Texas v USA, TXSD 14-cv-00254 (2014) Doc 150, Motion to Stay Temporary Injunction (23 Feb 2015)

7/21/2019 Texas v USA, TXSD 14-cv-00254 (2014) Doc 150, Motion to Stay Temporary Injunction (23 Feb 2015)

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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

__________________________________________)

STATE OF TEXAS, et al. ))Plaintiffs, )

) No. 1:14-cv-254v. )

)UNITED STATES OF AMERICA, et al. )

)Defendants. )

__________________________________________)

DEFENDANTS EMERGENCY EXPEDITED MOTION TO STAY THE COURTSFEBRUARY 16, 2015 ORDER PENDING APPEAL AND SUPPORTING

MEMORANDUM

Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 1 of 24


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TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF THE ARGUMENT .................................................... 1

NATURE AND STATE OF THE PROCEEDING ........................................................................ 3

STATEMENT OF THE ISSUES AND STANDARD OF REVIEW ............................................ 4

ARGUMENT .................................................................................................................................. 5

I. DEFENDANTS HAVE A SUBSTANTIAL LIKELIHOOD OF PREVAILING

ON THEIR APPEAL FROM THE PRELIMINARY INJUNCTION, AND AT A

MINIMUM, A SUBSTANTIAL CASE ON APPEAL ...................................................... 5

II. THE GOVERNMENT WILL BE IRREPARABLY HARMED ABSENT ASTAY ................................................................................................................................ 10

III. THE PUBLIC INTEREST FAVORS A STAY................................................................ 14

IV. PLAINTIFFS WILL NOT BE HARMED BY A STAY .................................................. 16

V. IN THE ALTERNATIVE, THE COURT SHOULD STAY THE PRELIMINARY

INJUNCTION TO THE EXTENT THAT IT PURPORTS TO APPLY OUTSIDEOF TEXAS........................................................................................................................ 18

CONCLUSION ............................................................................................................................. 19



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TABLE OF AUTHORITIES

CASES

Arizona Dream Act Coalition v. Brewer,

757 F.3d 1053 (9th Cir. 2014) .................................................................................................... 7

Arizona v. United States,

132 S. Ct. 2492 (2012) .............................................................................................. 9, 10, 14, 15

Arpaio v. Obama,

27 F. Supp. 3d 185 (D.D.C. 2014) .................................................................................... 8, 9, 14

C.F.T.C. v. Hudgins,No. 6:08-CV-187, 2009 WL 3645053 (E.D. Tex. Nov. 2, 2009) .......................................... 4, 6

Canal Authority of Florida v. Callaway,489 F.2d 567 (5th Cir. 1974) .................................................................................................... 12

Chrysler Corp. v. Brown,441 U.S. 281 (1979) .................................................................................................................. 10

Crane v. Napolitano,

920 F. Supp. 2d 724 (N.D. Tex. 2013) ....................................................................................... 8

Heckler v. Chaney,

470 U.S. 821 (1985) .................................................................................................................... 9

Lincoln v. Vigil,

508 U.S 182 (1993) ................................................................................................................... 10

Lion Health Servs., Inc. v. Sebelius,

635 F.3d 693 (5th Cir. 2011) .................................................................................................... 18

Louisiana Envtl. Soc'y, Inc. v. Coleman,

524 F.2d 930 (5th Cir. 1975) .................................................................................................... 17

Mathews v. Diaz,

426 U.S. 67 (1976) .................................................................................................................... 10

Munaf v. Geren,

553 U.S. 674 (2008) .................................................................................................................... 7

Nken v. Holder,

556 U.S. 418 (2009) .............................................................................................................. 5, 14

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Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,

734 F.3d 406 (5th Cir. 2013) ...................................................................................................... 4

Reno v. Am.-Arab Anti-Discrimination Comm.("AAADC"),

525 U.S. 471 (1999) ............................................................................................................ 10, 11

Ruiz v. Estelle,

650 F.2d 555 (5th Cir. 1981) ................................................................................................ 5, 13

State of Tex. v. United States,106 F.3d 661 (5th Cir. 1997) ...................................................................................................... 8

Stieberger v. Bowen,801 F.2d 29 (2d Cir. 1986)........................................................................................................ 11

United States v. Baylor Univ. Med. Ctr.,

711 F.2d 38 (5th Cir. 1983) .................................................................................................... 5, 6

United States v. Mendoza,

464 U.S. 154 (1984) .................................................................................................................. 18

Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc.,

559 F.2d 841 (D.C. Cir. 1977) .................................................................................................... 6

CONSTITUTION

U.S. Const. art. II, 3 ..................................................................................................................... 3

STATUTES

5 U.S.C. 553 ................................................................................................................................. 3

5 U.S.C. 706 ................................................................................................................................. 3

6 U.S.C. 202(5) .......................................................................................................................... 10

RULES

Fed. R. Civ. P. 62 ............................................................................................................................ 4

EXHIBITS

Decl. of Sarah R. Saldaa, Director of ICE ............................................................................. Ex. A

Decl. of R. Gil Kerlikowske, Commissioner of CBP .............................................................. Ex. B

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INTRODUCTION AND SUMMARY OF THE ARGUMENT

Defendants respectfully move for a stay, pending appeal, of the preliminary injunction

entered in this case on February 16, 2015 [ECF No. 144], concerning the November 20, 2014,

memorandum issued by the Secretary of Homeland Security (Secretary), setting forth

guidelines for the consideration of deferred action for the parents of U.S. citizens or lawful

permanent residents (DAPA) and modifying existing guidelines for the consideration of

deferred action for certain individuals who came to the United States as children (modified

DACA) (collectively, Deferred Action Guidance or Guidance). Defendants have filed a

Notice of Appeal [ECF No. 149] from the Courts February 16, 2015 Opinion and Orders

granting Plaintiffs Motion for Preliminary Injunction [ECF Nos. 144 & 145].

A stay pending appeal is necessary to ensure that the Department of Homeland Security

(DHS or Department) is able to most effectively protect national security, public safety, and

the integrity of the border. Specifically, the Deferred Action Guidance enjoined by this Court is

an integral part of the Departments comprehensive effort to set and effectuate immigration

enforcement priorities that focus on the removal of threats to public safety, national security

risks, and recent border crossers, thereby best securing the Homeland in the face of limited

resources. Absent a stay, DHS will sustain irreparable harmharm that would not be cured,

even if Defendants ultimately prevail on that appeal. Allowing the preliminary injunction to

remain in place pending appeal would also harm the interests of the public and of third parties,

who will be deprived of the significant law enforcement and humanitarian benefits of prompt

implementation of the Guidance. When these harms are weighed against the financial injuries

claimed by Plaintiffs (and found by the Court only as to Texas), the balance of hardships tips

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decidedly in favor of a stay; the harms claimed by Plaintiffs are not imminent and are fully

within their power to avoid.

A stay is also warranted in view of Defendants substantial case that the preliminary

injunction was issued in errorall that Defendants must establish concerning a likelihood of

success in order to warrant the requested stay. Defendants case is substantial indeed: the Court

lacked authority to issue the preliminary injunction, both because Plaintiffs lack standing and

because the Deferred Action Guidance is an exercise of prosecutorial discretion by the Secretary

that is neither subject to challenge by the States, nor required to be issued through notice-and-

comment rulemaking. That the Courts reasoning on standing and the merits has been rejected

by other district courts further underscores the fact that Defendants have a substantial case on

appeal.

