797 F.3d 11 (D.C. Cir. 2015), 14-5325, Arpaio v. Obama

Docket Nº:14-5325
Citation:797 F.3d 11
Opinion Judge:Pillard, Circuit Judge
Attorney:Larry Klayman argued the cause and filed the briefs for appellant. Beth S. Brinkmann, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Benjamin C. Mizer, Acting Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney...
Judge Panel:Before: BROWN, SRINIVASAN and PILLARD, Circuit Judges. Brown, Circuit Judge, concurring:
Case Date:August 14, 2015
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

The Secretary of DHS directed relevant agencies temporarily to defer low-priority removals of non-dangerous individuals so that the agencies can focus their resources on removing dangerous criminals and strengthening security at the border. In what became known as Deferred Action for Childhood Arrivals (DACA), the Secretary outlined a policy to defer removal proceedings for two years. In addition,... (see full summary)


Page 11

797 F.3d 11 (D.C. Cir. 2015)




No. 14-5325

United States Court of Appeals, District of Columbia Circuit

August 14, 2015

Argued May 4, 2015

Page 12

[Copyrighted Material Omitted]

Page 13

Appeal from the United States District Court for the District of Columbia. (No. 1:14-cv-01966).

Larry Klayman argued the cause and filed the briefs for appellant.

Beth S. Brinkmann, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Benjamin C. Mizer, Acting Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney at the time the brief was filed, and Scott R. McIntosh, Jeffrey Clair, and William E. Havemann, Attorneys.

Before: BROWN, SRINIVASAN and PILLARD, Circuit Judges.


Page 14

Pillard, Circuit Judge

The Secretary of the Department of Homeland Security, facing what he perceives to be enormous practical obstacles to removing from the United States the eleven million people unlawfully present here, has sought to set enforcement priorities. He accordingly directed relevant agencies temporarily to defer low-priority removals of non-dangerous individuals so that the agencies can focus their resources on removing dangerous criminals and strengthening security at the border. People whose removal has been deferred are generally eligible to apply for authorization to work, and to reside in the United States for up to three years.

Joseph Arpaio, the Sheriff of Maricopa County, Arizona, sued to enjoin the Secretary's deferred action policies. He asserts that they are unconstitutional, arbitrary and capricious, and invalid under the Administrative Procedure Act as, in effect, regulations that have been promulgated without the requisite opportunity for public notice and comment. We cannot resolve those claims unless Sheriff Arpaio has Article III standing to raise them. To have standing, a plaintiff must have suffered or be about to suffer a concrete injury fairly traceable to the policies he challenges and redressable by the relief he seeks.

Sheriff Arpaio's standing arguments rest on the premise that more people causing more crimes harm him because, as Sheriff, he will be forced to spend more money policing the county and running its jails. He alleges two ways in which he believes that the population of undocumented aliens committing crimes will increase as a result of deferred action. First, he contends that deferred action will act as a magnet drawing more undocumented aliens than would otherwise come across the Mexican border into Maricopa County, where they will commit crimes. Second, he alleges that the challenged policies will decrease total deportations by deferring action against approximately six million undocumented aliens, so that more individuals will remain unlawfully in Maricopa County and commit crimes than would be the case without deferred action.

We conclude that Sheriff Arpaio has failed to allege an injury that is both fairly traceable to the deferred action policies and redressable by enjoining them, as our standing precedents require. His allegations

Page 15

that the policies will cause more crime in Maricopa County are unduly speculative. Projected increases he anticipates in the county's policing burden and jail population rest on chains of supposition and contradict acknowledged realities.

