usca dcc 14-5325 appellant reply brief [1542628] filed by joseph m. arpaio [service date 03162015 ]...

ORAL ARGUMENT MAY 4, 2015

Court of Appeals No. 14-5325

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JOSEPH M. ARPAIO,

Plaintiff-Appellant,

v.

BARACK OBAMA, ET AL.,

Defendants-Appellees.

APPEAL FROM A FINAL ORDER

OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

IN CIVIL CASE NO. 1:14-cv-01966-BAH

REPLY BRIEF OF PLAINTIFF-APPELLANT FOR REVERSAL OF THE

DISTRICT COURT’S ORDER AND REQUEST FOR ORAL ARGUMENT

Larry Klayman, Esq.

FREEDOM WATCH, INC.

2020 Pennsylvania Ave. NW, Suite 345

Washington, DC 20006

Tel: (310) 595-0800

Email: [email protected]

Attorney for Plaintiff-Appellant

USCA Case #14-5325 Document #1542628 Filed: 03/16/2015 of 51

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................................................................vi

GLOSSARY............................................................................................................ xi

SUMMARY OF ARGUMENT.................................................................................1

ARGUMENT.............................................................................................................4

I. APPELLEES’ PROGRAMS USURP CONGRESS’ PREROGATIVES....4

A. President’s Initiatives are Unconstitutional Usurpation of

Congress’Role......................................................................................... 4

B. Setting Policy Does Not Empower DHS to Rewrite Legislation............ 9

C. Congress Has Signaled Disapproval, not Approval................................11

D. Evidence After Closing Record Reveals Mandatory Nature of Rule.....12

E. Appellees’ Programs Must Comply with Administrative

Procedures Act .......................................................................................13

F. Appellant is Within Zone of Interests Under APA.................................16

II. APPELLANT HAS STANDING FOR THE CASE HE BROUGHT..........17

A. Appellant’s Standing is Uncontroverted.................................................17

B. Flawed Analysis of Standing Flows from Applying Wrong Category...19

C. Appellant Has Standing For the Case He Brought.................................22

D. “I Don’t Believe You” is not a Valid Challenge to Standing................26

E. Appellant Has Established Immediacy of the Harm..............................27

F. Appellant Has Established Appellees’ Programs as a Cause of Harm..27

G. Harm to Appellant is Redressable by Court Action...............................28

III. MISCHARACTERIZING WHAT IS BEFORE THE COURT.................30

A. There is no Lack of Resources for Enforcement, Only Lack of Will….30

B. Appellees Oppose a Lawsuit Sheriff Arpaio Never Filed......................32

C. Appellees Placed No Evidence in the Record of any Benefits..............32

CONCLUSION.......................................................................................................33

CERTIFICATE OF COMPLIANCE......................................................................34

CERTIFICATE OF SERVICE...............................................................................35


iii

TABLE OF AUTHORITIES

Cases

Arizona v. United States, 132 S.Ct. 2492 (2012) .....................................................24

Arizona v. United States, 641 F. 3d 339 (9th Cir. 2011) .........................................24

Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111 (D.C. Cir.

1999) .....................................................................................................................26

Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86 (D.C. Cir. 1986) ........................13

Chamber of Commerce v. DOL, 174 F.3d 206 (D.C. Cir. 1999) .............................15

Continental Airlines, Inc. v. CAB, , 522 F.2d 107 (D.C. Cir. 1974) ........................13

Fox v. Clinton, 684 F.3d 67 (D.C. Cir. 2012) ..........................................................27

General Elec. Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002) ......................................13

Gould Electronics Inc. v. U.S., 220 F.3d 169 (3rd Cir. 2000) .................................20

*Harisades v. Shaughnessy, 342 U.S. 580, 596-97 (1952) ....................................... 5

In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013) ................................................10

Macharia v. U.S., 334 F.3d 61 (D.C. Cir. 2003) .....................................................20

Morton v. Ruiz, 415 U.S. 199 (1974) .......................................................................15

New Jersey v. EPA, 626 F.2d 1038 (D.C. Cir. 1980) ..............................................15

* Authorities chiefly relied upon are marked with asterisks.


iv

Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979) ........................................................14

NRDC v. FDA, 710 F.3d 71 (2d Cir. 2013) .............................................................29

Plyler v. Doe, 457 U.S. 202, 205 (1982) .................................................................16

Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) ............................13

*Texas v. United States of America, No. 1:14-cv-254 (T.X.S. February 16, 2015) .4,

16, 17

United States v. Elionardo Juarez-Escobar, No. 140180 (W.D. Pa. Dec. 16, 2014) 7

Utility Air Regulatory Group v. E.P.A.,134 S.Ct. 2427, 2446 (2014) ....................... 6

Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) ................................................. 8

*Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ............................. 8

Constitutional Provisions

U.S. Const., Art. II, § 3 .............................................................................................. 7

Statutes 6 U.S.C. § 202 ............................................................................................................ 9

8 U.S.C. § 1103(a) ...................................................................................................10

Administrative Procedures Act ..................................................... v, 4, 11, 13, 14, 16

Rules

Fed.R.Evid. 801(d)(2) ....................................................................................... 12, 31


v

GLOSSARY

“FRCP” refers to the Federal Rules of Civil Procedure

“APA” refers to the Administrative Procedures Act

“INA” refers to the Immigration and Naturalization Act, as amended

“DHS” refers to the Department of Homeland Security

“USCIS” refers to the U.S. Citizenship and Immigration Service, a

component within the U.S. Department of Homeland Security

“ICE” refers to the Immigration and Customs Enforcement [Service], a

component within the U.S. Department of Homeland Security

“DACA” refers to a regulatory program created by President Barack Obama and

his Administration on June 15, 2012, called Deferred Action for Childhood

Arrivals, granting amnesty, immunity from prosecution or deportation, and

affirmative benefits to adult Illegal Aliens who originally entered the United States

as children

“DAPA” is a term sometimes used to refer to some portions of the Appellees’

November 20, 2014, amnesty programs, apparently meaning Deferred Action

for Parents of Americans. Appellees did not originally designate their new

programs with a project name, but have begun to use the name DAPA

Deferred action refers to a practice invented by the offices of the Executive

Branch responsible for enforcement of immigration laws to decline to pursue

deportation of illegal aliens in certain situations, originally for such purposes as

bridging a time gap in lawful status while an application is being processed


1

SUMMARY OF ARGUMENT

This is not a case about immigration. Rather, it is about unconstitutional

actions of the President of the United States through his Cabinet officers. As

Appellant’s counsel argued to the Honorable Beryl Howell, below, this case

implicates the rule of law and the integrity of our nation’s constitutional system.

This Court is now called upon to defend the integrity of the U.S.

Constitution. Prosecutorial discretion is asserted as a fig leaf to completely ignore

the laws enacted by Congress with regard to about 6 million people.

What is to stop a future president from simply directing the Internal Revenue

Service to stop collecting taxes on capital gains or stop collecting income taxes

above a rate lower than set by Congress?1 Indeed, who would have standing to

challenge taxes left uncollected from another person? What is to stop a future

president from refusing to enforce environmental laws, labor union protections,

securities laws, voting rights laws, or civil rights laws, on a claim of prosecutorial

1 “Obama defends legal reasoning behind his new immigration plan,”

Christi Parsons, The Los Angeles Times, November 23, 2014, (“George

Stephanopoulos asked the Democratic president whether one of his successors,

unable to get Congress to cut taxes, could simply opt to look the other way if

wealthy people decided not to pay a percentage of their capital gains tax.

‘Absolutely not,’ Obama said.”) http://www.latimes.com/nation/la-na-obama-

immigration-interview-20141123-story.html


2

discretion? May a future president direct the IRS not to collect the penalty

supporting ObamaCare’s ‘individual mandate,’ producing actuarial collapse?

