State v. United States, Civil Action 1:18-CV-00068

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: ANDREW S. HANEN, UNITED STATES DISTRICT JUDGE
• Parties: State of Texas, et al., Plaintiffs, v. The United States of America, et al., Defendants, and Karla Perez, et al.; State of New Jersey, Defendant-Intervenors.
• Docket Number: Civil Action 1:18-CV-00068
• Decision Date: 16 July 2021

State of Texas, et al., Plaintiffs,
v.
The United States of America, et al., Defendants,

and Karla Perez, et al.; State of New Jersey, Defendant-Intervenors.

Civil Action No. 1:18-CV-00068

United States District Court, S.D. Texas, Brownsville Division

July 16, 2021

MEMORANDUM AND ORDER

ANDREW S. HANEN, UNITED STATES DISTRICT JUDGE

Before the Court are the Motion for Summary Judgment filed by the Plaintiff States^[1] (Doc. No. 486) and the competing Motion for Summary Judgment filed by the individual Defendant-Intervenors.^[2] (Doc. No. 503). The Defendant-Intervenors have filed responses in opposition to the Plaintiff States' motion (Doc. Nos. 502, 504) and the Defendants^[3] have also responded. (Doc. No. 501). The Plaintiff States combined their reply to these responses with their response to the individual Defendant-Intervenors' motion. (Doc. No. 529). The Defendants have also responded to the individual Defendant-Intervenors' motion. (Doc. No. 527). Finally, the Defendant-Interveners have replied to both of the responses to the individual Defendant-Intervenors' motion. (Doc. Nos. 528, 532).

The Plaintiff States argue in their motion and briefs that the Deferred Action for Childhood Arrivals (DACA) program is illegal because its creation violated, and its continued existence violates, the procedural and substantive aspects of the Administrative Procedure Act (APA). 5 U.S.C. § 500 et seq. The Plaintiff States also claim that the Executive Branch violated the "Take Care Clause"^[4] of the United States Constitution when it instituted DACA. U.S. Const, art. II, § 3.

In the individual Defendant-Intervenors' Motion for Summary Judgment, they argue that they are entitled to summary judgment because the Plaintiff States have not carried their burden to establish Article III standing. They emphasize that the Plaintiff States have not introduced evidence sufficient to show that they have suffered any concrete injury or that the remedy they seek would redress any such alleged injury. Defendant-Intervenors also contend that the Plaintiff States have failed to establish parens patriae standing or that they should be afforded special solicitude. Additionally, they claim that there is no actual case or controversy within the meaning of Article III because this case lacks adverseness. For these reasons, Defendant-Intervenors conclude that these threshold issues preclude this Court's review on the merits.

I. Factual Background

A. Creation of DACA

In 2012, after multiple failed attempts by Congress to pass an act granting lawful status to aliens who were illegally brought to this country as children, then-Department of Homeland Security (DHS) Secretary Janet Napolitano announced a new program called DACA. Her instructions were set forth in a three-page memorandum dated June 15, 2012 (the "DACA Memorandum").^[5] The DACA Memorandum directed immigration enforcement officers not to remove "certain young people who were brought to this country as children" who met specific delineated criteria. For those who quality, DACA allows them to remain in the country temporarily through a renewable two-year period of "deferred action."^[6] An illegal alien^[7] is eligible for DACA if he or she:

• came to the United States under the age of sixteen

• has continuously resided in the United States for at least five years preceding [June 15, 2012] and is present in the United States on [June 15, 2012]

• 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 otherwise poses a threat to national security or public safety; and

• is not above the age of thirty

In turn, having deferred action makes DACA recipients eligible for various benefits. Generally, aliens are not eligible for any "Federal public benefit." 8 U.S.C. § 1611(a). Aliens who are "lawfully present in the United States," however, are eligible to apply for Social Security and Medicare, id. §§ 1611 (b)(2), (3), and a pre-existing regulation defining "lawfully present in the United States" includes "alien currently in deferred action status."^[8] 8 C.F.R. § l.3(a)(4)(vi).

Additionally, deferred action status makes recipients eligible to apply for work authorization pursuant to a pre-existing regulation, see 8 C.F.R. § 274a.l2(c)(14), and the DACA Memorandum instructs U.S. Citizenship and Immigration Services (USCIS) to consider DACA applicants for work authorization. DACA took the further step of requiring its recipients to apply for work authorization. (Doc. No. 9, Ex. 20, USCIS, DACA Toolkit: Resources for Community Partners). Once a recipient has work authorization, he or she is eligible for a Social Security number, along with its attendant benefits.^[9] 20 C.F.R. §§ 422.104(a)(2), 422.105(a); 8 C.F.R. § l.3(a)(4)(vi). Further, DACA recipients are also eligible for certain state benefits, such as Texas's state-subsidized work-study program. See Tex. Educ. Code § 56.075(a)(1); 19 Tex. Admin. Code §21.24(d)(5).

