Texas v. United States

• Decision Date: 31 August 2018
• Docket Number: Civil Action No. 1:18-CV-00068
• Citation: 328 F.Supp.3d 662
• Parties: State of TEXAS, et al., Plaintiffs, v. The UNITED STATES of America, et al., Defendants, Karla Perez, et al., Defendant-Intervenors, and State of New Jersey, Defendant-Intervenor.
• Court: U.S. District Court — Southern District of Texas

328 F.Supp.3d 662

State of TEXAS, et al., Plaintiffs,

v.The UNITED STATES of America, et al., Defendants,Karla Perez, et al., Defendant-Intervenors,andState of New Jersey, Defendant-Intervenor.

Civil Action No. 1:18-CV-00068

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

Signed August 31, 2018

Todd Lawrence Disher, Adam Arthur Biggs, Adam Nicholas Bitter, Brantley Starr, Cristina Maria Moreno, Philip Trent Peroyea, Office of the Attorney General, Austin, TX, for Plaintiffs.

Jeffrey S. Robins, Pro Hac Vice; U.S. Department of Justice Office of Immigration Litigation, Aaron Steven Goldsmith, Pro Hac Vice; Brett A. Shumate, United States Department of Justice, Washington, DC, Daniel David Hu, Office of the US Attorneys Office, Houston, TX, for Defendants.

Denise Hulett, Mexican American Legal Defense & Educ. Fund, Sacremento, CA, Douglas H. Hallward-Driemeier, Pro Hac Vice; Ropes & Gray LLP, Andrew J. Pincus, Pro Hac Vice; Mayer Brown LLP, Washington, DC, Mary Kelly Persyn, Pro Hac Vice; Persyn Law and Policy, San Francisco, CA, Carlos Moctezuma Garcia, Garcia & Garcia Attorneys at Law, P.L.L.C., McAllen, TX, Celina Ysela Moreno, Nina Perales, Alejandra Avila, Ernest I. Herrera, John Paul Salmon, Mexican American Legal Defense and Educational Fund, San Antonio, TX, Priscilla Orta, Pro Hac Vice; Mexican American Legal Defense, Chicago, IL, Craig Dashiell, Pro Hac Vice; David Leit, Pro Hac Vice; Gavin J. Rooney, Pro Hac Vice; Lowenstein Sandler, LLP, Roseland, NJ, Lauren Goldman, Pro Hac Vice; Mayer Brown LLP, New York, NY, for Intervenor Defendant.

MEMORANDUM OPINION AND ORDER

Andrew S. Hanen, United States District Court Judge

Eight states and two governors¹ are seeking declaratory and injunctive relief and ask this Court to hold that the Deferred Action for Childhood Arrivals ("DACA") program is illegal because its creation and continued existence violate the procedural and substantive aspects of the Administrative Procedure Act ("APA"). 5 U.S.C. § 500 et seq. Plaintiffs also seek relief based on their claim that DACA violates the Take Care Clause² of the United States Constitution. U.S. Const. art. II, § 3. This order addresses the States' request for a preliminary injunction.

The Defendants in this matter are the United States, Secretary of the Department of Homeland Security ("DHS") Kirstjen M. Nielsen, Commissioner of the Customs and Border Protection ("CBP") Kevin K. McAleenan, Deputy Director of the United States Immigration and Customs Enforcement Agency ("ICE") Thomas D. Homan,³ Director of the United States Citizenship and Immigration Services ("USCIS") L. Francis Cissna, and Chief of the United States Border Patrol Carla L. Provost.⁴ After the case was filed but before any substantive activity had taken place, twenty-two DACA recipients intervened as Defendants. The State of New Jersey also requested and received permission to intervene as a Defendant.⁵ Finally, numerous other groups and entities have asked for and received this Court's permission to act as amicus curiae.

The Plaintiff States have asked this Court to preliminarily enjoin the Government from issuing or renewing any DACA permits in the future. If this relief is granted, and ultimately if this relief becomes permanent, it could have the effect of terminating the DACA program—a result the Defendant-Intervenors vehemently oppose. The Plaintiff States also request a declaratory judgment that DACA is contrary to the standards of the APA, as well as the Take Care Clause of the United States Constitution, findings which, if upheld, would also require the termination of the DACA program.

