Casa De Md. v. U.S. Dep't of Homeland Sec.

924 F.3d 684

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.

No. 18-1521

No. 18-1522

United States Court of Appeals, Fourth Circuit.

Argued: December 11, 2018

Decided: May 17, 2019

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.

Affirmed in part, reversed in part, vacated in part, dismissed in part, and remanded by published opinion. Judge Diaz wrote the majority opinion, in which Judge King joined. Judge Richardson wrote an opinion concurring in part and dissenting in part.

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, includingthose 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, 132 S.Ct. 2492, 183 L.Ed.2d 351 (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, 119 S.Ct. 936, 142 L.Ed.2d 940 (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...