No. 15-40238 ________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT ________________________

STATE OF TEXAS, et al.,

Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA, et al.,

Defendants-Appellants. ________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS ________________________

BRIEF OF THE AMERICAN FEDERATION OF LABOR AND

CONGRESS OF INDUSTRIAL ORGANIZATIONS AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

________________________

Lynn K. Rhinehart Harold C. Becker Matthew J. Ginsburg 815 Sixteenth Street, NW Washington, DC 20006 (202) 637-5397

No. 15-40238________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT ________________________

STATE OF TEXAS, et al.,

Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA, et al.,

Defendants-Appellants. ________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS ________________________

SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS

Pursuant to Circuit Rules 28.2.1 and 29.2, the undersigned counsel of record certifies that the following persons and entities have an interest in this amicus brief. These representations are made in order that the judges of this court may evaluate possible disqualifications or recusal.

1. American Federation of Labor and Congress of Industrial Organizations, Amicus Curiae.

2. Lynn K. Rhinehart, Harold C. Becker, Matthew J. Ginsburg, Attorneys for Amicus Curiae American Federation of Labor and Congress of Industrial Organizations.

The undersigned counsel further certifies, pursuant to Federal Rule of Appellate Procedure 26.1(a), that Amicus Curiae American Federation of Labor and Congress of Industrial Organizations is not a publicly held corporation, does not have any parent corporation, and that no publicly held corporation owns 10% or more of its stock. /s/ Matthew J. Ginsburg

Matthew J. Ginsburg

CERTIFICATE OF CONFERENCE Pursuant to Federal Rule of Appellate Procedure 29(a), counsel for amicus curiae American Federation of Labor and Congress of Industrial Organizations conferred with counsel for the Plaintiffs-Appellees on March 31, 2015, to seek consent for the filing of this amicus brief. Counsel for Plaintiffs-Appellees stated that Plaintiffs-Appellees consent to the filing of this brief.

Counsel for amicus curiae American Federation of Labor and Congress of Industrial Organizations conferred with counsel for the Defendants-Appellants on March 31, 2015, to seek consent for the filing of this amicus brief. Counsel for Defendants-Appellants stated that Defendants-Appellants consent to the filing of this brief.

/s/ Matthew J. Ginsburg Matthew J. Ginsburg

TABLE OF CONTENTS

Page TABLE OF AUTHORITIES .................................................................................... ii STATEMENT OF INTEREST .................................................................................. 1 BACKGROUND ....................................................................................................... 4 SUMMARY OF ARGUMENT ................................................................................. 9 ARGUMENT ........................................................................................................... 11 I. Texas Lacks Standing to Challenge the Deferred Action Memorandum Under the APA ................................................................. 12 II. The Deferred Action Memorandum Is Not Subject to APA Notice-and-Comment Requirements ........................................................ 18 CONCLUSION ........................................................................................................ 24

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TABLE OF AUTHORITIES

CASES: Page

Air Courier Conf. of America v. American Postal Workers Union, 498 U.S. 517 (1991)................................................................................. 13, 17 Alvidres-Reyes v. Reno, 180 F.3d 199 (5th Cir. 1999) ............................................ 21 Arizona v. United States, 132 S. Ct. 2492 (2012) .......................................... 1, 23, 24 Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014) ........................................... 6, 7 Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970)....................................................................................... 13 Bluefield Water Assn Inc. v. City of Starkville, 577 F.3d 250 (5th Cir. 2009) ...... 11 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .......................................... 19, 20, 24 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ................. 23 Clark v. Suarez Martinez, 543 U.S. 371 (2005) ....................................................... 6 Clarke v. Securities Industries Assn., 479 U.S. 388 (1987)............................... 13, 17 Guardian Federal Savings and Loan Association v. Federal Savings and Loan Insurance Corp., 589 F.2d 658 (D.C. Cir. 1978) .......................................... 22 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) ....................... 1, 2 Johns v. Department of Justice, 653 F.2d 884 (5th Cir. 1981) ........................ 5, 7, 23 Lincoln v. Vigil, 508 U.S. 182 (1993) ...................................................................... 19 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) ............................ 13, 17 Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) ............................................................................. 13, 14

