in the united states district court for the southern ... · case 1:18-cv-00068 document 13-1 filed...

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

STATE OF TEXAS, et al., § § Plaintiffs, § § v. § Case No. 1:18-CV-68 § UNITED STATES OF AMERICA, et al., § § Defendants, § § and § § KARLA PEREZ, MARIA ROCHA, § JOSE MAGAÑA-SALGADO, § NANCI J. PALACIOS GODINEZ, § ELLY MARISOL ESTRADA, KARINA § RUIZ DE DIAZ, CARLOS AGUILAR § GONZALEZ, KARLA LOPEZ, LUIS A. § RAFAEL, DARWIN VELASQUEZ, § JIN PARK, OSCAR ALVAREZ, § NANCY ADOSSI, DENISE ROMERO, § PRATISHTHA KHANNA, JUNG WOO § KIM, ANGEL SILVA, MOSES KAMAU § CHEGE, HYO-WON JEON, ELIZABETH § DIAZ, MARIA DIAZ, and BLANCA § GONZALEZ, § § Proposed Defendant- § Intervenors. §

MOTION FOR LEAVE TO INTERVENE

Proposed Defendant-Intervenors Karla Perez, Maria Rocha, Jose, Magaña-Salgado,

Nanci J. Palacios Godinez, Elly Marisol Estrada, Karina Ruiz De Diaz, Carlos Aguilar Gonzalez,

Karla Lopez, Luis A. Rafael, Darwin Velasquez, Jin Park, Oscar Alvarez, Nancy Adossi, Denise

Romero, Pratishtha Khanna, Jung Woo Kim, Angel Silva, Moses Kamau Chege, Hyo-Won Jeon,

Elizabeth Diaz, Maria Diaz, and Blanca Gonzalez (collectively, “Proposed Defendant-

Case 1:18-cv-00068 Document 13 Filed in TXSD on 05/08/18 of 3

AILA Doc. No. 18050231. (Posted 5/10/18)

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Intervenors”), respectfully request that the Court grant them leave to intervene as defendants in

this action as of right pursuant to Federal Rule of Civil Procedure 24(a)(2) or, in the alternative,

grant them permissive intervention pursuant to Federal Rule of Civil Procedure 24(b)(1)(B).

In support of this Motion, Proposed Defendant-Intervenors rely on and incorporate herein

their Memorandum of Law in Support, filed with the Court today, and its accompanying

appendices and exhibits, and Proposed Defendant-Intervenors’ Answer to the Complaint, attached

as Exhibit 1 to this Motion, to comply with Federal Rule of Civil Procedure 24(c).

Dated: May 8, 2018 Respectfully submitted,

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND By: /s/ Nina Perales

Nina Perales (Tex. Bar No. 24005046); (SD of Tex. Bar No. 21127)

Attorney-in-Charge Celina Moreno (Tex. Bar No. 24074754) (SD of Tex. Bar No. 2867694) Jack Salmon (Tex. Bar No. 24068914) (SD of Texas Bar No. 1130532) Alejandra Ávila (Tex. Bar No. 24089252) (SD of Tex. Bar No. 2677912) 110 Broadway, Suite 300 San Antonio, Texas 78205 Phone: (210) 224-5476 Facsimile: (210) 224-5382 Email: [email protected]

GARCÍA & GARCÍA, ATTORNEYS AT LAW P.L.L.C. Carlos Moctezuma García (Tex. Bar No. 24065265)

(SD of Tex. Bar No. 1081768) P.O. Box 4545

McAllen, TX 78502 Phone: (956) 630-3889 Facsimile: (956) 630-3899 Email: [email protected]



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Attorneys for Proposed Defendant- Intervenors

CERTIFICATE OF CONFERENCE I, the undersigned, hereby certify that on May 7, 2018, I conferred with Plaintiffs and

Defendants regarding this motion. Plaintiffs advised that they do not oppose the motion to intervene. Defendants did not provide a position but responded to the request to confer on May 7, 2018, as follows: “Defendants will review your motion to intervene, and respond as appropriate.”

/s/ Nina Perales Nina Perales

CERTIFICATE OF SERVICE I, the undersigned, hereby certify that, on the eighth day of May, 2018, I electronically

filed the above and foregoing document using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.




EXHIBIT 1

Case 1:18-cv-00068 Document 13-1 Filed in TXSD on 05/08/18 Page 1 of 83


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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS


STATE OF TEXAS, et al., § § Plaintiffs, § § v. § Case No. 1:18-CV-68 § UNITED STATES OF AMERICA, et al., § § Defendants, § § and § § KARLA PEREZ, MARIA ROCHA, § JOSE MAGAÑA-SALGADO, § NANCI J. PALACIOS GODINEZ, § ELLY MARISOL ESTRADA, KARINA § RUIZ DE DIAZ, CARLOS AGUILAR § GONZALEZ, KARLA LOPEZ, LUIS A. § RAFAEL, DARWIN VELASQUEZ, § JIN PARK, OSCAR ALVAREZ, § NANCY ADOSSI, DENISE ROMERO, § PRATISHTHA KHANNA, JUNG WOO § KIM, ANGEL SILVA, MOSES KAMAU § CHEGE, HYO-WON JEON, ELIZABETH § DIAZ, MARIA DIAZ, and BLANCA § GONZALEZ, § § Proposed Defendant- § Intervenors. § [PROPOSED] ANSWER TO PLAINTIFFS’ COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF, BY [PROPOSED] DEFENDANT-INTERVENORS KARLA PEREZ, MARIA ROCHA, JOSE, MAGAÑA-SALGADO, NANCI J. PALACIOS GODINEZ, ELLY MARISOL ESTRADA, KARINA RUIZ DE DIAZ, CARLOS