Finally, Defendants request in the alternative a partial stay of the injunction to the extent

that it purports to apply nationwide. The injunction vastly exceeds the relief necessary to redress

the limited alleged harms the Court credited in its Opinion. Specifically, the injunction purports

to extend beyond implementation of the Guidance in Texas (the only State whose claims of harm

the Court credited) to States the Court did not find to have established any injury, and even to

States that have informed this Court that they desire and expect to benefitfrom implementation

of the Deferred Action Guidance. Thus, although a full stay is warranted, at the very least, the

injunction should be stayed so that it applies only to the implementation of the Guidance in

Texas.

In light of the immediacy of the harm to Defendants and the public in the absence of a

stay of the Courts Order, which prevents Defendants from complying with the timeline set forth

in the Guidance for U.S. Citizenship and Immigration Services (USCIS) to begin accepting

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requests for deferred action, Defendants respectfully request expedited consideration of their

motion and a ruling as soon as possible. Absent a ruling by the close of business on Wednesday,

February 25, Defendants may seek relief from the Court of Appeals in order to protect their

interests.

NATURE AND STATE OF THE PROCEEDING

On December 3, 2014, Plaintiffs filed this suit, challenging the Secretarys authority to

issue the Deferred Action Guidance. Plaintiffs Complaint includes three causes of action: that

the Guidance allegedly (1) violates the Take Care Clause of the Constitution, art. II, 3;

(2) violates the substantive requirements of the Administrative Procedure Act (APA), see 5

U.S.C. 706; and (3) violates the APAs notice-and-comment requirement, see 5 U.S.C. 553.

Plaintiffs moved for a preliminary injunction on all counts on December 4, 2014, seeking to

enjoin implementation of the Deferred Action Guidance. SeePls. Mot. for Prelim. Inj. [ECF

No. 5];see also Proposed Order [ECF No. 5-1].

DHS was to begin accepting requests for modified DACA on February 18, 2015. On

February 16, 2015, the Court granted Plaintiffs Motion and preliminarily enjoined Defendants

from implementing any and all aspects or phases of DAPA and modified DACA, as set forth

in the Guidance. Order of Temporary Inj. (Order) at 1-2 [ECF No. 144]. The Court found that

at least Texas has standing to sue, stating that Texas would be required under the existing

terms of state law to expend funds to provide drivers licenses to individuals who receive DAPA

and modified DACA at some point in the future. Mem. Op. & Order (Op.) at 22-36 [ECF No.

145]. The Court also indicated that at least Texas has standing based on what it termed an

abdication theory, acknowledging that no other court has based standing on this novel theory.

Id.at 67 & n.48. The Court then held that the States are likely to succeed on the merits of one of

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their claims: that the challenged guidance was a substantive rule that, under the APA, could

have been issued only through notice-and-comment rulemaking. Finally, the Court concluded

that the alleged financial injury to Texas based on the provision of drivers licenses amounts to

irreparable harm and that the balance of the equities favored a preliminary injunction. The Court

did not purport to limit its relief, however, to Texasmuch less to the particular injury to Texas

that the Court identified concerning the issuance of drivers licenses. Nor did the Court even

purport to limit its relief to the States joined as Plaintiffs in this action. Instead, it purported to

enjoin the Governments implementation of the Deferred Action Guidance nationwide,

notwithstanding the fact that twelve States and the District of Columbia filed an amicus brief in

this case in support of the Guidance, explaining that they expect to benefitfrom it. SeeAmicus

Br. of State of Washington, et al.[ECF No. 81].

Defendants have appealed the Courts Order and Opinion to the Fifth Circuit. [ECF No.

149].

STATEMENT OF THE ISSUES AND STANDARD OF REVIEW

Defendants request a stay pending appeal of the Courts preliminary injunction. Federal

Rule of Civil Procedure 62 permits the trial court, in its discretion, to suspend an injunction

during the pendency of an appeal.

Courts typically consider four factors in evaluating a request for a stay pending appeal:

(1) whether the movant has made a showing of likelihood of success on the merits; (2) whether

the movant will be irreparably harmed if the stay is not granted; (3) whether issuance of a stay

will substantially harm the other parties; and (4) whether the granting of the stay serves the

public interest. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734

F.3d 406, 410 (5th Cir. 2013); see alsoC.F.T.C. v. Hudgins, No. 6:08-CV-187, 2009 WL

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3645053, at *2 (E.D. Tex. Nov. 2, 2009). Where the Government is a party, its interests and the

public interest overlap in the balancing of harms. See Nken v. Holder, 556 U.S. 418, 420 (2009).

Moreover, a party seeking such a stay need only present a substantial case on the merits, as

opposed to a likelihood of success on the merits, whereas herea serious legal question is

involved and . . . the balance of equities weighs heavily in favor of granting the stay. United

States v. Baylor Univ. Med. Ctr., 711 F.2d 38, 39 (5th Cir. 1983) (quotingRuiz v. Estelle, 650

F.2d 555, 565 (5th Cir. 1981)).

ARGUMENT

I. DEFENDANTS HAVE A SUBSTANTIAL LIKELIHOOD OF PREVAILING ONTHEIR APPEAL FROM THE PRELIMINARY INJUNCTION, AND AT A

MINIMUM, HAVE A SUBSTANTIAL CASE ON APPEAL

The Court is already familiar with the Governments arguments regarding Plaintiffs

challenge to the Deferred Action Guidance, and, in particular, the lack of any basis for a

preliminary injunction. Although Defendants recognize that the Court has already rejected

several of these arguments, Defendants respectfully submit that they are likely to prevail on

appeal from the preliminary injunction for all of the reasons set forth in their Opposition to

Plaintiffs Motion for Preliminary Injunction (Defs. Opp.) [ECF No. 38], and their Sur-Reply

in further opposition thereto [ECF No. 130]. Defendants appeal presents multiple independent

bases on which the Fifth Circuit could find that Plaintiffs are not entitled to the extraordinary

relief of the preliminary injunction that this Court granted, including: that Plaintiffs lack Article

III standing; that Plaintiffs lack prudential zone-of-interest standing; that the exercise of

enforcement discretion through DACA and DAPA is unreviewable under the APA; and that the

Guidance falls within the well-established exception to the APAs notice-and-comment

requirements for general statements of policy to be applied prospectively.

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This Court need not agree that Defendants are likely to prevail on appeal from the

preliminary injunction in order to conclude that Defendants are entitled to the relief sought. See

Baylor, 711 F.2d at 39. Indeed, [p]rior recourse to the [district court] would hardly be required

as a general matter if it could properly grant interim relief only on a prediction that it has

rendered an erroneous decision. Washington Metro. Area Transit Commn v. Holiday Tours,

Inc., 559 F.2d 841, 844 (D.C. Cir. 1977). Where a serious legal question is involved, the

movant can satisfy this first prong of the four-part test by demonstrating a substantial case on

the merits. Baylor, 711 F.2d at 39. This less-exacting standard applies where as here there

are legal issues having far-reaching effects, involving significant public concerns . . . .

Hudgins, 2009 WL 3645053, at *3.

Plaintiffs challenge to the lawfulness of the Secretarys enforcement of the immigration

laws, an area of exclusive federal control, unquestionably presents serious legal question[s].

These questions include the role, if any, of the States and the federal judiciary in countermanding

discretionary decisions by the Secretary about the best way to prioritize scarce enforcement

resources and to allow those resources to be deployed most effectively. Plaintiffs have

essentially acknowledged as much. SeePls. Mot. to Exceed Page Limits at 2 [ECF No. 6]

(Plaintiffs motion raises complex issues in a case of national importance.). Thus, the

applicable standard for evaluating this stay request is whether Defendants have a substantial

case for prevailing on appeal.