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CASES Continued: Page

NLRB v. A.P.R.A. Fuel Oil Buyers Group, 134 F.3d 50 (2d Cir. 1997) .................... 1 Palma v. NLRB, 723 F.3d 176 (2d Cir. 2013) .......................................................... 1 Pasquini v. Morris, 700 F.2d 658 (11th Cir. 1983) ................................................... 7 Peaches Entertainment Corp. v. Entertainment Repertoire Assocs., 62 F.3d 690 (5th Cir. 1995) ........................................................................... 11 Professionals and Patients for Customized Care v. Shalala, 56 F.3d 592 (5th Cir. 1995) ......................................................... 19, 20, 21, 22 Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)..................................................................... 5, 6, 7, 20, 24 Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ...................................................... 1, 2 STATUTES AND REGULATIONS: 5 U.S.C. 551(4) ..................................................................................................... 18 5 U.S.C. 553(b) ..................................................................................................... 18 5 U.S.C. 553(b)(A) ................................................................................................ 18 5 U.S.C. 553(c) ..................................................................................................... 18 5 U.S.C. 701(a)(2) ........................................................................................... 23, 24 5 U.S.C. 702 .............................................................................................. 12, 17, 18 8 U.S.C. 1252(g) ............................................................................................. 20, 21 8 U.S.C. 1324a(h)(3) ............................................................................................... 8 Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2192 ........................... 6

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STATUTES AND REGULATIONS Continued: Page

Immigration and Nationality Act, codified as amended at 8 U.S.C. 1001 et seq. .. 5 Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 Stat. 3445 ....... 8 REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, codified at 49 U.S.C. 30301 note ....................................................................................... 7 8 C.F.R. 274a.12(c)(14) .......................................................................................... 9 MISCELLANEOUS: Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (2013) ............................................................................. 3 DOJ Office of Legal Counsel, Memorandum Opinion for the Secretary of Homeland Security and the Counsel to the President: The Department

of Homeland Securitys Authority to Prioritize the Removal of Certain Aliens Unlawfully Present in the U.S. and to Defer Removal of Others (Nov. 19, 2014) ....................................................................................... 6, 7, 8

INS, Control of Employment of Aliens, 52 Fed. Reg. 16216 (May 1, 1987) ........... 9 INS, Employment Authorization to Aliens in the United States, 46 Fed. Reg. 25079 (May 5, 1981) .................................................................. 8 INS Operating Instruction 103.1(a)(1)(ii) (1975) (rescinded) ................................... 7 J. Johnson, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014) ......................................................................................passim Securing the Border: Defining the Current Population Living in the Shadows and Addressing Future Flows: Hearing Before the Senate Committee on Homeland Security and Governmental Affairs, 114th Cong. (March 26, 2015) (Written Testimony of Jeffrey S. Passel) ........................... 1

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BRIEF OF THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS

AMICUS CURIAE IN SUPPORT OF APPELLANTS

STATEMENT OF INTEREST The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) is a federation of 56 national and international labor organizations with a total membership of approximately 12.5 million working men and women.1 The AFL-CIO has a strong interest in the effects of immigration law on the rights of employees and thus has routinely filed amicus briefs or otherwise participated in cases related to this issue. See, e.g., Arizona v. United States, 132 S. Ct. 2492 (2012); Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002); Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984); Palma v. NLRB, 723 F.3d 176 (2d Cir. 2013); NLRB v. A.P.R.A. Fuel Oil Buyers Group, 134 F.3d 50 (2d Cir. 1997).

The reason for the AFL-CIOs interest in this topic is straightforward. The current unauthorized immigrant population in the United States is approximately 11.2 million. Securing the Border: Defining the Current Population Living in the Shadows and Addressing Future Flows: Hearing Before the Senate Committee on

Homeland Security and Governmental Affairs, 114th Cong. (March 26, 2015)

1 Counsel for the appellants and counsel for the appellees have each consented to the filing of this amicus brief. No counsel for a party authored this brief amicus curiae in whole or in part, and no person or entity, other than the amicus, made a monetary contribution to the preparation or submission of this brief.

1

(Written Testimony of Jeffrey S. Passel, Senior Demographer, Pew Research Center 1-2). Of this total, approximately 8.1 million unauthorized immigrants are employed, making up 5.1 percent of the total U.S. labor force. Id. at 6. This population is concentrated in several industries in which AFL-CIO affiliate unions have a strong presence, including meatpacking, leisure and hospitality, construction, domestic services, and agriculture. Id. at 7.

There are two interconnected reasons why this is a matter of particular interest to the AFL-CIO.