Appellees ask this Court to endorse this power grab. Constitutional

government in the United States would end in all but name. Any future President

may ignore the law claiming ‘prosecutorial discretion’ wholesale rather than retail.

This Court must hold back this flood. Respectfully, this Court must reverse

the decision of the U.S. District Court for District of Columbia (“District Court”)

and order that the President of the United States follow the laws which he is

commanded to “faithfully” execute by the U.S. Constitution. Appellees cannot

suffer any cognizable burden from obeying the laws that Congress passed.

Appellant asks that Appellees obey Congress, including legal restrictions

under the Administration Procedures Act (“APA”). However, Judge Howell below

confused this case, as Appellees do here, as a policy dispute between Sheriff

Arpaio of Maricopa County, Arizona, (“Sheriff Arpaio”) and the U.S. Government.

Appellees blur lines between Congress and the President, wrapping themselves in

Congress’ authority in order to defy Congress. This is not a political or policy

dispute as Judge Howell incorrectly analyzed it.

The Executive Branch seeks to raise its own “policies” above Congressional

statutes. Executive Branch policies are not the “supreme law of the land” as


3

Congressional enactments are. Article VI, Cl. 2 of the U.S. Constitution.

Concerning standing, the District Court erroneously analyzed standing in

relation to an abstract policy dispute between Appellant, Sheriff and the Executive

Branch.

Appellant submitted two sworn affidavits from Sheriff Arpaio. (JA161-

188;654-662) Appellees submitted no affidavits or evidence of any kind on any

topic. Yet throughout its Memorandum Opinion and Order, the District Court

relied upon assumptions, inferences and unproven assertions of fact in conflict

with the obligation to take as true all allegations and inferences drawn therefrom

for the FRCP Rule 12(b)(1) motion.

Appellant has already suffered severe financial harm and burdens from the

2012 DACA in 2013 and 2014. As but one example, from February 1, 2014,

through December 17, 2014, the costs of holding inmates flagged with INS

“detainers” in the Sheriff’s jails was $9,293,619.96. (JA 660).

The District Court also ruled that the court did not have the power to redress

Sheriff Arpaio’s injury from the independent actions of third parties. On the

contrary, nearly all regulations successfully challenged in this Court – most

frequently environmental regulations – involve regulations that shape the behavior

of independent third-party actors. To accept the District Court’s ruling, this Court


4

now would abandon almost any role in reviewing any government regulations.

Here, Appellees programs create a double-negative. Current, governing law

mandates that the Defendants deport third party actors entirely from U.S. soil.

Appellees’ programs are excuses to ignore current law. Thus the challenged

programs will cause millions of illegal aliens, some of whom have criminal records

and are repeat offenders, to remain whom Congress commanded Appellees to

deport. Any who are removed will not burden Appellant.

Appellant asks the Court to remand the case with instructions that a

preliminary injunction be issued and discovery proceed. Evidence being

developed in a related case in Texas indicates that the Executive Branch is

continuing to violate the APA and U.S. Constitution by proceeding with these

unconstitutional acts.

ARGUMENT

I. APPELLEES’ PROGRAMS USURP CONGRESS’ PREROGATIVES

A. President’s Initiatives are Unconstitutional Usurpation of Congress’

Role.

As observed in a related case before the Honorable Andrew Hanen, State of

Texas v. United States of America, U.S. District Court for the Southern District of

Texas (Brownsville Division) (Case No. 1:14-cv-254), Memorandum Opinion,


5

February 16, 2015, page 71, all aspects of immigration “have been recognized as

matters solely for the responsibility of the Congress . . . .” Harisades v.

Shaughnessy, 342 U.S. 580, 596-97 (1952) (emphasis added). Judge Hanen

explained the distinction between these challenges and Appellees claims they are

exercising internal discretion:

. . . Instead, Plaintiffs argue that DAPA is not within the

Executive's realm (his power to exercise prosecutorial discretion

or otherwise) at all; according to Plaintiffs, DAPA is simply the

Executive Branch legislating.”

“Indeed, it is well-established both in the text of the

Constitution itself and in Supreme Court jurisprudence that the

Constitution ‘allows the President to execute the laws, not to

make them.’ Medellin, 552 U.S. at 532. It is Congress, and

Congress alone, who has the power under the Constitution to

legislate in the field of immigration. See U.S. Const. art. 1. § 8,

cl. 4; Plyler, 457 U.S. at 237-38.

(Emphasis added). Judge Hanen further explained on page 71:

Just as the states are preempted from interfering with the 'careful

balance struck by Congress with respect to unauthorized

employment,' for example,51

Plaintiffs argue that the doctrine of

separation of powers likewise precludes the Executive Branch

from undoing this careful balance by granting legal presence

together with related benefits to over four million individuals who

are illegally in the country.

Thereupon, Judge Hanen concludes at page 111:

The DAPA program . . . does more than 'supplement' the statute;

if anything, it contracts the INA. It is, in effect, a new law.

DAPA turns its beneficiaries’ illegal status . . . into a legal


6

presence. It represents a massive change in immigration practice,

and will have a significant effect on, not only illegally-present

immigrants, but also the nation's entire immigration scheme and

the states who must bear the lion's share of its consequences . . .

Far from being mere advice or guidance, this Court finds that

DAPA confers benefits and imposes discrete obligations (based

upon detailed criteria) upon those charged with enforcing it. Most

importantly, it ‘severely restricts’ agency discretion.103

Further on pages 86-87, Judge Hanen analyzed:

The DHS has not instructed its officers to merely refrain from

arresting, ordering the removal of, or prosecuting unlawfully-

present aliens. Indeed, by the very terms of DAPA, that is what

the DHS has been doing for these recipients for the last five

years65

. . . Exercising prosecutorial discretion and/or refusing to

enforce a statute does not also entail bestowing benefits.

The Executive Branch has been commanded by statutes enacted by

Congress, primarily the Immigration and Naturalization Act of 1952 (“INA”), to

deport to their own countries of citizenship an estimated 11.3 million citizens of

foreign countries in the United States. See, e.g., 8 U.S.C. §§ 1227, 1229a, 1231.

As Judge Hanen concluded on page 97: “In the instant case, the DHS is tasked

with the duty of removing illegal aliens. Congress has provided that it 'shall' do

this.”

While “the power of executing the laws necessarily includes both authority

and responsibility to resolve some questions left open by Congress that arise

during the law’s administration,” it does not include unilateral implementation of


7

legislative policies. Utility Air Regulatory Group v. E.P.A.,134 S.Ct. 2427, 2446

(2014). The President must ‘take Care that the Laws be faithfully executed . . .’; he

may not take executive action that creates laws. U.S. Const., Art. II, § 3.” United

States v. Elionardo Juarez-Escobar, U.S. District Court for the Western District of

Pennsylvania (Criminal Case No. 14-0180, December 16, 2014). (JA579-616).

To provide legal justification for Appellees’ deferred action programs, the

U.S. Department of Justice released a 33-page legal Memorandum2 revealing the

legal analysis and advice of the Office of Legal Counsel (“OLC”). (JA 105-137)

But now Appellees are doing what the OLC warned would be unconstitutional. By

the OLC’s own analysis, Appellees’ programs are illegal. OLC portrays a way that

some actions could be legal. But Appellees are not doing what OLC describes.

Appellees’ programs are not prosecutorial discretion but rewriting the

statutes. Appellees seek to grant amnesty to an estimated 6 million (53%) of the

estimated 11.3 million illegal aliens that Congressional enactments command them

to deport. President Obama argues that his executive action was necessary because

of Congress’s failure to pass legislation acceptable to him [President Obama].

Compl. ¶¶ 23-24. (JA 7-60) Motion for Preliminary Injunction at pages 30-32.

