obama non-deportation policy case — crane v napolitano - motion to intervene university leadership...
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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTOPHER L. CRANE, DAVID A. )ENGLE, ANASTASIA MAR IE )CARROLL, RICARDO DIAZ, )LORENZO GARZA, FELIX )LUCIANO, TRE REBSTOCK, )FERNANDO SILVA, SAMUEL )MARTIN, and JAMES D. DOEBLER ) Civil Action No.
) 3:12-CV-3247-0Plaintiffs, )
)v. )
)JANET NAPOLITANO, in her official )capacity as Secretary of Homeland )Security, JOHN MORTON, in his )official capacity as Director of )Immigration and Customs Enforcement, )And ALEJANDRO MAYORKAS, in his )Official capacity as Director of the United )States Citizenship and Immigration Services )
))
Defendants, ))
and ))
PAMELA RESÉNDIZ, CAROLINA CANIZALEZ, )and the UNIVERSITY LEADERSHIP INITIATIVE )
))
Proposed Defendant-Intervenors. )
PROPOSED DEFENDANT-INTERVENORS’
MOTION TO INTERVENE AS DEFENDANTS,
OR IN THE ALTERNATIVE, MOTION FOR LEAVE
TO PARTICIPATE AS AMICI CURIAE
Proposed Defendant-Intervenors Pamela Reséndiz and Carolina Canizalez (collectively,
“Proposed Individual Defendant-Intervenors”), and the University Leadership Initiative (“ULI”
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or “Proposed Organizational Defendant-Intervenor”), hereby respectfully move the Court for
leave to intervene as of right pursuant to Fed. R. Civ. P. 24(a)(2), or alternatively, permissive
intervention under Fed. R. Civ. P. 24(b)(1), so they may participate actively in this case and
protect their personal interests at stake by presenting evidence and argument that will assist the
Court with rendering its decision. In the alternative, Proposed Defendants-Intervenors
respectfully move the Court for leave to participate as amici curiae pursuant to Local Rule 7.2.
Proposed Defendant-Intervenors respectfully submit the accompanying Memorandum of Law in
Support of Motion to Intervene as Defendants, or in the Alternative, Motion for Leave to
Participate as Amici Curiae, as Defendants, and Answer to Plaintiffs’ Amended Complaint, inaccordance with Local Civil Rules 7.1-7.4.
Proposed Defendant-Intervenors’ Proposed Answer and in the alternative, proposed Brief
as Amici, are attached to this Motion as Exhibits A and B, respectively.
Proposed Defendant-Intervenors, who stand to be negatively and personally affected by
the outcome in this case, seek to intervene in this action in order to oppose Plaintiffs’ request for
injunctive relief preventing the implementation of the June 15, 2012 Memorandum issued by
Defendant Secretary of Homeland Security Janet Napolitano entitled “Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States as Children” (the “DHS
Memorandum”). Dkt. 24 at 24. Proposed Defendant-Intervenors further oppose Plaintiffs’
request for declaratory judgment that the DHS Memorandum violates the Administrative
Procedure Act and Articles I and II of the United States Constitution. Dkt. 24 at 23-24.
Proposed Defendant-Intervenors recognize this Court’s interest in the efficient conduct of
future proceedings in this matter. Thus, if intervention is granted, Proposed Defendant-
Intervenors will (i) avoid unnecessary delays; and (ii) coordinate all future proceedings in this
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action with the existing parties, to the extent possible, consistent with their respective duties and
ethical obligations to their respective clients.
Pamela Reséndiz is a resident of Travis County and Carolina Canizalez is a resident of
Bexar County, Texas. Ex. C at ¶2, Ex. D at ¶2. Ms. Reséndiz and Ms. Canizalez have been
granted deferred action and employment authorization under the DHS Memorandum. Ex. D at
¶2, Ex. D at ¶2.
ULI is a membership-based association and student organization of the University of
Texas at Austin (“UT-Austin”). Ex. E at ¶ 3. ULI’s mission is to advance the educational
attainment and civil rights of undocumented immigrant youth. Id . at ¶ 3. ULI fulfills itsmissions by promoting higher education for immigrant students; encouraging academic success
and civic participation among undocumented immigrant students in secondary schools; and
conducting outreach at the local, state and national level to address problems faced by
undocumented immigrant students in college. Id . at ¶¶ 11-15. ULI moves to intervene on behalf
of its members, including undocumented immigrant students1 currently enrolled in public
colleges and universities in Texas and who qualify for deferred action under the DHS Memo, as
well as on behalf of itself as an organization.
Both the Proposed Individual and Organizational Defendant-Intervenors have a unique
interest in the subject matter of this litigation that supports their intervention, or in the
alternative, their participation in this case as amici curiae. First, if the DHS Memorandum is
enjoined, Proposed Individual Defendant-Intervenors Reséndiz and Canizalez, and members of
ULI, will either lose deferred action status or they will be not be able to renew their deferred
1 The term “undocumented immigrant student(s)” is used to describe persons residing in the United States who donot have authorization by the U.S. government to reside in the United States. Undocumented presence in the UnitedStates is a civil offense – not a criminal violation.
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action status. Ex. C at ¶8, Ex. D at ¶10. They will also likely lose their employment
authorization under the DHS Memo. Ex. C at ¶8, Ex. D at ¶10.
An injunction would also significantly impact the Proposed Organizational Defendant-
Intervenor, which will be forced to expend additional resources educating members about the
effect of the injunction on their applications for deferred action, and whose members’ ability to
achieve higher education and civic participation will be greatly impaired if an injunction is
entered. Ex. E at ¶¶19-21.
For all the reasons stated herein, and for those addressed in the accompanying
Memorandum of Law in Support of their Motion to Intervene as Defendants, or in theAlternative, Motion for Leave to Participate as Amici Curiae, Proposed Defendant-Intervenors
respectfully request that this Court grant their Motion to Intervene, or alternatively, for leave to
participate as amicus curiae pursuant to Local Rule 7.2.
Dated: May 6, 2013 Respectfully submitted,
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, I NC.
s/Marisa Bono __________Marisa BonoState Bar No. 24052874David G. HinojosaState Bar No. 24010689 Nina PeralesState Bar No. 24005046110 Broadway, Ste. 300San Antonio, Texas 78205E-mail: [email protected] Telephone: (210) 224-5476Telecopier: (210) 224-5382
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CLOUTMAN AND CLOUTMAN
Edward B. Cloutman IIIState Bar No. 04411000Edward B. Cloutman IV
State Bar No. 240740453301 Elm St.Dallas, TX 75226E-mail: [email protected] Telephone: (214) 939-9222Telecopier: (214) 939-9229
Attorneys for Proposed Defendant-Intervenors
CERTIFICATE OF CONFERENCE
On May 6, 2013, the undersigned counsel for Proposed Defendant-Intervenors conferred
with counsel of record for Plaintiffs by electronic correspondence regarding the above-
referenced Motion. Plaintiffs are opposed to Proposed Defendant-Intervenors intervening in the
case, and they are opposed to Proposed Defendant-Intervenors participating as amici. On May 6,
2013, the undersigned counsel for Proposed Defendant-Intervenors conferred with counsel of
record for Defendants by telephone regarding the above-referenced Motion, and Defendants take
no position on Proposed Defendant-Intervenors intervening in the case or participating as amici.
/s/ Marisa Bono _______
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CERTIFICATE OF SERVICE
I hereby certify that on May 6, 2013, I electronically filed the foregoing with the Clerk of
court by using the CM/ECF system which will send a notice of electronic filing to counsel ofrecord who are registered participants of the Courts CM/ECF system. I further certify that I
mailed the foregoing document and the notice of electronic filing by first-class mail to counsel of
record who are not CM/ECF participants as indicated in the notice of electronic filing.
By: _____ s/Marisa Bono _
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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTOPHER L. CRANE, DAVID A. )ENGLE, ANASTASIA MAR IE )CARROLL, RICARDO DIAZ, )LORENZO GARZA, FELIX )LUCIANO, TRE REBSTOCK, )FERNANDO SILVA, SAMUEL )MARTIN, and JAMES D. DOEBLER ) Civil Action No.