First, through existing collective bargaining relationships, AFL-CIO affiliates represent many undocumented workers in workplaces throughout the country. Although these workers are entitled to the substantive protections of labor and employment law, they are not entitled to the full range of remedies when these laws are violated, see Hoffman Plastic Compounds, 535 U.S. at 151-52 (undocumented workers not entitled to backpay under the National Labor Relations Act), and are vulnerable to employer retaliation if they complain about violations, see, e.g., Sure-Tan, 467 U.S. at 886-87 (employees who supported union deported after employer contacted immigration authorities). Second, this lack of legal remedies and vulnerability to retaliation creates an incentive for some unscrupulous employers to employ large numbers of undocumented workers at sub-standard wages and working conditions. Law-

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abiding employers must compete with these employers, making it more difficult for AFL-CIO affiliate unions to raise wages and improve working conditions. Since 2009, the AFL-CIO has sought to address these issues as a policy matter by advocating for comprehensive immigration legislation that, among other things, would provide a pathway to legalization and citizenship for many unauthorized immigrants, ensure that remedies for labor and employment law violations are available to all workers, and make border security and workplace employment verification more effective and fair. To that end, the AFL-CIO supported the Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (2013), which addressed these issues but ultimately was not enacted into law. The AFL-CIO also supports the deferred action guidance at issue in this case because we expect that guidance will provide temporary relief to some undocumented workers who have lived in the United States for many years and are not priorities for removal under Department of Homeland Security (DHS) enforcement policies. Because individuals who receive deferred action can also apply for temporary employment authorization, the AFL-CIO believes that the deferred action guidance will enable at least some undocumented workers to better protect their rights at work to their own benefit and to the benefit of all workers.

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This case, of course, is not about policy, but about the law. The AFL-CIO submits this amicus brief to explain why the deferred action guidance is a lawful exercise of DHSs prosecutorial discretion.

BACKGROUND This case involves a challenge by Texas and other States (collectively, the

Plaintiff States) to a memorandum issued by Secretary of Homeland Security Jeh Johnson to the heads of DHSs three component immigration enforcement agencies. See J. Johnson, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to

Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014) (the Deferred Action Memorandum). That Memorandum provides guidance regarding the exercise of prosecutorial discretion in the enforcement of federal immigration law through the use of deferred action, specifically with regard to individuals who, among other criteria, have been present in the United States for more than five years, are not priorities for removal pursuant to separate DHS guidance, and who either came to the United States as children (commonly referred to as Deferred Action for Childhood Arrivals or DACA) or are the parents of U.S. citizens or permanent residents (commonly referred to as Deferred Action for Parents or DAPA).

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Deferred action is an exercise of DHSs broad prosecutorial discretion to enforce the Immigration and Nationality Act (INA), codified as amended at 8 U.S.C. 1101 et seq., that has been approved by both the courts and Congress. The particular approach taken by the Secretary in the Memorandum describing categories of individuals who are eligible to apply for deferred action on a case-by-case basis and permitting individuals who receive deferred action to apply for employment authorization is fully consistent with the historic exercise of deferred action authority by DHS and its predecessor agency, the Immigration and Naturalization Service (INS).

The policy originally . . . known as nonpriority and . . . now designated as deferred action simply refers to DHSs discretionary prosecutorial decisions to decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 484 (1999) (AADC) (quoting Gordon, Mailman, & Yale-Loehr, Immigration Law and Procedure 72.03[2][h](1998)). Approval of deferred action status means that . . . no action will thereafter be taken to proceed against an apparently deportable alien. Ibid. As this court explained in Johns v. Department of Justice, 653 F.2d 884, 890 (5th Cir. 1981) cited with approval by the Supreme Court, see AADC, 525 U.S. at 484 in determin[ing] whether . . . to refrain from (or, in administrative parlance, to defer in) executing an outstanding

5

order of deportation, or . . . to stay the order of deportation both the length and the reason for the stay lie entirely within the discretion of the Attorney General or his delegate.2

While the Supreme Court noted in 1999 that historically deferred action had developed without express statutory authorization, AADC, 525 U.S. at 484, in the interceding years, Congress has enacted several statutes approving of DHSs exercise of its deferred action authority. See Arpaio v. Obama, 27 F. Supp. 3d 185, 193-94 (D.D.C. 2014) (describing three examples of Congress approving of the use of deferred action since 2000). See also DOJ Office of Legal Counsel, Memorandum Opinion for the Secretary of Homeland Security and the Counsel to the President: The Department of Homeland Securitys Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the U.S. and to Defer Removal of

Others, 18-20 (Nov. 19, 2014) (OLC Memo.) (providing five examples of congressional approval of deferred action). Most notably, as part of a law creating minimum standards for Federal use of drivers licenses for purposes such as boarding federally regulated commercial aircraft, Congress stated that [e]vidence of lawful status in the United States included approved deferred

2 The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2192, transferred the authorities described in the INA as having been exercised by the Attorney General and the INS to the Secretary of Homeland Security and DHSs component immigration enforcement agencies. See Clark v. Suarez Martinez, 543 U.S. 371, 375 n.1 (2005).

