Attachments to Appellants' Emergency Motion for Stay Pending Appeal

360 Pages·2015·15.65 MB·English

Case: 15-40238 Document: 00512966900 Page: 1 Date Filed: 03/12/2015
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

STATE OF TEXAS, et al.

Plaintiffs-Appellees,
v. No. 15-40238

UNITED STATES, et al.

Defendants-Appellants.

ATTACHMENTS TO APPELLANTS’ EMERGENCY MOTION

FOR STAY PENDING APPEAL
Case: 15-40238 Document: 00512966900 Page: 2 Date Filed: 03/12/2015
TABLE OF CONTENTS

Document District Court Docket No.

Preliminary injunction (2/16/15) ........................................................................................ 144

Memorandum opinion (2/16/15) ........................................................................................ 145

ATTACHMENT 1: DHS Annual Report, Immigration Enforcement Actions: 2013 ........ 38-3

ATTACHMENT 2: 2012 DHS DACA memorandum ....................................................... 38-19

ATTACHMENT 3: 2014 DHS Deferred Action Guidance memorandum ........................ 38-7

ATTACHMENT 4: 2014 DHS Enforcement priorities memorandum ............................... 38-5

ATTACHMENT 5: Memorandum from Office of Legal Counsel to Secretary of

Homeland Security and Counsel for the President .............................................................. 38-2

ATTACHMENT 6: Declaration of Donald W. Neufeld ..................................................... 130-11

ATTACHMENT 7: Declaration of Sarah R. Saldana ......................................................... 150-1

ATTACHMENT 8: Declaration of R. Gil Kerlikowske ..................................................... 150-2

ATTACHMENT 9: Defendants’ Sur-Reply in Opposition to Plaintiffs’ Motion

for Preliminary Injunction ................................................................................................... 130

ATTACHMENT 10: States’ Motion for Leave to Participate as Amici Curiae and

Brief in Opposition To Plaintiffs’ Motion for Preliminary Injunction ................................ 81

ATTACHMENT 11: District Court order (3/9/15) ............................................................. 191

ATTACHMENT 12: Defendants’ Supplement to Emergency Expedited

Motion to Stay ...................................................................................................................... 195
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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

STATE OF TEXAS, ET AL., §

Plaintiffs, §

§

v. § CIVIL NO. B-14-254
§
UNITED STATES OF AMERICA, ET AL., §
Defendants. §

MEMORANDUM OPINION AND ORDER

This is a case in which twenty-six states or their representatives are seeking injunctive
relief against the United States and several officials of the Department of Homeland Security to
prevent them from implementing a program entitled “Deferred Action for Parents of Americans
and Lawful Permanent Residents.” 1 This program is designed to provide legal presence to over
four million individuals who are currently in the country illegally, and would enable these
individuals to obtain a variety of both state and federal benefits.
The genesis of the problems presented by illegal immigration in this matter was described
by the United States Supreme Court decades ago:
Sheer incapability or lax enforcement of the laws barring entry into this country,
coupled with the failure to establish an effective bar to the employment of
undocumented aliens, has resulted in the creation of a substantial “shadow
population” of illegal migrants―numbering in the millions―within our borders.

1 The Plaintiffs include: the State of Texas; State of Alabama; State of Arizona; State of Arkansas; State of Florida;
State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Louisiana; State of Montana; State of
Nebraska; State of North Dakota; State of Ohio; State of Oklahoma; State of South Carolina; State of South Dakota;
State of Utah; State of West Virginia; State of Wisconsin; Attorney General Bill Schuette, People of Michigan;
Governor Phil Bryant, State of Mississippi; Governor Paul R. LePage, State of Maine; Governor Patrick L.
McCrory, State of North Carolina; and Governor C. L. “Butch” Otter, State of Idaho. The States of Tennessee and
Nevada were added in the latest Amended Complaint. All of these plaintiffs, both individuals and states, will be
referred to collectively as “States” or “Plaintiffs” unless there is a particular need for specificity.

1
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The Attorney General recently estimated the number of illegal
aliens within the United States at between 3 and 6 million. In
presenting to both the Senate and House of Representatives several
Presidential proposals for reform of the immigration
laws―including one to “legalize” many of the illegal entrants
currently residing in the United States by creating for them a
special statute under the immigration laws―the Attorney General
noted that this subclass is largely composed of persons with a
permanent attachment to the Nation, and that they are unlikely to
be displaced from our territory.

“We have neither the resources, the capability, nor
the motivation to uproot and deport millions of
illegal aliens, many of whom have become, in
effect, members of the community. By granting
limited legal status to the productive and law-
abiding members of this shadow population, we will
recognize reality and devote our enforcement
resources to deterring future illegal arrivals.” Joint
Hearing before the Subcommittee on Immigration,
Refugees, and International Law of the House
Committee on the Judiciary and the Subcommittee
on Immigration and Refugee Policy of the Senate
Committee on the Judiciary, 97th Cong., 1st Sess., 9
(1981) (testimony of William French Smith,
Attorney General).

This situation raises the specter of a permanent caste of undocumented resident
aliens, encouraged by some to remain here as a source of cheap labor, but
nevertheless denied the benefits that our society makes available to citizens and
lawful residents. The existence of such an underclass presents most difficult
problems for a Nation that prides itself on adherence to principles of equality
under law.