2 “The Department of Homeland Security’s Authority to Prioritize Removal of

Certain Aliens Unlawfully Present in the United States and to Defer Removal of

Others” Nov. 19, 2014.


8

(JA 61-99) However,

In the framework of our Constitution, the President’s power to

see that the laws are faithfully executed refutes the idea that he is

to be a lawmaker. The Constitution limits his functions in the

lawmaking process to the recommending of laws he thinks wise

and the vetoing of laws he thinks bad.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). Congress’s

lawmaking power is not subject to Presidential supervision or control. Id.

Sometimes Congress delegates law-making authority to the Executive

Branch explicitly or implicitly to “fill up the details.” The U.S. Supreme Court in

Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), rejected the contention that

Congress had unconstitutionally delegated power where the Judicial Branch filled

in details. So-called “gaps” or questions left unaddressed within Congressional

enactments are inherent as being unavoidably necessary to implement the statute.

But here Appellees do not point to a detail of the INA that needs flushing

out, but simply want to welcome 11.3 million foreigners that the INA specifically

excludes. Appellees do not point to anything lacking in the statutes which requires

Appellees to create vast regulatory benefits programs, suspend enforcement of the

INA, or grant immunity from deportation of those whom Congress commanded

Appellees to deport. See, e.g., 8 U.S.C. §§ 1227, 1229a, 1231.

At most, the Executive Branch claims a lack of resources. But annual


9

appropriation of funding by Congress is not a “gap” in the statute that requires

filling. Moreover, the Executive Branch has an obvious remedy – to simply

request more resources from Congress through the budgetary process.

B. Setting Policy Does Not Empower DHS to Rewrite Legislation.

Appellees lean on 6 U.S.C. § 202, Opposition (Appellees’) Brief

(“Opp.Br”)3 at 37, which states both that “The Secretary [of Homeland Security],

acting through the Under Secretary for Border and Transportation Security, shall

be responsible for the following:

***

(3) Carrying out the immigration enforcement functions vested by

statute in, or performed by, the Commissioner of Immigration and

Naturalization (or any officer, employee, or component of the

Immigration and Naturalization Service) immediately before the

date on which the transfer of functions specified under section 251

of this title takes effect.”

***

(5) Establishing national immigration enforcement policies and

priorities.”

***

However, nowhere do Appellees support the notion that setting policy

extends to rewriting or ignoring legislation enacted by Congress. On the contrary,

6 U.S.C. § 202(3) commands the Secretary in “carrying out the immigration

enforcement functions vested by statute . . .” (Emphasis added). The Secretary’s

3 To avoid ambiguity in abbreviating Appellant and Appellees.


https://www.law.cornell.edu/uscode/text/6/251

10

role setting policy under 6 U.S.C. § 202(5) does not alter the obligation under 6

U.S.C. § 202(3) to enforce statutes enacted by Congress.

Judge Hanen’s Memorandum Opinion finds at pages 88-89:

Here, the very statutes under which Defendants claim discretionary

authority actually compel the opposite result. In particular, detailed

and mandatory commands within the INA provisions applicable to

Defendants' action in this case circumscribe discretion. …. DAPA

putative recipients all fall into a category for removal and no

Congressionally-enacted statute gives the DHS the affirmative

power to turn DAPA recipients’ illegal presence into a legal one

through deferred action, much less provide and/or make them

eligible for multiple benefits.

Judge Hanen cites in the footnote to this Court of Appeals in In re Aiken

County, 725 F.3d 255, 266 (D.C. Cir. 2013), for the proposition “[P]rosecutorial

discretion encompasses the discretion not to enforce a law against private parties; it

does not encompass the discretion not to follow a law imposing a mandate or

prohibition on the Executive Branch.”

Judge Hanen analyzed on page 98: “This Court finds that DAPA does not

simply constitute inadequate enforcement; it is an announced program of non-

enforcement of the law that contradicts Congress' statutory goals.” And on page

94: “The DHS cannot reasonably claim that, under a general delegation to establish

enforcement policies, it can establish a blanket policy of non-enforcement that also

awards legal presence and benefits to otherwise removable aliens.”


11

Indeed, 8 U.S.C. § 1103(a) requires of the Secretary: “(5) He shall have the

power and duty to control and guard the boundaries and borders of the United

States against the illegal entry of aliens and shall, in his discretion, appoint for that

purpose such number of employees of the Service as to him shall appear necessary

and proper.” (Emphasis added). It further commands: “(1) The Secretary of

Homeland Security shall be charged with the administration and enforcement of

this chapter and all other laws relating to the immigration and naturalization of

aliens . . .” (Emphasis added).

Congress also (a) enacted the APA which sharply limits Executive Branch

authority both as to how to go about setting policy and implementing programs and

as to substance, and (b) extensively regulated the field of immigration in great

detail over a vast array of topics. So, the Appellees’ range of discretion occurs

within a context and statutory framework that sharply limits that discretion.

C. Congress Has Signaled Disapproval, Not Approval.

Appellees also argue, Opp. Br. at 2, 9-12, 46-47, that because Congress has

endorsed “deferred action” in some circumstances – though not these

circumstances – Congress therefore endorsed Appellees’ use of deferred action for

any and all purposes. To the contrary, Congress authorized specific uses of

deferred action but not others. If Congress intended to grant DHS the sweeping


12

power to completely ignore, abdicate enforcement of, or rewrite immigration laws,

Congress knows how to say so. It did not. Congress’ authorization of deferred

action in isolated circumstances cuts against Appellees’ position. Congress did not

authorize the deferred action at issue here. (Again: Appellant understands “illegal

alien” to be defined as one for whom no category of legal status is available under

the law.)

D. Evidence After Closing Record Reveals Mandatory Nature of Rule.

The programs are substantive regulations. After the closing of the record,

Appellees publicly admitted (Fed.R.Evid. 801(d)(2)) that even their “priority”

categories are mandatory commands. Exhibit 1 demonstrates that Appellees treat

their new “priority” system as mandatory, not advisory.

Even for an illegal alien already in custody, in the process of being

deported, DHS personnel are commanded – with threats of dire “consequences” –

to release such illegal alien back into the United States if not a priority target.

DHS established complaint hotlines.

Secretary Johnson’s priority system is actually mandatory regulation, not

internal guidance. A person who is not a priority for removal, shall not be

deported . . . even if already in DHS custody, even if already boarding an airplane

home. What Appellees label as “priorities” are mandatory regulation.


13

E. Appellees’ Programs Must Comply with the Administrative

Procedures Act.

Pursuant to 5 U.S.C. § 702, a person aggrieved or adversely affected by

agency action is entitled to judicial review and a civil cause of action.

Pursuant to the APA,5 U.S.C. § 706(2), this Court must hold unlawful and

set aside any agency action that is

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (B) contrary to constitutional right, power,

privilege, or immunity; [or] (C) in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right.

Appellees’ programs are subject to the APA’s rulemaking requirements

because they are substantive rules. A rule is substantive “if it either appears on its

face to be binding, or is applied by the agency in a way that indicates it is binding.”

General Elec. Co. v. EPA, 290 F.3d 377, 383 (D.C. Cir. 2002). Similarly, Syncor

Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) held that the primary

distinction between a substantive rule and a general statement of policy turns on

whether an agency intends to bind itself to a particular legal position. Id.

This Court has rejected the proposition that an agency can escape judicial

review under Section 704 by labeling its rule as ‘guidance.’ Better Gov’t Ass’n v.

Dep’t of State, 780 F.2d 86, 93 (D.C. Cir. 1986); see also Continental Airlines, Inc.


14

v. CAB, , 522 F.2d 107, 124 (D.C. Cir. 1974) ("The label an agency attaches to its

action is not determinative.").