Sheriff Arpaio recognizes that the deferred action policies he challenges apply only to people who are already present in the United States and who either arrived as children or are parents of children who are United States citizens or lawful permanent residents. His magnet theory nonetheless assumes that the policies will cause non-citizens outside of the United States to cross the border in the mistaken hope of benefitting from the current policies. Alternatively, Sheriff Arpaio posits that foreign citizens will view the current policies as a sign of things to come, and will therefore cross the border in the hope of benefitting from hypothesized future, similar policies that are not the subject of Sheriff Arpaio's challenge. Our precedents establish that standing based on third-party conduct--such as the anticipated reactions of undocumented aliens abroad--is significantly harder to show than standing based on harm imposed by one's litigation adversary. That difficulty is compounded here because the third-party conduct the complaint forecasts depends on large numbers of people having the same unlikely experiences and behaviors: For the harms Sheriff Arpaio alleges to occur and be redressable by the injunction he seeks, aliens abroad would have to learn about the deferred action policies, mistakenly think that they were eligible to benefit from them, or harbor a hope of becoming eligible for future, similar policies as yet unannounced, actually leave their homes and enter the United States illegally based on that false assumption, commit crime in Maricopa County, become involved in--and costly to--the criminal justice system there, and be less likely under deferred action to be removed from the United States than they would have been without those policies in place.

Sheriff Arpaio's second standing theory is no less tenuous. Sheriff Arpaio recognizes that only non-dangerous immigrants are eligible for deferred action, but he nonetheless contends that those deferrals will mean that crime by undocumented aliens will be higher than it would be without them. This second theory rests on the mistaken premise that the challenged policies decrease the number of removals below what would have been accomplished had the policies not been adopted. Accurately read, however, the policies seek not to decrease the total number of removals but to prioritize removal of individuals who pose a threat to public safety over removal of those who do not. The policy is designed to make the Department of Homeland Security's expenditure of resources more efficient and effective. Even if it were plausibly alleged (and it is not) that the challenged policies would mean more undocumented aliens remain in the county, the reduced-removals theory also depends on unsupported speculation that these policies, expressly confined to individuals who do not pose threats to public safety, will increase the number of crimes in Maricopa County above what could reasonably be anticipated in the absence of any such policies.

Because Sheriff Arpaio's allegations of causation and redressability rest on speculation beyond that permitted by our standing decisions, we affirm the district court's dismissal of the complaint for want of Article III standing.



The nation's immigration laws provide for the removal from the United

Page 16

States of people who were " inadmissible at the time of entry," or who commit certain offenses or meet other criteria for removal. Arizona v. United States, 132 S.Ct. 2492, 2499, 183 L.Ed.2d 351 (2012). The Secretary of Homeland Security is " charged with the administration and enforcement" of the immigration laws. 8 U.S.C. § 1103(a)(1). With enforcement responsibility comes the latitude that all executive branch agencies enjoy to exercise enforcement discretion--discretion necessitated by the practical fact that " [a]n agency generally cannot act against each technical violation of the statute it is charged with enforcing." Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The Supreme Court has particularly recognized that " [a] principal feature of the removal system is the broad discretion exercised by immigration officials." Arizona, 132 S.Ct. at 2499. Whether to initiate removal proceedings and whether to grant relief from deportation are among the discretionary decisions the immigration laws assign to the executive. Id.

In making immigration enforcement decisions, the executive considers a variety of factors such as the danger posed to the United States of an individual's unlawful presence, the impact of removal on the nation's international relations, and the " human concerns" of whether the individual " has children born in the United States, long ties to the community, or a record of distinguished military service." Id. More generally, the Supreme Court has recognized that all agencies have discretion to prioritize in light of the Secretary's and, ultimately, the President's assessments " whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all." Heckler, 470 U.S. at 831.

One form of discretion the Secretary of Homeland Security exercises is " deferred action," which entails temporarily postponing the removal of individuals unlawfully present in the United States. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 484, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). Immigration authorities have made decisions to defer action or take similar measures since the early 1960s. See The Department of Homeland Security's Authority to Prioritize Removal of Certain Aliens Unlawfully Present (" OLC Op." ), 38 Op. O.L.C. --, pp. 7-8, 12-13 (Nov. 19, 2014). For example, in 1990, the Immigration and Naturalization Service implemented a " Family Fairness" program that deferred removal of and provided work authorizations to approximately 1.5 million individuals whose spouses or parents had been granted legal status in the United States under the Immigration and Reform Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359. OLC Op. at 14. Approximately forty percent of individuals unlawfully...

To continue reading