Texas v. United States, 21-40680

50 F.4th 498

State of TEXAS; State of Alabama ; State of Arkansas ; State of Louisiana; State of Nebraska; State of South Carolina; State of West Virginia; State of Kansas; State of Mississippi, Plaintiffs—Appellees,

v.UNITED STATES of America; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; Troy Miller, Acting Commissioner, U.S. Customs and Border Protection ; Tae D. Johnson, Acting Director of U.S. Immigration and Customs Enforcement; Ur M. Jaddou, Director of U.S. Citizenship and Immigration Services, Defendants—Appellants,Elizabeth Diaz; Jose Magana-Salgado; Karina Ruiz De Diaz; Jin Park; Denise Romero; Angel Silva; Moses Kamau Chege; Hyo-Won Jeon; Blanca Gonzalez; Maria Rocha; Maria Diaz; Elly Marisol Estrada; Darwin Velasquez; Oscar Alvarez; Luis A. Rafael; Nanci J. Palacios Godinez; Jung Woo Kim; Carlos Aguilar Gonzalez; State of New Jersey, Intervenor Defendants—Appellants.

No. 21-40680

United States Court of Appeals, Fifth Circuit.

FILED October 5, 2022

Benjamin D. Wilson, Judd Edward Stone, II, Office of the Attorney General of

Texas, Office of the Solicitor General, Austin, TX, William Thomas Thompson, Assistant General Counsel, Office of the Attorney General of Texas, Special Litigation Unit, Austin, TX, for Plaintiffs-Appellees.

Melissa Nicole Patterson, Esq., Cynthia Barmore, Nicholas S. Crown, Joshua Koppel, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Brian Boynton, U.S. Department of Justice, Civil Division, Washington, DC, James J. Walker, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation - District Court Section, Washington, DC, for Defendants-Appellants.

Nina Perales, Mexican-American Legal Defense & Educational Fund, San Antonio, TX, Mark A. Cianci, Ropes & Gray, L.L.P., Boston, MA, Carlos Moctezuma Garcia, Garcia & Garcia, Attorneys at Law, McAllen, TX, Douglas Harry Hallward-Driemeier, Esq., Emerson A. Siegl, Ropes & Gray, L.L.P., Washington, DC, for Intervenor Defendant-Appellant Elizabeth Diaz, Jose Magana-Salgado, Karina Ruiz De Diaz, Jin Park, Denise Romero, Angel Silva, Moses Kamau Chege, Hyo-Won Jeon, Blanca Gonzalez, Maria Rocha, Maria Diaz, Elly Marisol Estrada, Darwin Velasquez, Oscar Alvarez, Luis A. Rafael, Nanci J. Palacios Godinez, Jung Woo Kim, Carlos Aguilar Gonzalez.

Jeremy M. Feigenbaum, Esq., Office of the Attorney General for the State of New Jersey, Trenton, NJ, for Intervenor Defendant-Appellant State of New Jersey.

Daniel Volchok, Wilmer Cutler Pickering Hale and Dorr, L.L.P., Washington, DC, for Amici Curiae Matthew J. Slaughter, Gordon H. Hanson.

Grace Zhou, Office of the Attorney General for the State of New York, New York, NY, for Amici Curiae State of New York, State of California, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Maine, State of Maryland, Commonwealth of Massachusetts, State of Michigan, State of Minnesota, State of Nevada, State of New Mexico, State of North Carolina, State of Oregon, Commonwealth of Pennsylvania, State of Rhode Island, State of Vermont, Commonwealth of Virginia, State of Washington, State of Wisconsin, District of Columbia.

Mary B. McCord, Esq., Georgetown University Law Center, Washington, DC, for Amici Curiae Current and Former Prosecutors, Law Enforcement Leaders, Department of Justice Officials.

Adam Pierson, DLA Piper, L.L.P. (US), Dallas, TX for Amicus Curiae Mississippi Center for Justice.

Anton Metlitsky, David Cohen, O'Melveny & Myers, L.L.P., New York, NY, for Amicus Curiae Twenty Colleges and Universities.

Peter Karanjia, DLA Piper, L.L.P. (US), Washington, DC, for Amici Curiae United We Dream, 84 Organizations.

Michael Dundas, Los Angeles City Attorney's Office, Los Angeles, CA, for Amicus Curiae 69 Local Governments and Local Government Advocacy Organizations.

Andrew John Pincus, Mayer Brown, L.L.P., Washington, DC, for Amicus Curiae U.S. Companies and Business Associations.