As Judge Hanen explained on page 87 of his Memorandum Opinion, “This

Court seriously doubts that the Supreme Court, in holding non-enforcement

decisions to be presumptively unreviewable, anticipated that such ‘non-

enforcement’ decisions would include the affirmative act of bestowing multiple,

otherwise unobtainable benefits upon an individual.”

Nicholas v. INS, 590 F.2d 802, 807-08 (9th Cir. 1979), held that the

Immigration and Naturalization Service’s4 1978 ‘instructions’ on deferred action

were a substantive rule requiring rule-making formalities under the APA.

Judge Hanen analyzed on page 107 that, while an agency’s own

characterization is a factor, here DHS characterizes its programs in inconsistent

ways and that President Obama characterized them as: “I just took an action to

change the law.” Judge Hanen considered not only arguments in court, but how

the agency presents its programs to the public. President Obama publicly

described the programs as a categorical “deal” to those who meet the criteria –

“you’re not going to be deported.” Id. This is substantive law, not guidance.

4 INS is now the U.S. Citizenship and Immigration Services (USCIS) and

Immigration and Customs Enforcement (ICE).


15

Appellants’ programs are legislative rules subject to the rulemaking

requirements of the APA because each Memoranda “puts a stamp of agency

approval or disapproval on a given type of behavior.” Chamber of Commerce v.

DOL, 174 F.3d 206, 212 (D.C. Cir. 1999). In Chamber of Commerce, the D.C.

Circuit held that the U.S. Labor Department promulgated a substantive rule when it

told employers that they could avoid 70-90% of workplace inspections if they

participated in a new “Cooperative Compliance” [i.e., executive action] program.

174 F.3d at 208. Here, similarly, Appellants establish criteria so that those who

participate are designated lower-risk and avoid enforcement and prosecution.

Further, in Morton v. Ruiz, 415 U.S. 199, 232 (1974), the U.S. Supreme

Court held that the Bureau of Indian Affairs could not create ‘eligibility

requirements’ for allocating funds without complying with the APA requirements

to establish the criteria by regulatory rule-making. Id. at 230 - 236.

Here, Appellees created eligibility criteria in a similar technique. DHS’

criteria determine the right of millions of otherwise illegal aliens to remain in the

U.S. The eligibility criteria triggers the APA here as it did under Ruiz.

In New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980), the D.C.

Circuit held that EPA’s Administrator “erred in declining to adhere to the notice-

and-comment requirements of section 553 of the APA.” The D.C. Circuit


16

emphasized that “judicial review of a rule promulgated under an exception to the

APA's notice-and-comment requirement must be guided by Congress's expectation

that such exceptions will be narrowly construed.” Id.

F. Appellant is Within Zone of Interests Under APA.

Appellees assert for APA analysis that Sheriff Arpaio does not fall within

the “zone of interests” Congress meant the INA to protect. Opp.Br. 33, 44-45.

However, Secretary of Homeland Security Jeh Johnson’s own priorities

Memorandum of November 20, 2014, (JA139-143 ) focuses overwhelmingly on

enforcing the INA against illegal aliens who commit crimes within the United

States. By the admission of Appellee Johnson, protecting U.S. society against

crimes – such as the 4 million Arizona citizens for whose safety Sheriff Arpaio is

responsible – is precisely within the INA’s zone of interests.

The INA does not benefit illegal aliens. So whom does the INA benefit?

As explained by Judge Hanen in Texas v. United States of America, on page

78 of his Memorandum Opinion, “The Court finds that the acts of Congress

deeming these individuals removable were passed in part to protect the States and

their residents . . . [T]here has been one constant: the federal government, under

our federalist system, has the duty to protect the states, which are powerless to

protect themselves, by enforcing the immigration statutes.” citing Plyler v. Doe,


17

457 U.S. 202, 205 (1982).

II. APPELLANT HAS STANDING FOR THE CASE HE BROUGHT

A. Appellant’s Standing is Uncontroverted.

Appellant challenges the constitutionality and/or legal validity of both the

Appellees’ June 15, 2012, Deferred Action for Childhood Arrivals (“DACA”)

program as well as Appellant’s battery of more-recent deferred action programs

ordered on November 20, 2014. (JA 100-149, 323-356.) Appellant challenges all

those programs as being in substance branches of the same unconstitutional tree.

Appellant here has two years of empirical evidence and experience flowing

from Appellees’ June 15, 2012, DACA program, as well as empirical evidence and

experience from similar prior actions by the Executive Branch. Drawing from that

real-world experience, Appellant alleges real-world injury, sworn under oath.

Appellant has already suffered financial harm and burdens in 2013 and 2014

from the 2012 DACA program. (JA 161-188;654-662) From February 1, 2014,

through December 17, 2014, the costs of holding inmates flagged with INS

“detainers” in the Sheriff’s jails was $9,293,619.96. (JA 660). Maricopa County

includes 60% of the population of Arizona, a border state through which many

illegal aliens transit.


18

Appellant’s standing here is even more concrete than the standing found in a

related case, Texas v. United States of America. There, despite a wide range of

harms identified, all zeroed in on the cost to the States of providing driver’s

licenses for illegal aliens granted deferred action status under Appellees’ programs.

The 26 Plaintiff States did not challenge the 2012 DACA program and therefore

had weaker empirical grounds for challenging only the November 20, 2014,

programs as having only just begun. Here, Appellant has two years of actual

experience with the 2012 DACA. Furthermore, the impact on Appellant is more

direct. The cost of driver’s licenses is based upon several intervening steps.

Real-world, empirical experience demonstrates that – just as the 2012

DACA caused a Summer 2014 flood across the border – millions more illegal

aliens will be attracted by the lure and hope of future amnesties.

Appellant’s allegations and sworn declarations stand uncontroverted.

Appellees’ only response was to refuse to believe Appellant’s allegations. But

they offered no documents, no evidence, no testimony, and no declarations. In

fact, when Appellant filed a motion for the District Court to hear testimony (ECF

No. 17), Appellees declined the opportunity to join in seeking testimony. And the

District Court denied the motion as unnecessary under the governing standard of

review.


19

Yet then the District Court rejected real-world experience of past harm as an

empirical basis for predicting increased future harm.

B. Flawed Analysis of Standing Flows from Applying Wrong Category.

This case’s standing analysis is dominated by the existence of two different

analytical frameworks: (1) A facial attack or (2) a factual attack upon jurisdictional

standing.

As Judge Hanen explained in Texas v. United States of America,

Memorandum Opinion, pages 20-21:

The court's analysis also depends on whether the challenging party

has made a ‘facial’ or ‘factual’ attack on jurisdiction. See Paterson

v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A facial

challenge consists of only a Rule 12(b)(1) motion without any

accompanying evidence; for this challenge the court ‘is required

merely to look to the sufficiency of the allegations in the complaint

because they are presumed to be true.’ Id. Conversely, when

making a factual attack on the court's jurisdiction, the challenging

party submits affidavits, testimony or other evidentiary materials to

support its claims. Id. A factual attack requires the responding

plaintiff ‘to submit facts through some evidentiary method’ and

prove ‘by a prepodnerance of the evidence that the trial court does

have subject matter jurisdiction.’ Id.

This Court of Appeals agrees. In one case, plaintiffs engaged in three

months of discovery. This Court applied a “factual attack” analysis:

They argue that the district court improperly applied a factual

attack standard under Federal Rule of Civil Procedure 12(b)(1),

which requires plaintiffs to demonstrate through affidavits and


20

other testimony that the court has jurisdiction, instead of a facial

attack standard under Federal Rule of Civil Procedure 12(b)(6),

where the court accepts the plaintiffs' allegations as true. See

Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir.

2000). According to appellants, the district court's choice of a

factual attack standard was error, since the court allowed

discovery only regarding physical security and denied appellants a

chance to conduct discovery on "threat response." Appellants' Br.

at 18. … as the government observes, "appellants refute their own

argument by citing documents on threat information that appellee

produced in discovery, to support their claim of failure to

disseminate threat information." Appellee's Br. at 42. The district

court thus properly employed a factual attack standard under

Federal Rule of Civil Procedure 12(b)(1).