AGUILAR GONZALEZ, KARLA LOPEZ, LUIS A. RAFAEL, DARWIN VELASQUEZ, JIN PARK, OSCAR ALVAREZ, NANCY ADOSSI, DENISE ROMERO, PRATISHTHA KHANNA, JUNG WOO KIM, ANGEL SILVA, MOSES KAMAU CHEGE, HYO-WON

JEON, ELIZABETH DIAZ, MARIA DIAZ, AND BLANCA GONZALEZ



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Proposed Defendant-Intervenors Karla Perez, Maria Rocha, Jose, Magaña-Salgado,

Nanci J. Palacios Godinez, Elly Marisol Estrada, Karina Ruiz De Diaz, Carlos Aguilar

Gonzalez, Karla Lopez, Luis A. Rafael, Darwin Velasquez, Jin Park, Oscar Alvarez, Nancy

Adossi, Denise Romero, Pratishtha Khanna, Jung Woo Kim, Angel Silva, Moses Kamau

Chege, Hyo-Won Jeon, Elizabeth Diaz, Maria Diaz, and Blanca Gonzalez (collectively,

“Defendant-Intervenors”), for themselves alone and no other, answer the Complaint for

Declaratory and Injunctive Relief of Plaintiffs the State of Texas; the State of Alabama; the

State of Arkansas; the State of Louisiana; the State of Nebraska; the State of South Carolina;

and the State of West Virginia (collectively, “Plaintiffs”) as follows:

1. The allegations contained in Paragraph 1 of the Complaint state legal conclusions,

to which no responsive pleading is required; however, to the extent a responsive pleading is

necessary, Defendant-Intervenors deny each and every allegation in Paragraph 1, except as

follows: Defendant-Intervenors admit that, in 2012 and in 2014, the Obama Administration

announced a series of Department of Homeland Security initiatives pertaining to federal

immigration law.



necessary, Defendant-Intervenors deny each and every allegation in Paragraph 2, except that the

Fifth Circuit upheld this Court’s preliminary injunction in Texas v. United States, 809 F.3d 134

(5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016), which speaks for

itself.





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necessary, Defendant-Intervenors deny each and every allegation in Paragraph 3, except that, in

June 2017, after the Supreme Court’s ruling, Elaine C. Duke, then Acting Secretary of the U.S.

Department of Homeland Security, purported to rescind prospectively a series of Department of

Homeland Security initiatives pertaining to federal immigration law.



necessary, Defendant-Intervenors deny each and every allegation in Paragraph 4, except that, in

June 2017, Plaintiffs wrote United States Attorney General Jeff Sessions the letter attached to the

Complaint as Exhibit 6, which speaks for itself.




follows: Defendant-Intervenors admit that, on September 5, 2017, Elaine C. Duke, then Acting

Secretary of the U.S. Department of Homeland Security, issued a memorandum purporting to

rescind prospectively a series of Department of Homeland Security initiatives pertaining to

federal immigration law, and that Plaintiffs voluntarily dismissed their lawsuit State of Texas, et

al. v. United States, et al., No. 1:14-cv-254 in this Court.




follows: Defendant-Intervenors admit that the guidance issued by the Department of Homeland

Security for case-by-case grants of deferred action with respect to those who came to the United

States as children, commonly referred to as “DACA,” remains in force, and that, in January



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2018, a California district court issued a preliminary injunction in Regents of University of

California v. United States Department of Homeland Security, 279 F. Supp. 3d 1011 (N.D. Cal.

2018), which speaks for itself.



necessary, Defendant-Intervenors deny each and every allegation in Paragraph 7, except that, on

April 24, 2018, a District of Columbia federal district court issued a preliminary injunction in

NAACP v. Trump, No. 1:17-cv-1907, 2018 WL 1920079 (D.D.C. Apr. 24, 2018), which speaks

for itself.




follows: Defendant-Intervenors aver that they are without sufficient information or knowledge

to form a belief as to the allegation that Plaintiffs abided DACA while the controlling legal

issues were decided in prior litigation and while the Executive reweighed DACA’s legality.



necessary, Defendant-Intervenors deny each and every allegation in Paragraph 9.

10. The allegations contained in Paragraph 10 of the Complaint state legal

conclusions, to which no responsive pleading is required; however, to the extent a responsive

pleading is necessary, Defendant-Intervenors deny each and every allegation in Paragraph 10.





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pleading is necessary, Defendant-Intervenors deny each and every allegation in Paragraph 12,

except that Plaintiffs seek declaratory and injunctive relief.




except as follows: Defendant-Intervenors aver that memoranda issued by the Department of

Homeland Security speak for themselves; Defendant-Intervenors aver that they are without

sufficient information or knowledge to form a belief as to whether the stated numbers are

accurate.






pleading is necessary, Defendant-Intervenors deny each and every allegation in Paragraph 15

except that the referenced press release speaks for itself.



pleading is necessary, Defendant-Intervenors deny each and every allegation in Paragraph 16

except as follows: Defendant-Intervenors aver that they are without sufficient information or



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knowledge to form a belief as to the allegation regarding what remedy Plaintiffs are amenable to.

JURISDICTION AND VENUE




and specifically deny that this Court has subject matter jurisdiction over Plaintiffs’ suit.




except as follows: Defendant-Intervenors admit that the State of Texas is a resident of this

judicial district.




and specifically deny that this Court has authorization to award declaratory and injunctive relief

to Plaintiffs in this suit.

THE PARTIES

20. Defendant-Intervenors admit that the entities and persons listed in Paragraph 20

are the Plaintiffs.




except that Arizona v. United States, 567 U.S. 387 (2012), speaks for itself.



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22. Defendant-Intervenors admit that Plaintiffs have purported to bring suit against

Defendant United States of America under the Administrative Procedure Act (“APA”).