Defendants clearly have a substantial case on appeal (and, indeed, are likely to prevail on

one or more of the dispositive bases noted above). First, the States lack Article III standing, as a

matter of law, to bring this suit to enjoin the Secretary from implementing federal immigration

policy, for all the reasons previously articulated in Defendants papers. The Courts

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unprecedented conclusion to the contrary would mark a significant expansion of the powers of

the federal judiciary and the States. At a minimum, the Courts standing ruling is subject to

serious question; the existence of a substantial jurisdictional issue undermines Plaintiffs

likelihood of success on the merits and thus their entitlement to a preliminary injunction. See

Munaf v. Geren, 553 U.S. 674, 690-91 (2008).

With respect to standing, Defendants appeal will present a substantial challenge to the

notion that a State may establish standing to challenge an immigration policy simply because that

policy has the incidental effect of making individuals eligible under state law for benefits that a

State has chosen to make available by reference to federal law or policy. Such an unprecedented

theory of standing would apparently permit States to challenge a federal law or policy simply

because they have borrowed some concept of federal law or policy and incorporated it into state

law. It also would appear to allow standing by States to challenge countless individual decisions

to grant immigration relief or status, every one of which could potentially subject a State to a

modest additional burden. Such a basis for standing would drastically expand standing beyond

the doctrines well-settled limits, a particularly unwarranted result in the context of immigration,

where federal power is exclusive. There is also a substantial argument that this Court erred in

reading the Governments amicus brief inArizona Dream Act Coalition v. Brewer, 757 F.3d

1053 (9th Cir. 2014), to establish that any move by a plaintiff state to limit the issuance of

drivers licenses would be viewed as illegal by the Government, Op. at 25. The Courts

speculation about the position the Government would take in the future on such issues ignores

not only the actual, much more limited argument advanced by the Government in theArizona

Dream Actcase, but also the representations made by Defendants in this litigation. See,e.g.,

Defs. Sur-Reply at 6-7. It is the Governments position that Texas is free to implement a

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scheme that does not offer drivers licenses to DAPA and DACA recipients, so long as it does

not employ any new, non-federal immigration classification. See id.

Defendants also will mount a substantial and compelling challenge to this Courts

alternative and decidedly novel abdication theory of standinga theory that this Court

acknowledged has never been found sufficient to justify an exercise of Article III jurisdiction,

Op. at 67 n.48. This theory of standing erroneously conflates the merits of the States APA

claim with the threshold question of standing. It also turns the well-recognized barto the

exercise of authority by States in the field of immigration into a justification for allowing the

States to interfere with federal enforcement discretion in the federal courts. And in any event,

the Deferred Action Guidance is not an abdication in any respect: it reflects the Secretarys

determination about how best to deploy limited enforcement resources in furtherance of

discretionary enforcement priorities. SeeDefs. Opp. at 37-44; Defs. Sur-Reply at 25-30.

Finally, the existence of a substantial case as to the lack of Article III jurisdiction is

confirmed by the fact that the only other district courts to have considered a state or local entitys

standing to challenge federal immigration policies have dismissed those claims for lack of

standing. Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014), appeal pending, No. 14-05325

(D.C. Cir.); Crane v. Napolitano, 920 F. Supp. 2d 724, 745-46 (N.D. Tex. 2013), appeal

pending, No. 14-10049 (5th Cir.) (argued Feb. 3, 2015); Texas v. United States, No. B-94-228, at

*7 (S.D. Tex. Aug. 7, 1995), affd on other grounds, 106 F.3d 661 (5th Cir. 1997).

Plaintiffs would not be entitled to review of their claims even if they had Article III

standing. As Defendants have amply demonstrated in their prior papers, and as they will

demonstrate on appeal, Plaintiffs are not within the zone of interests sought to be protected by

the relevant provisions of the Immigration and Nationality Act (INA). The Courts conclusion

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that States may invoke the aid of federal courts to police the Federal Governments

implementation of immigration laws conflicts with the well-established and fundamental

allocation of responsibilities between the Federal Government and the States in the field of

immigration. SeeArizona v. United States, 132 S. Ct. 2492, 2499 (2012).

Defendants also have a substantial case regarding the legal errors that underlie the

Courts evaluation of the merits of Plaintiffs claim. Defendants will present substantial

arguments that Plaintiffs cannot challenge the Secretarys exercise of discretion in issuing the

Deferred Action Guidance. See Heckler v. Chaney, 470 U.S. 821, 832 (1985) (agencys decision

not to exercise its enforcement authority, or to exercise it in a particular way, is presumed to be

immune from judicial review under the APA); see alsoArizona, 132 S. Ct. at 2499. ([A]

principal feature of the removal system is the broad discretion exercised by immigration

officials.). That Defendants arguments are substantial is again confirmed by the fact that

another district court has confronted this same issue and has agreed with Defendants arguments.

InArpaio, the district court rejected a similar challenge to the Deferred Action Guidance,

concluding that even if the plaintiff were able to establish standing, he had failed to establish a

likelihood of success on the merits, because the Guidance is consistent with, rather than

contrary to, congressional policy and is a valid exercise of prosecutorial discretion that

merely provide[s] guidance to immigration officials in the exercise of their official duties. 27

F. Supp. 3d at 208-210.

Defendants also have a substantial case on appeal concerning the Courts specific merits

holding with respect to notice-and-comment procedures. The Supreme Court has made clear that

notice-and-comment procedures are not required for precisely the type of agency guidance at

issue here: statements issued by an agency to advise the public prospectively of the manner in

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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)). The challenged

policy creates no binding legal duty on any regulated person or entity, and, at the same time,

imposes no binding legal restriction on DHSs discretion to enforce the immigration laws against

any individual. It therefore falls squarely within the APA exception for statements of policy.

Defendants respectfully submit that they are likely to succeed on the merits of this argument on

appeal, consistent with well-established precedent and the express terms of the Guidance. And at

a minimum, Defendants appeal presents a substantial case that notice-and-comment

procedures were not required in this instance, thus warranting a stay.

II. THE GOVERNMENT WILL BE IRREPARABLY HARMED ABSENT A STAY

The Government will suffer irreparable harm absent a stay. The preliminary injunction

blocks DHS from exercising its authority, conferred by Congress, to establish policies and

priorities to enforce the Nations immigration laws. See6 U.S.C. 202(5); see alsoReno v.

Am.-Arab Anti-Discrimination Comm. (AAADC), 525 U.S. 471, 483-84 (1999). The

preliminary injunction was entered at the urging of States that unquestionably lack any authority

over the Nations immigration policies, which the Constitution and the INA commit exclusively

to the Federal Government. See Arizona, 132 S. Ct. at 2499. An injunction interfering with

federal immigration enforcement, issued at the behest of the States, is directly contrary to the

allocation of powers between the federal and state governments. The injunction also offends

basic separation-of-powers principles, impinging on core Executive functions concerning the

exercise of discretion in the complex task of enforcing the immigration laws, and is contrary to

the preclusion of judicial review of discretionary matters under the INA. Cf.Mathews v. Diaz,

426 U.S. 67, 81 (1976) (For reasons long recognized as valid, the responsibility for regulating

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the relationship between the United States and our alien visitors has been committed to the

political branches of the Federal Government). As such, the preliminary injunction necessarily

causes an irreparable harm to the Defendants that will not be cured even if the Guidance is later

upheld. Cf. Stieberger v. Bowen, 801 F.2d 29, 33-34 (2d Cir. 1986) (finding that injunction

poses significant harm where it has the potential for bringing the Judicial Branch into protracted

involvement with the Executive Branch in the administration of a complex regulatory scheme

affecting hundreds of thousands of persons).