Despite these benefits, the DACA Memorandum specifically concluded: "This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights." The DACA Memorandum made up to 1.9 million otherwise removable aliens eligible for the program.^[10] The DACA program started with approximately 152, 431 applications in 2012, then DHS approved 370, 521 applicants in 2013 and 158, 397 in 2014.^[11] As of 2018, 814, 000 individuals had applied for and received "lawful presence" via DACA. (Doc. No. 225-3, Ex. 73 ¶ 16, Decl. of Dr. D. Massey).

In 2014, the new DHS Secretary, Jeh Johnson, attempted to create a sister program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAP A) and to expand the DACA program ("Expanded DACA"). The total population of illegal aliens with lawful presence due to DACA, Expanded DACA, and DAPA could have been 5.8 million^[12] (or over 50% of the estimated 11.3 million illegal aliens in the country^[13]). Twenty-six states, including the Plaintiff States, sued to enjoin the implementation of DAP A and Expanded DACA, which this Court preliminarily enjoined in 2015. Texas v. United States, 86 F.Supp.3d 591 (S.D. Tex. 2015). That injunction was affirmed by the Fifth Circuit Court of Appeals, Texas v. United States, 809 F.3d 134 (5th Cir. 2015), and then later by a split vote in the Supreme Court of the United States. United States v. Texas, 136 S.Ct. 2271 (2016). This litigation will be referred to as Texas I.

Upon remand, the parties in Texas I asked this Court to postpone entering a scheduling order that would have governed the proceedings to a final conclusion on the merits. Throughout this time, the DACA Memorandum remained in force. Ultimately, the parties all agreed to dismiss the case:

On June 15, 2017, the U.S. Department of Homeland Security released a memorandum entitled Rescission of November 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA"). On September 5, 2017, the Department released a memorandum entitled Rescission of the June 15, 2012 Memorandum Entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children." Given these memoranda rescinding the DAPA program and phasing out the DACA and Expanded DACA programs, Plaintiffs file this stipulation of voluntary dismissal. See Fed. R. Civ. P. 4l(a)(1)(A)(ii) (allowing plaintiffs to dismiss an action, without court order, by filing a stipulation of dismissal by all parties who have appeared).

(Doc. No. 473, Texas I).

This stipulation of dismissal was signed by the attorneys for the plaintiffs (a group that included all of the Plaintiff States in this case), the United States and the federal government defendants, and the putative DAPA recipients who had intervened. As is evident from its text, the stipulation was partly based upon the Government "phasing out the DACA . . . program[]." All parties agreed to the stipulation, otherwise such a dismissal would have required court action.

B. Rescission of DACA and Regents

After Texas I, the Government attempted to phase out DACA, as it represented to the Plaintiff States it would, but other courts around the nation were asked to enjoin or vacate the attempt to end the program. These lawsuits included: Batalla Vidal v. Trump, 279 F.Supp.3d 401 (E.D.N.Y. 2018); NAACP v. Trump, 298 F.Supp.3d 209 (D.D.C. 2018); Regents of Univ. of Cal. v. United States Dep't of Homeland Sec, 279 F.Supp.3d 1011 (N.D. Cal. 2018); and Casa de Md. v. United States, 284 F.Supp.3d 758 (D. Md. 2018). The courts in the first three cases entered injunctions against the attempted DACA rescission. These cases were eventually appealed to and heard together by the Supreme Court in the case styled: Dep't of Homeland Sec. v. Regents of the Univ. of Cal, 140 S.Ct. 1891 (2020) (hereinafter "Regents").

Meanwhile, in May 2018, the Plaintiff States filed the current case challenging the lawfulness of DACA as it was enacted in 2012. The Plaintiff States now seek the same result they thought they had achieved with the stipulation of dismissal in Texas I-that is, cessation of DACA. While finding that they would likely succeed on the merits, this Court denied the Plaintiff States' request for a preliminary injunction. (Doc. No. 319). Over the objections of the Plaintiff States, the resolution of this case was stayed pending the ruling in Regents because it was important to have the benefit of the Supreme Court's analysis before proceeding, particularly as the decision could have mooted...