) 3:12-CV-3247-0Plaintiffs, )
)v. )
)JANET NAPOLITANO, in her official )capacity as Secretary of Homeland )Security, JOHN MORTON, in his )official capacity as Director of )Immigration and Customs Enforcement, )And ALEJANDRO MAYORKAS, in his )Official capacity as Director of the United )States Citizenship and Immigration Services )
))
Defendants, ))
and ))
PAMELA RESÉNDIZ, CAROLINA CANIZALEZ, )and the UNIVERSITY LEADERSHIP INITIATIVE )
))
Proposed Defendant-Intervenors. )
PROPOSED DEFENDANT-INTERVENORS’
BRIEF AND MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO INTERVENE AS DEFENDANTS
OR IN THE ALTERNATIVE, MOTION FOR LEAVE
TO PARTICIPATE AS AMICI CURIAE
PARTICIPATE AS AMICI CURIAE
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TABLE OF CONTENTS
INRODUCTION ............................................................................................................................1
Procedural Background ................................................................................................................1
Proposed Defendant-Intervenors .................................................................................................3
Proposed Defendant-Intervenors’ Requested Relief ..................................................................5
ARGUMENT..................................................................................................................................6
I. INTERVENTION AS OF RIGHT IS WARRANTED.......................................................6
A.
Movants’ Motion to Intervene is Timely .............................................................7
B. Movants Seek to Vindicate a Protectable Interest ............................................11
C. Movants’ Interests Would be Impaired if Intervention Were Denied........... 14
D. The Existing Defendants Will Not Adequately Represent
Movants’ Interests ...............................................................................................15
II. MOVANTS ARE ENTITLED TO PERMISSIVE INTERVENTION.......................18
III. MOVANTS ARE ENTITLED TO PARTICIPATE AS AMICUS CURIAE..............20
CONCLUSION ............................................................................................................................20
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TABLE OF AUTHORITIES
CASES
Association of Professional Flight Attendants v. Gibbs, 804 F.2d 318 (5th Cir. 1986) ..................9
Black Fire Fighters Ass’n of Dallas v. City of Dallas, 19 F.3d 992 (5th Cir. 1994).....................15
Ceres Gulf v. Cooper , 957 F.2d 1199 (5th Cir. 1992) ..............................................................10,15
Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989) ............................................................15,13
Day v. Sebelius, 227 F.R.D. 668 (D. Kan. 2005)...............................................................12, 17, 18
Decker v. United States Department of Labor,
473 F. Supp. 770 (E.D. Wis. 1979)....................................................................................13
Diaz v. S. Drilling Corp., 427 F.2d 1118 (5th Cir. 1970)..............................................................12
Dimond v. District of Columbia, 792 F.2d 179 (D.C. Cir. 1986) ..................................................16
Donaldson v. United States, 400 U.S. 517 (1971).........................................................................12
Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) .....................................................7, 8, 11
Ford v. City of Hunstville, 242 F.3d 235 (5th Cir. 2001) ..............................................................10
Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489 (9th Cir. 1995).........................15
Gen. Tel. Co. of the Nw., Inc. v. EEOC , 446 U.S. 318 (1980).......................................................16
Grutter v. Bollinger , 188 F.3d 394 (6th Cir. 1999)........................................................................14
Howse v. S/V , 641 F.2d 317 (5th Cir. 1981) ..................................................................................19
In re Lease Oil Antitrust Litig., 570 F.3d 244 (5th Cir. 2009).........................................................7
John Doe No. 1 v. Glickman, 256 F.3d 371 (5th Cir. 2001)............................................................7
Lewis v Stark , 312 F. Supp. 197 (N.D. Cal. 1978).........................................................................13
Martin v. Travelers Indem. Co., 450 F.2d 542 (5th Cir. 1971)......................................................15
Mich. State AFL-CIO v. Miller , 103 F.3d 1240 (6th Cir. 1997) ....................................................14
Natural Res. Def. Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977) ............................................16
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New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co.,732 F.2d 452 (5th Cir.1984) ..........................................................................................5, 19
Ross v. Marshall, 426 F.3d 745 (5th Cir. 2005) ............................................................................12
Saldano v. Roach, 363 F.3d 545 (5th Cir. 2004) .............................................................................7
Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994) ....................................................................7, 15
Sierra Club v. Fed. Emergency Mgmt. Agency, No. 07-0608, 2008 U.S. Dist. LEXIS 47405 (S.D. Tex. June 11, 2008) ...........................16
Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977) .......................................................7, 10
Texas E. Transmission Corp., 923 F.2d 410 (5th Cir. 1991).........................................................14
Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972) .............................................15, 18
United States v. LULAC , 793 F.2d 636 (5th Cir. 1986).................................................................19
Usery v. Brandel, 87 F.R.D. 670 (W.D. Mich. 1980)....................................................................13
CONSTITUTIONAL PROVISIONS AND STATUTES
8 U.S.C. § 1225............................................................................................................................2, 5
8 U.S.C. § 1225(a) ...........................................................................................................................8
8 U.S.C. § 1225(b)(1) ....................................................................................................................17
8 U.S.C. § 1225(b)(1)(A)...............................................................................................................17
8 U.S.C. § 1225(b)(1)(A)(iii).........................................................................................................17
8 U.S.C. § 1225(b)(2)(A).........................................................................................................16, 17
8 U.S.C. § 1225(b)(2)(B)(ii) ..........................................................................................................17
8 C.F.R. § 247 a.12(e)....................................................................................................................13
45 C.F.R. § 1060............................................................................................................................13
Fed. R. Civ. P. 24...........................................................................................................................14
Fed. R. Civ. P. 24(a) ..................................................................................................................6, 14
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Fed. R. Civ. P. 24(a)(2)..........................................................................................................6, 7, 14
FED. R. CIV. P. 24(b) ......................................................................................................................18
OTHER AUTHORITIES
3B JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 24.07[4] (2d ed. 1995) .............15
7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER , FEDERAL PRACTICE AND PROCEDURE § 1904 (3d ed. 2007)...............................................19
7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER , FEDERAL PRACTICE AND PROCEDURE § 1909 (3d ed. 2007)...............................................16
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Proposed Defendant-Intervenors Pamela Reséndiz and Carolina Canizalez (“Proposed
Individual Defendant-Intervenors”), and the University Leadership Initiative (“ULI” or
“Proposed Organizational Defendant-Intervenor”), (collectively, “Proposed Defendant-
Intervenors” or “Movants”), are recipients of relief granted under the challenged action in this
case and hereby respectfully submit the following Brief and Memorandum of Law in Support of
Motion to Intervene as Defendants or in the Alternative, Motion for Leave to Participate as Amici
Curiae.
INTRODUCTION
Procedural Background
Plaintiffs, law enforcement officers of the United States and Immigration and Customs
Enforcement (“ICE”), filed this action against Defendants Janet Napolitano in her official
capacity as Secretary of Homeland Security, John Morton in his official capacity as Director of
Immigration and Customs Enforcement, and Alejandro Mayorkas in his official capacity as
Director of the United States Citizenship and Immigration Services (collectively, “Defendants”).1
Plaintiffs seek to halt the enforcement of the June 15, 2012 Memorandum issued by Defendant
Napolitano entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came
to the United States as Children” (the “DHS Memorandum” or “DACA”). Dkt. 24 at 24.
The DHS Memorandum states that ICE agents should “exercise their [prosecutorial]
discretion, on an individual basis, in order to prevent low priority individuals from being placed
into removal proceedings.” Dkt. 15, App. A at 2. The memorandum identifies as “low priority”
certain young people who were brought to the United States and did not have the intent to violate
1 The State of Mississippi, by and through Governor Phil Bryant, was originally added as a plaintiff, but the Courtdismissed its claims for lack of standing. Dkt. 41 at 32.