A stay of the preliminary injunction pending appeal is also necessary to prevent practical

impairment to the Departments ability to most effectively and efficiently protect the Homeland

and secure our borders. The Guidance is part of a comprehensive and integrated effort by the

Department to prioritize immigration enforcement efforts so as to best protect the Nation, and

results from its considered judgment as to the best means to order and effectuate its enforcement

priorities. As the Court appropriately recognized, [t]he law is clear that the Secretarys ordering

of DHS priorities is not subject to judicial second-guessing. Op. at 69. As a result, the Court

indicated that its Order does not enjoin or impair the Secretarys ability to marshal his assets or

deploy [DHSs] resources, and it does not enjoin the Secretarys ability to set priorities for . . .

DHS. Id.at 123.

The Courts assumption that DAPA and modified DACA are somehow separate from

these exclusive and discretionary authorities of the Secretary was simply incorrect. SeeAAADC,

525 U.S. at 483-84 (recognizing the Governments regular practice of granting deferred

action as an exercise of agency discretion). By encouraging certain aliens to come forward,

identify themselves to USCIS, and pay for their own background checks, the Deferred Action

Guidance advances the objectives of the Secretarys comprehensive prioritization efforts.

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Specifically, grants of deferred action pursuant to the Guidance allow U.S. Immigration and

Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP)which

conduct enforcement actions and inspect aliens near the borderto quickly and efficiently

distinguish between criminals and other enforcement priorities (who may be removed quickly

under existing statutory authority) from aliens who do not fall within the Departments priorities

for removal and whose cases may impose additional burdens on already backlogged

immigrations courts. SeeDecl. of Sarah R. Saldaa, Director of ICE (Saldaa Decl.) (Ex. A)

15-17; Decl. of R. Gil Kerlikowske, Commissioner of CBP (Kerlikowske Decl.) (Ex. B)

7-9; see alsoDecl. of Donald W. Neufeld (Neufeld Decl.) 5, 26 [ECF No. 130-11].

Instead of spending valuable, limited resources to determine whether encountered individuals are

enforcement priorities, DHS and its component agencies (as well as state and local law

enforcement officers) can rely on proof of deferred action to quickly and efficiently confirm that

they are not. This, in turn, allows the Department to focus its limited resources on aliens who are

a high priority for removalincluding aliens who pose national security risks, serious criminals,

and recent border crossersrather than on aliens with significant ties to the community and no

serious criminal records. See id. DAPA and modified DACA will thus support DHSs overall

mission to secure the border and protect the public, while also recognizing important

humanitarian considerations. Seeid.

The Courts assertion that the preliminary injunction merely preserves the status quo, Op.

at 119, is not a sound basis for concluding that Defendants will not be irreparably harmed absent

a stay pending appeal. The focus of the irreparable harm inquiry must be on prevention of

injury by a proper order, not merely on preservation of the status quo. Canal Authority of

Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). By enjoining Defendants ability to

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implement guidance that the Secretary has determined is necessary in the exercise of authority

vested in him by Congress to administer the immigration laws, the Order jeopardizes the

efficiencies to immigration enforcement (and thus the protection of the Homeland) that the

Guidance would otherwise be expected to provide, making it more difficult [for the

Department] to efficiently and effectively carry out its mission. Saldaa Decl. 19.

Defendants would thus unquestionably suffer irreparable harm if a stay is denied, regardless of

whether the injunction is characterized as preserving or altering the status quo.

Moreover, the Courts assertion that its Order does not affect the status quo is at odds

with the Courts recognition that DHS had already begun preparing to effectuate the Deferred

Action Guidance. SeeOp. at 76. The Court issued its injunction one business day before USCIS

was scheduled to begin accepting requests for deferred action under the modified DACA

guidelines. USCIS had spent the prior 90 daysthe time period established by the Guidance for

implementationpreparing to receive such requests. The injunction sets back substantial

preparatory work that has already been undertaken. Among other things, the Court

acknowledged that DHS had leased space, initiated the hiring process for employees, and taken

other preparatory steps concerning the Guidance. Id. at 76 & n.55; see alsoNeufeld Decl. 28.

Ceasing these efforts now would jeopardize full implementation of the policy itself, as well as

require DHS to incur considerable administrative costs in the future to repeat the preparatory

work necessary for full implementation. Cf. Ruiz, 650 F.2d at 571 (granting stay to relieve state

agency of burden . . . in terms of time, expense, and administrative red tape of complying with

order). Overall, for the Deferred Action Guidance to work, DHS needs to have the appropriate

infrastructure set up and ready before the first request is submitted (including significant

preparatory work to implement the new DAPA guidelines, under which applications were

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expected to be accepted by mid-May). This means that, absent a stay of the injunction,

implementation of the Guidance will not merely be paused, but will suffer a significant and

irreparable setback, to the detriment of the agency and the potential requestors, as well as the

national security, border security, and public safety interests promoted by the Deferred Action

Guidance and interrelated policies.

III. THE PUBLIC INTEREST FAVORS A STAY

For many of the reasons that Defendants will experience irreparable harm absent a stay,

the interests of the public and of third parties also strongly counsel in favor of a stay pending

appeal of the preliminary injunction.

1

It is the Departments considered judgment that the

Deferred Action Guidancepart of DHSs integrated efforts to maximize border securitywill

advance important public safety and national security goals in the public interest. DHS, not the

Court, is properly positioned to make this discretionary judgment. See Arizona, 132 S. Ct. at

2499. By preventing the Secretary of Homeland Security from implementing his considered

policy determinations for best achieving these important goals, the preliminary injunction harms

not only Defendants but also the public. See Nken, 556 U.S. at 420 (recognizing the public

interest and interest of Federal Government may merge).

The preliminary injunction entered by the Court also harms the public by halting policies

that respond to humanitarian concerns and promote family unification. The Supreme Court

recognized inArizonathat [d]iscretion in the enforcement of immigration law embraces

immediate human concerns. 132 S. Ct. at 2499. Such discretion may properly recognize the

1In analyzing the public interest prong and denying a similar request for preliminary injunction, thedistrict court inArpaioexplained: [h]alting these deferred action programs would inhibit the ability ofDHS to focus on its statutorily proscribed enforcement priorities (national security, border security, andpublic safety) and would upset the expectations of the DACA programs participants and the potentiallyeligible participants in the other challenged programs when none of those participants are currently beforethis Court. 27 F. Supp. 3d at 210-211.

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difference between unauthorized workers trying to support their families and alien

smugglers or those who commit a serious crime id., as does the Guidance at issue here.

Leaving the injunction in place would work immense harm to the public interest by undermining

the Departments efforts to encourage illegal aliens with significant ties to the community and no

serious criminal record to come out of the shadows and to request the ability to work legally. It

also prevents the Secretary from implementing deferred action policies where the use of such

discretion is not only appropriate, but beneficial to a large number of individuals, including U.S.

citizens. See,e.g., AmicusBr. of Am. Immigration Council, et al.at 9-15 [ECF No. 39-1]

(describing harm to eleven individuals and their families from the Courts potential injunction).