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action status. REAL ID Act of 2005, Pub. L. No. 109-13, 202(c)(2)(B)(viii), 119 Stat. 231, 312-13, codified at 49 U.S.C. 30301 note.

DHS, like the INS before it, has exercised its deferred action authority through the issuance of internal agency guidance describing categories of individuals who are eligible to apply for deferred action. Prior to 1997, the INS followed an internal agency operating instruction since rescinded that emphasized factors such as long-time residence in the United States, advanced or tender age, and the familial effects of deportation. Johns, 653 F.2d at 890 n.14 (citing now-rescinded INS Operating Instruction 103.1(a)(1)(ii) (1975)). See also Pasquini v. Morris, 700 F.2d 658, 661 (11th Cir. 1983) (reproducing INS O.I. 103.1(a)(1)(ii) in its entirety).3 In more recent years, the INS and DHS have, through a series of memoranda, announced several categories of individuals eligible to apply for deferred action, including victims of human trafficking and certain other crimes; students affected by Hurricane Katrina; widows and widowers of U.S. citizens; and certain aliens brought to the United States as children. Arpaio, 27 F. Supp. 3d at 193-94 (citing various agency memoranda) (footnotes omitted). See also OLC Memo. 15-18 (describing five occasions since

3 The Supreme Court noted that, although the operating instruction was rescinded in 1997, the INS continued to makes the same sort of determination on a case-by-case basis. AADC, 525 U.S. at 484 n.8 (citing 16 C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure 242.1 (1998)).

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the late 1990s[] [in which] INS and later DHS have . . . made discretionary relief available to certain classes of aliens through the use of deferred action).

Since at least 1981, the INS and DHS have permitted individuals who receive deferred action like other categories of aliens present in the United States solely at the discretion of federal immigration authorities to apply for temporary employment authorization. In that year, the INS issued a final regulation after notice-and-comment rulemaking concerning the [c]lasses of aliens eligible to receive employment authorization. INS, Employment Authorization to Aliens in the United States, 46 Fed. Reg. 25079 (May 5, 1981) (Final Rule) (previously codified at 8 C.F.R. pt. 109). That regulation permitted an alien who received deferred action to be granted employment authorization if [t]he alien establishes to the satisfaction of the [INS] district director that he/she is financially unable to maintain himself/herself and family without employment. Ibid. (quoting former 8 C.F.R. 109.1(b)(6)).

In 1986, Congress ratified the Attorney Generals practice of granting temporary employment authorization to deferred action recipients by enacting, as part of the Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 Stat. 3445, a provision stating that the term unauthorized alien . . . [] with respect to . . . employment does not include an alien authorized to be so employed . . . by the Attorney General. 8 U.S.C. 1324a(h)(3). Subsequently, the INS promulgated a

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slightly-amended employment authorization regulation, again through notice-and-comment rulemaking, that remains in effect today. See INS, Control of Employment of Aliens, 52 Fed. Reg. 16216 (May 1, 1987) (redesignating 8 C.F.R. pt. 109, with amendments, as 8 C.F.R. pt. 274a, Subpart B). That regulation states that employment authorization is available to [a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment. 8 C.F.R. 274a.12(c)(14).

SUMMARY OF ARGUMENT The sole basis for the preliminary injunction is the district courts determination that Texas was substantially likely to prevail on its claim that DHS was required by the Administrative Procedure Act (APA) to subject the Deferred Action Memorandum to notice and comment. That determination rests on two erroneous legal conclusions. First, Texas does not have statutory standing under the APA to bring such a claim. And, second, the Deferred Action Memorandum is a general statement of policy exempt from APA notice and comment requirements. Because those clear legal errors constitute an abuse of discretion, this Court should reverse the preliminary injunction.