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U.S. immigration laws at the time of entry. See id. at 2. Specifically, in order to qualify for
relief under DACA, applicants must complete a background check and must: have come to the
United States under the age of sixteen and not be older than thirty; have continuously resided in
the United States for at least five years; have a high school diploma, general education
development certificate (GED), or honorable discharge from the Coast Guard or the Armed
Forces of the United States; and must not have a conviction for a felony, “significant
misdemeanor,”2 multiple misdemeanor offenses, or otherwise pose a threat to national security or
public safety. Applicants also must have entered without inspection or have expired immigration
status prior to June 15, 2012.
3
Plaintiffs seek declaratory relief on six causes of action: (1) the DHS Memorandum
violates 8 U.S.C. § 1225 because the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”) requires Plaintiffs to initiate removal proceedings when they encounter
illegal immigrants who are not “clearly and beyond a doubt entitled to be admitted,” and that any
“prosecutorial discretion” can only be exercised after removal proceedings have been initiated;
(2) the DHS Memorandum violates federal law because it confers deferred action, which is not
authorized by federal law or regulation; (3) the DHS Memorandum violates federal law because
it uses “prosecutorial discretion to grant employment authorization to unlawfully present aliens”
2 USCIS has defined the “significant misdemeanor” category as any offense involving “domestic violence, sexualabuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving
under the influence. . . or any offense for which the individual was sentenced to time in custody for more than 90days.” See “Consideration of Deferred Action for Childhood Arrivals Process: Frequently Asked Questions,”(“DACA FAQ”), Nov. 16, 2012, available athttp://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD.
3 Instructions for Consideration of Deferred Action for Childhood Arrivals” USCIS form I-821D, p.1, available athttp://www.uscis.gov/files/form/i-821d.pdf.
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without authorization by federal law;4 (4) the DHS Memorandum violates Article I, Section 1 of
the U.S. Constitution, the allocation of legislative power to Congress; (5) the DHS Memorandum
violates Article II, Section 3 of the U.S. Constitution, which obligates the Executive branch to
take care that laws are faithfully executed; and (6) the DHS Memorandum violates the
Administrative Procedures Act because it confers a benefit without a regulatory implementation.
See Dkt. 15 at 15-24.
On April 8, 2013, the Court heard Plaintiffs’ Application for Preliminary Injunction and
later found that Plaintiffs are likely to prevail on their first and sixth claims, but deferred ruling
on the preliminary injunction pending further briefing from the parties, due May 6, 2013. See
Dkt. 58 at 1.
Proposed Defendant-Intervenors
Proposed Individual Defendant-Intervenors Pamela Reséndiz and Carolina Canizalez are
undocumented immigrants5 who have received deferred action and employment authorization
under the DHS Memorandum. Ex. C at ¶ 5; Ex. D at ¶ 7. Ms. Reséndiz has resided in the
United States since she was nine-years old. Ex. C at ¶ 2. She graduated from high school in
Rockwall, Texas and, thereafter, attended the University of Texas at San Antonio (“UTSA”)
after earning admission. See id. at ¶ 3. In 2012, she graduated with a Bachelor of Arts in
Political Science and Latin American Studies. See id. at ¶ 4. She currently works as a facilitator,
assisting at-risk students and parents, and resides in Travis County. See id. at ¶ 7.
Ms. Canizalez first came to the United States when she was ten-years old. Ex. D at ¶ 2.
She grew up in San Antonio, Texas. She graduated from Alamo Heights High School with a 4.0
4 The Court ) dismissed this claim without prejudice because Plaintiffs failed to allege sufficient injury to satisfystanding as to the issuance of employment authorization. See Dkt. 27 at 26.
5 The term “undocumented immigrants” is used to describe persons residing in the United States who do not haveauthorization by the U.S. government to reside in the United States.
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grade point average and later, from UTSA with Honors. See id. at ¶¶ 3, 6. She currently resides
in Bexar County, Texas, and works as a National Coordinator for United We Dream (“UWD”), a
national, nonpartisan, immigrant youth-led organization that advocates for the dignity and fair
treatment of immigrant youth and families, regardless of immigration status. See id. at ¶¶ 2, 3,
8.
Founded in 2005, ULI is a membership-based association and student organization of
UT-Austin. Ex. D at ¶ 4. ULI’s mission is to advance the educational attainment and civil rights
of undocumented immigrant youth. Ex. D at ¶ 10. ULI promotes higher education for
immigrant students; encourages civic participation among undocumented immigrant students insecondary schools; and conducts outreach at the local, state and national level to address
problems faced by undocumented immigrant students in college. See id. at ¶¶ 11-16.
ULI’s membership is comprised of college students currently attending UT-Austin. See
id . ULI’s members provide mentorship and support to undocumented immigrant students in
secondary schools. See id. at ¶ 3. Through these volunteer activities, ULI fulfills its
organizational mission to encourage young, undocumented immigrant students to succeed
academically, graduate from high school, and attend institutions of higher education. See id .
Many undocumented immigrant student members of ULI have either received, or are eligible for,
deferred action under the DHS Memorandum, and require deferred action so that they can
continue to pursue higher education without the threat of deportation interfering with their
studies. See id. at ¶ 18. Moreover, eligible student members rely on income earned through
work authorization in order to be able to afford college. See id. at ¶ 19.
Preserving the ability of undocumented immigrant students to pursue higher education is
vital to the organizational mission, goals and objectives of ULI and is critical to ULI’s members’
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ability to attend school. See id. at ¶ 16. For this reason, ULI and its members have sponsored
and conducted educational forums and events to provide information to members on the deferred
action application process under the DHS Memorandum. See id.
Movants have a unique interest in the subject matter of this litigation that supports their
intervention. First, they have a personal interest in the continued implementation of the DHS
Memorandum because of the deferred action they receive under the DHS Memorandum.
Second, an injunction would force Proposed Organizational Defendant-Intervenor to expend
additional resources educating members about the effect of the injunction on their applications
for deferred action, and would impair ULI’s members’ ability to achieve higher education andcivic participation. See id. at ¶ 20. As long as the DHS Memorandum remains in force, Movants
have the assurance from the federal government that they will not be deported, allowing them to
pursue educational opportunities and support themselves financially with work authorization.
See New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.1984)
(en banc) (finding that third persons who have an interest in a declaratory judgment action that is
“direct, substantial, and legally protectable” may be allowed to intervene in a declaratory
judgment action).
Proposed Defendant-Intervenors’ Requested Relief
As set forth below, Plaintiffs’ requested injunctive relief, if granted, is impermissibly
overbroad and would substantially impair the interests of Proposed Defendant-Intervenors.
Defendants’ attorneys cannot adequately represent Proposed Defendant-Intervenors’ interests
because they represent Defendants’ employers and, as demonstrated by the April 8 hearing on
Plaintiffs’ Application for Preliminary Injunction, they have an adverse interest in minimizing
Plaintiffs’ apparent wrongful enforcement of both 8 U.S.C. § 1225 and the DHS Memorandum.
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Allowing Movants to participate as intervenors will ensure that their interests are adequately
protected and will provide Movants the opportunity to present and cross-examine witnesses, and
offer other relevant evidence and argument that will assist the Court with rendering a decision in
this important case.
In the alternative, Proposed Defendant-Intervenors seek to participate as amici curiae to
assist the Court by providing the statutory analysis the Court requested but that the parties did
not present in preliminary injunction briefing or during the hearing. Dkt. 58 at 12; 4/8/13 Tr. at
154-55, 197:23-198:20. As amici curiae, Proposed Defendant-Intervenors would expound on
federal immigration law to explain why DACA-eligible individuals like Movants and Movants’members are exempt from 8 U.S.C. § 1225(b)(2)(A), and to demonstrate that the DHS
Memorandum does not confer a substantive benefit so as to trigger administrative rulemaking
requirements. See generally Ex. B.
Because Movants meet all the requirements for intervention under Rule 24(a)(2), they
respectfully request that their motion to intervene be granted, or in the alternative, that they be
permitted to participate as amici curiae.
