u.s. department of justice office of the solicitor general · u.s. department of justice . office...

U.S. Department of Justice

Office of the Solicitor General

Washington, D.C. 20530 February 14, 2018 Honorable Scott S. Harris Clerk Supreme Court of the United States Washington, D.C. 20543 Re: United States Department of Homeland Security, et al. v. Regents of the University

of California, et al., No. 17-1003 Dear Mr. Harris: The government filed a petition for a writ of certiorari before judgment in the above-captioned case on January 18, 2018. The docket reflects that the government’s petition will be considered at this Court’s upcoming February 16, 2018 Conference. The petition seeks this Court’s review of a nationwide preliminary injunction issued by the United States District Court for the Northern District of California enjoining the rescission of the discretionary Deferred Action for Childhood Arrivals (DACA) policy. The government wishes to inform the Court of two recent developments relevant to the government’s petition.

First, on February 13, 2018, the United States District Court for the Eastern District of New York issued a nationwide preliminary injunction against the rescission of DACA that is substantively identical to the injunction issued by the Northern District of California. See Batalla Vidal v. Nielsen, No. 16-4756, slip op. A copy of the district court’s opinion is enclosed. The district court recognized the Department of Homeland Security’s “broad discretion to set immigration-enforcement policies” and stated that the current Administration “should be able to alter the policies and priorities set by its predecessor.” Id. at 51; see id. at 4 (“Defendants indisputably can end the DACA program.”). Nevertheless, like the Northern District of California, the Eastern District of New York concluded that the rescission of DACA should be enjoined as likely arbitrary and capricious because it rested “on the legally erroneous premise that DACA is illegal.” Id. at 24 (capitalization altered). The court acknowledged the government’s reliance on Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff ’d by an equally divided Court, 136 S. Ct. 2271 (2016), but concluded that “to the extent that the Fifth Circuit’s rationale applies to the DACA program, the court finds it unpersuasive.” Batalla Vidal, slip op. 34. The court therefore enjoined the rescission of DACA on a “universal or ‘nationwide’ basis,” issuing an injunction that “conforms” to the scope of the injunction issued by the Northern District of California. Id. at 6, 54.

Second, earlier today, the United States filed its brief as amicus curiae in response to this Court’s order inviting the Solicitor General to express the views of the United States in Brewer v. Arizona Dream Act Coalition, No. 16-1180, in which the court of appeals found that Arizona’s policy of denying driver’s licenses to DACA recipients is preempted by federal law. In that brief, the government explains that, in light of DACA’s rescission, that case is not appropriate for this Court’s plenary review; however, because of the overlapping issues in that petition and the government’s petition in this case, the brief states that the Court may wish to hold the petition in Brewer pending disposition of this petition. I would appreciate it if you would circulate this letter and copies of the enclosed opinion to the Members of the Court. Sincerely, Noel J. Francisco Solicitor General cc: See Attached Service List

17-1003UNITED STATES DEPARTMENT OF HOMELANDSECURITY, ET AL.REGENTS OF THE UNIVERSITY OF CALIFORNIA,ET AL.

THEODORE J. BOUTROUSGIBSON, DUNN & CRUTCHER LLP333 SOUTH GRAND AVENUELOS ANGELES, CA 90071213-229-7000TBOUTROUS@GIBSONDUNN.COM

ELIZABETH A. HOHENSTEINIMMIGRATION REFORM LAW INSTITUTE25 MASSACHSETTS AVENUE, NWSUITE 335WASHINGTON, DC 20001202-232-5590EHOHENSTEIN@IRLI.ORG

LAWRENCE J. JOSEPH1250 CONNECTICUT AVENUE, NWSUITE 200WASHINGTON, DC 20036202-355-9452LJ@LARRYJOSEPH.COM

SCOTT A. KELLERSOLICITOR GENERALPO BOX 12548 (MC 059)AUSTIN, TX 78711-2548512-936-1700SCOTT.KELLER@OAG.TEXAS.GOV512-474-2697(Fax)

ROBERT ALLEN LONGCOVINGTON & BURLING, L.L.P.ONE CITYCENTER850 TENTH STREET, NWWASHINGTON, DC 20001202-662-6000RLONG@COV.COM

MICHAEL J. MONGANCALIFORNIA DEPARTMENT OF JUSTICE455 GOLDEN GATE AVE.,SUITE 11000SAN FRANCISCO, CA 94102415-703-2548MICHAEL.MONGAN@DOJ.CA.GOV

WILLIAM J. OLSONWILLIAM J. OLSON, P.C.370 MAPLE AVENUE WESTSUITE 4VIENNA, VA 22180-5615703-356-5070WJO@MINDSPRING.COM

CHARLES ROTHNATIONAL IMMIGRANT CENTER208 SOUTH LASALLE STREETSUITE 1300CHICAGO, IL 60604312-660-1613CROTH@HEARTLANDALLIANCE.ORG

HERBERT W. TITUSWILLIAM J. OLSON, P.C.370 MAPLE AVE. W.STE. 4VIENNA, VA 22180-5615703-356-5070WJO@MINDSPRING.COM

Case 1:16-cv-04756-NGG-JO Document 255 Filed 02/13/18 Page 1 of 55 PageID #: 4222

u.s. department of justice office of the solicitor general · u.s. department of justice . office...

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