23. Defendant-Intervenors aver that they are without sufficient information or

knowledge to form a belief as to the allegations contained in Paragraph 23 of the Complaint and

on that basis deny each and every such allegation, except as follows: Defendant-Intervenors

admit that Kirstjen M. Nielsen is the Secretary of the U.S. Department of Homeland Security

(“DHS), and Defendant-Intervenors admit that U.S. Citizenship and Immigration Services

(“USCIS”), U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and Customs

Enforcement (“ICE”) are agencies within DHS.


knowledge to form a belief as to the allegations contained in Paragraph 24 of the Complaint,

except as follows: Defendant-Intervenors admit that Kevin K. McAleenan is the Commissioner

of CBP.


knowledge to form a belief as to the allegations contained in Paragraph 25 of the Complaint;

moreover, the allegations state legal conclusions, to which no responsive pleading is required.

However, to the extent a responsive pleading is necessary, Defendant-Intervenors deny each and

every allegation in Paragraph 25.


knowledge to form a belief as to the allegations contained in Paragraph 26 of the Complaint;

moreover, the allegations state legal conclusions, to which no responsive pleading is required.

However, to the extent a responsive pleading is necessary, Defendant-Intervenors deny each and

every allegation in Paragraph 26 except as follows: Defendant-Intervenors admit that L. Francis



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Cissna is the Director of USCIS.



pleading is necessary, Defendant-Intervenors aver that they are without sufficient information or

knowledge to form a belief as to the allegations contained in Paragraph 27 of the Complaint.

FACTUAL BACKGROUND

I. Allegations Regarding Statutory Framework












except that Title 8 of the United States Code and Arizona v. United States, 567 U.S. 387 (2012),

speak for themselves.






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except that the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq. and Arizona

v. United States, 567 U.S. 387 (2012), speak for themselves.




except that statutory provisions and Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by

an equally divided Court, 136 S. Ct. 2271 (2016), speak for themselves.




except that the Immigration Reform and Control Act of 1986 (“IRCA”) and Arizona v. United

States, 567 U.S. 387 (2012), speak for themselves.




except that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), the Personal Responsibility and Work Opportunity Reconciliation Act of 1996

(“PRWORA”), and the Congressional Record, speak for themselves.








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except that statutory provisions speak for themselves.




except that statutory provisions speak for themselves.




except that 8 U.S.C. § 1611(b)(2) speaks for itself.




except that 8 U.S.C. § 1611(b)(3) speaks for itself.




except that PRWORA and 8 U.S.C. § 1611(b)(4) speak for themselves.




except that IIRIRA and 8 U.S.C. § 1182(a)(9)(B)(i) speak for themselves.




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except that 26 U.S.C. § 32 speaks for itself.

II. Allegations Regarding the DREAM Act

43. Defendant-Intervenors admit the allegations stated in Paragraph 43 of the

Complaint.




except as follows: Defendant-Intervenors admit that the listed bills were introduced in Congress.




except that the bills listed in Paragraph 44 speak for themselves.




except as follows: Defendant-Intervenors admit that Congress did not enact any of the bills

listed in Paragraph 44.







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except as follows: Defendant-Intervenors aver that President Obama’s past statements speak for

themselves.




except as follows: Defendant-Intervenors aver that President Obama’s past statements speak for

themselves.




except as follows: Defendant-Intervenors admit that Congress did not enact any of the bills

listed in Paragraph 44.

III. Allegations Regarding the Obama Administration and DACA




except as follows: Defendant-Intervenors admit that, On June 15, 2012, former President

Obama’s Secretary of Homeland Security Napolitano issued the guidance in the document



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attached to the Complaint as Exhibit 1, which speaks for itself.







except that the document attached to the Complaint as Exhibit 1 speaks for itself.












except as follows: Defendant-Intervenors aver that the document attached to the Complaint as

Exhibit 1 speaks for itself; Defendant-Intervenors aver that they are without sufficient

information or knowledge to form a belief as to the allegation that DACA’s criteria would cover

approximately 1.7 million individuals.



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knowledge to form a belief as to the allegations in Paragraph 58 of the Complaint.






except that the referenced USCIS document speaks for itself.




except as follows: Defendant-Intervenors aver that DACA recipients hold or are eligible for

rights, privileges, and benefits as provided by law.













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except as follows: Defendant-Intervenors aver that DACA recipients are hold or are eligible for

rights, privileges, and benefits as provided by law; Defendant-Intervenors admit that, in 2014,

former DHS Secretary Johnson issued the guidance in the document attached to the Complaint as

Exhibit 3, which speaks for itself.




except that the referenced brief speaks for itself.














except as follows: Defendant-Intervenors aver that 8 U.S.C. § 1227(a)(1)(B) speaks for itself.



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except as follows: Defendant-Intervenors aver that 8 U.S.C. § 1229a(c)(2)(B) speaks for itself.




except as follows: Defendant-Intervenors aver that 8 U.S.C. § 1227(a)(1)(B) speaks for itself

and that DACA recipients hold or are eligible for rights, privileges, and benefits as provided by

law.




except as follows: Defendant-Intervenors aver that 8 U.S.C. § 1182(a)(6)(A)(i) speaks for itself


law; Defendant-Intervenors aver that they are without sufficient information or knowledge to

form a belief as to the Executive’s position.









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except as follows: Defendant-Intervenors aver that 8 U.S.C. § 1182(a)(9)(B) speaks for itself


law.











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rights, privileges, and benefits as provided by law; Defendant-Intervenors aver that they are

without sufficient information or knowledge to form a belief as to the United States’ prior

statements.


knowledge to form a belief as to allegations in Paragraph 79 of the Complaint.




except as follows: Defendant-Intervenors aver that Texas v. United States, 809 F.3d 134 (5th

Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016), speaks for itself and that

DACA recipients hold or are eligible for rights, privileges, and benefits as provided by law.









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knowledge to form a belief as to allegations in Paragraph 82 of the Complaint.






without sufficient information or knowledge to form a belief as to any estimates purportedly

made by the Joint Committee on Taxation.


