ARGUMENT
I. INTERVENTION AS OF RIGHT IS WARRANTED
Rule 24(a) states:
On timely motion, the court must permit anyone to intervene who: (1) is given anunconditional right to intervene by a federal statute; or (2) claims an interestrelating to the property or transaction that is the subject of the action, and is sosituated that disposing of the action may as a practical matter impair or impedethe Movants’ ability to protect its interest, unless existing parties adequatelyrepresent that interest.
Fed. R. Civ. P. 24(a). To intervene as of right under Rule 24(a)(2), an applicant must meet four
requirements: (1) the motion to intervene is timely; (2) the potential intervener asserts an interest
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that is related to the basis of the controversy in the underlying case; (3) the disposition of the
case may impair or impede the potential intervenor's ability to protect his interest; and (4) the
existing parties do not adequately represent the potential intervenor's interests. See Saldano v.
Roach, 363 F.3d 545, 551 (5th Cir. 2004).
The Fifth Circuit has construed Rule 24(a) broadly in favor of intervenors. See John Doe
No. 1 v. Glickman, 256 F.3d 371, 375 (5th Cir. 2001). “[T]he inquiry under subsection (a)(2) is a
flexible one, which focuses on the particular facts and circumstances surrounding each
application.” Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir. 1996). “[I]ntervention of
right must be measured by a practical rather than technical yardstick.” See id. at 999 (quotationomitted). Accordingly, courts, as a general matter, allow intervention where “no one would be
hurt and greater justice could be attained.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.
1994) (citing Glickman, 256 F.3d at 375) (internal quotation marks omitted).
A. Movants’ Motion to Intervene is Timely.
In determining whether a motion for intervention is timely under Fed. R. Civ. P. 24(a)(2),
the Court should consider: 1) the length of time between the potential intervenor's learning that
its interest is no longer protected by the existing parties and its motion to intervene, (2) the extent
of prejudice to the existing parties from allowing late intervention, (3) the extent of prejudice to
the potential intervenor if the motion is denied, and (4) any unusual circumstances. See
Stallworth v. Monsanto Co., 558 F.2d 257, 264-66 (5th Cir. 1977); In re Lease Oil Antitrust
Litig., 570 F.3d 244, 247-48 (5th Cir. 2009).
The length of time from which timeliness is defined is broad and not exact or precisely
measureable. See Stallworth, 558 F.2d at 263 (quotation omitted). Timeliness is favored when a
motion is filed prior to entry of judgment “as most . . . case law rejecting petitions for
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intervention as untimely concern motions filed after” a judgment is rendered. Edwards, 78 F.3d
at 1001.
“The timeliness clock runs. . . from the time [Movants] became aware that [their]
interests would no longer be protected by the existing parties to the lawsuit.” Edwards, 78 F.3d
at 1000 (quotations and citations omitted). As Defendant Napolitano issued the DHS
Memorandum, Movants had no reason to doubt that Defendants would fully protect their
interests under the Memorandum when Plaintiffs filed this lawsuit in August of 2012. The
earliest date that Movants could have known that their interests would not be protected by
existing parties was April 8, 2013, the date of the preliminary injunction hearing. During thehearing, Plaintiffs’ counsel frequently elicited testimony, without objection from Defendants’
counsel, from all three witnesses that was misleading and/or incorrect, speculative, lacked
foundation, or constituted hearsay. For example, Plaintiffs’ witnesses consistently inferred that
the DHS Memorandum only applies to individuals who have not been admitted, and therefore,
all DACA-eligible individuals trigger 8 U.S.C. § 1225(a). This is incorrect. Not all DACA-
eligible applicants arrived in the United States without lawful admission.6 Without counter
testimony or evidence, however, the Court had little choice but to accept Plaintiffs’
interpretation. Dkt. 58 at 10 (“By the Directive’s terms, any Directive-eligible alien would be
one “who has not been admitted” and is therefore deemed an “applicant for admission” for
purposes of Section 1225.”).
6 Eligible applicants may have entered without inspection or have expired immigration status prior to June 15, 2012.“Instructions for Consideration of Deferred Action for Childhood Arrivals” USCIS form I-821D, Ex. F at 1. Forexample, Proposed Defendant-Intervenor Canizalez overstayed a validly-issued visa and was previously inspectedupon arrival. Ex. D at ¶ 2. Before the DHS Memorandum, had Plaintiffs encountered her, she would not have beenan “applicant for admission” under 8 U.S.C. § 1225(a), because she was admitted.
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As another example, Plaintiff Martin testified that all immigrant detainees in El Paso are
now “training” each other to “assert DACA” in the jails and detention centers where they are
being held. 4/8/13 Tr. at 50-51. He stated that when a detainee volunteers that they are eligible
for “Dream Act,” enforcement officers continue asking eligibility questions. 4/8/13 Tr. at 50:14-
20. He further testified that even if an individual is dangerous, he has “to release him out to the
street.” 4/8/13 Tr. at 51:9-10.7 The DHS Memorandum states explicitly that Plaintiffs should
not consider an individual “for an exercise of prosecutorial discretion” if he poses a threat to
public safety. Dkt. 15, App. A at 1. Movants could not have anticipated that Defendants, who
are federal government officials, would fail to present government witnesses to counterPlaintiffs’ testimony about their apparent wrongful enforcement of the DHS Memorandum, and
who could explain the proper implementation of the DHS Memorandum on the ground.
Similarly, Movants could not have anticipated that Plaintiffs were raising an “as applied”
challenge to the DHS Memorandum, because they did not plead an “as applied” claim in their
Amended Complaint.
Even if the Court finds that the parties’ briefing provided reasonable notice to Movants,
the earliest that Movants could have known that Defendants were not protecting their interests
was December 19, 2012, the date Defendants filed their Response to Plaintiffs’ Application for
Preliminary Injunction. (Dkt. 34). The Fifth Circuit has found that a five-month lapse is not
unreasonable. See Association of Professional Flight Attendants v. Gibbs, 804 F.2d 318, 320-21
(5th Cir. 1986).8
7 Plaintiff Martin also estimated that a quarter of the detainees he intakes are released because of DACA. See 4/8/13Tr. at 52:15-19. This testimony lacked foundation and came from an enforcement agent who could not possiblyhave had access to those numbers, especially based on previous testimony from Plaintiff Crane that “all offices aredeleting records” of individuals released. Id. at 97-98.
8 Proposed Defendant-Intervenors ordered a transcript of the hearing on April 9, 2013, and received the hearingtranscript on April 29, 2013, less than a week from the date of this filing.
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Regarding the second timeliness factor, Movants’ intervention will not cause prejudice to
the existing parties. See Ford v. City of Hunstville, 242 F.3d 235, 240 (5th Cir. 2001) (finding
that prejudice is only created by “the intervenor’s delay in seeking to intervene after it learns of
its interest”) (citing Ceres Gulf v. Cooper , 957 F.2d 1199, 1203 (5th Cir. 1992)); see also
Stallworth, 558 F.2d at 265 (“[T]he prejudice to the original parties to the litigation that is
relevant to the question of timeliness is only that prejudice which would result from the would-
be intervenor’s failure to request intervention as soon as he knew or reasonably should have
known about his interest in the action”). As stated above, Intervenors only recently learned of
how their interest is not being protected. And although the Court has conducted the preliminaryinjunction hearing, the Court has not entered its final ruling on the matter nor its Scheduling
Order in this case, and the parties have not conducted any discovery or depositions. Neither
Plaintiffs nor Defendants would be prejudiced by the timing of Movants’ intervention.