Moreover, there are a number of other public and third-party interests that will be harmed

in the absence of a stay, including the interests of local law enforcement and of city and state

governments. Local law enforcement and city governments will be deprived of the significant

(and undisputed) benefits of those policies, which will encourage individuals who are not

enforcement priorities and who are granted temporary relief under the Guidelines to cooperate

with federal, state, and local law enforcement officers where they might otherwise fear coming

forward. See Kerlikowske Decl. 13; Saldaa Decl. 18; see alsoAmicusBr. of Major Cities

Chiefs Assn, et al.at 6, 8 [ECF No. 83-1]; AmicusBr. of the Mayors of New York and Los

Angeles, et al.at 10-11 [ECF No. 121]. State and local governments will likewise be injured in

the absence of a stay, because without deferred action, these same individuals who are not

enforcement priorities cannot apply for federal work authorization, thereby depriving state

governments of significant payroll tax revenue. See Amicus Br. of State of Washington, et al. at

6, 8; Amicus Br. of the Mayors of New York and Los Angeles,et al.at 8-9.

15



20/41

IV. PLAINTIFFS WILL NOT BE HARMED BY A STAY

In contrast to the clear and imminent harm to Defendants, to third parties, and to the

public interest, Plaintiffs will not face an imminent threat of irreparable harm if the Court stays

its preliminary injunction pending appeal. For the reasons articulated above and in Defendants

prior papers, the injuries the States claim they will suffer during the pendency of proceedings are

not imminent and, at most, stem from policy choices the States themselves have made. SeeLtr.

from Rick Perry to Greg Abbott (Aug. 16, 2012) [ECF No. 130-1] (In Texas, the legislature has

passed laws that reflect the policy choices that they believe are right for Texas, and the

Governments deferred action policy does not undermine or change our state laws or change

our obligations . . . to determine a persons eligibility for state and local public benefits).

Defendants recognize that this Court has credited Texass claim that it will spend

millions of dollars to provide drivers licenses to future recipients of DAPA and modified

DACA if the guidance is allowed to be implemented, and that the Court has also found these

costs attributable to the Guidance. SeeOp. at 115. However, it is Texas state lawthat makes

licenses available to such individuals.2 Texas is under no obligation to structure its licensing

scheme this way as a result of any federal statute, let alone the challenged Guidance. Texass

alleged expenditure of funds to provide licenses is also hardly immediate, as it is tied to

predicted future grants of deferred action under the Guidance, rather than to predicate stages of

implementation, and the magnitude of the alleged expenditure bears no relation to the number of

requests for DAPA and modified DACA that could even plausibly be granted during the

2Texas likewise sets (and is thus free to alter) the price at which individuals may obtain a driverslicensea price that presumably reflects its view that the public safety benefits gained by providinglicenses outweigh the cost. Cf. Amicus Br. of Major Cities Chiefs Assn et al.at 7-9 (explaining thatdrivers licenses promote road safety and assist law enforcement efforts).

16



21/41

pendency of the appeal.3 SeeLa. Envtl. Socy, Inc. v. Coleman, 524 F.2d 930, 933 (5th Cir.

1975) (preliminary injunction not warranted where district court had sufficient time to decide the

merits or devise other relief before any harm occurred). Furthermore, any such ultimate

expenditure by Texas likely will be outweighed by the increase in state tax revenues obtained

from aliens who may become eligible for work authorization as a result of the grant of deferred

action. SeeAmicus Br. of Washington, et al.at 6 (noting that grant of work authorization to

individuals who may receive DACA or DAPA in Texas will lead to estimated $338 million

increase in the state tax base over five years). The Court itself recognized that the future net

economic effect of the Deferred Action Guidance is at best indeterminate, in light of the potential

that the economic benefits that States will reap by virtue of the issuance of work authorizations

will offset any increase in costs. Op. at 54-55. A speculative or indeterminate future financial

injury does not constitute irreparable injury to Plaintiffs justifying denial of the requested stay.

3While it is conceivable that, in the absence of the injunction, some small number of requests formodified DACA could be acted on after March 4the date that Defendants previously provided as theearliest that USCIS could act on any (not all) such requestsit takes considerable time to process arequest for deferred action, given the multi-stage process, including background checks, and case-by-casereview, and given the adjudication capacity of USCIS and the volume of requests (of all types) that itprocesses. SeeNeufeld Decl. 13 (discussing multi-stage process for reviewing requests under existingDACA).The average processing time for DACA requests, which is publicly available on USCISwebsites, is 5-6 months from receipt to adjudication, https://egov.uscis.gov/cris/processTimesDisplay.do,

although DHS anticipates that it may have been able to act more quickly on a small number of requestspreviously submitted under the 2012 DACA Guidelines but which USCIS could have considered underthe revised DACA guidelines after February 18, absent the preliminary injunction. Moreover, theGuidance does not require USCIS even to begin acceptingrequests for DAPA until mid-May; and as thisCourt has recognized, DAPA is a new policy, requiring further implementation steps before any requestscould be entertained and acted upon. Furthermore, grants of deferred action can be revoked at any time,and thus could readily be reversed in the unlikely event that the States ultimately prevail. In short, thereis little to no immediate injury to the Texas even under its theory of harm, and any such injury could beunwound if Plaintiffs ultimately prevail on appeal.

17



22/41

V. IN THE ALTERNATIVE, THE COURT SHOULD STAY THE PRELIMINARY

INJUNCTION TO THE EXTENT THAT IT PURPORTS TO APPLY OUTSIDE

OF TEXAS

For all the foregoing reasons, the preliminary injunction should be stayed in its entirety

pending appeal. In the alternative, the Court should grant a more limited stay of the injunction to

the extent that it purports to reach implementation of the Guidance outside of Texas, including in

States that have not made any effort to demonstrate irreparable harm and, indeed, in States not

even joined as plaintiffs in this action. Injunctive relief must be tailored to the parties properly

before the court and to the harm that those parties are able to demonstrate. SeeDefs. Opp. at 50

n.40; see also Lion Health Servs., Inc. v. Sebelius, 635 F.3d 693, 703 (5th Cir. 2011).

Nationwide injunctive relief is particularly inappropriate in the context of government programs.

See United States v. Mendoza, 464 U.S. 154, 159 (1984).

The only specific harm the Court found here was the potential cost that Texas would

allegedly incur from having to issue drivers licenses to future recipients of DAPA and modified

DACA by operation of statelaw. A nationwide preliminary injunction barring the

implementation of the Secretarys Guidance for the exercise of discretion in the administration

and enforcement offederallaw is plainly not necessary to provide Texas with relief from this

alleged harm. At the same time, a nationwide injunction trenches on the authority and discretion

of the Secretary in the administration and enforcement of the immigration laws. It also impairs

the interests of individuals who may benefit from DAPA and modified DACA and the interests

of nonparty States in having DAPA and modified DACA implementedincluding the interests

of those twelve States and the District of Columbia that filed an amicus brief in supportof the

Deferred Action Guidance, on the ground that it will substantially benefit, rather than harm,

them and their residents. SeeAmicus Br. of Washington, et al.at 2. Without at least a partial

18



23/41

stay, the Courts Order would needlessly deprive those States of the anticipated benefits of

DAPA and modified DACA during the pendency of any appeal. Thus, at a minimum,

Defendants are entitled to a stay of that portion of the Order that applies to the Governments

implementation of the Deferred Action Guidance in States other than Texas, or, at the very least,

in States not joined in this action.

CONCLUSION

Defendants request that this Court stay, pending appeal, its February 16, 2015 Order, or

in the alternative, stay its Order beyond application in Texas. Given the exigencies, Defendants

respectfully request expedited consideration of their motion and a ruling as soon as possible.

Absent a ruling by the close of business on Wednesday, February 25, Defendants may seek relief

from the Court of Appeals in order to protect their interests.