Plyler v. Doe, 457 U.S. 202, 218-19 & n.17 (1982). Thus, even in 1982, the Supreme Court
noted in Plyler that the United States’ problems with illegal immigration had existed for decades.
Obviously, these issues are still far from a final resolution.
Since 1982, the population of illegal aliens in this country has more than tripled, but
today’s situation is clearly exacerbated by the specter of terrorism and the increased need for
2
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security.2 Nevertheless, the Executive Branch’s position is the same as it was then. It is still
voicing concerns regarding its inability to enforce all immigration laws due to a lack of
resources. While Congress has not been idle, having passed a number of ever-increasing
appropriation bills and various acts that affect immigration over the last four decades (especially
in the wake of the terrorist attacks in 2001), it has not passed nor funded a long term,
comprehensive system that resolves this country’s issues regarding border security and
immigration. To be sure, Congress’ and the Executive Branch’s focus on matters directly
affecting national security is understandable. This overriding focus, however, does not
necessarily comport with the interests of the states. While the States are obviously concerned
about national security, they are also concerned about their own resources being drained by the
constant influx of illegal immigrants into their respective territories, and that this continual flow
of illegal immigration has led and will lead to serious domestic security issues directly affecting
their citizenry. This influx, for example, is causing the States to experience severe law
enforcement problems.3 Regardless of the reasons behind the actions or inaction of the
Executive and Legislative Branches of the federal government, the result is that many states
ultimately bear the brunt of illegal immigration.

2 The Court uses the phrases “illegal immigrant” and “illegal alien” interchangeably. The word “immigrant” is not
used in the manner in which it is defined in Title 8 of the United States Code unless it is so designated. The Court
also understands that there is a certain segment of the population that finds the phrase “illegal alien” offensive. The
Court uses this term because it is the term used by the Supreme Court in its latest pronouncement pertaining to this
area of the law. See Arizona v. United States, 132 S. Ct. 2492, 2497 (2012).

3 See Arizona v. United States, as quoted on p. 58 of this opinion. For example, as the Court writes this opinion,
Brownsville police have been investigating the kidnapping of a local university student. The student was reportedly
kidnapped at gunpoint by a human trafficker a few miles from this Courthouse and forced to transport the trafficker
and an alien who had just crossed the border (the Rio Grande River) from the university campus to their destination.
See Tiffany Huertas, UT-Brownsville Students on Alert Following Reported Gunpoint Kidnapping, Action 4 News,
Feb. 4, 2015, http://www.valleycentral.com/news/story.aspx?id=1159456#.VNfHn-bF-wE.
3
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This case examines complex issues relating to immigration which necessarily involve
questions of federalism, separation of powers, and the ability and advisability, if any, of the
Judiciary to hear and resolve such a dispute.
Chief Justice Roberts wrote in National Federation of Independent Business v. Sebelius:
We [the judiciary] do not consider whether the [Patient Protection and Affordable
Care] Act embodies sound policies. That judgment is entrusted to the Nation’s
elected leaders. We ask only whether Congress has the power under the
Constitution to enact the challenged provisions.

* * *

Nearly two centuries ago, Chief Justice Marshall observed that “the question
respecting the extent of the powers actually granted” to the Federal Government
“is perpetually arising, and will probably continue to arise, as long as our system
shall exist.” In this case, we must again determine whether the Constitution
grants Congress powers it now asserts, but which many States and individuals
believe it does not possess.

132 S. Ct. 2566, 2577 (2012) (quoting McCulloch v. Maryland, 17 U.S. 316, 404 (1819)).
I. THE ISSUES BEFORE AND NOT BEFORE THE COURT
Although this Court is not faced with either a Congressional Act or an Executive Order,
the sentiment expressed by these Chief Justices is nonetheless applicable. The ultimate question
before the Court is: Do the laws of the United States, including the Constitution, give the
Secretary of Homeland Security the power to take the action at issue in this case? Nevertheless,
before the Court begins to address the issues raised in this injunctive action, it finds that the
issues can best be framed by emphasizing what is not involved in this case.
First, this case does not involve the wisdom, or the lack thereof, underlying the decision
by Department of Homeland Security (“DHS”) Secretary Jeh Johnson to award legal presence
status to over four million illegal aliens through the Deferred Action for Parents of Americans
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and Lawful Permanent Residents (“DAPA,” also referred to interchangeably as the “DHS
Directive” and the “DAPA Memorandum”) program. Although the Court will necessarily be
forced to address many factors surrounding this decision and review the relationship between the
Legislative and Executive Branches as it pertains to the DHS Secretary’s discretion to act in this
area, the actual merits of this program are not at issue.
Second, with three minor exceptions, this case does not involve the Deferred Action for
Childhood Arrivals (“DACA”) program. In 2012, DACA was implemented by then DHS
Secretary Janet Napolitano. The program permits teenagers and young adults, who were born
outside the United States, but raised in this country, to apply for deferred action status and
employment authorizations. The Complaint in this matter does not include the actions taken by
Secretary Napolitano, which have to date formalized the status of approximately 700,000
teenagers and young adults. Therefore, those actions are not before the Court and will not be
addressed by this opinion. Having said that, DACA will necessarily be discussed in this opinion
as it is relevant to many legal issues in the present case. For example, the States maintain that
the DAPA applications will undergo a process identical to that used for DACA applications and,
therefore, DACA’s policies and procedures will be instructive for the Court as to DAPA’s
implementation.
Third, several of the briefs have expressed a general public perception that the President
has issued an executive order implementing a blanket amnesty program, and that it is this
amnesty program that is before the Court in this suit. Although what constitutes an amnesty
program is obviously a matter of opinion, these opinions do not impact the Court’s decision.
Amnesty or not, the issues before the Court do not require the Court to consider the public
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