imposed on DHS associated with rescinding this policy, DHS should consider an orderly and efficient wind-down process.

J.A. 379 (internal citations omitted).

         The next day, Acting Secretary Duke rescinded DACA and instructed Department personnel to "wind-down" the policy. J.A. 380, 383. The Secretary's Rescission Memo recounts in a "Background" section the DACA and DAPA policies, the Texas litigation, Secretary Kelly's rescission of DAPA, the letter to Attorney General Sessions from the plaintiffs in the Texas litigation, and General Sessions's September 4 letter. The Rescission Memo then states:

Taking into consideration 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 terminated.

J.A. 383.

         The Rescission Memo-which issued without notice or an opportunity for public comment-did not end DACA outright. Rather, it allowed for a case-by-case basis adjudication of initial applications for deferred action and employment authorization accepted by September 5, 2017, and renewal requests accepted by October 5, 2017, from current DACA beneficiaries whose benefits would expire between September 5, 2017, and March 5, 2018.

         The Memo stated that the Department would not terminate existing grants of deferred action and employment authorization under DACA "solely based on the directives" in the Memo and would "generally honor" approved applications for advanced parole. Id. But it made clear that the Department would reject all other DACA applications, including initial applications filed after September 5, 2017, and all pending and future applications for advance parole under DACA. Id. The Memo, however, explicitly placed "no limitations" on the Department's "otherwise lawful enforcement . . . prerogatives." J.A. 384.

         The Department also announced that once an individual's deferred action under DACA expired, information provided by applicants would not be "proactively provided to [law enforcement agencies] for the purpose of immigration enforcement proceedings" unless the requestor met criteria for commencement of removal proceedings or referral to U.S. Immigration and Customs Enforcement for a determination whether to commence removal proceedings. J.A. 1142. For individuals whose pending DACA requests were denied, the announcement stated that "[g]enerally, information provided in DACA requests will not be proactively provided to other law enforcement entities . . . for the purpose of immigration enforcement proceedings" unless the requestor posed "a risk to national security or public safety" or met criteria for commencement of removal proceedings or referral to U.S. Immigration and Customs Enforcement for a determination whether to commence removal proceedings. J.A. 1143.

         Nearly 800, 000 individuals have received deferred action under DACA since its inception.

         C.

         Plaintiffs' complaint raises a host of challenges to the government's decision to rescind DACA. First, the complaint alleges that the rescission is a substantive rule and thus requires notice-and-comment rulemaking under the APA. Next, it asserts that the government's decisions to rescind DACA and change the way the government proposed to share personal information collected from DACA applicants were arbitrary, capricious, and contrary to law, in violation of the APA, and violated the substantive and procedural due process protections of the Fifth Amendment. Plaintiffs also allege that the decision to rescind DACA violates the equal protection guarantee of the Fifth Amendment. Finally, Plaintiffs say that the government should be equitably estopped from rescinding DACA or using information provided by DACA applicants for immigration enforcement purposes beyond those first announced in 2012, when the government's information-sharing policies were first implemented.

         The district court granted partial summary judgment to the government. The court found (contrary to the government's contention) that Plaintiffs' claims were justiciable. Casa De Maryland v. DHS, 284 F.Supp.3d 758, 768-71 (D. Md. 2018). But on the merits, the court determined that DACA's rescission and the government's changes to its policies on information-sharing did not violate the APA and that Plaintiffs' constitutional claims lacked merit. Id. at 771-77. The court also determined that DACA's rescission did not violate the doctrine of estoppel. Id. at 777-78.

         The court, however, granted summary judgment to Plaintiffs on the portion of their estoppel claim pertaining to the sharing of DACA applicant information. The court ordered the government to comply with the policies as originally announced in 2012 and enjoined it from altering these policies. Id. at 778-79; J.A. 1531-33.

         These appeals followed. We review a district court's grant of summary judgment de novo. Roland v. USCIS, 850 F.3d 625, 628 (4th Cir. 2017). "We can affirm a grant of summary judgment only where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Certain Underwriters at Lloyd's, London v. Cohen, 785 F.3d 886, 889-90 (4th Cir. 2015) (internal quotation marks omitted). We review a district court's grant of an injunction for abuse of discretion. South Carolina v. United States, 907 F.3d 742, 753 (4th Cir. 2018).

         II.

         We begin with the government's argument that Plaintiffs' claims are not justiciable, an issue we consider de novo. See Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014); Angelex Ltd. v. United States, 723 F.3d 500, 505 (4th Cir. 2013).

         A.

         The government contends that Plaintiffs' claims are immune from judicial review under 8 U.S.C. § 1252(g), a provision of the INA stating, "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter."

         According to the government, § 1252(g) bars review here in two ways. First, noting that the Supreme Court in AAADC observed that § 1252(g) "seems clearly designed to give some measure of protection to 'no deferred action' decisions and similar discretionary determinations," 525 U.S. at 485, [6] the government contends that this section bars review because DACA's rescission is a "no deferred action" decision. But this contention ignores both the plain language of § 1252(g) and the Supreme Court's determination in AAADC that this section "applies only to three discrete actions that the [Secretary of Homeland Security] may take: her 'decision or action' to 'commence proceedings, adjudicate cases, or execute removal orders.'" Id. at 482 (first emphasis added). In rescinding DACA, the Acting Secretary did none of these things.