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pleading is necessary, Defendant-Intervenors admit the allegations stated in Paragraph 88 of the

Complaint.




except that 8 U.S.C. § 1427(a) speaks for itself.




except as follows: Defendants-Intervenors aver that DACA recipients hold or are eligible for










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except as follows: Defendant-Intervenors aver that 8 U.S.C. § 1255(a) speaks for itself and that

DACA recipients hold or are eligible for rights, privileges, and benefits as provided by law;

Defendant-Intervenors aver that they are without sufficient information or knowledge to form a

belief as to the Executive’s position.




except that 8 U.S.C. § 1182 speaks for itself.





Exhibit 1 speaks for itself.







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except that 8 U.S.C. § 1182(a)(9)(B)(v) speaks for itself.




except that 8 U.S.C. § 1182(d)(5)(A) speaks for itself.




knowledge to form a belief as to the allegations in Paragraph 99.












except that 8 U.S.C. § 1182(a)(9)(B)(v) speaks for itself.



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except as follows: Defendant-Intervenors aver that 8 U.S.C. § 1182 speaks for itself; Defendant-

Intervenors aver that they are without sufficient information or knowledge to form a belief as to

the Executive’s position.




except as follows: Defendant-Intervenors aver that 8 U.S.C. § 1182 speaks for itself; Defendant-

Intervenors aver that they are without sufficient information or knowledge to form a belief as to

the Executive’s position.




except that 8 U.S.C. § 1255(a) speaks for itself.






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without sufficient information or knowledge to form a belief as to individual or aggregate

numbers and circumstances of immigration status adjustments.




knowledge to form a belief as to individual or aggregate numbers and circumstances of

immigration status adjustments.




knowledge to form a belief as to individual or aggregate numbers and circumstances of

immigration status adjustments.







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Exhibit 1 speaks for itself; Defendant-Intervenors aver that DACA recipients hold or are eligible

for rights, privileges, and benefits as provided by law.




Defendant-Intervenors further aver that they are without sufficient information or knowledge to

form a belief as to individual or aggregate numbers and circumstances of immigration status

adjustments.




except that Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided

Court, 136 S. Ct. 2271 (2016), speaks for itself.




Defendant-Intervenors further aver that they are without sufficient information or knowledge to

form a belief as to individual immigration preferences.








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knowledge to form a belief as to the allegations contained in Paragraph 117 of the Complaint and

on that basis deny each and every such allegation, except as follows: Defendant-Intervenors aver

that the document attached to the Complaint as Exhibit 4, speaks for itself.





Exhibit 4, speaks for itself.
















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IV. Allegations Regarding the Obama Administration and Immigration Laws




except as follows: Defendant-Intervenors admit that this Court issued an Order on December 13,

2013 in Case No. 1:13-cr-00441, United States v. Nava-Martinez, which speaks for itself.


conclusions, to which no responsive pleading is required. Moreover, Defendant-Intervenors aver

that they are without sufficient information or knowledge to form a belief as to the allegations

contained in Paragraph 124 of the Complaint. However, to the extent a responsive pleading is

necessary, Defendant-Intervenors deny each and every averment in Paragraph 127, except as

follows: Defendant-Intervenors aver that this Court’s December 13, 2013 Order in the Nava-

Martinez case speaks for itself.

125. The allegations in Paragraph 125 of the Complaint state legal conclusions, to

which no responsive pleading is required. Moreover, Defendant-Intervenors aver that they are

without sufficient information or knowledge to form a belief as to the allegations contained in



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Paragraph 125 of the Complaint. However, to the extent a responsive pleading is necessary,

Defendant-Intervenors deny each and every averment in Paragraph 125, except as follows:

Defendant-Intervenors aver that this Court’s December 13, 2013 Order in the Nava-Martinez

case speaks for itself.





Defendant-Intervenors deny each and every allegation in Paragraph 126, except as follows:

















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Defendant-Intervenors aver that the quoted Washington Post article speaks for itself.









without sufficient information or knowledge to form a belief as to the averments contained in


Defendant-Intervenors deny each and every averment in Paragraph 130, except as follows:

Defendant-Intervenors aver that the quoted Los Angeles Times article speaks for itself.








knowledge to form a belief as to the allegations contained in Paragraph 132 of the Amended

Complaint; moreover, the allegations state legal conclusions, to which no responsive pleading is

required. However, to the extent a responsive pleading is necessary, Defendant-Intervenors deny



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each and every allegation in Paragraph 132.






Defendant-Intervenors aver that the quoted Business Insider and Houston Chronicle articles







Defendant-Intervenors aver that the President’s past statements speak for themselves.






Defendant-Intervenors aver that the cited Houston Chronicle and Los Angeles Times articles



knowledge to form a belief as to the allegations contained in Paragraph 136 of the Complaint.



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Defendant-Intervenors aver that the quoted Los Angeles Times and Washington Examiner articles







Defendant-Intervenors aver that the quoted Washington Examiner article speaks for itself.






Defendant-Intervenors aver that the quoted articles speak for themselves.







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V. Allegations Regarding Former President Obama




except as follows: Defendant-Intervenors aver that former President Obama’s past statements





except as follows: Defendant-Intervenors admit that former President Obama has repeatedly

called on Congress to pass an immigration reform bill and that Congress did not enact any of the

bills listed in Paragraph 44 of the Complaint.



pleading is necessary, Defendant-Intervenors deny each and every such averment in Paragraph

144, except as follows: Defendant-Intervenors admit that, on November 20, 2014, the President

of the United States announced a series of Department of Homeland Security initiatives

pertaining to federal immigration law.






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Exhibits 3 speaks for itself.



pleading is necessary, Defendant-Intervenors deny each and every such allegation in Paragraph

146, except as follows: Defendant-Intervenors aver that the document attached to the Complaint

as Exhibits 3 speaks for itself.














knowledge to form a belief as to the allegations contained in Paragraph 149.





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153 except as follows: Defendant-Intervenors aver that President Obama’s past statements speak

for themselves.