On the other hand, Movant and its members would be severely prejudiced if this Court
denies this motion to intervene. In Stallworth, the Fifth Circuit framed the question of prejudice
against proposed intervenors who are denied intervention in terms of whether “a [Rule 24]
section (a) intervenor ‘may be seriously harmed if he is not permitted to intervene.’” 558 F.2d at
266 (quotation ommitted). In this case, distinct from Defendants, Movants and Movants’
members, as undocumented immigrants, have a direct, personal (and financial) stake in the
outcome of this case. The Court indicated that it is inclined to grant Plaintiffs’ requested
injunctive relief and enjoin the enforcement and implementation of the DHS Memorandum in its
entirety. Dkt. 58 at 1. If the Court enjoins the implementation of the DHS Memorandum,
Proposed Individual Defendant-Intervenors will fall out of deferred action status and will lose
work authorization, which will in turn risk their employment. Proposed Organizational
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Defendant-Intervenor’s members will similarly not be eligible for deferred action or work
authorization, and will lose the opportunity for financial support from work authorization. In
addition, Organizational Defendant-Intervenor’s education efforts and mentoring work with
undocumented immigrant students in secondary schools will be profoundly affected by having to
shift limited resources to address this substantial change in practice.
As nonparties, Movants will be affected by any court-ordered remedy, but will not be
able to participate in presenting evidence and argument in support of their defenses or to appeal
the ruling. See Edwards, 78 F.3d at 1002–03; see also Lease Oil Antitrust Litig., 570 F.3d at
249–50 (“Intervening in the existing federal lawsuit is the most efficient, and most certain, wayfor [the potential intervenor] to pursue its claim.”). Without the ability to intervene, Movants
will be relegated to the sidelines in a case in which their interests will be represented and
determined by other parties.
As the targets of Plaintiffs’ lawsuit, Movants’ members respectfully urge the Court to
grant them an opportunity to present their case and protect their interests as undocumented
immigrants. Considering each of the factors above, Movants’ intervention is timely because: (1)
Movant promptly filed this motion; (2) the existing parties will not be prejudiced if the Court
permits intervention at this juncture; and (3) Movants’ members will be greatly harmed if this
motion is denied because they will not be able to protect their interests before the Court.
B. Movants Seek to Vindicate a Protectable Interest
Movants also satisfy the requirements of Rule 24(a)(2) because they have a protectable
interest in the subject matter of this litigation that would be otherwise impaired by an adverse
decision. Movants’ protected interest does not have “to be of a legal nature identical to that of
the claims asserted in the main action.” Diaz v. S. Drilling Corp., 427 F.2d 1118, 1124 (5th Cir.
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1970). Indeed, “[a]ll that is required by the terms of the rule is an interest in . . . [the] rights that
are at issue, provided the other elements of intervention are present.” Id.; see also Donaldson v.
United States, 400 U.S. 517, 531 (1971) (holding that Rule 24(a)(2) requires only “a significant
protectable interest”). Ultimately, “the interest ‘test’ is primarily a practical guide to disposing
of lawsuits by involving as many apparently concerned persons as is compatible with efficiency
and due process.” Ross v. Marshall, 426 F.3d 745, 757 (5th Cir. 2005).
Here, Proposed Individual Defendant-Intervenors’ interest is to maintain their deferred
action status and work authorization, and the opportunity to reapply for deferred action in two
years, which Movants would not otherwise have without the implementation of the DHSMemorandum. Proposed Organizational Defendant-Intervenor seeks the same for its members,
as well as the ability to apply for deferred action for its members who have not yet applied.
Movants’ interest is therefore sufficient under Diaz.
Courts have routinely granted intervention to parties seeking to protect their interests in
government programs that affect them. For example, in Kansas, a federal district court allowed
students and Latino organizations to intervene in a case concerning a challenge to state
legislation that made undocumented immigrant students eligible for in-state tuition rates. See
Day v. Sebelius, 227 F.R.D. 668, 670 (D. Kan. 2005) (granting motion to intervene as defendants
filed by the Kansas League of United Latin American Citizens, the Hispanic American
Leadership Organization, and three college students). Similar to Day, where the proposed
intervenors accessed college in-state tuition rates pursuant to a state law challenged by the
plaintiffs, see id. at 673, Proposed Individual Defendant-Intervenors and Proposed
Organizational Defendant-Intervenor members are current undocumented immigrant students
who have a direct stake in the opportunity to apply for deferred action and work authorization
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under the DHS Memorandum. See also Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir.
1989) (detainees seeking to intervene as a matter of right in an action brought by a U.S. Senator
to challenge housing of alien felons at a particular facility had an interest relating to the main
suit).
Similarly, courts have held that persons affected by government programs had sufficient
interest in the action to meet the interest prerequisite for intervention. For example, in Lewis v
Stark , 312 F. Supp. 197 (N.D. Cal. 1978), rev’d on other grounds 397 US 552 (1980), the
plaintiffs sought a declaration that the state welfare law, which provided that a man assuming the
role of spouse in a home is bound to support children in the home, was unconstitutional andcontrary to federal regulations interpreting the Social Security Act. Id . at 199. The court held
that families with men assuming the role of spouse in the household were entitled to intervene as
of right under Rule 24(a). Id . In the same way, Movants here have shown strong and legally
cognizable interests related to the DHS Memorandum.
Furthermore, Movants stand to lose economic opportunities if the Court grants Plaintiffs’
request, because they would no longer have access to work authorization. In order to receive
work authorization, Movants had to demonstrate “economic necessity” by submitting an
application for employment authorization listing his or her “assets, income, and expenses as
evidence of his or her need to work.” 8 C.F.R. § 247 a.12(e); 45 C.F.R. § 1060. Courts have
held that economic interests, especially those that would “afford [movants] greater recompense
and satisfaction,” are a significant protectable interest. Usery v. Brandel, 87 F.R.D. 670, 676
(W.D. Mich. 1980); see also Decker v. United States Department of Labor, 473 F. Supp. 770
(E.D. Wis. 1979) (holding that a city archdiocese which received financial benefits from a
federal statute had a sufficient interest in the action to intervene as of right under Rule 24(a)(2)).
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Movants’ interests diverge from the broader interests that Defendants pursue:
Defendants are responsible for issuing and implementing the DHS Memorandum, but none of the
existing Defendants are or ever will be directly affected by the DHS Memorandum. Instead,
their interest in the DHS Memorandum is to “ensure that [DHS’s] enforcement resources are not
expended on [] low priority cases but are instead appropriately focused on people who meet our
enforcement priorities.” Dkt. 1 at 23. Therefore, Movants ask the Court to provide them the
opportunity to defend their own interests under the DHS Memorandum.
C. Movants’ Interests Would be Impaired if Intervention Were Denied.
Movants are “so situated that the disposition of the action may as a practical matterimpair or impede [its] ability to protect [its] interest.” Fed. R. Civ. P. 24(a)(2); Texas E.
Transmission Corp., 923 F.2d 410, 413 (5th Cir. 1991). Here, the advisory committee notes to
Rule 24(a) are instructive: “[i]f an absentee would be substantially affected in a practical sense
by the determination made in an action, he should, as a general rule, be entitled to intervene.”
Fed. R. Civ. P. 24 advisory committee’s note to 1966 Amendment. To demonstrate
“impairment,” a prospective intervenor “must show only that impairment of its substantial legal
interest is possible if intervention is denied.” Grutter v. Bollinger , 188 F.3d 394, 399 (6th Cir.
1999) (citing Mich. State AFL-CIO v. Miller , 103 F.3d 1240, 1247 (6th Cir. 1997)) (emphasis
added). This burden is minimal. See Grutter , 188 F.3d at 399 (rejecting the notion that Rule
24(a)(2) requires a specific legal or equitable interest).
There is no doubt that the relief Plaintiffs seek in this case – barring undocumented
immigrant youth from the opportunity to apply for deferred action status and work authorization
that they would not otherwise have access to – will effectively impair access to higher education
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and employment for Movants and Movants’ members, in addition to disrupting their current
college studies.