Dated: February 23, 2015 Respectfully submitted,

KENNETH MAGIDSONUnited States Attorney

DANIEL DAVID HUAssistant United States AttorneyDeputy Chief, Civil Division

JOYCE R. BRANDAActing Assistant Attorney General

KATHLEEN R. HARTNETTDeputy Assistant Attorney General

DIANE KELLEHERAssistant Branch Director

/s/ Kyle R. Freeny

KYLE R. FREENY (Cal. Bar No. 247857)Attorney-in-Charge

HECTOR G. BLADUELLBRADLEY H. COHENADAM D. KIRSCHNERJULIE S. SALTMANCivil Division, Federal Programs BranchU.S. Department of JusticeP.O. Box 883, Washington, D.C. 20044Tel.: (202) 514-5108 / Fax: (202) [email protected] for Defendants

19



24/41

CERTIFICATE OF CONFERRAL

Pursuant to Local Civil Rule 7.1.D, undersigned counsel hereby certifies that shecontacted counsel for Plaintiffs, Angela Colmanero, who indicated that Plaintiffs oppose all

forms relief sought in the foregoing Emergency Expedited Motion to Stay.

/s/ Kyle R. Freeny

Counsel for Defendants

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Emergency Motion to Stayhas been delivered electronically on February 23, 2015, to counsel of record via the DistrictsECF system.

/s/ Kyle R. Freeny

Counsel for Defendants

20



25/41

EXHIBIT A

Case 1:14-cv-00254 Document 150-1 Filed in TXSD on 02/23/15 Page 1 of 9


26/41





STATE OF TEXAS, et al

)

)

)

Plaintiffs,

No 1 : 14-cv-254

v

UNITED STATES OF AMERICA,

t al

Defendants.

DECLARATION OF SARAH R. SALDANA

I, Sarah R. Saldana, hereby make the following declaration with respect to the above-

captioned matter.

1

I am the Director of U.S. Immigration and Customs Enforcement (ICE), a component of

the Department of Homeland Security (DHS or Department). I have held this position since

December 23,2014. My current work address is: 500

l i

Street Southwest, Washington, D.C. I

am a graduate of Texas A I University, currently Texas A M University, and hold a Bachelor

of

Science degree. I also hold a Juris Doctorate from Southern Methodist University.

2

Before becoming ICE Director, I served as United States Attorney for the Northern

District of Texas for more than three years. I was previously an Assistant United States Attorney

in the Northern District of Texas and a partner in the trial department

of

a law firm in Dallas,

Texas.

3. In my current position as ICE Director, I lead the largest investigative agency within

DHS, overseeing nearly 20,000 employees in 400 offices across the country.


27/41


4 I make this declaration on the basis of my personal knowledge and information made

available to me in the course

of

my official duties.

The DHS

and

ICE Immigration Enforcement Mission

5

ICE is one of the three DHS components with responsibilities over the administration and

enforcement of the nation's immigration laws. The other two agencies are:

u s

Customs and

Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS).

ICE s

primary mission is to promote homeland security and public safety through the criminal and civil

enforcement

of

federal laws governing border control, customs, trade, and immigration. In

working to achieve its mission, ICE coordinates closely with CBP, which includes the Offices of

Border Patrol, Field Operations, and Air and Marine Operations, and employs the uniformed

corps of officers and agents charged with patrolling our nation's ports and borders. ICE also

partners with USCIS immigration adjudicators who decide eligibility for immigration benefits

and certain other forms of immigration relief.

6 Within ICE, the Office

of

Enforcement and Removal Operations (ERO) is responsible for

identifying, apprehending, detaining, and removing inadmissible or deportable aliens from the

United States, as appropriate. ERO also removes aliens transferred to ICE by CBP officers and

agents, and aliens against whom removal proceedings are initiated by USCIS. Based

on

limited

resources, DHS does not have the capacity to investigate, detain, and remove all individuals who

violate our immigration laws. For the last several years, ERO has consistently removed between

300,000 and 400,000 aliens annually from the United States. In light of DHS s limited resources

and statutory mandates, ICE prioritizes the apprehension and removal of persons who pose a

threat to national security, persons apprehended while attempting to illegally cross the border or

who recently did so ( recent border crossers ), and persons convicted of serious crimes or who


28/41


otherwise threaten public safety. The vast majority

o

individuals removed by ICE fall into one

o

these categories.

I E Enforcement hallenges

7

Besides limited resources, ICE faces several challenges in accomplishing its enforcement

mission. One challenge requiring ICE to spend more resources conducting removals is the

changing demographics o the immigrant population entering the country. Since FY 2010, the

number

o

Mexican nationals apprehended by the Border Patrol has fallen by 43 percent, while

the number

o

apprehensions

o

nationals from EI Salvador, Guatemala, and Honduras has

increased by 423 percent, in FY 2014. In general, removing Central Americans is more

resource-intensive than removing Mexican nationals. While a Mexican national apprehended by

CBP may, in many cases, be removed in a matter o hours, often without entering ICE custody, a

national o a non-contiguous country apprehended at the border must generally be transferred to

ICE and may need to remain in ICE custody for weeks or months until travel documents can be

. obtained from that country and removal arrangements via aircraft can be arranged.

8 Another important demographic change impacting Department operations was the

unprecedented surge

o

children and families from EI Salvador, Guatemala, and Honduras

intercepted at the border during FY 2014. Such cases present unique challenges for ICE given

the special care needed and the legal obligations imposed by applicable laws and court orders

I Although inadmissible aliens apprehended at the border are often subject to the expedited removal

process, those who demonstrate a credible fear

o

persecution or torture

i

returned to their countries are

legally entitled to formal removal proceedings before an immigration judge, which can take many

months, i not years, to complete. Because nationals o some Central American countries are more likely

than Mexican nationals to claim a fear

o

return, the increased percentage o Central American

apprehensions increases DHS's costs in managing and deterring border violations.

3


29/41


with regard to providing housing for alien children in immigration proceedings,

as well as the

stringent standards applicable to ICE family residential centers.

3

In order to respond to these

developments, ICE has significantly expanded its family-appropriate housing, which must be

designed and operated in a manner appropriate for the unique needs

of

this population and

compliant with applicable legal requirements and residential standards, which are far more

expensive to satisfy than those applicable to adult detention facilities.

9. As mentioned above, ICE s mission includes both the removal of aliens from the interior

of

the country and the removal

of

aliens apprehended by CBP while attempting to illegally enter

the United States. To address the demographic changes in illegal immigration i.e., increases in

Central Americans and families requiring ICE involvement), and to do our part to ensure border

integrity, ICE has detailed resources from the interior

of

the country to the border. This, in

turn,

results in fewer resources available to identify, detain, and remove individuals in the interior

of

the country. For instance, over the course ofFY 2014, ERO detailed over 800 of its officers and

support personnel over 1 percent of the ERO workforce) to support southwest border

operations. ICE also reallocated increased detention capacity, transportation resources, and other

assets to support those operations.

10. Additionally, the fact that many state and local jurisdictions have restricted or prohibited

their law enforcement officers from cooperating with immigration detainers, which are used by

ICE to facilitate the transfer

of

a removable alien from criminal custody, has also required ICE to

expend additional resources in attempting to gain custody of these individuals before they are

released

or

shortly thereafter.

2

See William Wilberforce Trafficking Victim Protection Reauthorization Act

of

2008, Pub. L. No. 110-

457 Dec. 23, 2008); Flores settlement agreement, lores v Reno Case No. CV 85-4544 C.D. Cal. Jan.

17, 1997).

