State v. United States, 112515 FED5, 15-40238

Docket Nº:15-40238
Opinion Judge:JERRY E. SMITH, CIRCUIT JUDGE:
Party Name:STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; PAUL R. LEPAGE, Governor, State of Maine; PATRICK L. MCCRORY, Governor, State of No
Judge Panel:Before KING, SMITH, and ELROD, Circuit Judges. KING, Circuit Judge, dissenting:
Case Date:November 25, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; PAUL R. LEPAGE, Governor, State of Maine; PATRICK L. MCCRORY, Governor, State of North Carolina; C. L. "BUTCH" OTTER, Governor, State of Idaho; PHIL BRYANT, Governor, State of Mississippi; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF FLORIDA; STATE OF ARIZONA; STATE OF ARKANSAS; ATTORNEY GENERAL BILL SCHUETTE; STATE OF NEVADA; STATE OF TENNESSEE, Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA; JEH CHARLES JOHNSON, Secretary, Department of Homeland Security; R. GIL KERLIKOWSKE, Commissioner of U.S. Customs and Border Protection; RONALD D. VITIELLO, Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection; SARAH R. SALDANA, Director of U.S. Immigration and Customs Enforcement; LEON RODRIGUEZ, Director of U.S. Citizenship and Immigration Services, Defendants-Appellants.

No. 15-40238

United States Court of Appeals, Fifth Circuit

November 25, 2015

Appeal from the United States District Court for the Southern District of Texas

Before KING, SMITH, and ELROD, Circuit Judges.

JERRY E. SMITH, CIRCUIT JUDGE:

The United States1 appeals a preliminary injunction, pending trial, forbidding implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program ("DAPA"). Twenty-six states (the "states"2) challenged DAPA under the Administrative Procedure Act ("APA") and the Take Care Clause of the Constitution;3 in an impressive and thorough Memorandum Opinion and Order issued February 16, 2015, the district court enjoined the program on the ground that the states are likely to succeed on their claim that DAPA is subject to the APA's procedural requirements. Texas v. United States, 86 F.Supp. 3d 591, 677 (S.D. Tex. 2015).4

The government appealed and moved to stay the injunction pending resolution of the merits. After extensive briefing and more than two hours of oral argument, a motions panel denied the stay after determining that the appeal was unlikely to succeed on its merits. Texas v. United States, 787 F.3d 733, 743 (5th Cir. 2015). Reviewing the district court's order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.5

I.

A.

In June 2012, the Department of Homeland Security ("DHS") implemented the Deferred Action for Childhood Arrivals program ("DACA").6 In the DACA Memo to agency heads, the DHS Secretary "set[] forth how, in the exercise of . . . prosecutorial discretion, [DHS] should enforce the Nation's immigration laws against certain young people" and listed five "criteria [that] should be satisfied before an individual is considered for an exercise of prose-cutorial discretion."7 The Secretary further instructed that "[n]o individual should receive deferred action . . . unless they [sic] first pass a background check and requests for relief . . . are to be decided on a case by case basis."8Although stating that "[f]or individuals who are granted deferred action . . ., [U.S. Citizenship and Immigration Services ("USCIS")] shall accept applications to determine whether these individuals qualify for work authorization, " the DACA Memo purported to "confer[] no substantive right, immigration status or pathway to citizenship."9 At least 1.2 million persons qualify for DACA, and approximately 636, 000 applications were approved through 2014. Dist. Ct. Op., 86 F.Supp. 3d at 609.

In November 2014, by what is termed the "DAPA Memo, " DHS expanded DACA by making millions more persons eligible for the program10 and extending "[t]he period for which DACA and the accompanying employment authorization is granted . . . to three-year increments, rather than the current two-year increments."11 The Secretary also "direct[ed] USCIS to establish a process, similar to DACA, " known as DAPA, which applies to "individuals who . . . have, [as of November 20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident" and meet five additional criteria.12 The Secretary stated that, although "[d]eferred action does not confer any form of legal status in this country, much less citizenship[, ] it [does] mean[] that, for a specified period of time, an individual is permitted to be lawfully present in the United States."13 Of the approximately 11.3 million illegal aliens14 in the United States, 4.3 million would be eligible for lawful presence pursuant to DAPA. Dist. Ct. Op., 86 F.Supp. 3d at 612 n.11, 670.