Movants should not be required to wait until the conclusion of the litigation to vindicate
their interests. Courts have recognized that parties seeking intervention would face a “practical
disadvantage” in asserting their rights once a court has rendered a decision. Chiles, 865 F.2d at
1214. The Fifth Circuit has recognized that a prospective intervenor’s interest may be practically
“impaired by the stare decisis effect” of a court’s rulings in subsequent proceedings. Sierra
Club, 18 F.3d at 1207 (quoting Ceres Gulf , 957 F.2d at 1204) (italics in original); see also
Martin v. Travelers Indem. Co., 450 F.2d 542, 554 (5th Cir. 1971) (“[S]tare decisis . . . wouldloom large” in any attempt by prospective intervenors “to achieve a favorable resolution of the
coverage issue” on their own.); Black Fire Fighters Ass’n of Dallas v. City of Dallas, 19 F.3d
992, 994 (5th Cir. 1994) (to the extent that a lawsuit involves common legal issues, potential
adverse effects on the prospective intervenors favor intervention). Therefore, Movants
respectfully request that the Court grant their motion for intervention at the earliest time possible
in order to protect their direct and substantial interests.
D. The Existing Defendants Will Not Adequately Represent Movants’ Interests
The burden under this prong is “satisfied if Movant shows that representation of his
interest ‘may be’ inadequate; and the burden of making that showing should be treated as
minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972). Courts
have recognized that “[i]nadequate representation is most likely to be found when the applicant
asserts a personal interest that does not belong to the general public.” Forest Conservation
Council v. U.S. Forest Serv., 66 F.3d 1489, 1498 (9th Cir. 1995) (quoting 3B JAMES WM. MOORE
ET AL., MOORE’S FEDERAL PRACTICE ¶ 24.07[4] (2d ed. 1995)). Intervention is warranted when
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the proposed intervenors “occup[y] a different position and [have] different interests” than the
existing defendants. Sierra Club v. Fed. Emergency Mgmt. Agency, No. 07-0608, 2008 U.S.
Dist. LEXIS 47405, at *18-19 (S.D. Tex. June 11, 2008).
Courts have recognized that governmental representation of private, non-governmental
intervenors may be inadequate. For example, in Dimond v. District of Columbia, the court held
that because the government was responsible for representing a broad range of public interests
rather than the more narrow interests of intervenors, the “application for intervention . . . falls
squarely within the relatively large class of cases in this circuit recognizing the inadequacy of
governmental representation of the interests of private parties in certain circumstances.” 792F.2d 179, 192 (D.C. Cir. 1986); see Gen. Tel. Co. of the Nw., Inc. v. EEOC , 446 U.S. 318, 331
(1980) (granting individual aggrieved party’s motion to intervene in order to protect its personal
interests, which may at times be in conflict with those of the EEOC); see also Natural Res. Def.
Council v. Costle, 561 F.2d 904, 910-911 (D.C. Cir. 1977) (holding that the government does not
adequately represent private organizations because intervenors’ interests are different). Finally,
the burden is on those opposing the intervention to show that representation of Movants’
personal interests will be sufficient. See 7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER ,
FEDERAL PRACTICE AND PROCEDURE § 1909 (3d ed. 2007).
In this case, the different interests of Movants and Defendants demonstrate the need for
Movants’ participation. First, Defendants are Plaintiffs’ employers and have an interest in
protecting the image of their agencies and the competency of their employees. As shown, supra,
Plaintiff witnesses at the April 8 hearing indicated that they received instructions from
unidentified superiors to exercise favorable discretion and release detainees who posed a threat
to public safety, in direct contravention of the DHS Memorandum. See also 4/8/13 Tr. at 12. In
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addition, Plaintiff witnesses intimated that but for the DHS Memorandum, they would issue
Notices to Appear (NTAs) to DACA-eligible detainees under Section 1225, and in fact did so
routinely before receiving the Memorandum. See, e.g., 4/8/13 Tr. at 27:17-25. Such acts
actually violate Section 1225, however, because any detainee who is eligible for DACA would
also be eligible for an exemption under 8 U.S.C. § 1225(b)(2)(A).9 If these officers are acting on
instructions they receive from their superiors, Defendants have an incentive not to offer evidence
in order to avoid impeaching their own officers and/or tarnishing the image of the competency of
their offices.
In addition, if Plaintiffs are successful and obtain an injunction, Defendants will notexperience the severe and direct negative financial consequences, as well as living in constant
fear each day of being deported, imposed on Proposed Individual Defendant-Intervenors and
Organizational Defendant-Intervenor’s members. Defendants, on the other hand, have no direct
personal interest at stake. See, e.g., Day, 227 F.R.D. at 674 (“To the court’s knowledge, none of
these existing defendants are or ever will be personally impacted by [the in-state tuition law].”).
Instead, Defendants will be merely required not to implement the DHS Memorandum.
Defendants’ objectives and interests in the outcome of this case simply do not match Movants’
personal interest in defending and maintaining the DHS Memorandum.
9 The statutory section at issue includes an exception at 8 U.S.C. § 1225(b)(2)(B)(ii), providing that it is inapplicableto a person to whom 8 U.S.C. § 1225(b)(1) applies. In turn, 8 U.S.C. § 1225(b)(1) exempts from the description of
persons who shall be detained as persons who establish “to the satisfaction of the immigration officer, that. . .[s/he]has been physically present in the United States continuously for the 2-year period immediately prior to ‘theofficer’s determination of inadmissibility under [8 U.S.C. § 1225(b)(1)(A)].’ ” 8 U.S.C. § 1225(b)(1)(A)(iii). Underthis subsection, an ICE officer who is targeting a detainee must allow the detainee an opportunity to demonstrate therequisite two years of continuous presence that would exempt them from enforcement of the statute. To qualify forfavorable discretion under DACA, an applicant must show that s/he has continuously resided in the United States forat least five years preceding the date of the DACA directive. Accordingly, Plaintiffs will not suffer negativeemployment consequences for refraining from initiating proceedings against DACA-eligible detainees under Section1225, because those individuals are automatically exempted. Ironically, Plaintiffs are requesting an injunction sothat they can violate federal law, not comply with it.
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Furthermore, Movants request intervention because they would bear the greatest cost
under a favorable ruling for Plaintiffs. An unfavorable decision may certainly upset some of
Defendants’ stated objectives, but it would also alleviate some of the political pressures.10 Even
assuming Defendants’ best intentions, they may be hesitant to advance relevant arguments for
access to better opportunities for undocumented immigrants because it would expose them to
severe public scrutiny and criticism.
Defendants’ potential and actual failure to advance certain arguments is sufficient to
satisfy Movants’ minimal burden that Defendants’ representation “may be” inadequate.
Trbovich, 404 U.S. at 538 n.10. Movants’ interests are too divergent from the interests ofDefendants, and too vital for Movants, to be denied an active role as intervenor. See Day, 227
F.R.D. at 674 (granting intervention and recognizing direct and personal interests of
undocumented immigrant student in defending an in-state tuition law). For these reasons,
Movants seek to participate in this case as intervenors and respectfully request that the Court
grant them intervention as a matter of right.
II. MOVANTS ARE ENTITLED TO PERMISSIVE INTERVENTION.
Should the Court determine that Movants are not entitled to intervene as a matter of right,
Movants urge the Court to exercise its broad discretion and allow intervention under F ED. R. CIV.
P. Rule 24(b). Under Rule 24(b):
10
Some have criticized the Obama Administration for DACA, calling it “amnesty,” a backdoor “DREAM Act,” andan attempt to pander to the Latino community. See, e.g., Federation for American Immigration Reform (FAIR), Number of Backdoor Amnesty Beneficiaries Grows Drastically as Administration Rushes Application Process (Oct.15, 2012), available at http://www.fairus.org/legislative-updates/fair-legislative-update-october-15-2012;SmashPipe, Nightly News with David Jones, Yet Another Obama Deception (March 29, 2013), available at http://news.smashpipe.com/?f=AbNPG0yHgOE#play/AbNPG0yHgOE (portraying DACA as “deception” and“amnesty” program); NumberUSA, Over 50,000 Illegal Aliens Received Amnesty, Work Permits under Obama's DACA Program (Nov. 29, 2012), available at https://www.numbersusa.com/content/news/november-19-2012/over-50000-illegal-aliens-received-amnesty-work-permits-under-obamas-daca-prog (portraying DACA as an “amnesty”
program).