Texas does not have statutory standing under the APA to bring its claim because the sole concrete injury it asserts the cost to Texas of issuing drivers

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licenses to individuals who receive deferred action is not even remotely within the zone of interests of federal immigration law. Even accepting arguendo that the cost of issuing drivers licenses constitutes an Article III injury, that injury is so marginally related to the purposes of federal immigration law that it is an insufficient basis for statutory standing under the APA. The two other alleged injuries asserted by Texas that the Deferred Action Memorandum would cause a wave of new unauthorized immigration and that the Memorandum would require the state to expend additional resources on law enforcement, healthcare, and education were correctly found by the court to be too speculative and too attenuated to constitute Article III injuries and thus are also insufficient to prove statutory standing under the APA.

Even if Texas did have standing to bring its claim, the Deferred Action Memorandum is a general statement of policy that is not subject to APA notice and comment procedures. The Memorandum states on its face that it does not have binding effect, explaining that it confers no substantive rights on any individual, that DHS will make deferred action decisions on a case-by-case basis, and that any decision to grant deferred action may be terminated at any time at DHSs sole discretion. And, pursuant to existing statutory authority, DHSs decisions to grant or deny deferred action are shielded from judicial review.

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The district courts conclusion that the Deferred Action Memorandum constitutes a substantive rule because the criteria regarding who may apply for deferred action is so detailed that DHS retains no discretion in making deferred action decisions is incorrect both as a factual and legal matter. Factually, the Memorandum states explicitly that, notwithstanding the criteria, DHS will make deferred action decisions on a case-by-case basis subject to the exercise of its broad prosecutorial discretion. Legally, that the Deferred Action Memorandum contains detailed criteria does not convert it into a substantive rule. What matters is not the level of detail, but that DHS states explicitly that it will exercise its discretion in each case. The latter conclusion has particular force because the Deferred Action Memorandum relates to the enforcement of federal immigration law, which, like criminal law, is strongly committed to agency discretion by law.

ARGUMENT The district court issued the preliminary injunction based on its conclusion

that the State of Texas is substantially likely to prevail on the merits of its procedural challenge to the Deferred Action Memorandum under the APA. A district court abuses its discretion if it . . . relies on erroneous conclusions of law when deciding to grant an injunction. Peaches Entertainment Corp. v. Entertainment Repertoire Assocs., 62 F.3d 690, 693 (5th Cir. 1995). See also Bluefield Water Assn Inc. v. City of Starkville, 577 F.3d 250, 253 (5th Cir. 2009)

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(Conclusions of law made with respect to . . . a preliminary injunction are reviewed de novo.). Because both the district courts determination that Texas has standing under the APA and its determination that DHS was required to subject the Deferred Action Memorandum to notice and comment constituted clear legal error, the court abused its discretion. This Court should, therefore, reverse the preliminary injunction. I. Texas Lacks Standing to Challenge the Deferred Action Memorandum

Under the APA

Texas and the other Plaintiff States lack statutory standing to bring the claim that forms the sole basis for the injunction: the district courts finding that DHS legislated a substantive rule without complying with the procedural requirements under the Administration [sic] Procedure Act. Memorandum Opinion and Order at 123, Texas v. United States, 1:14-cv-00254, docket no. 145 (Feb. 16, 2015) (hereafter, Op.). See also Op. 121 (stating that the Court is specifically not addressing Plaintiffs likelihood of success on their substantive APA claim or their constitutional claims. (emphasis in original)).

The APAs judicial review provision states that [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. 5 U.S.C. 702. To establish standing to sue under the APA, a plaintiff must show[] that [he is] adversely affected, i.e., ha[s] suffered an injury in fact

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and must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. Air Courier Conf. of America v. American Postal Workers Union, 498 U.S. 517, 523-24 (1991) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 883 (1990) (emphasis in original)). See also Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (an APA plaintiff must satisfy not only Article IIIs standing requirements, but an additional test of showing he is within the zone of interests of the relevant statute) (quotation marks omitted).

It is true, as the district court recognized, that statutory standing under the APA requires that the interest asserted by the plaintiff only be arguably within the zone of interests to be protected or regulated by the statute that he says was violated. Match-E-Be-Nash-She-Wish Band, 132 S.Ct. at 2210 (quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970)). However, this relatively lenient test is not without limits. The APAs judicial review provision forecloses suit . . . when a plaintiffs interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. Ibid. (quoting Clarke v. Securities Industries Assn., 479 U.S. 388, 399 (1987)).