"Lawful presence" is not an enforceable right to remain in the United States and can be revoked at any time, but that classification nevertheless has significant legal consequences. Unlawfully present aliens are generally not eligible to receive federal public benefits, see 8 U.S.C. § 1611, or state and local public benefits unless the state otherwise provides, see 8 U.S.C. § 1621.15 But as the government admits in its opening brief, persons granted lawful presence pursuant to DAPA are no longer "bar[red] . . . from receiving social security retirement benefits, social security disability benefits, or health insurance under Part A of the Medicare program."16 That follows from § 1611(b)(2)–(3), which provides that the exclusion of benefits in § 1611(a) "shall not apply to any benefit[s] payable under title[s] II [and XVIII] of the Social Security Act . . . to an alien who is lawfully present in the United States as determined by the Attorney General . . . ." (emphasis added). A lawfully present alien is still required to satisfy independent qualification criteria before receiving those benefits, but the grant of lawful presence removes the categorical bar and thereby makes otherwise ineligible persons eligible to qualify.

"Each person who applies for deferred action pursuant to the [DAPA] criteria . . . shall also be eligible to apply for work authorization for the [renewable three-year] period of deferred action." DAPA Memo at 4. The United States concedes that "[a]n alien with work authorization may obtain a Social Security Number, " "accrue quarters of covered employment, " and "correct wage records to add prior covered employment within approximately three years of the year in which the wages were earned or in limited circumstances there-after."17 The district court determined―and the government does not dispute―"that DAPA recipients would be eligible for earned income tax credits once they received a Social Security number."18

As for state benefits, although "[a] State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a), " § 1621(d), Texas has chosen not to issue driver's licenses to unlawfully present aliens.19 Texas maintains that documentation confirming lawful presence pursuant to DAPA would allow otherwise ineligible aliens to become eligible for state-subsidized driver's licenses. Likewise, certain unemployment compensation "[b]enefits are not payable based on services performed by an alien unless the alien . . . was lawfully present for purposes of performing the services . . . ."20 Texas contends that DAPA recipients would also become eligible for unemployment insurance.

B.

The states sued to prevent DAPA's implementation on three grounds. First, they asserted that DAPA violated the procedural requirements of the APA as a substantive rule that did not undergo the requisite notice-and-comment rulemaking. See 5 U.S.C. § 553. Second, the states claimed that DHS lacked the authority to implement the program even if it followed the correct rulemaking process, such that DAPA was substantively unlawful under the APA. See 5 U.S.C. § 706(2)(A)–(C). Third, the states urged that DAPA was an abrogation of the President's constitutional duty to "take Care that the Laws be faithfully executed." U.S. Const. art. II, § 3.

The district court held that Texas has standing. It concluded that the state would suffer a financial injury by having to issue driver's licenses to DAPA beneficiaries at a loss. Dist. Ct. Op., 86 F.Supp. 3d at 616–23. Alternatively, the court relied on a new theory it called "abdication standing": Texas had standing because the United States has exclusive authority over immigration but has refused to act in that area. Id. at 636–43. The court also considered but ultimately did not accept the notions that Texas could sue as parens patriae on behalf of citizens facing economic competition from DAPA beneficiaries and that the state had standing based on the losses it suffers generally from illegal immigration. Id. at 625–36.

The court temporarily enjoined DAPA's implementation after determining that Texas had shown a substantial likelihood of success on its claim that the program must undergo notice and comment. Id. at 677. Despite full briefing, the court did not rule on the "Plaintiffs' likelihood of success on their substantive APA claim or their constitutional claims under the Take Care Clause/separation of powers doctrine." Id. On appeal, the United States maintains that the states do not have standing or a right to judicial review and, alternatively, that DAPA is exempt from the notice-and-comment requirements. The government also contends that the injunction, including its nationwide scope, is improper as a matter of law.

II.

"We review a preliminary injunction for abuse of discretion."21 A...

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