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On timely application, the court may permit anyone to intervenewho: (A) is given a conditional right to intervene by a federalstatute; or (B) has a claim or defense that shares with the mainaction a common question of law or fact. . . (3) In exercising itsdiscretion, the court must consider whether the intervention will
unduly delay or prejudice the adjudication of the original parties’rights.
Rule 24(b). Similar to the burden under Rule 24(a), permissive intervention is to be granted
liberally under Rule 24(b). See 7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER , FEDERAL
PRACTICE AND PROCEDURE § 1904 (3d ed. 2007). “Permissive intervention is wholly
discretionary with the court . . . even though there is a common question of law or fact, or the
requirements of Rule 24(b) are otherwise satisfied.” New Orleans Pub. Serv., 732 F.2d at 470-471 (internal quotation marks and citation omitted). The Fifth Circuit has recognized that
permissive intervention may be granted in the Court’s discretion if: (1) the motion is timely; (2)
an applicant’s claim or defense has a question of law or fact in common with the existing action;
and (3) intervention will not delay or prejudice the adjudication of the rights of the original
parties. See Howse v. S/V , 641 F.2d 317, 320 n.4 (5th Cir. 1981); see also United States v.
LULAC , 793 F.2d 636, 644 (5th Cir. 1986) (“Although the court erred in granting intervention as
of right, it might have granted permissive intervention under Rule 24(b) because the intervenors
raise common questions of law and fact.”).
As a threshold matter, Movants’ motion to intervene is timely. See supra Section I.A.
Second, Movants’ defenses will share substantial questions of law and fact with the main action:
Movants seek to preserve access to the opportunity to apply for deferred action and work
authorization under the DHS Memorandum. Third, as discussed above, intervention will not
create delay or prejudice the existing parties. See id . Adding Movants as defendant-intervenors
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at this juncture of the lawsuit will not needlessly increase cost, delay disposition of the litigation,
or prejudice the existing parties.
Importantly, Movants’ participation in this lawsuit will offer evidence from the
perspective of undocumented immigrants, who are the real targets of this lawsuit and who have a
direct and personal stake in the outcome of this case. At a minimum, therefore, Movants ask the
Court to exercise its broad discretion and grant them permissive intervention.
III. MOVANTS ARE ENTITLED TO PARTICIPATE AS AMICUS CURIAE.
If the Court does not allow Movants to intervene, they respectfully request leave to
participate as amicus curiae in order to file the amicus brief attached as Exhibit B and to participate as amici throughout the remainder of this case. For the specific reasons set forth
supra, Part I, Movants have a vested interest in the outcome of this case under Local Rule 7.2.
CONCLUSION
For the foregoing reasons, Movants respectfully request that this Court grant their motion
to intervene, or in the alternative, grant them leave to participate as amicus curiae.
Dated: May 6, 2013 Respectfully submitted,
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, I NC.
s/Marisa Bono__________
Marisa BonoState Bar No. 24052874David G. HinojosaState Bar No. 24010689 Nina PeralesState Bar No. 24005046110 Broadway, Ste. 300San Antonio, Texas 78205E-mail: [email protected] Telephone: (210) 224-5476Telecopier: (210) 224-5382
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CLOUTMAN AND CLOUTMAN
Edward B. Cloutman IIIState Bar No. 04411000Edward B. Cloutman IV
State Bar No. 240740453301 Elm St.Dallas, TX 75226E-mail: [email protected] Telephone: (214) 939-9222Telecopier: (214) 939-9229
Attorneys for Proposed Defendant-Intervenors
CERTIFICATE OF SERVICE
I hereby certify that on May 6, 2013, I electronically filed the foregoing with the Clerk of
court by using the CM/ECF system which will send a notice of electronic filing to counsel of
record who are registered participants of the Courts CM/ECF system. I further certify that I
mailed the foregoing document and the notice of electronic filing by first-class mail to counsel of
record who are not CM/ECF participants as indicated in the notice of electronic filing.
By: _____ s/Marisa Bono _
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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTOPHER L. CRANE, DAVID A. )
ENGLE, ANASTASIA MARIE )CARROLL, RICARDO DIAZ, )LORENZO GARZA, FELIX )LUCIANO, TRE REBSTOCK, )FERNANDO SILVA, SAMUEL )MARTIN, and JAMES D. DOEBLER ) Civil Action No.
) 3:12CV32470Plaintiffs, )
)v. )
)
JANET NAPOLITANO, in her official )capacity as Secretary of Homeland )Security, JOHN MORTON, in his )official capacity as Director of )Immigration and Customs Enforcement, )And ALEJANDRO MAYORKAS, in his )Official capacity as Director of the United )States Citizenship and Immigration Services )
)Defendants, )
)and )
)PAMELA RESÉNDIZ, CAROLINA CANIZALEZ, )and the UNIVERSITY LEADERSHIP INITIATIVE )
)Proposed Defendant-Intervenors. )
APPENDIX TO PROPOSED DEFENDANT-INTERVENORS’
BRIEF AND MEMORANDUM OF LAW IN SUPPORT OF MOTION
TO INTERVENE AS DEFENDANTS OR IN THE ALTERNATIVE,
MOTION FOR LEAVE TO PARTICIPATE AS AMICI CURIAE
In compliance with Local Civil Rule 7.1(i), Plaintiffs submit this Appendix to
Reyes Plaintiffs Supplemental Response to Standing Arguments Raised by Defendant.
DESCRIPTION PAGE NO.
Exhibit A - Defendant-Intervenors’ Answer to Amended Complaintand Affirmative Defenses
Appx. 001-017
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DESCRIPTION PAGE NO.
Exhibit B - Brief of Pamela Resėndiz, Carolina Canizalez, and theUniversity Leadership Initiative as Amici Curiae in Support ofDefendants
Appx. 018-039
Exhibit C - Declaration of Pamela Resė
ndiz Appx. 040-044
Exhibit D - Declaration of Carolina Canizalez Appx. 045-049
Exhibit E - Declaration of Juana Guzman Appx. 050-055
Exhibit F - I-821D, Consideration of Deferred Action for ChildhoodArrivals
Appx. 056-062
Dated: May 6, 2013 Respectfully submitted,
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, I NC.
s/Marisa Bono__________
Marisa BonoState Bar No. 24052874David G. HinojosaState Bar No. 24010689
Nina PeralesState Bar No. 24005046110 Broadway, Ste. 300San Antonio, Texas 78205E-mail: [email protected] Telephone: (210) 224-5476Telecopier: (210) 224-5382
CLOUTMAN AND CLOUTMAN
Edward B. Cloutman III
State Bar No. 04411000Edward B. Cloutman IVState Bar No. 240740453301 Elm St.Dallas, TX 75226E-mail: [email protected] Telephone: (214) 939-9222Telecopier: (214) 939-9229
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Attorneys for Proposed Defendant-
Intervenors
CERTIFICATE OF SERVICE
I hereby certify that on May 6, 2013, I electronically filed the foregoing with the
Clerk of court by using the CM/ECF system which will send a notice of electronic filing
to counsel of record who are registered participants of the Courts CM/ECF system. I
further certify that I mailed the foregoing document and the notice of electronic filing by
first-class mail to counsel of record who are not CM/ECF participants as indicated in the
notice of electronic filing.
By: _____ s/Marisa Bono _
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EXHIBIT A
APPX.001
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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTOPHER L. CRANE, DAVID A. )ENGLE, ANASTASIA MAR IE )CARROLL, RICARDO DIAZ, )LORENZO GARZA, FELIX )LUCIANO, TRE REBSTOCK, )FERNANDO SILVA, SAMUEL )MARTIN, and JAMES D. DOEBLER ) Civil Action No.