         Second, the government says that § 1252(g) precludes review because DACA's rescission is an initial "action" in the commencement of removal proceedings. As the government would have it, review of its decision to rescind DACA must await a final order of removal. The Supreme Court in AAADC though "specifically rejected a broad reading of the three discrete actions listed in [§] 1252(g)." Regents, 908 F.3d at 504. Specifically, "decisions to open an investigation, [or] to surveil the suspected violator" are not encompassed by § 1252(g)'s jurisdictional bar, even though these decisions "may be part of the deportation process." AAADC, 525 U.S. at 482; see Jennings v. Rodriguez, 138 S.Ct. 830, 841 (2018) (Alito, J., plurality) ("[In AAADC, w]e did not interpret [§ 1252(g)] to sweep in any claim that can technically be said to 'arise from' the three listed actions. . . . Instead, we read the language to refer to just those three specific actions themselves." (emphasis added)).

         And while we accept that § 1252(g) "is specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings," AAADC, 525 U.S. at 487, the government hasn't moved to remove any of the Plaintiffs. The two Circuit decisions on which the government relies to support the proposition that judicial review of DACA's rescission is available only through review of a final order of removal- Vasquez v. Aviles, 639 Fed.Appx. 898 (3d Cir. 2016), and Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999)-are inapposite. Those cases involved challenges to individual "no deferred action" decisions by aliens adjudicated removable. Vasquez, 639 Fed.Appx. at 901; Botezatu, 195 F.3d at 314. The government's reliance on AAADC is therefore misplaced, and we reject its argument that § 1252(g) bars review of Plaintiffs' claims.[7]

         B.

         The government argues that another provision of the INA-8 U.S.C. § 1252(b)(9)-bars review of Plaintiffs' claims. The government did not press this argument in the district court. But because a party may challenge subject matter jurisdiction for the first time on appeal, Am. Canoe Ass'n, Inc. v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003), we consider this issue.

         Section 1252(b)(9) provides that "[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section." 8 U.S.C. § 1252(b)(9). But that provision doesn't help the government here because it "applies only with respect to review of an order of removal under [8 U.S.C. § 1252(a)(1)]." INS v. St. Cyr, 533 U.S. 289, 313 (2001) (emphases added; internal quotation marks and alteration omitted); see Calcano-Martinez v. INS, 232 F.3d 328, 340 (2d Cir. 2000) ("Congress enacted [§ 1252(b)(9)] for the important purpose of consolidating all claims that may be brought in removal proceedings into one final petition for review of a final order in the court of appeals." (emphasis added)), aff'd, 533 U.S. 348 (2001).

         The government's contention that § 1252(b)(9) bars review thus is without merit.

         C.

         Next, the government contends that judicial review is foreclosed under the APA because the decision to rescind DACA is committed to agency discretion by law. We do not agree.

         "Although there is a 'strong presumption' in favor of judicial review of agency action," Speed Mining, Inc. v. Fed. Mine Safety & Health Review Comm'n, 528 F.3d 310, 316 (4th Cir. 2008) (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)), the APA bars judicial review of agency action "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The government says that the Acting Secretary's decision to rescind DACA is a type of agency enforcement decision that is presumptively unreviewable under the Supreme Court's decision in Heckler v. Chaney, 470 U.S. 821 (1985).[8] Invoking the "broad discretion exercised by immigration officials" that is a "principal feature of the removal system," Arizona, 567 U.S. at 396, the government urges that the concerns driving Chaney's presumption of unreviewability apply with "particular force" in the removal context, a context in which allowing delay would result in ordering the government to allow a "continuing violation" of federal law, AAADC, 525 U.S. at 490.

         And while conceding that an agency's expression of a legal interpretation announced in a broad or general enforcement policy may be reviewable, the government says that the decision to rescind DACA is distinguishable because it rested on discretionary enforcement concerns and expressed the Department of Homeland Security's view about the scope of its enforcement authority, not the substantive unlawfulness of the policy. Finally, relying on the Supreme Court's post-Chaney decision in ICC v. Bhd. of Locomotive Eng'rs ("BLE"), 482 U.S. 270 (1987), the government argues that, even if the sole rationale for the rescission decision was the view that DACA was unlawful, such rationale cannot provide a "hook" to support review of the decision.

         Because the government relies so heavily on Chaney for its argument, we turn to that decision. There, a group of death row inmates petitioned the Food and Drug Administration to prevent the use in lethal injections of certain drugs that the agency had not approved for that purpose. 470 U.S. at 823-24. The agency refused to act, based on its view that its jurisdiction to act under the substantive law was unclear and, even if it had jurisdiction, it would decline to exercise that jurisdiction under ...


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