154, except as follows: Defendant-Intervenors aver that President Obama’s past statements




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155, except as follows: Defendant-Intervenors aver that President Obama’s past statements





156.

VI. Allegations Regarding Court Rulings



pleading is necessary, Defendant-Intervenors admit that, on December 3, 2014, Plaintiffs and

other states filed the lawsuit Texas v. United States, No. 1:14-cv-256, in this Court and that the

complaint in that case speaks for itself.




158 except as follows: Defendant-Intervenors admit that on February 16, 2015, this Court issued

a preliminary injunction in Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015), which

speaks for itself.





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159 except as follows: Defendant-Intervenors aver that they are without sufficient information

or knowledge to form a belief as to the allegations in Paragraph 159; Defendant-Intervenors aver

that this Court’s order in Texas v. United States, B-14-254, 2016 WL 3211803, at *1 (S.D. Tex.

May 19, 2016), speaks for itself.



pleading is necessary, Defendant-Intervenors admit the allegations; Defendant-Intervenors aver

that the court orders in Texas v. United States, No. 1:14-cv-254, 2015 WL 1540022 (S.D. Tex.

Apr. 7, 2015), and Texas v. United States, 787 F.3d 733 (5th Cir. 2015), speak for themselves.




161 except as follows: Defendant-Intervenors aver that the Fifth Circuit’s decision in Texas v.

United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271

(2016), speaks for itself.



pleading is necessary, Defendant-Intervenors admit the allegations in Paragraph 162 and aver

that United States v. Texas, 136 S. Ct. 2271 (2016), speaks for itself.

VII. Allegations Regarding DHS Secretary Kelly





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that this Court’s order in Texas v. United States, No. 1:14-cv-254 (S.D. Tex. Aug. 31, 2016)

(Text Order), speaks for itself.




that the Supreme Court’s order in United States v. Texas, 137 S. Ct. 285 (2016), speaks for itself.




that the referenced motion speaks for itself.




that this Court’s order in Texas v. United States, No. 1:14-cv-254 (S.D. Tex. Jan. 19, 2017), ECF

435, speaks for itself.










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that this Court’s order in Texas v. United States, No. 1:14-cv-254 (S.D. Tex. Mar. 22, 2017),

ECF 439, speaks for itself.








170, except as follows: Defendant-Intervenors admit that, on June 15, 2017, DHS Secretary

Kelly issued the memorandum attached to the Complaint as Exhibits 5, which speaks for itself.















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as Exhibits 5 and Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally

divided Court, 136 S. Ct. 2271 (2016), speak for themselves.

VIII. Allegations Regarding September 5, 2017 DHS Memorandum




175, except as follows: Defendant-Intervenors admit that, on June 29, 2017, the individuals

stated in Paragraph 175 sent to U.S. Attorney General Jeff Sessions the letter attached to the

Complaint as Exhibit 6, which speaks for itself.










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as Exhibits 6 and Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally

divided Court, 136 S. Ct. 2271 (2016), speak for themselves.













knowledge to form a belief as to the allegations in Paragraph 180. Further, Defendant-

Intervenors aver that Attorney General Sessions’ past statements speak for themselves.








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186, except as follows: Defendant-Intervenors admit that, on September 5, 2017, DHS issued

the memorandum attached to the Complaint as Exhibit 7, which speaks for itself.














189, except as follows: Defendant-Intervenors aver that the documents attached to the

Complaint as Exhibits 6 and 7 speak for themselves.




190, except as follows: Defendant-Intervenors admit that Plaintiffs did not file an amended

complaint in Texas v. United States, No. 1:14-cv-254, in this Court in September 2017.




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191, except as follows: Defendant-Intervenors admit that the parties in Texas v. United States,

No. 1:14-cv-254, in this Court filed the referenced stipulation of dismissal, which speaks for

itself.

IX. Allegations Regarding Court Challenges




knowledge to form a belief as to the allegations in Paragraph 192, except as follows: Defendant-

Intervenors aver that the referenced pleadings speak for themselves.




193.




194, except as follows: Defendant-Intervenors aver that the referenced pleading speaks for itself.







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199.

X. Allegations Regarding the Northern District of California




200, except as follows: Defendant-Intervenors admit that, on January 9, 2018, the U.S. District

Court for the Northern District of California issued an injunction in Regents of the University of

California v. United States Department of Homeland Security, 279 F. Supp. 3d 1011 (N.D. Cal.



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2018), which speaks for itself.




201, except as follows: Defendant-Intervenors aver that Regents of the University of California

v. United States Department of Homeland Security, 279 F. Supp. 3d 1011 (N.D. Cal. 2018),

speaks for itself.





v. United States Department of Homeland Security, 279 F. Supp. 3d 1011 (N.D. Cal. 2018),

speaks for itself.





v. United States Department of Homeland Security, 279 F. Supp. 3d 1011 (N.D. Cal. 2018)

speaks for itself.







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v. United States Department of Homeland Security, 279 F. Supp. 3d 1011 (N.D. Cal. 2018)

speaks for itself.




205, except as follows: Defendant-Intervenors admit that, on April 24, 2018, the U.S. District

Court for the District of Columbia issued an order in NAACP v. Trump, 2018 WL 1920079

(D.D.C. Apr. 24, 2018), which speaks for itself.




206, except as follows: Defendant-Intervenors aver that NAACP v. Trump, 2018 WL 1920079

(D.D.C. Apr. 24, 2018), speaks for itself.




206, except as follows: Defendant-Intervenors aver that NAACP v. Trump, 2018 WL 1920079

(D.D.C. Apr. 24, 2018), speaks for itself.




208, except as follows: Defendant-Intervenors admit that the guidance issued by the Department

of Homeland Security for case-by-case consideration of deferred action with respect to



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individuals who came to the United States as children, commonly referred to as “DACA,”

remains in force. Defendant-Intervenors aver that they are without sufficient information or

knowledge to form a belief as to the allegations regarding Plaintiffs’ motives for bringing suit.