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The district court concluded that Plaintiffs claims come within the zone of interests to be protected by the immigration statutes at issue in this litigation because it is the duty of DHS to guard[] the border and remov[e] illegal aliens present in the country. Op. 35-36. In particular, the court held that the acts of Congress deeming these individuals removable referring to individuals eligible to apply for deferred action were passed in part to protect the States and their residents. Op. 78. Therefore, [t]he fact that DAPA undermines the INA statutes enacted to protect the states puts the Plaintiffs squarely within the zone of interest of the immigration statutes at issue. Op. 36.

The fundamental problem with the district courts APA standing holding is that the court rejected the same claim that the Deferred Action Memorandum, by allegedly undermining DHSs statutory responsibility to guard[] the border and remov[e] illegal aliens present in the country, Op. 36, causes a cognizable injury to Texas as a basis for Article III standing. That injury cannot, a fortiori, constitute a basis for APA standing. And, the only injury the district court did find provided Texas with Article III standing the cost to Texas of issuing drivers licenses to aliens who received deferred action is so marginally related to . . . the purposes implicit in the [INA] that it cannot reasonably be assumed that Congress intended to permit the suit. Match-E-Be-Nash-She-Wish Band, 132 S.Ct. at 2210.

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The Plaintiffs theories for standing related to guarding the border and removing illegal aliens present in the country, Op. 36, were: (1) that the Deferred Action Memorandum is certain to trigger a new wave of undocumented immigration across the Texas-Mexico border that will lead to increased costs for Texas, Amended Compl. 62, Texas v. United States, 1:14-cv-00254, docket no. 14 (Dec. 9, 2014); and (2) [t]he Plaintiff States will be forced to expend substantial resources on law enforcement, healthcare, and education on those granted deferred action, id. 64. The court properly rejected both alleged injuries as grounds for Article III standing.

The district court rejected Plaintiffs claim that the Deferred Action Memorandum would trigger a new wave of undocumented immigration, id. 62, for the simple reason that the connection between DHSs Deferred Action Memorandum and the decisions by individuals to immigrate to the United States is simply too attenuated to enjoin DAPAs implementation. Op. 56. As the court explained, [t]he decision to immigrate illegally is motivated by innumerable factors, such as that the United States economy is doing better than that of their homeland, or because the United States has better schools or more advanced medical care. Ibid. Therefore, [t]he States have not shown that an injunction against DAPA would redress these particular damages. Ibid.

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The court rejected Plaintiffs claim that the Deferred Action Memorandum would force [States] to expend substantial resources on law enforcement, healthcare, and education for individuals who receive deferred action, Amended Compl. 64, on the basis that these . . . indirect damages . . . are not caused by DAPA since DAPA applies only to individuals who have resided in the United States since 2010. Op. 52. As a result, [i]f the Court were to grant the requested relief, it would not change the presence of these individuals in this country, nor would it relieve the States of their obligations to pay for the associated costs. Thus, an injunction against DAPA would not redress the damages described. Ibid.

The sole injury found by the district court to be sufficient for Article III standing was that the Deferred Action Memorandum will create a new class of individuals eligible to apply for drivers licenses, the processing of which will impose substantial costs on [Texass] budget. Op. 22. Notably, the court did not find that this injury brought Texas within the zone of interests of the INA for APA standing purposes, see Op. 35-36; 77-81 (discussing zone of interest inquiry), presumably because the cost to Texas of issuing additional drivers licenses bears no meaningful connection to the relevant purposes of the INA identified by the court the federal governments duties . . . [to] guard[] the border and remov[e] illegal aliens present in the country. Op. 36. The courts implicit conclusion that

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the cost to Texas of issuing drivers licenses to individuals who receive deferred action is so marginally related to . . . the purposes implicit in the [INA] that it cannot reasonably be assumed that Congress intended to permit an APA suit on this basis, Clarke, 479 U.S. at 399, is undoubtedly correct.

If it were otherwise, any Article III injury that a state or other third party suffers as a result of a federal agencys action, no matter how non-germane to the meaning of the relevant statute, 5 U.S.C. 702, would provide that party with standing to challenge the action under the APA. That is not the law. See Air Courier Conference, 498 U.S. at 524 ([An] injury in fact does not necessarily mean one is within the zone of interests to be protected by a given statute.).