Macharia v. U.S., 334 F.3d 61, 67-68 (D.C. Cir., 2003), Accord, Gould Electronics

Inc. v. U.S., 220 F.3d 169, 176-178 (3rd Cir. 2000).

Here, it is central and dispositive that a “facial attack” analysis applies. The

allegations must be taken as true along with all inferences in support thereof.

But the District Court applied and Appellees argue now a factual attack

standard, refusing to take Appellant’s allegations as true. Appellant emphasized at

oral argument that Appellees offered no evidence such that the allegations of the

Complaint must be taken as true along with all inferences therefrom. (JA 705-

764).

Appellees had the opportunity to marshal the information and analytical

resources of the entire U.S. Government. The U.S. Department of Justice has


21

collected extensive data about Maricopa County and Sheriff Arpaio’s Office

during years of litigation and investigations. Appellees chose the timing of the

launch of their programs, presumably after extensive analysis. Judge Howell

already extended the time for briefing under local rules, for service.

Yet Appellees did not offer any evidence or affidavits on any topic including

their challenge to standing, because they could not. Thus, most of Appellees’

precedents are inapposite. To the contrary, Plaintiff’s affidavits in the form of

sworn testimony amount to the only evidence on the record.

Appellees seek to avoid this result in their Opp.Br. 34-35. In denying

Appellant’s motion by a minute order (JA4), on December 18, 2014, Judge Howell

denied the motion for the reason that –

. . . at this stage of the proceedings, in opposition to the

defendants' motion to dismiss, the Court need not make any

credibility determinations and must accept as true the factual

allegations made by the plaintiff.

Thus, the District Court explicitly adopted the “facial attack” standard of

analysis in order to deny Appellant’s request to give testimony. But then, later, the

District Court switched to a “factual attack” analysis in its Memorandum Opinion.

Further, Appelleees argue (Opp.Br. 35) that because Appellant submitted a

supplementary affidavit (JA 654-704), the analysis was converted from a “facial


22

attack” into a “factual attack” analysis. However, the precedent cited by Judge

Hanen, supra, says “Conversely, when making a factual attack on the court's

jurisdiction, the challenging party submits affidavits, testimony or other

evidentiary materials to support its claims. Id.” (Emphasis added).

C. Appellant Has Standing For the Case He Brought.

Appellees concede, as they must, at Opp.Br. 31:

Applying that standard, the court construed the complaint as

asserting that ‘[a] Federal policy causes [plaintiff’s] office to

expend resources in a manner that he deems suboptimal.’ JA

784. The district court instead ruled that plaintiff’s allegations

were insufficient on their face because they stated only a

generalized grievance. JA 784.

Thus, both the District Court and Appellees admit that creation of

Appellees’ programs “causes [plaintiff’s] office to expend resources.” The

District Court and Appellees admit that Appellant has already and will suffer direct

and impending injury from the Appellees’ programs.

Whether Sheriff Arpaio must “expend resources” in ways suboptimal,

optimal, or otherwise goes to the merits, not standing. Appellees force Appellant

“to expend resources” – an open-and-shut case of standing. Whether Appellees

are justified legally in inflicting that impact is different from the impact itself.

The District Court acknowledged this while ignoring its significance:


23

Ultimately, the plaintiff’s standing argument reduces to a simple

generalized grievance: A Federal policy causes his office to

expend resources in a manner that he deems suboptimal. To

accept such a broad interpretation of the injury requirement would

permit nearly all state officials to challenge a host of Federal laws

simply because they disagree with how many—or how few—

Federal resources are brought to bear on local interests.

Memorandum Opinion by Judge Howell, December 23, 2014, (“Mem. Op.”) at

20 (emphasis added). (JA784) The District Court further acknowledged:

The plaintiff claims that the challenged deferred action

programs, which provide guidance to Federal law

enforcement regarding the removal or non-removal of

undocumented immigrants, inhibit his ability to perform his

official functions as the Sheriff of Maricopa County.

Mem. Op. at 19 (emphasis added). Thus, again, the District Court concedes –

being obligated to take the allegations as true – that Appellees’ programs inhibit

the Appellant’s ability to perform his official functions as Sheriff of Maricopa

County. That allegation alone is sufficient to establish standing.

Appellees unhelpfully recite the chestnut that a party will “ordinarily” not

have standing by raising only “‘a generalized grievance’ shared in substantially

equal measure by all or a large class of citizens.” Opp. Br. 27. But Sheriff Arpaio

is clearly different from the average citizen. Sheriff Arpaio’s Office is uniquely

responsible for law enforcement for 60% of the population of Arizona, some 4

million citizens. It is untenable to equate the institutional burden and expenses


24

imposed upon Sheriff Arpaio’s office as a law enforcement officer with every

private citizen. When a resident of Maricopa County dials ‘911,’ the average

citizen does not risk his life climbing into a Deputy’s patrol car.

On the contrary, Appellees admit that the essence of Article III standing is

that “The complaint must establish that the plaintiff has a ‘personal stake’ in the

dispute and that the alleged injury is particularized as to him. Raines v. Byrd, 521

U.S. 811, 819 (1997).” Opp.Br. 28. Clearly, this Appellant has a sufficiently

adversarial interest in the litigation to ensure a genuine case and controversy.

Also, Sheriff Arpaio has the same standing to vindicate the authority,

powers, duties and operations of his office as Appellees had to sue in Arizona v.

United States, 132 S.Ct. 2492 (2012). 5 It is axiomatic that Arizona’s law SB1070

was incapable of compelling the U.S. Government to do anything or to refrain

from doing anything. Yet the same Appellees here claimed standing because a

State law could somehow interfere with their operations. Sheriff Arpaio has the

same standing here. As the District Court and the Appellees acknowledge,

Appellees’ programs “inhibit his ability to perform his official functions as the

Sheriff of Maricopa County” and “cause[] his office to expend resources in a

manner that he deems suboptimal.” Appellant has standing to require that

5 Standing addressed in 641 F. 3d 339 (9th Cir. 2011).


25

whatever burdens Appellees place upon his Sheriff’s Office conform to the

requirements of Congressional enactment – that they are done pursuant to law.

In his sworn declaration attached to the Motion for Preliminary Injunction,

(JA163) Appellant averred (emphasis added):

18) I found out that over 4,000 illegal aliens were in our jails

over the last 8 months, arrested for committing crimes in

Maricopa County under Arizona law, such as child

molestation, burglary, shoplifting, theft, etc.

19) I found that one third of the 4,000 illegal aliens arrested in

Maricopa County had already been arrested previously for

having committed different crimes earlier within Maricopa

County under Arizona law.

10) President Obama’s June 15, 2012, amnesty for adults who

arrived illegally as children, which Obama has called Deferred

Action for Childhood Arrivals (DACA), has already caused

an increased flood of illegal aliens into Arizona in 2014.

12) The increased flow of illegal aliens has caused a

significant increase in property damage, crime, and burdened

resources in Maricopa County, throughout Arizona, and

across the border region.

14) The Sheriff’s office witnesses and experiences a

noticeable increase in crime within my jurisdiction in

Maricopa County, Arizona, resulting from illegal aliens

crossing our Nation’s border and entering and crossing

through border States.

Appellant alleged in his Complaint (emphasis added):

¶ 28: Thus, the Office of the Sheriff has been directly harmed

and impacted adversely by Obama’s DACA program and will


26

be similarly harmed by his new Executive Order effectively

granting amnesty to illegal aliens.

¶ 29: Defendant Obama’s past promises of amnesty and his

DACA amnesty have directly burdened and interfered with the

operations of the Sheriff’s Office, and Defendant Obama’s new

amnesty program will greatly increase the burden and

disruption of the Sheriff’s duties.