THEORIES OF RELIEF




209, except as follows: Defendant-Intervenors admit that the guidance issued by the Department

of Homeland Security for case-by-case consideration of deferred action with respect to

individuals who came to the United States as children, commonly referred to as “DACA,”

remains in force. Defendant-Intervenors aver that they are without sufficient information or

knowledge to form a belief as to the allegations regarding Plaintiffs’ motives for bringing suit.




210, except as follows: Defendant-Intervenors aver that Texas v. United States, 809 F.3d 134

(5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016), speaks for itself.




211.





48


212.




213.




214.




215, except as follows: Defendant-Intervenors admit that Plaintiffs purport to challenge the

document attached to the Complaint as Exhibit 1 and its implementation, parts of the document

attached to the Complaint as Exhibit 5, and alleged “DACA permits that remain in effect.”






217, except as follows: Defendant-Intervenors admit that Plaintiffs purport to challenge

conditionally the document attached to the Complaint as Exhibit 3, parts of the document



49

attached to the Complaint as Exhibit 5, and alleged “Expanded DACA permits that remain in

effect.”




218.

I. Allegations Regarding Standing




219, except as follows: Defendant-Intervenors aver that Susan B. Anthony List v. Driehaus, 134

S. Ct. 2334 (2014) speaks for itself.




220.




221, except as follows: Defendant-Intervenors aver that Arizona v. United States, 567 U.S. 387






50







223, except as follows: Defendant-Intervenors aver that Massachusetts v. EPA, 549 U.S. 497





224, except as follows: Defendant-Intervenors aver that Texas v. United States, 86 F. Supp. 3d

591 (S.D. Tex. 2015), and Texas v. United States, 809 F.3d 134, 184 (5th Cir. 2015), aff’d by an

equally divided Court, 136 S. Ct. 2271 (2016), speak for themselves.




225, except as follows: Defendant-Intervenors aver that DACA recipients hold or are eligible for

rights, privileges, and benefits as provided by law; Defendant-Intervenors aver that Texas v.







51



rights, privileges, and benefits as provided by law; Defendant-Intervenors aver that Arizona

Dream Act Coalition v. Brewer, 855 F.3d 957 (9th Cir. 2017), cert. denied, 138 S. Ct. 1279






rights, privileges, and benefits as provided by law; Defendant-Intervenors aver that 16 Tex.

Admin. Code § 33.10 and Tex. Bd. of Law Exam’rs, Rules Governing Admission to the Bar of

Tex., R. II(a)(5)(J), speak for themselves.




228.




229, except as follows: Defendant-Intervenors aver that Texas v. United States, 809 F.3d 134,

184 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016), speaks for itself.





52







231.




232, except as follows: Defendant-Intervenors aver that Plyler v. Doe, 457 U.S. 202 (1982), 42

U.S.C. § 1395dd, and 42 C.F.R. § 440.255, speak for themselves.














53



235, except as follows: Defendant-Intervenors aver that Tex. Health & Safety Code §§ 61.001 et

seq., Tex. Health & Safety Code § 311.043, and Texas v. United States, 809 F.3d 134 (5th Cir.

2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016), speak for themselves.




236.









238.




239, except as follows: Defendant-Intervenors aver that Alfred L. Snapp & Son, Inc. v. Puerto

Rico ex. rel. Barez, 458 U.S. 592 (1982), speaks for itself.



54




240, except as follows: Defendant-Intervenors aver that they are without sufficient information

or knowledge to form a belief as to the allegations regarding Plaintiffs’ motives for bringing suit;

Defendant-Intervenors aver that Alfred L. Snapp & Son, Inc. v. Puerto Rico ex. rel. Barez, 458

U.S. 592 (1982), speaks for itself.





or knowledge to form a belief as to the allegations regarding Plaintiffs’ motives for bringing suit;

Defendant-Intervenors aver that Alfred L. Snapp & Son, Inc. v. Puerto Rico ex. rel. Barez, 458

U.S. 592 (1982), speaks for itself.





(2007), and Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided

Court, 136 S. Ct. 2271 (2016), speak for themselves.






55



















or knowledge to form a belief as to the allegations regarding Plaintiffs’ motives for bringing suit.




247.



56




248, except as follows: Defendant-Intervenors aver that Arizona State Legislature v. Arizona

Independent Redistricting Commission, 135 S. Ct. 2652 (2015), speaks for itself.














251.







57


























58


257.

II. Allegations Regarding Timeliness




258.




259, except as follows: Defendant-Intervenors aver that Mendoza v. Perez, 754 F.3d 1002 (D.C.

Cir. 2014), speaks for itself.




260, except as follows: Defendant-Intervenors aver that 28 U.S.C. § 2401(a) speaks for itself.




261.






59

262.




263.




264.

III. Allegations Regarding Plaintiffs’ Interests









266.

IV. Allegations Regarding DACA Review






60






268.




269, except as follows: Defendant-Intervenors aver that Reno v. American-Arab Anti-

Discrimination Committee, 525 U.S. 471 (1999), speaks for itself.















61























rights, privileges, and benefits as provided by law. Defendant-Intervenors further aver that they



62

are without sufficient information or knowledge to form a belief as to individual or aggregate









except that Japan Whaling Association v. American Cetacean Society, 478 U.S. 221 (1986),

speaks for itself.




except as follows: Defendant-Intervenors aver that they are without sufficient information or

knowledge to form a belief as to the Executive’s position.






V. Allegations Regarding DACA’s Legality

A. Allegations Regarding APA Notice-and-Comment Procedure



63




281, except as follows: Defendant-Intervenors aver that 5 U.S.C. § 553(b)(A) and Texas v.


(2016), speak for themselves.




282.




283.




284, except as follows: Defendant-Intervenors aver that 5 U.S.C. § 706(2)(D) speaks for itself.