As the Supreme Court has helpfully illustrated: The failure of an agency to comply with a statutory provision requiring on the record hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agencys proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be adversely affected within the meaning of the statute. Ibid. (quoting Lujan, 497 U.S. at 883). The same is true here. Even accepting arguendo that the cost to Texas of

issuing drivers licenses to individuals who receive deferred action constitutes a

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sufficient injury for Article III standing, that injury like the economic injury to a court reporter of an agencys failure to comply with an on-the-record hearing requirement does not render Texas adversely affected . . . within the meaning of [the INA], 5 U.S.C. 702, such that it has statutory standing under the APA to challenge the Deferred Action Memorandum. II. The Deferred Action Memorandum Is Not Subject to APA Notice-and-

Comment Requirements The district court clearly erred in its determination that Plaintiffs were substantially likely to prevail on the merits of their claim that the Deferred Action Memorandum is subject to the APAs notice-and-comment rulemaking requirements. The Memorandum is exempt from those requirements as a general statement of policy in an area the enforcement of immigration law where agency action is strongly committed to agency discretion by law. The APA generally requires agencies to engage in notice-and-comment rulemaking for agency rules, 5 U.S.C. 553(b) & (c), which it defines, as relevant here, as the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy, id. 551(4). An agencys general statements of policy are, however, exempt from these notice-and-comment requirements. Id. 553(b)(A).

For purposes of the APA, general statements of policy are those statements issued by an agency to advise the public prospectively of the manner

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in which the agency proposes to exercise a discretionary power. Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)). As this Court has explained, a general statement of policy is a statement by an administrative agency announcing motivating factors the agency will consider, or tentative goals toward which it will aim, in determining the resolution of a substantive question of regulation. Professionals and Patients for Customized Care v. Shalala, 56 F.3d 592, 601 (5th Cir. 1995) (quotation marks and footnote omitted). In contrast, an agencys substantive rules which are subject to notice-and-comment rulemaking are those which have the binding effect of law, Chrysler Corp., 441 U.S. at 315. See also Professionals and Patients for Customized Care, 56 F.3d at 596 (A touchstone of a substantive rule is that it establishes a binding norm.).

The Deferred Action Memorandum is the archetype of a general statement of policy that advise[s] the public prospectively of the manner in which the agency proposes to exercise [its] discretionary power, Lincoln, 508 U.S. at 197, and announc[es] motivating factors the agency will consider . . . in determining the resolution of a substantive question of regulation, Professionals and Patients for Customized Care, 56 F.3d at 601. The Memorandum advises the public prospectively, Lincoln, 508 U.S. at 197, that [d]ue to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons

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illegally in the United States, and, therefore, DHS will seek to conserve its scarce enforcement resources through [c]ase-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities, Memo. 1, 3. The Memorandum also announc[es] [the] motivating factors the agency will consider, Professionals and Patients for Customized Care, 56 F.3d at 601, in its case-by-case determinations of whether to grant deferred action, including the length of time individuals have been in the United States, whether individuals constitute enforcement priorities pursuant to separate DHS guidance, whether they were brought to the United States as children, and whether they are parents of U.S. citizens or legal permanent residents. Memo. 3-5.

Unlike a substantive rule for which notice-and-comment rulemaking is required, the Secretarys memorandum does not have the binding effect of law, Chrysler Corp., 441 U.S. at 315, on the regulated party aliens applying for deferred action. The Memorandum states on its face that it confers no substantive right, immigration status or pathway to citizenship, and that any grant of deferred action pursuant to the Memorandums criteria may be terminated at any time at the agencys discretion. Memo. 2, 5. Moreover, DHSs no deferred action decisions are shielded from judicial review by statute, AADC, 525 U.S. at 484 (discussing 8 U.S.C. 1252(g)), so an alien who is denied deferred action or whose deferred action designation is revoked generally cannot access the courts to

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challenge that decision. See also Alvidres-Reyes v. Reno, 180 F.3d 199, 201 (5th Cir. 1999) (The Congressional aim of 1252(g) is to protect from judicial intervention the Attorney Generals long-established discretion to decide whether and when to prosecute or adjudicate removal proceedings or to execute removal orders.).

The district court nevertheless rejected DHSs argument that the Deferred Action Memorandum is a general statement of policy on the basis that the Memorandum provides such detailed criteria regarding which individuals may receive a grant of deferred action that, according to the court, DHS retains little discretion as to how it will apply the deferred action criteria to individual cases. Op. 108-09, 111. That conclusion is incorrect both as a factual and legal matter.