4


30/41


II. Another factor significantly impacting the ability

of

ICE to remove individuals from the

Un

it

ed States is the backlog of the nation s immigration courts, whi ch are under the jurisdiction

of the Department of Justice. At the end ofFY

20

14, there were 418,861 cases pending before

the immigration courts, up from 262,622 at the end ofFY 2010.

In

particular, cases on the non

detained immigration court dockets now routinely take years or more to complete.

Establishment of Department-Wide, Coordinated

Enfor

cement Efforts

12 Given DHS finite resources, Secretary Johnson issued Department-wide immigration

enforcement priorities on November 20, 2014 Under the Secretary' s November 20, 2014

guidance, a

ll

DHS immigration components operate under the same three enforcement prioritie

s:

Priority I, for a

li

ens who pose a threat

to

national security, are apprehended at the border, are

members

of

organized criminal gangs, or have been convicted

of

felony offenses; Priority 2, for

aliens who have been convicted of certain

mi

sdemeanors, have recently entered the country, or

have significantl y abused the visa or visa waiver programs; and Priority 3, for certain aliens with

final orders of removal To further ensure that DHS ' s limited resources are avai lable to pursue

such aliens, the memorandum directs that resources be dedicated, to the greatest degree

possible, to the removal

of

a

li

ens described in the priorities set forth above, commensurate with

the level of prioritization identified. This memorandum ensures that the three DHS immigration

components have the same removal priorities, which enhances coordination and efficienc

y

13 In conjunction with this prioritization memo, the Secretary also issued on November 20,

2014, the memorandum that has no w been enjo

in

ed that provides guidelines for the use of a form

of

prosecutorial discretion known as deferred action, on a case-by-case basis, for certain alien

s

The memorandum generally provides guidelines for two types

of

undocumented aliens who have

J ee I

CE

Family Residential Standards, at http: //www.ice.gov/detention-standards/family-residentiaJ.

5


31/41


been living in the United States since before January 1,2010, who have significant ties to the

country, who submit fingerprints and pass background checks, and who otherwise pose no

danger to the country. First, the memorandum expands the 2012 Deferred Action for Childhood

Arrivals (DACA) policy, which established guidelines concerning the availability of deferred

action for such individuals who were brought to the country as children

i.

e., before the age of

16). Second, the memorandum establishes Deferred Action for Parents ofAmericans or Lawful

Permanent Residents (DAPA), which provides guidelines on the availability

of

deferred action

for those who are parents ofU.S. citizens or lawful permanent residents.

ffects

o

the Injunction

14. The expansion

of

DACA and the implementation

of

DAPA represent an effort by DHS to

better prioritize its limited resources against individuals who pose threats to national security,

public safety, or the integrity

of

the border. Among other things, the policies are intended to:

incentivize certain non-priority aliens to present themselves to DHS, submit biographic and

biometric information, and undergo background checks; and provide temporary re lief from

removal, which is expected to assist state and local law enforcement agencies with community

policing efforts, as explained in the amicus brief submitted in this case by numerous sheriffs and

police chiefs. These policies are intended to complement and support DHS s effective, priority

based use of its resources.

15. Enjoining the policies would prevent ICE from benefitting from the efficiencies that such

policies are intended to create. For instance, when state and local law enforcement agencies

encounter an alien who has received deferred action under these policies, ICE personnel would

be able to quickly confirm the alien's identity through a biometric match. This is because

USCIS collects fingerprints and conducts background checks for DACA and DAPA requestors.


32/41


The availability

of

such information allows ICE to more efficiently work with our law

enforcement partners to promote public safety.

16 Similarly when ICE officers are engaged in at-large enforcement operations such as to

locate criminal and fugitive alien targets they often encounter non-target aliens who may also be

removable from the United States. If such aliens have received deferred action under these

guidelines and have documentary proofof this on their persons ICE officers would be able to

ascertain more quickly whether enforcement resources should be expended to detain and initiate

removal proceedings against the individuals. This would also allow ICE to further focus its

resources on priority aliens.

17. The DACA and DAPA policies are also intended to assist with the efficient processing

of

high-priority cases in the immigration courts. While ICE attorneys who represent RS in

removal proceedings before the immigration courts can and do exercise prosecutorial discretion

to promote efficient handling of dockets by immigration judges DAPA and expanded DACA

once implemented can potentially further assist ICE attorneys and immigration judges in

identifying non-priority cases. And when an alien in removal proceedings receives deferred

action from USCIS under DAPA or expanded DACA the immigration judge may

administratively close the case thereby making additional docket time available for high-priority

cases. Once the cases of aliens with deferred action under DAPA and expanded DACA are

taken

off

the immigration dockets immigration judges should be able to focus more time and

effort

on

the adjudication

of

cases involving recent border entrants and national security and

public safety threats.

18 Enjoining the DAP A and expanded DACA policies is also likely to limit in certain

circumstances the ability of law enforcement officials to protect public safety. As I recently

7


33/41


wrote in an opinion editorial for the Dallas Morning News, cooperation between police and

community members is a cornerstone of modern law enforcement.,,4 While ICE has long taken

steps to ensure that prosecutorial discretion

is

appropriately used when the agency encounters

individuals who are crime victims and witnesses s I believe that

D P

and expanded DACA

will further enhance the willingness of undocumented crime victims and witnesses to come

forward and cooperate with their local law enforcement agencies, thereby bolstering efforts by

police to address crimes that affect our communities, including domestic violence, human

trafficking, and gang activity.

19

. In sum, preventing the deferred action policies from going into effect interferes with the

Federal Government' s comprehensive strategy for enforcing our immigration laws. The halting

ofD P and expanded DACAjeopardizes the efficiencies that such policies can provide to

ICE, making it more difficult to efficiently and effectively carry out its mission. The injunction

also undermines the effectiveness of community policing in various jurisdictions, impedes the

identification of non-priority aliens, and leaves in place a barrier to more efficient proceedings to

remove threats from our country.

I declare under penalty

of

perjury that the foregoing is true and correct.

Executed this 23rd day of February 2015.

Sarah

R.

Saldana

Director

U.S. Immigration and Customs Enforcement

4 Sarah Saldana

and

Gil Kerlikowske, Obama s immigralion initiative

wil make

nation safer, The Dallas

Morning News, Jan. 20 2015 , http: //www.dallasnews.com/opinionlIatest-columns/20 150

120

-sarah

sa ldana-and-gil-kerlikowske-obamas-immigration-initiative-will-make-nation-safer.ece .

5 See,

g

, ICE Policy No. 10076. I, Pro

se

cutorial Discretion: Certain Victims, Witnesses , and Plaintiffs

(June 17,201 I), available at http://www .ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf.

8


34/41

EXHIBIT B



35/41


UNITED ST TES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEX S


STATE

OF TEXAS, t

al

)

Plaintiffs ,

No.l:14 cv 254

v

UNITED STATES OF AMERICA, l

al

Defendants.

DECL R TION OF

R

GIL KERLIKOWSKE

I,

R

Gil Kerlikowskej hereby make the following declaration with respect to the above-

captioned matter.

1

I am the Commissioner of U.S Customs and Border Protection CBP). I have held this

position since March 7, 2014. My current

work

address is 1300 Pennsylvania Ave., N.W.,

Washington, D.C. I hold a B.A. and an

M.A

. in criminal justice from the University

of

South

Florida.

2 Prior to

my

tenure as CBP Commissioner, I had approximately four decades

of

experience with law enforcement and drug policy. From 2000 to 2009, I served as the

Chief

of

Police for Seattle, Washington.

From

2009 to 2014, I served as the Director of the Office of

National Drug Control Policy, and from 1998 to 2000, I served as Deputy Director for the U.S.