285, except as follows: Defendant-Intervenors aver that 5 U.S.C. § 551(1) speaks for itself.




64







287.





rights, privileges, and benefits as provided by law; Defendant-Intervenors aver that Texas v.






289.








65


























66


























67








301, except as follows: Defendant-Intervenors aver that 5 U.S.C. § 553(a)(2) and Texas v.


(2016), speak for themselves.




302, except as follows: Defendant-Intervenors aver the document attached to the Complaint as





303.

B. Allegations Regarding Statutes






68


























69


























70








C. Allegations Regarding the Take Care Clause




315.









conclusions, to which no responsive pleading is required. Further, Defendant-Intervenors aver

that they are without sufficient information or knowledge to form a belief as to the allegations in

Paragraph 317. However, to the extent a responsive pleading is necessary, Defendant-



71

Intervenors deny each and every such allegation in Paragraph 317, except as follows:

Defendant-Intervenors aver that Zachary Price, Enforcement Discretion and Executive Duty, 67

Vand. L. Rev. 671 (2014) and the English Bill of Rights of 1689, art. 1, speak for themselves.








319, except as follows: Defendant-Intervenors aver that Kendall v. United States ex rel. Stokes,

37 U.S. 524 (1838), speaks for itself.




320.





or knowledge to form a belief as to the attempted actions of King James; Defendant-Intervenors

aver that Zachary Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671




72




322.




323, except that Arizona v. United States, 567 U.S. 387 (2012), speaks for itself.




324, except that the document attached to the Complaint as Exhibit 4, speaks for itself.














73






as Exhibit 4, speaks for itself, and Defendant-Intervenors aver that DACA recipients hold or are

eligible for rights, privileges, and benefits as provided by law. Defendant-Intervenors further

aver that they are without sufficient information or knowledge to form a belief as to individual or

aggregate numbers and circumstances of immigration status adjustments.













331, except that Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), speaks for itself.




74



332.























75


337, except as follows: Defendant-Intervenors repeat and incorporate herein by reference each

and all of the denials, admissions, and averments set forth above in the answers to Paragraphs

289–303 of the Complaint, as though fully set forth herein.

VI. Allegations Regarding Plaintiffs’ Requested Relief





and all of the denials, admissions, and averments set forth above in the answers to Paragraphs 1-

337 of the Complaint, as though fully set forth herein.





or knowledge to form a belief as to the allegation regarding what remedy Plaintiffs are amenable

to.




340, except that the document attached to the Complaint as Exhibit 1 speaks for itself.





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341.









343.

VII. Allegations Regarding Work Authorization




344, except as follows: Defendant-Intervenors aver that 8 C.F.R. § 274a.12(c)(14) speaks for

itself.




345, except as follows: Defendant-Intervenors aver that 8 C.F.R. § 274a.12(c)(14) and the

referenced memorandum speak for themselves.




77



342, except as follows: Defendant-Intervenors aver that 8 C.F.R. § 274a.12(c)(14) speaks for

itself.

VIII. Allegations Regarding Federal Benefits





and all of the denials, admissions, and averments set forth above in the answers to Paragraphs

38–40 of the Complaint, as though fully set forth herein.





and all of the denials, admissions, and averments set forth above in the answer to Paragraphs 41

of the Complaint, as though fully set forth herein.









78





FIRST CAUSE OF ACTION Alleged Violation of the Take Care Clause

351. Answering Paragraph 351 of the Complaint, Defendant-Intervenors repeat and

incorporate herein by reference each and all of the denials, admissions, and averments set forth

above in the answers to Paragraphs 1–350 of the Complaint, as though fully set forth herein.




except as follows: Defendant-Intervenors aver that that the quoted portion of the United States

Constitution speaks for itself.

SECOND CAUSE OF ACTION Alleged Violation of the APA’s Procedural Requirements, 5 U.S.C. § 553







THIRD CAUSE OF ACTION Alleged Violation of the APA’s Substantive Requirement, 5 U.S.C. § 706




79






Defendant-Intervenors further deny each and every, all and singular, allegation and/or

averment contained in the Complaint, except to the extent specifically admitted herein.

PRAYER FOR RELIEF

To the extent that any response is required to Plaintiffs’ separate Prayer for Relief, Defendant-

Intervenors deny each and every allegation contained in the Prayer for Relief, and further deny

that Plaintiffs are entitled to declaratory relief, injunctive relief, costs, or any other form of relief

whatsoever.

AFFIRMATIVE DEFENSES

As and for their affirmative defenses to all causes of action purported to be set forth by

Plaintiffs in the Complaint, Defendant-Intervenors allege as follows, subject to Defendant-

Intervenors’ right to amend and assert such other affirmative defenses as may become available

during discovery in this action:

FIRST AFFIRMATIVE DEFENSE: LACK OF STANDING

This Court lacks subject matter jurisdiction over Plaintiffs’ claims because Plaintiffs

cannot show the injury necessary to assert standing.

SECOND AFFIRMATIVE DEFENSE: NONJUSTICIABLE POLITICAL QUESTION

This suit must be dismissed because the Plaintiffs’ claims in this action present this Court

with a nonjusticiable political question.



80

THIRD AFFIRMATIVE DEFENSE: NO FINAL AGENCY ACTION

Some or all of Plaintiffs’ claims are barred insofar as they are brought pursuant to the

Administrative Procedure Act because there was no “final agency action” by DHS as is a

prerequisite for judicial review under 5 U.S.C. § 704.

FOURTH AFFIRMATIVE DEFENSE: FAILURE TO STATE A CAUSE OF ACTION

Some or all of Plaintiffs’ claims, as set forth in the Complaint, fail to state facts sufficient

to constitute a cause of action against Defendants.

FIFTH AFFIRMATIVE DEFENSE: NO INJUNCTIVE RELIEF

Some or all of Plaintiffs’ claims, as set forth in the Amended Complaint, fail to state facts

sufficient to constitute a cause of action against defendants for injunctive relief because Plaintiffs

have an adequate remedy at law and/or the other requirements for granting injunctive relief

cannot be satisfied.