) 3:12-CV-3247-0Plaintiffs, )
)v. )
)JANET NAPOLITANO, in her official )capacity as Secretary of Homeland )Security, JOHN MORTON, in his )official capacity as Director of )Immigration and Customs Enforcement, )And ALEJANDRO MAYORKAS, in his )Official capacity as Director of the United )States Citizenship and Immigration Services )
))
Defendants, ))
and ))
PAMELA RESÉNDIZ, CAROLINA CANIZALEZ, )and the UNIVERSITY LEADERSHIP INITIATIVE )
))
Defendant-Intervenors. ______ )
DEFENDANT-INTERVENORS’
ANSWER TO AMENDED COMPLAINT
AND AFFIRMATIVE DEFENSES
Pamela Reséndiz and Carolina Canizalez ( “Individual Defendant-Intervenors”), and the
University Leadership Initiative (“ULI” or “Organizational Defendant-Intervenor) (collectively,
APPX.002
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“Defendant-Intervenors”) by their undersigned counsel, hereby answer each of the numbered
paragraphs of the Amended Complaint filed by Plaintiffs in the above-styled action as follows:
ORIGINAL ANSWER
INTRODUCTION
1. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 1.
2. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended
Complaint is a Directive, but otherwise admit the allegations in the first sentence of paragraph 2.
Defendant-Intervenors deny the allegations in the second and third sentences of paragraph 2.3. Defendant-Intervenors admit the allegations in paragraph 3, but only to the extent
that the requirements listed by Plaintiffs are only some of the criteria that should be satisfied
before an individual is considered for prosecutorial discretion. Defendant-Intervenors deny the
allegation in paragraph 3 that unlawfully present aliens are granted privileges under the
Directive.
4. Defendant-Intervenors deny the allegation in paragraph 4.
5. Defendant-Intervenors admit the allegation in paragraph 5 only to the extent that
Plaintiffs bring this civil action and seek injunctive relief. Defendant-Intervenors deny that
Plaintiffs are entitled to relief, and that the implementation of Appendix A attached to Plaintiffs’
Amended Complaint is unlawful and unconstitutional.
6. Defendant-Intervenors deny the allegations set forth in paragraph 6.
7. Defendant-Intervenors deny the allegations set forth in paragraph 7.
8. Defendant-Intervenors deny the allegations set forth in paragraph 8.
APPX.003
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THE PARTIES
Plaintiffs
9. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 9. Defendant-Intervenors admit that ICE
Deportation Officers are authorized by law to arrest aliens for administrative immigration
violations or for any criminal offense against the United States and execute administrative and
criminal arrest warrants.
10. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 10. Defendant-Intervenors admit that ICEImmigration Enforcement Agents are authorized by law to arrest aliens for administrative
immigration violations, arrest any persons for felonies regulating the admission or removal of
aliens, and execute administrative arrest warrants.
11. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 11. Defendant-Intervenors admit that ICE
Immigration Enforcement Agents are authorized by law to arrest aliens for administrative
immigration violations, arrest any persons for felonies regulating the admission or removal of
aliens, and execute administrative arrest warrants.
12. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 12. Defendant-Intervenors admit that ICE
Immigration Enforcement Agents are authorized by law to arrest aliens for administrative
immigration violations, arrest any persons for felonies regulating the admission or removal of
aliens, and execute administrative arrest warrants.
APPX.004
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13. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 13. Defendant-Intervenors admit that ICE
Immigration Enforcement Agents are authorized by law to arrest aliens for administrative
immigration violations, arrest any persons for felonies regulating the admission or removal of
aliens, and execute administrative arrest warrants.
14. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 14. Defendant-Intervenors admit that ICE
Immigration Enforcement Agents are authorized by law to arrest aliens for administrative
immigration violations, arrest any persons for felonies regulating the admission or removal ofaliens, and execute administrative arrest warrants.
15. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 15. Defendant-Intervenors admit that ICE
Immigration Enforcement Agents are authorized by law to arrest aliens for administrative
immigration violations, arrest any persons for felonies regulating the admission or removal of
aliens, and execute administrative arrest warrants.
16. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 16. Defendant-Intervenors admit that ICE
Immigration Enforcement Agents are authorized by law to arrest aliens for administrative
immigration violations, arrest any persons for felonies regulating the admission or removal of
aliens, and execute administrative arrest warrants.
17. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 17. Defendant-Intervenors admit that ICE
Immigration Enforcement Agents are authorized by law to arrest aliens for administrative
APPX.005
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immigration violations, arrest any persons for felonies regulating the admission or removal of
aliens, and execute administrative arrest warrants.
18. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 18. Defendant-Intervenors admit that ICE
Deportation Officers are authorized by law to arrest aliens for administrative immigration
violations or for any criminal offense against the United States and execute administrative and
criminal arrest warrants.
19. Defendant-Intervenors admit the allegations set forth in paragraph 19.
20. Defendant-Intervenors lack knowledge or information sufficient to form a beliefabout the truth of the allegations in paragraph 20.
21. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 21.
Defendants
22.
Defendant-Intervenors admit the allegation in paragraph 22.
23.
Defendant-Intervenors admit the allegation in paragraph 23.
24. Defendant-Intervenors admit the allegation in the first sentence of paragraph 24.
Defendant-Intervenors lack knowledge or information sufficient to form a belief about the truth
of the allegations in the second sentence of paragraph 24.
25. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended
Complaint was a Directive, but otherwise admit the allegations in paragraph 25.
JURISDICTION AND VENUE
26. Defendant-Intervenors deny the allegations set forth in paragraph 26.
27. Defendant-Intervenors admit the allegations set forth in paragraph 27.
APPX.006
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THE DIRECTIVE AND RELATED EVENTS
28. Defendant-Intervenors admit the allegations set forth in paragraph 28.
29. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended
Complaint was a Directive, but otherwise admit the allegations in paragraph 29.
30. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended
Complaint is a Directive, but otherwise admit the allegations in paragraph 30.
31. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended
Complaint is a Directive, or that it confers benefits. Defendant-Intervenors otherwise admit the
allegations in paragraph 31.32. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended
Complaint is a Directive, or that it confers benefits. Defendant-Intervenors admit the remaining
allegation in paragraph 32 to the extent that DHS began receiving applications for deferred
action and work authorization in relation to Appendix A attached to Plaintiffs’ Amended
Complaint on August 15, 2012.
33. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended
Complaint is a Directive, or that it confers benefits. Defendant-Intervenors lack knowledge or
information sufficient to form a belief about the truth of the allegations in the first sentence of
paragraph 33. Defendant-Intervenors deny the allegations set forth in paragraph 33.
34. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended
Complaint is a Directive. Defendant-Intervenors otherwise lack knowledge or information
sufficient to form a belief about the truth of the allegations in paragraph 34.
35. Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 35.
APPX.007
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36. Defendant-Intervenors admit the allegations in paragraph 36 to the extent that the
Department of Homeland Security has published estimates of unauthorized immigrants residing
in the United States on its website and otherwise deny the allegations.
FEDERAL STATUTORY BACKGROUND
37. Defendant-Intervenors admit that H.R. Rep. 104-725 (1996), at 383 states
“[I]mmigration law enforcement is as high a priority as other aspects of Federal law
enforcement, and illegal aliens do not have the right to remain in the United States undetected
and unapprehended.” Defendant-Intervenors otherwise deny the rest of the allegations in
paragraph 37.38. Defendant-Intervenors admit the allegations in paragraph 38.
39. Defendant-Intervenors admit the allegations in paragraph 39.
40. Defendant-Intervenors admit that 8 U.S.C. § 1225(b)(2)(A) states that “[s]ubject
to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the
examining immigration officer determines that an alien seeking admission is not clearly and
beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section
1229a of this title.” Defendant-Intervenors otherwise the allegations set forth in paragraph 49.
41. Defendant-Intervenors deny the allegations in the first and second sentences of
paragraph 41. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended
Complaint is a Directive. Defendant-Intervenors lack knowledge or information sufficient to
form a belief about the truth of the remaining allegations in paragraph 41.
42. Defendant-Intervenors deny the allegations in paragraph 42.
43. Defendant-Intervenors deny the allegations in paragraph 43.
44. Defendant-Intervenors deny the allegations in paragraph 44.
APPX.008
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