¶ 30: First, experience has proven as an empirical fact that

millions more illegal aliens will be attracted into the border

states of the United States, regardless of the specific details.

D. “I Don’t Believe You” is not a Valid Challenge to Standing.

Simply pleading “I don’t believe you” is not an effective challenge to

standing. Appellees and the District Court became fixated on the legal rule that a

plaintiff bears the burden of proving subject matter jurisdiction.

Appellant has more than met that burden of proof especially where

Appellees offered no evidence to dispute Appellant’s sworn declarations.

Appellant’s declarations prevail over nothing. As an example:

We note that the district court's resolution of this award is not

affected by our instruction to the court on remand to apply the

correct burden of proof as to class membership, since the complete

absence of evidence supporting Brown's position entitled the

unions to prevail even under the more stringent standard.

Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111 (D.C. Cir.

1999).


27

E. Appellant Has Established Immediacy of the Harm.

Appellant has alleged and sworn under oath from empirical experience that

his office has already suffered financial costs and burdens from Appellees’ 2012

DACA program, is suffering those costs now, and will suffer increasing costs in

the immediate future. Appellant has alleged immediate harm. Unlike State of

Texas v. United States of America, here Appellant challenges the 2012 DACA as

well as the 2014 programs.

F. Appellant Has Established Appellees’ Programs as a Cause of Harm.

Appellant’s uncontroverted sworn allegations, which must be taken as true

along with all inferences reasonably drawn therefrom, establish that Appellees’

programs starting in June 15, 2012, are at the very least a contributing factor

directly causing the harm to Sheriff Arpaio’s Office.

Appellees argue that the traceability of an injury for standing purposes from

the challenged government action is a question of law. But on what basis would a

court apply a principle of law to whether one thing causes another?

Just as Executive Branch agencies seek deference within their areas of

expertise, Sheriff Arpaio’s real-world empirical experience in the field provides a

factual grounding that a court’s legal analysis from afar cannot. See, e.g., Fox v.


28

Clinton, 684 F.3d 67 (D.C. Cir. 2012) (deference “to ‘matters relating to [an

agency's] areas of technical expertise,’ Tripoli, 437 F.3d at 77”).

Appellees and the District Court forgot that not only Appellant’s allegations

but also all inferences reasonably drawn therefrom must be assumed to be true for

the purposes of the FRCP Rule 12(b)(1) motion to dismiss. And Appellees had the

opportunity to challenge those allegations and inferences with evidence.

The Court is guided in evaluating “causation” (traceability) by all inferences

in Appellant’s favor, which provide the grounds for analysis.

G. Harm to Appellant is Redressable by Court Action.

Concerning standing, Appellees lean on the conclusion that court action

could not redress the harm to the Appellant. Opp.Br. 4, 30, 33. However, that idea

requires this Court to assume that the Executive Branch will refuse to comply with

this Court’s orders.

In effect, Appellees are arguing that the Executive Branch will not obey this

Court’s orders any more than they obey Congress’ enactments. If the Executive

Branch obeys this Court and/or Congress’ statutes, illegal aliens will be physically

removed from the territory of the United States. This Court cannot ground a

decision on assuming that the Executive Branch will disobey this Court.


29

This also invites speculation that Congress would not provide necessary

funding. But Appellees have never asked Congress for the funds they now claim

they lack. Choosing between speculation or requiring Appellees to first ask

Congress for funding, this Court should expect the Executive Branch to

demonstrate that they requested more funding before rewriting the laws.

Furthermore, one is compelled to compare Appellees’ protestations here

with all other cases challenging government regulation. Nearly all regulations

mold and shape the behavior of independent, third-party, non-governmental actors.

That is the nature of regulations: influencing third-party actors. It will always be

the case that regulations are but one factor affecting third-party behavior.

Appellees steadfastly refuse to acknowledge that a plaintiff can have

standing to challenge a contributing factor contributing to or increase in harm. In

NRDC v. FDA, 710 F.3d 71 (2d Cir. 2013), that Court of Appeals held that the

plaintiff had standing to challenge FDA’s failure to regulate a hand-soap chemical

although workers could have avoided the soap through other means (buying

chemical-free soap or asking their employers to remove the chemical-laden soap).

Id. at 84-85. The court emphasized that the plaintiff could establish standing

simply by showing that the agency’s failure to regulate the chemical was a

“contributing factor” to the injury. Id. at 85. Here, Appellees insist that their


30

programs must be the sole and exclusive cause of one hundred percent of a

plaintiff’s harm.

Clearly, illegal aliens who are completely absent from U.S. territory can no

longer burden Sheriff Arpaio’s Office in any way. However, Appellees fail to

acknowledge the “double negative” of their programs. Current law mandates

removal of illegal aliens. Appellees’ “deferred action” programs depart from

current law. Appellant’s request to strike down those programs would restore

current immigration law. Appellees’ programs – which evade current law – are the

direct cause of harm. Court orders that Appellees enforce the law as written would

decrease the harm to Appellant.

III. MISCHARACTERIZING WHAT IS BEFORE THE COURT

A. There is No Lack of Resources for Enforcement, Only Lack of Will.

Both on the merits and on redressability under standing analysis, Appellees

ground their case on the clearly-false assertion that the Executive Branch lacks

sufficient resources to enforce the immigration laws enacted by Congress. Opp.Br

23, 24, 37-38, 50. As a result, Appellees claim the power to rewrite the

immigration laws enacted by Congress.

Yet Appellees have never asked Congress (in relevant periods) for the

resources they now claim they lack. Appellees do not lack sufficient resources.


31

They just disagree with the INA’s goals in general.

Appellees did not submit any evidence. So whether true or false, this

crucial assertion cannot be entertained now on this record and must be ignored.

Appellant, however, submitted evidence to the contrary. The declaration 6

of staff for Appellant’s counsel cited to public announcements by the U.S.

Department of Homeland Security (“DHS”), a party and Appellee, which are

admissions by a party opponent. Fed.R.Evid. 801(d)(2).

As introduced into evidence attached to Appellant’s Complaint, id., each

year the U.S. Congress appropriates significantly more funds for immigration

enforcement than the Appellees request. The U.S. Congress appropriated about

$814 million more for Immigration and Customs Enforcement than DHS requested

in and since fiscal year 2006 and nearly $465 million more for the U.S. Citizenship

and Immigration Service than DHS requested in and since fiscal year 2006.

Appellees’ remedy is to officially inform Congress of the funds they need,

not to usurp the legislative prerogatives of Congress. Appellees ask this Court to

endorse a “fundamentally transformation” of America’s government rather than

simply include within the “President’s Budget” a request for funding.

6 Declaration, Jonathon Moseley. (JA 190-193); Compl. ¶¶ 42-26; Mot.

Prelim. Injun. Pages 32-35; http://www.dhs.gov/dhs-budget .


32

B. Appellees Oppose a Lawsuit Sheriff Arpaio Never Filed.

Appellees marshal precedents and arguments addressed to a lawsuit that is

not before the Court, suggesting limitations on the Appellees’ discretion managing

their internal operations. Opp.Br. 3, 26, 36-37, 40-41.

Sheriff Arpaio asks the Appellees to obey the law… the law as passed by

Congress. If Sheriff Arpaio won everything he seeks, the Executive Branch would

still remain free to manage its personnel and organize its work and marshal its

resources as it deems fit. Nothing in this case implicates DHS’ ability to decide

where to go looking first, next, or last for deportable illegal aliens. But DHS must

obey the laws enacted by Congress.

C. Appellees Placed No Evidence in the Record of any Benefits

Appellees insist their programs will improve on their failure to secure the

borders and on locating and deporting the most dangerous illegal aliens. Opp.Br.