SIXTH AFFIRMATIVE DEFENSE: FAILURE TO EXHAUST

Some or all of Plaintiffs’ claims are barred because Plaintiffs failed to exhaust

administrative remedies.

SEVENTH AFFIRMATIVE DEFENSE: LAHCES

Some or all of Plaintiffs’ claims are barred under the doctrine of laches.

EIGHTH AFFIRMATIVE DEFENSE: RES JUDICATA

Some or all of Plaintiffs’ claims are barred under the doctrine of res judicata.

NINTH AFFIRMATIVE DEFENSE: STATUTE OF LIMITATIONS

Some or all of Plaintiffs’ claims are barred by the statute of limitations.

TENTH AFFIRMATIVE DEFENSE: WAIVER

Some or all of Plaintiffs’ claims are barred under the doctrine of waiver.



81

ELEVENTH AFFIRMATIVE DEFENSE: ESTOPPEL

Some or all of Plaintiffs’ claims are barred under the doctrine of estoppel.

WHEREFORE, Defendant-Intervenors Karla Perez, Maria Rocha, Jose, Magaña-

Salgado, Nanci J. Palacios Godinez, Elly Marisol Estrada, Karina Ruiz De Diaz, Carlos Aguilar

Gonzalez, Karla Lopez, Luis A. Rafael, Darwin Velasquez, Jin Park, Oscar Alvarez, Nancy

Adossi, Denise Romero, Pratishtha Khanna, Jung Woo Kim, Angel Silva, Moses Kamau Chege,

Hyo-Won Jeon, Elizabeth Diaz, Maria Diaz, and Blanca Gonzalez respectfully pray as follows:

1. That Plaintiffs’ Complaint and each cause of action therein be dismissed with

prejudice;

2. That Plaintiffs take nothing by way of the Complaint;

3. That Defendant-Intervenors be awarded costs of the suit and attorneys’ fees

herein;

4. That the Court order such other and further relief for Defendant-Intervenors as the

Court may deem appropriate.

Dated: May 8, 2018 Respectfully submitted,

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND By: /s/ Nina Perales

Nina Perales (Tex. Bar No. 24005046); (SD of Tex. Bar No. 21127)

Attorney-in-Charge Celina Moreno (Tex. Bar No. 24074754) (SD of Tex. Bar No. 2867694) Jack Salmon (Tex. Bar No. 24068914) (SD of Texas Bar No. 1130532) Alejandra Ávila (Tex. Bar No. 24089252) (SD of Tex. Bar No. 2677912) 110 Broadway, Suite 300 San Antonio, Texas 78205



82

Phone: (210) 224-5476 Facsimile: (210) 224-5382 Email: [email protected]

GARCÍA & GARCÍA, ATTORNEYS AT LAW P.L.L.C. Carlos Moctezuma García (Tex. Bar No. 24065265)

(SD of Tex. Bar No. 1081768) P.O. Box 4545

McAllen, TX 78502 Phone: (956) 630-3889 Facsimile: (956) 630-3899 Email: [email protected]

Attorneys for Proposed Defendant- Intervenors

CERTIFICATE OF SERVICE I, the undersigned, hereby certify that, on the eighth day of May, 2018, I electronically

filed the above and foregoing document using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.




1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS


STATE OF TEXAS, et al., §

§

Plaintiffs, §

§

v. § Case No. 1:18-CV-68

§

UNITED STATES OF AMERICA, et al., §

§

Defendants, §

§

and §

§

KARLA PEREZ, MARIA ROCHA, §

JOSE MAGAÑA-SALGADO, §

NANCI J. PALACIOS GODINEZ, §

ELLY MARISOL ESTRADA, KARINA §

RUIZ DE DIAZ, CARLOS AGUILAR §

GONZALEZ, KARLA LOPEZ, LUIS A. §

RAFAEL, DARWIN VELASQUEZ, §

JIN PARK, OSCAR ALVAREZ, §

NANCY ADOSSI, DENISE ROMERO, §

PRATISHTHA KHANNA, JUNG WOO §

KIM, ANGEL SILVA, MOSES KAMAU §

CHEGE, HYO-WON JEON, ELIZABETH §

DIAZ, MARIA DIAZ, and BLANCA §

GONZALEZ, §

§

Proposed Defendant- §

Intervenors. §

[PROPOSED] ORDER

The motion to intervene of movants Karla Perez, Maria Rocha, Jose Magaña-Salgado,

Nanci J. Palacios Godinez, Elly Marisol Estrada, Karina Ruiz De Diaz, Carlos Aguilar Gonzalez,

Karla Lopez, Luis A. Rafael, Darwin Velasquez, Jin Park, Oscar Alvarez, Nancy Adossi, Denise

Romero, Pratishtha Khanna, Jung Woo Kim, Angel Silva, Moses Kamau Chege, Hyo-Won Jeon,

Elizabeth Diaz, Maria Diaz, and Blanca Gonzalez (Docket Entry No. ____) having come before



2

this Court, and the Court having considered the papers submitted in connection with said motion,

and such other relevant information and evidence as was presented to this Court, and good cause

appearing, IT IS HEREBY ORDERED that:

(1) Movants’ Motion for Leave to Intervene is GRANTED;

(2) Movants be entered as Defendant–Intervenors and their counsel served with all

relevant papers in the above-captioned action; and

(3) The Clerk of Court shall docket Movants’ Answer to Plaintiffs’ Complaint, attached

as Exhibit 1 to Movants’ Motion for Leave to Intervene.

IT IS SO ORDERED on this ________ day of ________________, 2018.

______________________________

Hon. Andrew S. Hanen

United States District Court Judge



in the united states district court for the southern ... · case 1:18-cv-00068 document 13-1 filed...

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