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,
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,
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)
A. Freedman, Emily Newhouse Dillingham, ARNOLD & PORTER
KAYE SCHOLER LLP, Washington, D.C., for
M. Mooppan, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees/Cross-Appellants.
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
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
KING, DIAZ, and RICHARDSON, Circuit Judges.
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.
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.
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.
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.
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.
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).
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)
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") (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
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,
passed background checks.
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. 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
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.
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"). 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.
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).
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
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
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).
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
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,
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."
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.
800, 000 individuals have received deferred action under DACA
since its inception.
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
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.
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.
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).
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).
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."
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,  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.
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
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
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.
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).
government's contention that § 1252(b)(9) bars
review thus is without merit.
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.
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). 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
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.
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 ...