As a factual matter, the Deferred Action Memorandum states explicitly that, notwithstanding the criteria set forth therein, the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis by DHS in the exercise of [its] prosecutorial discretion. Memo. 5. Where, as here, agency guidance expressly refers to the discretionary nature of the agencys decision, that guidance should not be read . . . restrictively as if it were intended to foreclose the agencys exercise of its discretion. Professionals and Patients for Customized Care, 56 F.3d at 600 (emphasis added).

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As a legal matter, the fact that agency guidance includes detailed criteria, Op. 111, about the factors it will consider in deciding whether to grant or deny a wholly discretionary benefit does not convert a general statement of policy into a substantive rule for purposes of the APA. For example, the inclusion of nine detailed factors in a Food and Drug Administration Compliance Policy Guide for pharmacies did not convert the Guide into a substantive rule because it still afford[ed] an opportunity for individualized determinations and state[d] that, even if the factors are present, the FDA retain[ed] discretion whether to bring an enforcement action. Professionals and Patients for Customized Care, 56 F.3d at 597-98. Similarly, a Federal Savings and Loan Insurance Corporation regulation was a general statement of policy despite containing detailed requirements specifying the criteria that audits and auditors must fulfill in order to produce an audit report that is satisfactory to the agency. Guardian Federal Savings and Loan Association v. Federal Savings and Loan Insurance Corp., 589 F.2d 658, 666 (D.C. Cir. 1978). In reaching this conclusion, the D.C. Circuit specifically rejected the argument that specific and detailed requirements cannot qualify as a general statement of policy, explaining that [i]n the APA context, the term general includes detailed requirements provided that they are of general as contrasted with particular applicability. Id. at 667. The key analytical point is not the level of detail in which the agency sets forth its criteria, but rather especially where the

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agencys statutory discretion . . . is extremely broad that the rule[] . . . contemplate[s] that the administrator will exercise an informed discretion in the various cases that arise. Ibid. That is the case here. Although the Deferred Action Memorandum provides detailed requirements regarding which categories of individuals are eligible to apply for deferred action, the Memorandum is explicit that these requirements are of general as contrasted with particular applicability and that DHS will exercise an informed discretion in the various cases that arise. Ibid.

It is especially pertinent to the APA analysis that the Deferred Action Memorandum constitutes agency guidance in an area DHSs exercise of prosecutorial discretion in the enforcement of federal immigration law that is strongly committed to agency discretion by law. 5 U.S.C. 701(a)(2). See Arizona, 132 S. Ct. at 2499 (A principal feature of the removal system is the broad discretion exercised by immigration officials.). Johns, 653 F.2d at 889 (describing the Attorney Generals discretion in enforcing the immigration law as akin to his responsibility for enforcing criminal laws; in both situations, he has discretion to refrain from instituting proceedings even though grounds for their commencement may exist). The Supreme Court has explained that the APAs exception for agency action . . . committed to agency discretion by law is . . . very narrow. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410

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(1971) (quoting 5 U.S.C. 701(a)(2)). However, what is determinative here is that the breadth, Arizona, 132 S. Ct. at 2499, and general unreviewability, AADC, 525 U.S. at 484, of DHSs exercise of its prosecutorial discretion to enforce the immigration laws in the manner it sees fit including its decisions to grant or deny requests for deferred action demonstrate that the Deferred Action Memorandum does not have the binding effect of law, Chrysler Corp., 441 U.S. at 315, and, therefore, is not a substantive rule subject to APA notice-and-comment requirements. CONCLUSION The Court should reverse the district courts decision granting a preliminary injunction.

Respectfully submitted,

/s/ Matthew J. Ginsburg Lynn K. Rhinehart Harold C. Becker Matthew J. Ginsburg 815 Sixteenth Street, NW Washington, DC 20006 (202) 637-5397

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND

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I hereby certify that the foregoing brief complies with the type-volume limitation of Fed. R. App. P. 29(d) because this brief contains 5,474 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and that the foregoing brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionately spaced typeface using Microsoft Word 2013 in 14-point Times New Roman font. /s/ Matthew J. Ginsburg Matthew J. Ginsburg

CERTIFICATE OF SERVICE

I hereby certify that on April 6, 2015, the foregoing Brief of the American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae In Support of Appellants was filed with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system, which constitutes service under the Courts rules. /s/ Matthew J. Ginsburg Matthew J. Ginsburg