22, 24, 39, 51. But there is no evidence in the record to support this claim. The

claim must be ignored.

This is also illogical. Unless the Executive Branch has a master list of all

illegal aliens with complete profiles to sort them by priority, law enforcement –

typically Sheriffs and police – encounters illegal aliens only randomly. Appellees

cannot determine a priority level for deportation until after encountering,


33

detaining, identifying, and investigating a person.

CONCLUSION

The decision of the District Court should respectfully be reversed and

remanded with instructions to enter a preliminary injunction preserving the status

quo, for discovery to proceed, and for trial or decision on the merits.

Dated: March 16, 2015

Respectfully Submitted,

/s/ Larry Klayman

Larry Klayman, Esq.

D.C. Bar No. 334581

Freedom Watch, Inc.



Tel: (310) 595-0800



34

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 6,946 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and Circuit Rule 32. This brief

complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type

style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared

in a proportionally-spaced typeface using Microsoft Word 2007 in 14-point

Times New Roman font.

Respectfully submitted,

/s/ Larry Klayman

Larry Klayman, Esq.

D.C. Bar No. 334581

Freedom Watch, Inc.



Tel: (310) 595-0800



35

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 16th day of March, 2015, a true and

correct copy of the foregoing Brief was submitted electronically to the U.S. Court

of Appeals for the District of Columbia Circuit and served via CM/ECF upon the

following:

Scott R. McIntosh, Esq.

Jeffrey Clair, Esq.

William Havemann, Esq.

U.S. DEPARTMENT OF JUSTICE

Civil Division, Appellate Staff

950 Pennsylvania Avenue, N.W. Room 7259

Washington, D.C. 20530-0001

[email protected]

[email protected]

[email protected]

Attorneys for Defendants-Appellees

Respectfully Submitted,

/s/ Larry Klayman

Larry Klayman, Esq.

D.C. Bar No. 334581

Freedom Watch, Inc.



Tel: (310) 595-0800



Exhibit 1


IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

STATE OF TEXAS, et al.

Plaintiffs,

v.

UNITED STATES OF AMERICA, et al.

Defendants

Case No. 1:14-cv-254

NOTICE OF SUPPLEMENTAL EXHIBITS TO

AMICUS BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY

INJUNCTION BY JOE ARPAIO AS SHERIFF OF MARICOPA COUNTY

Movant Joe Arpaio, elected Sheriff of Maricopa County, Arizona, (“Sheriff Arpaio”)

hereby respectfully requests that the attached exhibits of recently-issued statements and actions

from the Defendants be considered in support of Amicus Curiae Sheriff Arpaio’s brief in support

of the Plaintiffs’ Motion for Preliminary Injunction and causes of action for judgment.

The attached exhibits are relevant and significant to the immediacy of the changes

ordered by the Defendants and the timetable that affects the Court’s proceedings.

On January 30, 2015, the U.S. Department of Homeland Security (“DHS”) announced

that it will begin accepting deferred action applications under the new November 20, 2014,

programs on February 18, 2015. See, Exhibit 1, attached. The announcement was apparently

issued as a news release as well as posted on the DHS website.

Similarly, in another, recently-released announcement, DHS confirms that the new

November 20, 2014, programs are already in effect and already binding upon DHS personnel.


2

See, Exhibit 2, attached. According to news reports, DHS’ Customs and Border Protection

(“CPB”) issued these directives as a Memorandum as well as by posting on the DHS website.

CBP has established a hotline to receive complaints about CBP personnel who do not

already comply with the requirements of the November 20, 2014, programs. The fact that

complaints may even now be lodged against DHS personnel who do not follow the new

November 20, 2014, programs is relevant to the Court analyzing the nature of the new deferred

action programs as being binding upon Departmental personnel in favor of beneficiaries, rather

than being mere guidelines or allocation of resources. This application occurs before an illegal

alien applies for deferred action status and in advance of case-by-case review or discretion.

Furthermore, the DHS/CBP announcement reveals that illegal aliens are granted

immunity and amnesty even when they are actually in custody or under final order of

deportation. Illegal aliens will not be deported unless they also fall within the November 20,

2014, “DHS enforcement priorities.” Thus, the announcement informs the Court that the

programs are driven by Defendants’ policy preferences, not by a lack of enforcement resources.

That is, even if no further resources would be needed for deportation, illegal aliens will not be

deported if they are outside of the “DHS enforcement priorities.” The announcement says:

“If your administrative proceedings are pending before an immigration

judge or the Board of Immigration Appeals, and you believe that you

do not fall within the DHS enforcement priorities, you should contact

U.S. Immigration and Customs Enforcement (ICE).”

and

“If you (or a family member) were apprehended and processed by a

CBP officer or Border Patrol agent and then placed into removal

proceedings and you believe that you do not fall within the DHS

enforcement priorities, please tell us about your experience by

contacting the CBP INFO Center at:”

and


3

“If you have been ordered removed and you believe that you do not fall

within the DHS enforcement priorities, you should contact the ICE

Enforcement and Removal Office (ERO) …”

Dated: February 11, 2015 Respectfully submitted,

Larry Klayman, Esq.

Washington, D.C. Bar No. 334581

Freedom Watch, Inc.

2020 Pennsylvania Avenue N.W., Suite 345

Washington, D.C. 20006

(310) 595-0800

[email protected]

Of Counsel

Virginia State Bar No. 41058

Freedom Watch, Inc.

2020 Pennsylvania Avenue N.W., Suite 345

Washington, D.C. 20006

(310) 595-0800

[email protected]

Attorney for Plaintiff

Pro Hac Vice Approved

CERTIFICATE OF SERVICE

I hereby certify that service of the foregoing motion and proposed brief will be delivered

electronically on February 11, 2015, to counsel for Plaintiffs and Defendants through the

District’s Electronic Case Filing system.


Official website of the Department of Homeland Security

Immigration ActionCBP's Updated Enforcement and Removal Policies

On November 20, 2014, the Secretary of Homeland Security announced new immigration

enforcement priorities and guidance on the exercise of prosecutorial discretion entitled

Policies for the Apprehension, Detention and Removal of Undocumented Immigrants

Memorandum. All DHS agencies, including U.S. Customs and Border Protection (CBP), will

apply these enforcement and removal priorities when determining which aliens may be

removed from the United States. Consistent with the Secretary’s direction, CBP will

continue to prioritize threats to national security, public safety, and border security. CBP is

updating its procedures and training to implement the new priorities.

The Secretary also issued a memorandum entitled Exercising Prosecutorial Discretion with

Respect to Individuals Who Came to the United States as Children and with Respect to

Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents, which,

through the exercise of prosecutorial discretion, allows individuals who meet the eligibility

criteria to request, on a case-by-case basis, deferred action. U.S. Citizenship and

Immigration Services (USCIS) will adjudicate all of these requests which includes eligibility

determinations. If you have questions about deferred action or other services and benefits

offered by USCIS, you may call the USCIS National Customer Service Center toll-free at

1-800-375-5283 or visit the website at www.uscis.gov for more information. CBP does not

make eligibility determinations on these new initiatives.

The following sections provide additional information on what to expect while in CBP

custody and other common scenarios one might encounter while in custody or under

review with DHS.

For individuals in CBP custody

• An individual encountering CBP at a Port of Entry or near the U.S. border may be subject to

additional processing, for instance, to determine identity and lawful status. This may

require CBP to apprehend and process the individual at a CBP Port of Entry or Border

Patrol Station.