I. What Is and Is Not Before the Court

The Court is not faced with questions about a duly enacted statute or a duly enacted federal regulation or even an order by the President. DACA was a program instituted pursuant to the orders of then-Secretary of Homeland Security, Janet Napolitano. Those instructions were set forth in a memorandum dated June 15, 2012, and remained in force without amendment until 2014 when her successor, Secretary Jeh Johnson, attempted to create a sister program, Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA"). At that time, Secretary Johnson also attempted to put into place certain expansions of the DACA program ("Expanded DACA"). Both the implementation of the DAPA program and Expanded DACA were enjoined by this Court in 2015. Texas v. United States , 86 F.Supp.3d 591 (S.D. Tex. 2015). This 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 , ––– U.S. ––––, 136 S.Ct. 2271, 195 L.Ed.2d 638 (2016) (this litigation will be referred to as Texas I ).

Upon remand, the parties asked this Court to postpone entering a scheduling order that would have otherwise governed the proceedings to a final conclusion on the merits. Throughout this time, the original 2012 DACA memorandum remained in force. Ultimately, the parties all agreed to dismiss the case:

Plaintiffs' Stipulation of Voluntary Dismissal

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. 41(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).

Texas I , [Doc No. 473] (emphasis added).

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 clearly based in part upon the Government "phasing out the DACA and Expanded DACA programs." It is also clear that all parties agreed to the stipulation, which otherwise would have required court action. As per its very language, the stipulation was based upon Fed. R. Civ. P. 41(a)(1)(A)(ii), which requires the dismissal to be signed by counsel for all parties who have appeared in order to be effective.

While this Court has no way of knowing the decision-making process exercised by the parties in Texas I , it seems that at least the Plaintiff States here seek the same result they thought they had achieved with the stipulation of dismissal. The Government has attempted to phase out DACA, as it represented to the Plaintiff States it would, but it is prevented from doing so by various orders of other courts around the nation that have enjoined or vacated the attempt to end the program. The Government is thus thrust into the position of a somewhat reluctant warrior— having to defend a program (in order to comply with court orders) that it had agreed to phase out in order to rid itself of the 2014 lawsuit that was pending in this Court. As stated earlier, the Defendant-Intervenors are DACA recipients who wish to prevent the abolition of this program and who have been joined in this effort by the State of New Jersey. They are clearly not reluctant warriors and are squarely pitted against the propositions argued by the Plaintiff States.

A. What Issues Are Before the Court

Thus, this Court is faced with only three primary issues involving the DACA program in the context of a request for a preliminary injunction:

1) Did the creation of DACA, and its continued operation, violate the Take Care Clause of the Constitution?

2) Does the DACA program violate the substantive standards of the APA?

3) Did the manner in which DACA was created violate the procedural requirements of the APA?

While these three primary issues have many elements and ancillary questions that will be addressed, the parties have raised many extraneous issues with their arguments, evidence, and pleadings that will not be discussed.

B. What Issues Are Not Before the Court

Consequently, all other issues, including the following, are not before the Court:

1) This Court is not commenting on or deciding the popularity of or the relative wisdom of Secretary Napolitano's decision to implement the DACA program or the DHS's decision to phase out the DACA program.

2) This order does not and should not be read to suggest or require the DHS or the Department of Justice to prosecute or initiate immigration or deportation proceedings against any individual or group of individuals.

3) This Court is not deciding whether the DACA recipients are ultimately beneficial or detrimental to the well-being of the States, nor is it deciding if they ultimately benefit or burden the States' economies.

4) This opinion does not address, nor should be read as a comment upon, the relative merits of immigration, legal or otherwise, except insofar as it must to decide whether the DACA program itself (and the manner in which it was instituted) is legal.

5) The DACA program was not created as an asylum program, and nothing herein should be read as affecting the rules and laws governing asylum. While there seem to be differences of opinion as to what constitutes an "amnesty" program, nothing herein should be read as favoring or disfavoring the concept of asylum or amnesty.

6) The Court is not called upon to, nor will it, create or substitute its own notion of an immigration policy, as Courts are not the vehicles to enact the legislative policies that control immigration. That is the sole province of Congress.⁶

7) This Court cannot and will

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