William Jeffrey Olson, Esq., Vienna, VA, for Amici Curiae Citizens United, Citizens United Foundation, Presidential Coalition, L.L.C.

Matt A. Crapo, Immigration Reform Law Institute, Washington, DC, for Amicus Curiae Immigration Reform Law Institute.

Before Richman, Chief Judge, and Ho and Engelhardt, Circuit Judges.

Priscilla Richman, Chief Judge:

In 2012 the Secretary of the Department of Homeland Security (DHS) announced the Deferred Action for Childhood Arrivals (DACA) program. The program was set forth in a three-page memorandum (to which we will refer as the DACA Memorandum or the memorandum).¹ Among other provisions, the DACA Memorandum directed that removal of certain aliens who entered the United States unlawfully as children should be deferred and that these immigrants should receive certain benefits. Eight states and the Governors of two states, led by Texas, have challenged DACA's validity.² In ruling on competing motions for summary judgment, the district court held that the DACA Memorandum violates procedural and substantive requirements of the Administrative Procedure Act (APA).³ The district court vacated the DACA Memorandum and remanded to DHS for further consideration but temporarily stayed that vacatur as it applies to current DACA recipients.⁴ The district court further ruled that DHS may continue to accept new and renewal DACA applications but enjoined DHS from approving any new DACA applications.⁵ We affirm the district court's judgment in part, but remand to the district court rather than DHS in light of a final rule promulgated by DHS in August 2022.⁶

I

The 2012 DACA Memorandum applies to "certain young people who were brought to this country as children" unlawfully and would otherwise be removable.⁷ The DACA Memorandum provides that an illegal alien qualifies for relief from removal and specified benefits if that person

• came to the United States under the age of sixteen;

• has continuously resided in the United States for at least five years preceding the date of the memorandum and was present in the United States on the date of the memorandum;

• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

• has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or does not otherwise pose a threat to national security or public safety;

• is not above the age of thirty as of the date of the memorandum; and

• passes a background check.⁸

Under these criteria, the district court concluded that about 1.5 million aliens were covered by the DACA Memorandum.⁹

The memorandum instructs immigration agencies to "exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal ...."¹⁰ United States Citizenship and Immigration Services (USCIS) was directed to "establish a clear and efficient process" to that end.¹¹

Those granted deferred action became eligible for other benefits. By virtue of deferred action, recipients were deemed "lawfully present" under pre-existing federal regulations and could seek work authorization, and were eligible for Social Security and Medicare.¹² The memorandum expressly stated that "USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action."¹³

The memorandum contained several disclaimers. "DHS cannot provide any assurance that relief will be granted in all cases."¹⁴ The memorandum says that it "confers no substantive right, immigration status or pathway to citizenship."¹⁵ It purports to "set forth policy for the exercise of discretion within the framework of existing law."¹⁶

Two years later, in November 2014, DHS issued a memorandum to expand DACA and institute a related program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).¹⁷ The DACA expansion would have removed the age limit, extended the entry date from 2007 to 2010, and extended the renewable deferred action period from two years to three years.¹⁸ Up to 4.3 million parents of United States citizens or lawful permanent residents would have been eligible under the DAPA program.¹⁹

Twenty-six states filed suit in the Southern District of Texas to prevent DAPA's implementation.²⁰ The district court entered a nationwide preliminary injunction.²¹ In Texas v. United States (DAPA ),²² this court affirmed the grant of injunctive relief.²³ We held that DAPA likely violated procedural APA requirements because it was a substantive rule that required notice and comment.²⁴ We also held that DAPA likely violated substantive APA requirements because it was "manifestly contrary" to the Immigration and Naturalization Act (INA).²⁵ The Supreme Court affirmed this court's judgment without an opinion by an equally divided vote.²⁶

After a change in Presidential administrations, the new Attorney General determined that DACA was likewise unlawful.²⁷ DHS then issued a memorandum attempting to rescind DACA.²⁸ In Department of Homeland Security v. Regents of the University of California ,²⁹ the Supreme Court held that DACA's rescission violated the APA. The Court first determined that the rescission decision was reviewable.³⁰ DACA "conferr[ed] affirmative immigration relief," granting both forbearance from removal and other benefits attendant to deferred action: eligibility for work authorization, Social Security, and Medicare.³¹ "Because the DACA program is more than a non-enforcement policy, its rescission is subject to review under the APA," the Court explained.³²

The Court then held that the decision to rescind DACA was arbitrary and capricious.³³ DHS did not explain why it was terminating "the forbearance policy at the heart of DACA," instead of the benefits alone.³⁴ "[G]iven DHS's earlier judgment that forbearance is ...