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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 COURTS 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: leklayman@gmail.com
Attorney for Plaintiff-Appellant

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TABLE OF CONTENTS
TABLE OF AUTHORITIES....................................................................................vi
GLOSSARY............................................................................................................ xi
SUMMARY OF ARGUMENT.................................................................................1
ARGUMENT.............................................................................................................4
I. APPELLEES PROGRAMS USURP CONGRESS PREROGATIVES....4
A.
B.
C.
D.
E.
F.

Presidents Initiatives are Unconstitutional Usurpation of

CongressRole......................................................................................... 4
Setting Policy Does Not Empower DHS to Rewrite Legislation............ 9
Congress Has Signaled Disapproval, not Approval................................11
Evidence After Closing Record Reveals Mandatory Nature of Rule.....12
Appellees Programs Must Comply with Administrative
Procedures Act .......................................................................................13
Appellant is Within Zone of Interests Under APA.................................16

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

A.
Appellants 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 Dont 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.
B.
C.

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

Appellees Oppose a Lawsuit Sheriff Arpaio Never Filed......................32
Appellees Placed No Evidence in the Record of any Benefits..............32

CONCLUSION.......................................................................................................33
CERTIFICATE OF COMPLIANCE......................................................................34
CERTIFICATE OF SERVICE...............................................................................35

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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 Govt Assn v. Dept 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.

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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 Intl 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

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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

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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
Appellants counsel argued to the Honorable Beryl Howell, below, this case
implicates the rule of law and the integrity of our nations 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

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-obamaimmigration-interview-20141123-story.html

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

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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. (JA161188;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 Sheriffs jails was $9,293,619.96. (JA 660).
The District Court also ruled that the court did not have the power to redress
Sheriff Arpaios 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 Courts ruling, this Court

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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. Presidents 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,

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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
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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 unlawfullypresent 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 laws administration, it does not include unilateral implementation of

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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 OLCs 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 Congresss 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 Securitys Authority to Prioritize Removal of

Certain Aliens Unlawfully Present in the United States and to Defer Removal of
Others Nov. 19, 2014.
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(JA 61-99) However,

In the framework of our Constitution, the Presidents 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). Congresss
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

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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 Secretarys
3

To avoid ambiguity in abbreviating Appellant and Appellees.

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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 Hanens 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 nonenforcement 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.

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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

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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 Johnsons 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.

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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 APAs 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
Intl 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 Govt Assn v.
Dept of State, 780 F.2d 86, 93 (D.C. Cir. 1986); see also Continental Airlines, Inc.

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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 nonenforcement 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 Services4 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 agencys 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
youre not going to be deported. Id. This is substantive law, not guidance.

INS is now the U.S. Citizenship and Immigration Services (USCIS) and
Immigration and Customs Enforcement (ICE).
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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 EPAs Administrator erred in declining to adhere to the noticeand-comment requirements of section 553 of the APA. The D.C. Circuit

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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 Johnsons 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 INAs 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,

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

II.

APPELLANT HAS STANDING FOR THE CASE HE BROUGHT

A. Appellants 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 Appellants 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 Sheriffs 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.

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Appellants 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 drivers
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 drivers 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.
Appellants allegations and sworn declarations stand uncontroverted.
Appellees only response was to refuse to believe Appellants 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.

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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 cases 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

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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 Appellants 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 705764).
Appellees had the opportunity to marshal the information and analytical
resources of the entire U.S. Government. The U.S. Department of Justice has

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collected extensive data about Maricopa County and Sheriff Arpaios 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, Plaintiffs 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
Appellants 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 Appellants 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

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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 [plaintiffs] office to
expend resources in a manner that he deems suboptimal. JA
784. The district court instead ruled that plaintiffs 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 [plaintiffs] 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:

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Ultimately, the plaintiffs 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 manyor 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 Appellants 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 Arpaios 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

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imposed upon Sheriff Arpaios 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 Deputys 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 Arizonas 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.
5