Department

of

Justice, Office

of

Community Oriented Policing Services.

n

addition, I served as

the Police Commissioner for Buffalo,

New

York, from 1994 to 1998. I began my law

enforcement career as a police officer in St. Petersburg , Florida, in 1972.


36/41


3 In my position as CBP Commissioner, I oversee approximately 60,000 employees. CBP

officers protect our nation s borders and safegl,lard national security by keeping criminal

organizations, terrorists, and their weapons out of the United States while facilitating lawful

international travel and trade.

4 I make this declaration on the basis of my personal knowledge

as

well

as

information made

available to me

in

the course of my official duties.

The

HS and C P Immigration Enforcement Mission

5 DHS has three components with responsibilities over the administration and enforcement

of the nation s immigration laws: CBP, U.S Immigration and Customs Enforcement (ICE), and

U.S. Citizenship and Immigration Services (USCIS). CBP secures the borders at and between

pOllS

of entry, preventing the admission

of

inadmissible aliens and the entry of illicit goods. CBP

works closely with ICE, which

is

responsible for identifying, apprehending, detaining and

removing inadmissible and depOllable aliens from the United States, including many such aliens

apprehended by officers and agents of CBP. CBP also works closely with USC IS, which, among

other duties, determines on a case-by-case basis whether deferred action is appropriate under

certain circumstances.

6 CBP Officers and Agents regularly encounter individuals who lack lawful status to enter

or remain in the United States. For

in

stance,

in

fiscal year (FY) 2014, Border Patrol apprehended

486,

65

1 individuals who lacked lawful presence

in

the United States. While the vast majority

of

these individuals were apprehended while attempting to illegally cross the border, or after recently

crossing the border into the United States, the Border Patrol also encounters individuals who are

unlawfully

in

the country, often at checkpoints located at places of strategic importance, fUllhering

the broader work of border security throughout the area.

2


37/41


Benefits o Deferred ction for CBP Immigration Enforcement Efforts

7

When a Border Patrol Agent at a checkpoint

or

other location encounters an individual

whose lawful status is not apparent after initial questioning, that alien

is

taken to the nearest

location where the Agent can more fully question and process the alien. During processing, an

alien s biographic information and biometrics (i.e., fingerprints) are collected. Records checks are

run through CBP and other law enforcement systems. Agents review all o the pertinent facts and

circumstances to determine whether or not the alien is a priority for removal, consistent with

Secretary Johnson s memorandum

o

November 20, 2014,

Policies for the Apprehension

Detention and Removal o

Undocumented Immigrants

including whether the alien poses a threat

to national security, border security (including those who recently unlawfully entered the United

States), or public safety. Processing individuals (which involves questioning the individuals ,

collecting biographic and biometric information, and conducting background checks) takes Border

Patrol Agent time that could otherwise be spent at the checkpoint or on other enforcement duties.

8 Individuals who were granted defened action under the 2012 Deferred Action for

Childhood Arrivals (DACA) guidelines are, at times, encountered by Border Patrol Agents at

checkpoints or other locations. When a DACA recipient

is

encountered at a checkpoint or other

location and

is

able to provide DACA documentation or a work authorization document, a Border

Patrol Agent can more efficiently verify the identity o the individual, as well as the authenticity

o the documentation provided. Absent other facts and circumstances meriting further inquiry,

upon verifying the information provided, Border Patrol Agents normally take no frnther action

with respect to that individual. Instead, Border Patrol Agents rely

on

the determination made

by

another component o DHS, USCIS, that the encountered individual is not a priority for

an

3


38/41


immigration enforcement action. Thus, DACA facilitates CBP more efficiently identifying those

individuals who are not a priority for removal and better concentrate its limited enforcement efforts

on those who pose a threat to national security, border security, and public safety.

9

I expect that the Deferred Action for Parents of Americans or Lawful Permanent Residents

(DAPA) guidelines,

as

well as the guidelines that expanded DACA, announced by Secretary

Johnson in November 2014, would create the same resource efficiencies that DACA,

as

announced

in 2012, created, as they involve conducting background checks and providing similar

documentation to certain aliens who have strong ties to the United States and are not enforcement

priorities. Because policies like DACA and DAPA encourage certain aliens to come forward and

identifY themselves to USCIS, these policies create an efficient mechanism for CBP to quickly

identify aliens who are not priorities for removal and thus focus limited resources on high priority

aliens . DACA and DAPA thus suppOli CBP s overall mission

to

secure the border.

10 I am aware that this Court has temporarily enjoined implementation

ofD P

and the 2014

modifications to DACA. By preventing cetiain aliens who are not a priority for deportation from

obtaining DAPA documents (or DACA documents under the expanded guidelines), the temporary

injunction interferes with the agency s ability

to

obtain the enforcement efficiencies that DAPA

and the expansion of DACA are anticipated to create, for the time that the injunction remains

in

place. The injunction is thus expected to impair CBP s ability

to

ensure that its limited

enforcement resources are spent in the most effective and efficient way to safeguard national

security, border security and public safety.

4


39/41


ffects

o

Injunction

II

Based on my years

of

experience in law enforcement, I believe that DACA and DAPA

substantially benefit the overall safety

of

our communities, and that the temporary injunction the

Court has entered detracts from those benefits.

12. As a former police chief and now the Commissioner

of

one

of

the world s largest law

enforcement organizations, I understand the critical need

to

prioritize law enforcement resources.

If law enforcement organizations do not ensure that their limited resources are directed to their

highest priorities, overall public safety might be compromised. Focusing limited immigration

enforcement resources on aliens who are eligible for DACA and DAPA is anticipated to divet1

resources from recent border crossers and real national security and public safety threats, such

as

those who may be terrorists, smugglers, drug traffickers, or engaged

in

transnational organized

cnme.

13 Another anticipated law enforcement benefit of DACA and DAPA is that, by temporarily

eliminating the immediate fear

of

detention and depOt1ation, recipients might be more inclined to

cooperate with federal, state, and local law enforcement in reporting crimes or serving as witnesses

in criminal cases. As the numerous law enforcement officials have made clear in an amicus brief

filed

in

this case, DAPA and DACA are expected to suppot1 community policing effotis and help

law enforcement agencies safeguard their communities.

14. DAP A and the expansion of DACA would allow a significant number of otherwise law-

abiding aliens with strong ties to the country to step forward and request deferred action. By

halting implementation

of

DAPA and the expansion

of

DACA, the temporary injunction

undermines these potential law enforcement benefits for the duration

of

time that the injunction

remains in place.

5


40/41


I declare under penalty o perjury that the foregoing is true and correct

Executed this 3

d

day

o

February of2015

R Gil Kerlikowske

Commissioner

6


41/41




__________________________________________

)

STATE OF TEXAS,et al.

))

Plaintiffs, )

) No. 1:14-cv-254

v. ))

UNITED STATES OF AMERICA, et al. )

)Defendants. )

__________________________________________)

ORDER

Upon consideration of Defendants Emergency Motion to Stay the Courts February 16,

2015 Order Pending Appeal, any memoranda filed in support thereof or opposition thereto, andthe entire record herein, it is hereby

ORDERED that Defendants Motion is GRANTED; and it is

FURTHER ORDERED that the Courts Order of February 16, 2015 [ECF No. 144 &

145] is hereby stayed in its entirety pending resolution of Defendants appeal.

Signed on February _____, 2015.

___________________________________

The Honorable Andrew S. HanenUnited States District Judge


Documents

Texas v USA, TXSD 14-cv-00254 (2014) Doc 150, Motion to Stay Temporary Injunction (23 Feb 2015)