• If you believe you (or a family member) were apprehended and processed by a Customs and

Border Protection officer or Border Patrol agent contrary to the new DHS enforcement

priorities, please tell us about your experience by contacting the CBP INFO Center at:

U.S. Customs and Border Protection

Page 1 of 2Immigration Action | U.S. Customs and Border Protection

2/9/2015http://www.cbp.gov/border-security/immigration-action


Tags: Tags: Tags: Tags: Border Security

General Inquiries: 877-227-5511

International Callers: 202-325-8000

TDD: 866-880-6582

Hours of Operations: Monday - Friday, 9:00 a.m. - 12:00 p.m. and 1:00 p.m. - 4:00

p.m. (Eastern Time).

• To offer additional feedback to the agency, please visit CBP’s website at

https://help.cbp.gov/app/answers/detail/a_id/1133/search/1.

For individuals in proceedings before the Executive Office for Immigration Review

• Your case is outside of CBP’s authority and likely under U.S. Immigration and Customs

Enforcement (ICE) jurisdiction. If your administrative proceedings are pending before an

immigration judge or the Board of Immigration Appeals but you believe that you do not fall

within the DHS enforcement priorities you may request ICE to administratively close your

case.

• Please visit ICE’s website for information on how to submit your request to the ICE Office of

the Principal Legal Advisor (OPLA).

For individuals with removal orders who are scheduled for removal and are not in CBP

custody

• An individual with a removal order who is scheduled for removal should contact ICE and

request a review for eligibility under Secretary's memorandum and prosecutorial

discretion. You may call the ICE Enforcement and Removal Office (ERO) Detention

Reporting and Information Line, toll-free, at 1-888-351-4024 to submit your request for

review.

For individuals who wish to file a complaint regarding a CBP removal encounter

• Individuals wishing to submit a formal complaint pertaining to an encounter with a

Customs and Border Protection Officer or Border Patrol Agent can contact the CBP Info

Center at 877-227-5511.

DHS has prepared a referral notice for individuals who may wish to pursue deferred action

with USCIS. That notice is available here.

Page 2 of 2Immigration Action | U.S. Customs and Border Protection

2/9/2015http://www.cbp.gov/border-security/immigration-action


USCIS to Begin Accepting Requests for Expanded DACA on Feb. 18U.S. Citizenship and Immigration Services (USCIS) will expand Deferred Action for Childhood Arrivals on Feb. 18, 2015. That will be the first day to request DACA under the revised guidelines established as part of President Obama’s recent anouncements on immigration.

USCIS advises the public to be extra careful to avoid immigration scams. To learn how to identify and report scams, and how to find authorized legal assistance at little or no cost, go to uscis.gov/avoidscams or uscis.gov/es/eviteestafas.

Go to uscis.gov/immigrationaction or uscis.gov/accionmigratoria and enter your email address to get updates whenever USCIS posts new content about the executive actions.

If you have questions, in English or Spanish, you can call the USCIS National Customer Service Center at 1-800-375-5283 (TDD for the hearing-impaired: 1-800-767-1833).

Last Reviewed/Updated: 01/30/2015

Page 1 of 1USCIS to Begin Accepting Requests for Expanded DACA on Feb. 18 | USCIS

2/9/2015http://www.uscis.gov/news/alerts/uscis-begin-accepting-requests-expanded-daca-feb-18


Published on The Weekly Standard (http://www.weeklystandard.com)

Obama: 'Consequences' for ICE Officials Who Don't Follow Executive Amnesty

Daniel Halper

February 25, 2015 7:42 PM

President Obama warned workers at the U.S. Immigration and Customs Enforcement: implement executive amnesty, or else. He made the comments in a town hall event on immigration on MSNBC.

According to the White House pool report, President Obama was asked for reassurance that people wouldn't be deported as the legal battle over the executive amnesty plays out in the courts.

“Until we pass a law through Congress, the executive actions we’ve taken are not going to be permanent; they are temporary. There are going to be some jurisdictions and there may be individual ICE official or Border Control agent not paying attention to our new directives. But they’re going to be answerable to the head of Homeland Security because he’s been very clear about what our priorities will be,” Obama said, according to a partial transcript provided by the pool reporter.

“Not only are we going to have to win this legal fight.. but ultimately we’re still going to pass a law through Congress. The bottom line is I’m using all the legal power invested in me in order to solve this problem.”

“If somebody’s working for ICE … and they don’t follow the policy, there’s going to be consequences to it.”

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UPDATE: Here are the remarks, via a transcript provided by the White House:

MR. DIAZ-BALART: But what are the consequences? Because how do you ensure that ICE agents or Border Patrol won’t be deporting people like this? I mean, what are the consequences

THE PRESIDENT: José, look, the bottom line is, is that if somebody is working for ICE and there is a policy and they don’t follow the policy, there are going to be consequences to it. So I can’t speak to a specific problem. What I can talk about is what’s true in the government, generally.

In the U.S. military, when you get an order, you’re expected to follow it. It doesn’t mean that everybody follows the order. If they don’t, they’ve got a problem. And the same is going to be true with respect to the policies that we’re putting forward.

Washington Examiner

Rep. Gowdy has a stern message for those who support Obama's immigration plans

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Obama immigration chief says amnesty

designed to cement illegals place in

society

By Stephen Dinan - The Washington Times - Tuesday, December 9, 2014

The man who will oversee President Obama's new temporary amnesty said Tuesday

that part of the reason for the program was to get the illegal immigrants working on

the books, making it economically impossible for them ever to be deported by a future

president.

Leon Rodriguez, speaking during a town hall meeting with his employees at U.S.

Citizenship and Immigration Services, said illegal immigrants shouldn't fear coming

forward to report for the program because the order Mr. Obama issued last month will

cement their place in society.

"If this program does what we want it to do, you will now have literally millions of

people who will be working on the books, paying taxes, being productive. You cannot

so easily by fiat now remove those people from the economy," said Mr. Rodriguez, who

took over as agency director earlier this year.

His comments came the same day that Mr. Obama, speaking in Tennessee, also said he

doubted any future administration would want to repeal his policy for fear of running

afoul of voters.

So far, polls show voters aren't too keen on Mr. Obama's actions.

But Mr. Rodriguez said that as illegal immigrants are granted work permits and take

jobs legally, they will become integral parts of the economy. He said that's why the

government hasn't done more to deport most illegal immigrants.

"That's one of the major reasons, by the way, why they haven't been removed," he said.

"Because whether we acknowledge it or not, a lot of those individuals have actually

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been working, contributing in the economy, and if they were to be removed in fact that

would have pretty dire economic consequences on the regions in which those

individuals live. Now that's all going to be above board, and the potential consequences

to our economy could potentially be quite severe."

Mr. Rodriguez said he is worried about fraud in the program, just as he is in other

aspects of what his agency does. He said the agency still has yet to finalize plans for

how to fight fraud, but said it will likely involve better training for the officers who will

approve applications.

And he said there will be "balancing" between fighting fraud and trying to process the

applications and making it as easy as possible to get approved.

"That's going to continue to be an ongoing area of concern," he said.

Mr. Obama's new program could offer temporary amnesty from deportation and grant

work permits to more than 4 million illegal immigrants, in addition to the more than

600,000 who were granted similar benefits under his 2012 policy for so-called

Dreamers.

That Dreamer policy has a 95 percent approval rate, which critics say is shockingly high.

Supporters say that those who applied, however, were likely to self-select as the most

qualified applicants — both because of the cost of applying and because of the danger

of becoming known to immigration authorities.

But the man who helped form USCIS's fraud unit, who retired in 2011, said the agency

never set up a risk-based system to try to weed out fraud from the Dreamer program.

He said that's a must if the agency is going to try to process 4 million applications

without doing in-person interviews of each applicant.

Mr. Rodriguez told employees the fees from the applications will cover the costs, and

he said USCIS won't have to cut elsewhere to handle the new workload.

The Dreamer program, which was less than one-fifth the size of the new amnesty, put

such a strain on the agency that it delayed processing of other applications from legal

immigrants.

© Copyright 2015 The Washington Times, LLC. Click here for reprint permission.

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