Appellant has standing to require that

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

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whatever burdens Appellees place upon his Sheriffs 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 Obamas 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 Sheriffs office witnesses and experiences a
noticeable increase in crime within my jurisdiction in
Maricopa County, Arizona, resulting from illegal aliens
crossing our Nations 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 Obamas DACA program and will
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be similarly harmed by his new Executive Order effectively

granting amnesty to illegal aliens.
29: Defendant Obamas past promises of amnesty and his
DACA amnesty have directly burdened and interfered with the
operations of the Sheriffs Office, and Defendant Obamas new
amnesty program will greatly increase the burden and
disruption of the Sheriffs 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 Dont Believe You is not a Valid Challenge to Standing.
Simply pleading I dont 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 Appellants sworn declarations.
Appellants 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).

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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.
Appellants 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 Arpaios 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 Arpaios real-world empirical experience in the field provides a
factual grounding that a courts legal analysis from afar cannot. See, e.g., Fox v.

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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 Appellants 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 Appellants 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 Courts orders.
In effect, Appellees are arguing that the Executive Branch will not obey this
Courts 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.

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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 FDAs 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 agencys failure to regulate the chemical was a
contributing factor to the injury. Id. at 85. Here, Appellees insist that their

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programs must be the sole and exclusive cause of one hundred percent of a
plaintiffs harm.
Clearly, illegal aliens who are completely absent from U.S. territory can no
longer burden Sheriff Arpaios 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. Appellants 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.

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They just disagree with the INAs 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

of staff for Appellants 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 Appellants 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 Americas government rather than
simply include within the Presidents Budget a request for funding.

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

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

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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.
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Tel: (310) 595-0800
Email: leklayman@gmail.com

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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.
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Tel: (310) 595-0800
Email: leklayman@gmail.com

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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
Scott.McIntosh@usdoj.gov
Jeffrey.Clair@usdoj.gov
William.E.Havemann@usdoj.gov
Attorneys for Defendants-Appellees

Respectfully Submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
D.C. Bar No. 334581
Freedom Watch, Inc.
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Tel: (310) 595-0800
Email: leklayman@gmail.com

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Exhibit 1

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

STATE OF TEXAS, et al.

Plaintiffs,

Case No. 1:14-cv-254

v.
UNITED STATES OF AMERICA, et al.

Defendants

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 Arpaios 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 Courts 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.

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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

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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
leklayman@gmail.com
Of Counsel

Virginia State Bar No. 41058

Freedom Watch, Inc.
2020 Pennsylvania Avenue N.W., Suite 345
Washington, D.C. 20006
(310) 595-0800
leklayman@gmail.com
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
Districts Electronic Case Filing system.

Page 1 of 2

Immigration Action | U.S. Customs and Border Protection

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Official website of the Department of Homeland Security

U.S. Customs and

Border Protection

Immigration Action
CBP'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 Secretarys 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:

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

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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 CBPs 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 CBPs 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 ICEs 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.

Tags: Border Security

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

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USCIS to Begin Accepting Requests for Expanded DACA on Feb. 18

U.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 Obamas 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

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

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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 weve 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 theyre going to be answerable to the head of Homeland Security
because hes 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 were still going to pass a law through
Congress. The bottom line is Im using all the legal power invested in me in order to solve this problem.
If somebodys working for ICE and they dont follow the policy, theres 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 wont be deporting people like this? I mean, what are the consequences
THE PRESIDENT: Jos, look, the bottom line is, is that if somebody is working for ICE and there is a policy and
they dont follow the policy, there are going to be consequences to it. So I cant speak to a specific problem. What I
can talk about is whats true in the government, generally.
In the U.S. military, when you get an order, youre expected to follow it. It doesnt mean that everybody follows the
order. If they dont, theyve got a problem. And the same is going to be true with respect to the policies that were
putting forward.

Rep. Gowdy has a stern message for those who support

Obama's immigration plans
Washington Examiner

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Copyright 2015 Weekly Standard LLC.
Source URL: http://www.weeklystandard.com/blogs/obama-consequences-ice-officials-who-dont-follow-executiveamnesty_866479.html

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page, please click here.

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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